“The day after the first episode aired, Utah state officials publicly denounced the Brown family as criminals and opened an investigation under the state’s anti-bigamy statute, which – unlike that of other states – prohibits not only the practice of polygamy, but also the mere practice of cohabitation by married persons. …Prosecutors later gave public interviews discussing the Brown family and their alleged crime of polygamy. …The Respondent, through his subordinate, publicly accused the Brown family of committing felonies every night on television and stated that ‘The Sister Wives’ television program would make their prosecution ‘easier.'”
As a formal “investigation” was initiated against them, the Browns fled Utah and moved to Nevada. Attorney Jonathan Turley filed the case, now identified as Brown v. Buhman, on July 13, 2011, asserting that Utah’s anti-bigamy law was unconstitutional. Prosecutors said the family’s emigration to another State would not stop their investigation to prosecute the Browns for polygamy in Utah, even as the Prosecutors filed a motion to get the case dismissed in early 2012.
After that motion was denied, the Prosecutors “conveniently” invented/declared a new “UCAO policy.” This new and deliberately non-binding policy proclaimed that the Utah County Attorney’s Office would no longer prosecute the Browns or other unrelated consenting adult polygamous families formed only on religious beliefs. With that new “UCAO policy,” the prosecutors filed yet another motion to dismiss the Brown v. Buhman case on May 31, 2012. As the Petition for a Writ of Certiorari explains to the Supreme Court,
“The district court again denied the motion, citing this Court’s instruction that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,’ …and that any assertion to the contrary faces the ‘heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.’ …In this case, the district court noted that the government had not abandoned its constitutional defense of the [anti-bigamy] statute, …and that its new prosecution policy was ‘at most, an exercise of prosecutorial discretion that could be reversed at any time.'”
The courts of appeals are squarely divided over the extent to which the voluntary cessation doctrine permits the government to moot a constitutional challenge by changing its enforcement policy during the pendency of litigation, as well as whether a district court’s factual findings under the doctrine should be reviewed de novo or for clear error or abuse of discretion.
Essentially, the petition observes that among the separate federal Circuits (of Appeals courts), some have more permissive tests and standards of review regarding the “voluntary cessation doctrine” than others. This disparity among the Circuits creates a non-uniformity of the treatment of law around the country, whereas uniformity of “equal treatment under the law” is Constitutionally required.
Hence, in a different Circuit Court of Appeals (i.e., not the Tenth Circuit), in one that uses a less permissive test and standard of review regarding the “voluntary cessation doctrine,” the after-the-fact “UCAO policy” would not have been allowed to be applied to so-artificially moot the standing of the Brown family to thereby permissively reverse the lower court decisions of the Brown v. Buhman case.
Requesting that the Supreme Court use the Brown v. Buhman case as the vehicle to decide and establish that uniformity (once and for all) defines the technical premise of the Petition for a Writ of Certiorari. That is to say, the petition was not so much about polygamy itself, but about addressing the wrongness of the case being reversed due to the tyranny of such “convenient” exploitation of prosecutorial discretion, being identified as “voluntary cessation doctrine.”
So that, then, raises the question: will the actual merits of the case even be heard by the Supreme Court?
If SCOTUS decides that the conclusions made in the Brown family’s petition are valid, that type of decision will reverse the Tenth Circuit’s reversal, bringing the status of the case back to the prior positive results from the District Court decisions. Will SCOTUS then let that status stand as it was, or will they actually have a hearing of the actual merits of the case?
If SCOTUS rather-lazily refuses to even consider the case, the result will not only deny Brown v. Buhman from even achieving anything at all in the fight for rights and freedom for unrelated consenting adult polygamy, but it will also maintain the unconstitutional non-uniformity among the differing federal Circuit Appeals Courts too.
If SCOTUS actually affirms and establishes the Tenth Circuit’s rather permissive test and standard of review regarding the “voluntary cessation doctrine” to become the nationwide uniform application, the Brown v. Buhman case will effectively be finished, fully depriving unrelated consenting adult polygamists of the valid right to fight against provably unconstitutional law.
Whether or not one supports polygamy, anything but the first of those three possibilities will, undoubtedly, present a profound threat to the liberty of all citizens of the United States. Ergo, this “polygamy case” before the Court now has far broader impact than when it began.
As of this writing, what happens next is up to the Supreme Court of the United States.