SALT LAKE CITY — In new court filings obtained by FOX 13, the Utah Attorney General’s Office insists that prosecutors had no plans to prosecute reality TV polygamist Kody Brown and his wives for bigamy.
But Brown and his wives, Meri, Janelle, Christine and Robyn, claim they still live in fear of being prosecuted.
The filings are in response to questions from the 10th U.S. Circuit Court of Appeals in Denver, which is hearing arguments later this month in the state’s appeal of a judge’s decision to strike down parts of Utah’s polygamy ban. The three judges of the 10th Circuit Court want to know if the Browns have any standing to pursue their lawsuit, and if they really faced any threat of prosecution.
The state of Utah says no, they didn’t.
“The practice of the Utah Attorney General’s office is not to prosecute polygamists living in Utah under Utah’s criminal bigamy statue merely because of their polygamist practice,” Utah’s Federal Solicitor Parker Douglas wrote in a court filing, adding that past prosecutions of polygamists involved other crimes, such as underage marriages.
While acknowledging that Utah County Attorney Jeffrey Buhman did not explicitly have such a policy in his office, the state insisted that a decision had been made not to prosecute the Browns — unless the investigation found evidence of welfare fraud, spousal or child abuse.
“In this particular case, the Browns never had standing for the simple fact that a county attorney’s receipt of a report from a local police department does not automatically mean the county attorney will file charges. Not all police reports result in prosecutors filing criminal charges,” Douglas wrote.
The Browns came under investigation by Lehi police when they first began appearing on their TLC reality show “Sister Wives.” Fearing prosecution, the family moved to Nevada where they continue to appear on the cable show. They sued the state over its polygamy ban, arguing it violated their constitutional rights to freedom of religion and privacy.
“The Brown family expressly indicated their intent to engage in conduct affected with a constitutional interest but proscribed by the Utah bigamy statute,” Brown family attorney Jonathan Turley wrote in his court filing.
Turley said they still remain under threat of prosecution, despite a declaration from Buhman that they would not face criminal charges.
“Even after an eighteen-month delay, Buhman did not deny that the Browns could still be prosecuted for cohabitation and that his declaration had no binding legal effect. Buhman has continued to maintain that plural families are inherently abusive and that the state has a right to prosecute cohabitation,” he wrote.
In 2014 — a week before another federal judge in Salt Lake City struck down Utah’s same-sex marriage ban — U.S. District Court Judge Clark Waddoups struck down the cohabitation prong of the state’s anti-bigamy laws. Utah has appealed, asking the courts to uphold the polygamy ban, arguing that the laws help guard against other crimes that affect polygamous societies (pointing to imprisoned FLDS leader Warren Jeffs).