This afternoon, the Brown family filed its appeal with the United States Supreme Court in the “Sister Wives” case. The case is Brown v. Buhman, No. 14-4117. As lead counsel for the Browns, I am joined on the petition by co-counsel Thomas Huff and we benefited from the input of our long-time co-counsel in Utah, Adam Alba. The petition asks the Court to resolve a longstanding conflict among the courts of appeals concerning the extent to which the government can strategically moot a constitutional challenge to a statute by announcing a new non-enforcement policy during the pendency of litigation. The petition is attached below.
Last April, 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 mootness grounds and did not address the merits of the constitutional violations committed in the case.
In 2014, United States District Court Judge Clark Waddoups handed down his final ruling in favor of the Browns on the last remaining count. Previously, Judge Waddoups handed down an historic ruling striking down key portions of the Utah polygamy law as unconstitutional.
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 Tenth Circuit did not reach any of the constitutional violations of religious freedom, equal protection, due process, or free speech. Instead, it ruled that the district court should have dismissed the case after Buhman announced, in the middle of litigation, that he no longer intended to prosecute the Browns and others similarly situated. Even though Buhman continued to defend the statute’s constitutionality, the panel said that it would not consider his timing and motives in issuing this new “policy” change, expressly concluding that “it does not matter [if] the prosecutor ruled out prosecution because he wished to prevent adjudication of the federal claim on the merits.” The panel acknowledged that a future County Attorney could change this policy at will, but ruled that this possibility too was insufficient to defeat mootness.
This case has now moved from the appellate court to the Supreme Court, 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 the Tenth Circuit 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 striking down the cohabitation language 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 of Judge Waddoups prevented was the targeting of plural families simply because of their consensual religious practices or relationships.
The writ petition points out that the Tenth Circuit applies a standard very different from other circuits in determining whether a case is moot due to “voluntary cessation.” It also challenges the Tenth Circuit’s practice of using a de novo standard of review to make its own findings of fact, which in this case allowed the panel to set aside several findings of fact that were not only established by Judge Waddoups, but virtually unchallenged by the government. These issues have divided the courts of appeals for many years now and warrant the Court’s review, according to the Brown petition.argues that the Tenth Circuit applied a standard different from other circuits in declaring the case moot due to “voluntary cessation.” It also challenges the decision of the Tenth Circuit to ignore the findings of fact that were not only established by Judge Waddoups but virtually unchallenged by the government. Those and other errors warrant review, according to the Brown petition.
This is a legal battle that began six years ago with the airing of the first episode of the Sister Wives and the announcement of a criminal investigation by Mr. Buhman. We have now reached the final stage in this long legal saga that has taken us from Salt Lake City to Denver to Washington, D.C. This has been a extended and difficult struggle for the Brown family but they have never wavered in their commitment to defending the important principles of religious freedom in this case. We will now wait for decision of our highest court.
Lead Counsel for the Brown Family
Here is the Brown Petition: sisters-wives-petition