Challenge to Utah’s anti-bigamy law is not moot

Howard Friedman, Religion Clause

In Brown v. Herbert, (D UT, Aug. 17, 2012), a Utah federal district court denied a motion made by the county attorney of Utah County, Utah, to dismiss as moot a challenge to the state’s Anti-Bigamy statute brought by members of an openly polygamous family (subjects of the television show Sister Wives). (See prior related posting.) County Attorney Jeffrey Buhman argued that his office has recently adopted a policy of not prosecuting under the statute unless there has been some other criminal conduct as well.  The court said however:


While it may be the case that Mr. Buhman believes that prosecution of Plaintiffs would be inappropriate in this circumstance, there is no reason to believe that such a determination is anything beyond an exercise of prosecutorial discretion that could be easily reversed in the future by a successor Utah County Attorney, or by Mr. Buhman himself, if he should change his mind.  As a result, Mr. Buhman’s adoption of the non-prosecution policy at issue in this matter is not sufficient to establish that future prosecution of Plaintiffs is unlikely to recur.