This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Ken Driggs, a semi-retired attorney in Atlanta who has studied Fundamentalist Mormons and the law has sent Utah Gov. Gary Herbert a 16-page memorandum urging him to veto a bill aimed at polygamists.
Driggs claims there are some practical problems with the bill, starting with how any case brought to trial will be "pounced on by freak show journalists and present Utah and Mormons in a bad light." He also points out that the bill, HB99, would make relations between three people who purport to be married a felony while people who do not purport to be married could do the same things legally.
But most of Driggs criticisms of HB99 is over who wrote it, voted for it and why. The bill's sponsor was Rep. Mike Noel, R-Kanab. Like Driggs, Noel is a member of The Church of Jesus Christ of Latter-day Saints. That church officially abandoned polygamy in 1890 and excommunicates members found practicing it.
Driggs memo notes that Noel on the floor of the Utah House of Representatives said he was bothered by polygamists who use the term "Fundamentalist Mormon."
"They are an apostate group and they are no part of my religion," Noel said.
Driggs said any court looking at whether HB99 is constitutional can take into consideration what Noel and other politicians have said.
Driggs also compares segregation against blacks in the southern United States to Utah legislators' views on polygamists.
Driggs is a former defense attorney on death penalty cases in Florida, Texas and Georgia and has litigated a lot of constitutional law. He also has studied Fundamentalist Mormons, polygamy and the legal history of both. His memo to Herbert includes case law citations and footnotes.
Herbert could decide any day whether to sign or veto HB99. It adds criteria for being prosecuted for bigamy: The offender must live with the extra spouse and "purport" to be married. Current state law requires only one or the other.
The bill would keep the offense a third-degree felony punishable by up to five years in prison, but those penalties could increase to 15 years if bigamy is prosecuted in conjunction with crimes such as abuse, fraud or human smuggling. Anyone leaving a polygamous marriage and reporting abuse or protecting a child would receive amnesty.
No one supporting HB99 has sent me a legal analysis, though a representative of the Utah Attorney General's Office testified in favor of it at the Legislature. So did Doug White, a lawyer who has represented men and women leaving polygamous families.
The Attorney General's Office has a policy of not prosecuting polygamists who are consenting adults and who are violating no other laws. Driggs analysis doesn't make mention of that. Constitutionally speaking, he doesn't seem to make a distinction between using the bill to prosecute polygamists versus using it to prosecute polygamists who are committing frauds or abuses.
You can read Driggs' memo by clicking here.
ncarlisle@sltrib.com
Twitter: @natecarlisle