SALT LAKE CITY — Utah Attorney General Mark Shurtleff wants a federal judge to dismiss a polygamous family's lawsuit challenging the state's bigamy law, contending the stars of "Sister Wives" lack standing to do so.
Kody Brown and his four wives have failed to show that their constitutional rights were violated as a result of the statute, according to a motion filed in U.S. District Court.
"The Brown family is hardly the only polygamist family in Utah," the 15-page memorandum says, noting there are about 30,000 polygimists in the state. "There are not 30,000 cases currently being prosecuted in Utah — there is not even one."
Utah County Attorney Jeff Buhman has threatened to file charges against the Browns since their television reality show "Sister Wives" debuted last September. And their lawyer, Jonathan Turley, said that alone is enough to put the family in a position to sue the state over the bigamy law.
In filing the suit against the state and county last month, Turley said the Browns, who moved to Nevada in January, are not demanding recognition of their polygamous marriage. The lawsuit questions the right of the state to prosecute people for their private relations and demands equal treatment with those living according to the beliefs.
Turley called the state's motion an effort to avoid scrutiny of a "facially unconstitutional" law.
"Under this extreme position, state officials can criminalize any private relationship while denying the right of citizens to challenge the law, even when those citizens are denounced as presumptive felons by prosecutors in the media," he said. "We will vigorously oppose the effort to close the door of the courthouse to this family."
In a declaration filed along with the attorney general's motion, Buhman wrote that he has not "publicly stated" whether he will prosecute, an indication that perhaps he has made up his mind.
Filing charges now might actually weaken the state's defense because it could lend credence to the Brown's contention that the bigamy law has limited their rights.
University of Utah law professor Paul Cassell said prosecuting the Browns now would create a "live" question about whether the law is constitutional. Federal courts are reticent to take on cases that aren't "ripe" or that lack controversy. Charges could change the tenor of the issue.
Assistant attorney general Jerrold Jensen argues in the memorandum that the Browns have not shown even a "credible threat" of prosecution because the attorney general's office does not go after polygamists unless it suspects other crimes such as child abuse. Although Utah County does not have such a policy, its track record "belies any likely prosecution."
No one in the county attorney's office could recall prosecuting anyone for polygamy, Buhman wrote.
Only three Utah polygamists since 1960 have been prosecuted under the bigamy law but only in conjunction with other crimes, according to the state's memorandum.
Court documents say the Browns were open about their polygamous lifestyle before their reality show aired and were well known to both state and county officials.
"Now, however, plaintiffs claim that because they became the subject of 'Sister Wives' and the Lehi city police reported that to the Utah County Attorney's Office that they are now somehow the target of prosecution," the memorandum states.
Buhman's declaration said little was revealed in the police report that was not made public in the TV show's first episode last September.
The second season of "Sister Wives" is set to begin later this month on TLC. The program chronicles the lives of Kody Brown and his wives Meri, Janelle, Christine and Robyn and their 16 (soon to be 17) children
(Source: Deseret News)
Kody Brown and his four wives have failed to show that their constitutional rights were violated as a result of the statute, according to a motion filed in U.S. District Court.
"The Brown family is hardly the only polygamist family in Utah," the 15-page memorandum says, noting there are about 30,000 polygimists in the state. "There are not 30,000 cases currently being prosecuted in Utah — there is not even one."
In filing the suit against the state and county last month, Turley said the Browns, who moved to Nevada in January, are not demanding recognition of their polygamous marriage. The lawsuit questions the right of the state to prosecute people for their private relations and demands equal treatment with those living according to the beliefs.
Turley called the state's motion an effort to avoid scrutiny of a "facially unconstitutional" law.
"Under this extreme position, state officials can criminalize any private relationship while denying the right of citizens to challenge the law, even when those citizens are denounced as presumptive felons by prosecutors in the media," he said. "We will vigorously oppose the effort to close the door of the courthouse to this family."
In a declaration filed along with the attorney general's motion, Buhman wrote that he has not "publicly stated" whether he will prosecute, an indication that perhaps he has made up his mind.
Filing charges now might actually weaken the state's defense because it could lend credence to the Brown's contention that the bigamy law has limited their rights.
University of Utah law professor Paul Cassell said prosecuting the Browns now would create a "live" question about whether the law is constitutional. Federal courts are reticent to take on cases that aren't "ripe" or that lack controversy. Charges could change the tenor of the issue.
Assistant attorney general Jerrold Jensen argues in the memorandum that the Browns have not shown even a "credible threat" of prosecution because the attorney general's office does not go after polygamists unless it suspects other crimes such as child abuse. Although Utah County does not have such a policy, its track record "belies any likely prosecution."
No one in the county attorney's office could recall prosecuting anyone for polygamy, Buhman wrote.
Only three Utah polygamists since 1960 have been prosecuted under the bigamy law but only in conjunction with other crimes, according to the state's memorandum.
Court documents say the Browns were open about their polygamous lifestyle before their reality show aired and were well known to both state and county officials.
"Now, however, plaintiffs claim that because they became the subject of 'Sister Wives' and the Lehi city police reported that to the Utah County Attorney's Office that they are now somehow the target of prosecution," the memorandum states.
Buhman's declaration said little was revealed in the police report that was not made public in the TV show's first episode last September.
The second season of "Sister Wives" is set to begin later this month on TLC. The program chronicles the lives of Kody Brown and his wives Meri, Janelle, Christine and Robyn and their 16 (soon to be 17) children
(Source: Deseret News)
The Utah AG has known this is a crap law for a long time, which is why they don't enforce it. It's not fair for Utah to call them felons in the paper and then turn around and say we don't enforce our own laws. The kicker is that the Brown case is still open! They still won't promise not to prosecute!
ReplyDeleteI think the Browns are going to win. As much as I hate polygamy and the Browns, it is a crap law. This could be a big problem for mainstream Mormons...
The law historically is only enforced when the defendant(s) are charged with other crimes, or in the worst case scenario when the prosecutors cannot get enough corroborated evidence for the more serious crimes.
ReplyDeleteI think the stain of the FLDS' crimes against women and children is too fresh in the minds of most jurists in the region and most judges know just how/why this law is used. The preponderance of polygamy is NOT the Browns, it is mostly used in destructive cults. Also, it is in the interests of the LDS church to keep cohabitation as an illegal act (although a third degree felony may be too harsh). So, for these reasons, I believe the Browns' case will most likely be dismissed (and also for the reasons outlined in the Motion for Dismissal, and in my previous posts).
I could be very wrong, but I don't think this is the case to properly challenge the law. One of the Browns would have had to have been arrested and convicted before they have grounds to challenge the law. Who knows in the end.....we may have a judge that is a TLC addict.
I'd like to see the Browns prosecuted for abusing food stamps and lying on bankruptcy applications. That has merit.
ReplyDeleteWhen the county threatened them in the paper, they changed everything. They should have just kept their mouths shut and let the Mormons run them off.
ReplyDeleteAmen Anon and off again.
ReplyDeleteAnd, criminals get their own show!
ReplyDeleteIt's not a crap law. What if your husband decided to 'marry' someone behind your back? If he took half your financial resources to support another family, you get cheated in more ways than one, and he would be within his legal rights to do it. These "consenting" polygamist adults aim to do away with a bigamy law that protects everyone, and all for their own best interests.
ReplyDeleteIt's a crap law because that is called a "baby momma" to everyone else, and there's nothing illegal about adultery. But if you call her a "wife" you are a felon. That's the problem. The AG already knows that -- they can't defend this law in the long term.
ReplyDeleteActually, in many states, adultery IS illegal and is usually not prosecuted. However, if you have a particularly ugly divorce, the ex can run you up a flagpole for "dating" before the ink is dry.
ReplyDeleteI would think if polygamy is legalized, there would have to be some paperwork where all partners are aware of and agree to the marriage. After all, you can't get married to ONE person if that person is not open to marrying you.
When a mainstream woman's husband is dipping into her funds to pay half of his baby mommas' mortgages, car payments, insurances, gas, utilities, grocery bills, credit cards, phone bills, clothing costs, and other litle extras, she will appreciate the law against it.
ReplyDeleteAnd if his baby mommas each have 7 babies, she will divorce him or kill him.
Polygamy harms society.
I think I may need to clear up some things for you all:
ReplyDelete1. The law that is being challenged is not bigamy (where you have more than one LEGAL spouse). The law in question prohibits a married couple from 'cohabitation' with another adult and calling that spouse a 'spirit spouse'. All three adults would be breaking the law, not just the male head of the household.
2. From what I know of most states, Utah is the only state that still prohibits this type of cohabitation arrangement. In order for Utah to gain statehood, the Mormons had to publicly prohibit polygyny (where one husband has multiple spouse-like relationships, more commonly known as polygamy), so this law didn't die out and was frequently used up until the late 20th Century.
3. Although the Browns kept saying that they didn't want Kody to go to 'jail' (it is not likely that he would have spent anytime behind bars after posting bail), all the wives were also at risk for being arrested. But no judge would send all of those kids into foster care so if anyone was to spend time in 'jail', it would have been Kody. I do believe this is why the wives were more freaked out than seemed logical.
Welfare fraud is another story entirely. And the Browns were incredibly naive to think that their bankruptcy paperwork wouldn't be reviewed/dissected by powerful LDSers trying to keep their polygamy from the national discussion.
I find the Browns' decision-making process very flawed and lacking thought into potential consequences. Every decision they've made thus far has done nothing but create family strife and seems to only be in the best interest of Kody. The only decision they made that I agreed with was not letting Mariah stay in Utah.
Oh well, I guess they are dealing with the emotional toll it took on their kids. We'll see more on the 25th.
Thank you FM- I wonder why there are no repercussion over the Bankruptcy papers. I always look forward to you posts!
ReplyDeleteThe statute of limitations is 2 years for bankruptcy fraud. That is why no prosecution. Also, the FBI prosecutes bankruptcy crimes, and they just don't have the time to go after this case, even if they knew about it before 2008.
ReplyDeleteChristine's was in 2010, but, like you say, I doubt it's big enough to go after.
ReplyDeleteI love going to work everyday, working overtime, missing my own children's school functions so I can pay into a system that allows Kody soooo much money that he can file a lawsuit cause his feelings were hurt.
ReplyDeleteSeriously, get real here. These people abuse the system. It's sick. Disgusts Me!!!