SALT LAKE CITY, May 1 (UPI) — A complaint filed with the Utah State Bar that claims seven attorneys should not be allowed to practice because they are polygamists could provide grounds for a constitutional challenge to the state’s bigamy law.
Drew Briney, a star in the polygamy reality show “Seeking Sister Wife,” said the complaint could become a test case on the constitutionality of the bigamy statute. He’s happy that it names several attorneys at once because they will be able to put up a united defense.
“It’s great news from that perspective — they chose the perfect group of people to challenge the law so I’m elated about that. I’m sorry for the grief it will cause them,” Briney, who is not a party in the case, wrote on his family blog.
The complaint against the lawyers was filed in April by Melissa Ellis, who grew up as a member of the Davis County Cooperative Society, a polygamous sect that also is known as the Kingston clan or the Kingston group. She was the first wife of her ex-husband and left him and the polygamous community in 2012 because he was pursuing a second wife, Ellis said.
Both have since remarried. Ellis said her ex-husband did not take a second wife while married and has never been a polygamist.
Ellis and her ex-husband are fighting over custody of their four children. He has been represented at times by two of the lawyers in the complaint, possibly for free, while she struggles to pay an attorney to represent her.
Ellis is frustrated that lawyers who she believes are breaking the law are allowed to practice law.
“I’m fighting back,” she said. “If those attorneys didn’t have their licenses, then he wouldn’t have them to attack me.”
Under Utah law, a person is guilty of bigamy when he or she has a husband or wife, purports to marry someone else and cohabitates with that person. The law also applies to those who marry someone who they know already has a spouse. A marriage license is not needed to prove bigamy under these circumstances.
Bigamy is a felony in Utah punishable by up to five years in prison, with the penalty increasing to up to 15 years if the offender is also convicted during the same prosecution of a crime like fraud or domestic abuse.
The lawyers named in the complaint, five men and two women, declined to comment. Bar rules require parties to a discipline action to maintain confidentiality unless the complaint is sustained. An investigation can take months.
Polygamy has been the subject of heated debate in Utah since 1852, when members of The Church of Jesus Christ of Latter-day Saints began to openly practice it. The LDS Church officially abandoned polygamy in 1890 and excommunicates members who practice it.
Salt Lake City attorney Adam Alba said merely being investigated on allegations they are violating rules of conduct would not give the lawyers grounds for a challenge. A license suspension or disbarment, though, would be an injury that gives a lawyer standing to bring the matter to court, he said.
“The precedent for challenging the criminalization of bigamy could be there,” said Alba, who is not involved in the bar case.
He emphasized, however, that there has to be some actual harm for being a polygamist to win a ruling that finds the portion of the law affecting polygamous relationships is unconstitutional.
“There really isn’t going to be a good test case until a prosecutor or a bar actually imposes significant consequences,” said Alba, who was a member of a legal team that represented the Brown family of Sister Wives, a reality television show, in a challenge to the bigamy law several years ago.
Ken Driggs, a retired Atlanta criminal defense attorney and legal historian who has written about polygamy, believes the complaint could set another type of precedent.
“If the bar disciplines these members, it opens the door up for other regulated professions,” Driggs wrote in an email to UPI. “Doctors. I know at least one plural wife physician. Accountants. Nurses. Financial professions. School teachers. Sounds like a can of worms to me.”
Briney said he practiced solo for many years to avoid causing trouble for any potential partner if the bar learned of his lifestyle. In his blog, he wrote that he quit practicing law because he became sick of the “incessant, bigoted harassment of my peers by legislators, police officers, judges, attorneys, businessmen, local governments and many members of the public.”
Whether Ellis’ state bar complaint will reach the point of sanctions remains to be seen. Bar rules describe professional misconduct as acts involving dishonesty, fraud, deceit or misrepresentation, and also as a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.
In a 2011 decision involving the suspension of a lawyer who misappropriated a client’s money, the Utah Supreme Court noted that some kinds of offenses do not implicate an attorney’s fitness to practice law, including adultery and comparable offenses.
The lack of significant consequences in the Brown case led to an eventual court loss. Despite not being charged with a crime, Kody Brown and his four wives sued the Utah County Attorney’s Office after Lehi police investigated whether they were breaking the bigamy statute.
Their lawyers argued the Browns had a right to practice polygamy through “spiritual” marriages. In 2013, U.S. District Judge Clark Waddoups in Salt Lake City struck down as unconstitutional the portion of the statute affecting the family. The judge left in place the prohibition against “bigamy in the literal sense — the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage.”
In 2017, the 10th U.S. Circuit Court of Appeals in Denver overturned Waddoups, ruling that the Browns lacked standing to file their suit because they had not been charged or otherwise harmed. The appeals court did not rule on whether the bigamy law was constitutional.