This afternoon, the United States Court of Appeals for the Tenth Circuit issued its decision in Brown v. Buhman, No. 14-4117, reversing the decision striking down the cohabitation provision of the Utah polygamy law. The opinion of the panel is attached below. The panel ruled entirely on standing grounds and did not address the merits of the constitutional violations committed in the case. As lead counsel in the case, I have been going over the opinion with our team including our local counsel, Adam Alba, as well as the Brown family. We respectfully disagree with the panel on its interpretation of the governing law and we will appeal the decision.
In 2014, United States District Court Judge Clark Waddoups handed down his final ruling in favor of my clients in the Sister Wives case. Previously, Judge Waddoups handed down an historic ruling striking down key portions of the Utah polygamy law as unconstitutional. Only one count remained: the Section 1983 claim that state officials (notably prosecutor Jeffrey R. Buhman) violated the constitutional rights of the Brown family in years of criminal investigation and public accusations.
The panel did not reach any of the constitutional violations. Instead, it ruled that the district court should have dismissed the case after Buhman changed his policy and said that he had no further intention to prosecute the Browns.
Notably, in his appeal, Buhman did not challenge the facts or holdings in the prior standing and mootness decisions. Buhman did not contest that the appellate panel should reach the merits of the decision below and did not claim that the case was moot. He also did not challenge the factual findings below. He did not challenge prosecutors targeted the Brown family after their public discussions of their cohabitation, including television interviews and university presentations. Defense counsel admitted to “endless” condemnations by the Attorney General of polygamists and express public condemnations of plural family members as “criminals.” Buhman admitted that the law is a “means” to make it easier to investigate and perform searches or seizures on plural families (while other families do not face the same risk). It was also uncontested that the Brown family “fled from Utah to Nevada for fear that they would be criminally prosecuted for practicing bigamy.” The lower court found that past prosecutions discredited assertions that no “credible threat of prosecution exists.” Judge Waddoups also found that “Utah County expressly declined to disavow that Plaintiffs may be prosecuted for bigamy” during most of the pendency of the trial proceedings. The court found that Buhman’s belated issuance of a new “policy” only was made after losing key motions in court and facing a final decision. The trial court refused to yield to such a tactical move and questioned both the existence of a real policy and the guarantee that the Browns would not be prosecuted.
The panel said that it would not consider the motivation of Buhman in issuing his “policy” change and said that the trial must effectively take it on face value. It also said that it was not convinced that the Browns wanted or intended to return to Utah despite various uncontested and sworn declarations to that fact. Indeed, the Browns have never sold their home in Utah (over the course of this litigation) in the hope of returning to the state without the fear of prosecution or harassment.
The panel also rejected the factors used in prior cases that were relied upon by both the lower court and the Brown family. Specifically, the Browns argued that the so-called “Winsness factors” had been applied by the Tenth Circuit to reject the same type of mootness claims in prior cases. While acknowledging that it had cited and relied on these factors in rejecting past mootness claims, the panel ruled that it would not consider those factors as controlling in this case.
The Brown family is obviously disappointed in the ruling but remains committed to this fight for the protections of religion, speech, and privacy in Utah. They respect the panel’s consideration of the appeal and the review process afforded their case.
We respectfully disagree with the decision, which in our view departs from prior rulings on standing and mootness. We have the option of seeking the review of the entire Tenth Circuit or filing directly with the Supreme Court. We also have the ability to seek a rehearing from the panel. We will be exploring those options in the coming days. However, it is our intention to appeal the decision of the panel. While we respect the panel and its lengthy analysis, we believe that the opinion rests on a flawed understanding of both the facts and governing law in this case, including controlling Supreme Court cases.
This case will now go forward as both sides anticipated. The underlying rights of religious freedom and free speech are certainly too great to abandon after prevailing below in this case. Equally important is the right for plural families to be heard in federal court, a right sharply curtailed by this decision. Utah is a state that was founded by courageous citizens seeking these very protections from government abuse and religious inequality. This lawsuit is true to the original dream of those seeking freedom in Utah. As Judge Waddoups noted, the lower court decision put Utah in the same position of other states. It allowed the state to prosecute those claiming multiple marriage licenses and did not diminish the state’s ability to prosecute cases of abuse. What the decision prevented was the targeting of plural families simply because of their consensual religious practices or relationships.
This has been a long struggle for the Brown family but they have never wavered in their commitment to defending the important principles of religious freedom in this case. The decision today only deepens their resolve to fight for those same rights. It will be an honor to continue this fight with the Brown family in seeking the recognition of equal religious and speech rights for all families in Utah.
Lead Counsel for the Brown Family