Court Enters Housing and Policing Injunctions Against FLDS-Dominated Towns

In United States v. Town of  Colorado City, Arizona, (D AZ, April 18, 2017), an Arizona federal district court took major steps to attempt to normalize the housing and policing situation in the FLDS-controlled twin towns of Colorado City, Arizona and Hilldale, Utah.  The Justice Department sued the towns under the Fair Housing Act and the Policing Act (42 USC §14141).  In introducing its 54-page opinion setting out detailed injunctive relief, the court said;

The constitutional right to free exercise of religion, on the one hand, and the statutory right to housing and constitutional policing, on the other hand, are vitally important to a viable, peaceful community.... Denial of housing rights and lawful policing to some residents at the behest of the Fundamentalist Church of Jesus Christ of Latter Day Saints ... has cost the cities dearly – millions of dollars – in the past.

.... It is now time for the citizens of Colorado City and City of Hildale to come together and accept the fact that communal ownership of residential property in the Defendant Cities is a thing of the past. All residents of the Defendant Cities must be afforded equal access to housing and residential services, to nondiscriminatory law enforcement, and to free exercise of their religious preferences that are not contrary to law. By this judgment and decree, the court hopes to assist the Defendant Cities and their residents in advancing the protection of civil rights to which they are entitled.

The court ordered the cities to engage an independent monitor to assure housing compliance and hiring of an outside consultant to aid in reorganization and policy changes in the Colorado City Marshall's Office.

Utah Legislature Passes Changes to Polygamy Ban

As reported by AP and CNN, the state legislature late last night gave last minute final passage to HB 99 (full text) amending the state's bigamy law.  It is unclear whether Gov. Gary Herbert will sign the bill.  The bill narrows the definition of bigamy, but increases the penalties if the person prosecuted is also convicted of fraud, abuse or trafficking.  The bill required purporting to marry and cohabiting where either party is already married for a person to be guilty of bigamy.  Current law requires only one of those. Reactions to the law vary.  Sponsors say the change is necessary to protect against constitutional challenges and to focus on those plural marriages which are most problematic.  Opponents say the bill will drive polygamy even further underground.

Supreme Court Denies Review In Challenge To Utah's Polygamy Laws

The U.S. Supreme Court today denied review in Brown v. Buhman, (Docket No. 16-333, cert. denied 1/23/2017). (Order List).  In the case, the U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's anti-polygamy laws that had been filed by the polygamous family from the television show "Sister Wives." (See prior posting.) Salt Lake Tribune reports on the denial of certiorari.

Suit Challenges Utah's "Anti-Gay School Laws"

Suit was filed in Utah federal district court last week challenging Utah's so-called "Anti-Gay School Laws." As summarized in a press release from the National Center for Lesbian Rights:

The lawsuit challenges several Utah laws and regulations that prevent positive portrayals of gay, lesbian, and bisexual people in curricula, classroom discussions, and student clubs. The lawsuit claims that these discriminatory restrictions create a negative environment for LGBT students, perpetuate discrimination and bullying, and contribute to the high rates of anti-LGBT harassment in Utah schools. For instance, one plaintiff experienced severe physical and verbal harassment from other students in his kindergarten class based on his gender non-conformity. When his parents complained to school leaders about the harassment, they were told that the school district could not protect their son because of these discriminatory school laws.

The complaint (full text) in Equality Utah v. Utah State Board of Education,(D UT, filed 10/21/2016), contends that the statutes and regulations being challenged violate the 1st and 14th Amendments, as well as Title IX and the Equal Access Act.

Suit Charges Jehovah's Witness Congregation With Negligence In Employing Sexual Attacker

The Salt Lake Tribune reports on a suit filed in Utah state court last Wednesday against a Roy, Utah, Jehovah's Witness congregation, church leaders, and the Watchtower Bible and Tract Society charging negligence in allowing a man with a history of inappropriate sexual behavior to become an instructor in the church. Plaintiff alleges that she was sexually attacked by the instructor at least three times.  She also charges that the Roy church created a judicial committee to investigate whether the girl engaged in inappropriate sexual behavior, forcing plaintiff and her parents to listen to a 4-5 hour recording of one of the purported sexual attacks on her.

Cert Petition Filed In "Sister Wives" Challenge To Polygamy Law

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Brown v. Buhman.  In the case, U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's bigamy law that had been filed by the polygamous family from the television show "Sister Wives." (See prior posting). A federal district court had held most of Utah's plural marriage ban unconstitutional. (See prior posting.) Jonathan Turley who represents petitioners discusses the filing on his blog.

FLDS Leader and His Law Firm Sued Over Exploitation of Minors

Courthouse News Service reports on a lawsuit filed last week in Utah federal district court by 21 former members of the polygamous FLDS Church and their children.  In a 121-page complaint in Bistline v. Jeffs, (D UT, filed 7/13/2016)  (full text) the suit names as defendants FLDS leader Warren Jeffs, lawyer Rodney Parker and Parker's Utah law firm Snow, Christensen & Martineau, charging:

On or about August 6, 1998, Rulon Jeffs suffered a major stroke which left him largely impaired and paved the way for [Warren] Jeffs to eventually assume complete and absolute control of the FLDS. As Defendant Jeffs assumed greater control over the FLDS ..., the concept of celestial or spiritual “marriage” of children was not yet broadly practiced.... As he assumed the mantle of power that would later culminate in his self-avowed role as Prophet, ... Jeffs was committed to changing this state of affairs and was obsessed with the creation of a controlled society in which he was the absolute ruler and the wholesale rape of young girls by himself and others was treated as a ceremonially sacrosanct ritual. He sought to institutionalize this atrocious practice and to cloak it with the superficial trappings of legal acceptance, so he retained SC&M to develop an overarching scheme and plan, executed and developed by SC&M during period of years, to develop the legal framework within which Jeffs and his favored cohorts would possess means to enforce their lewd, sadistic, tortious and criminal wishes upon the FLDS people...

The complaint charges defendants with legal malpractice, breach of fiduciary duty, fraud, negligent misrepresentation, conspiracy, violation of the Trafficking Victims Protection Act, aiding and abetting, and violations of RICO.

In a statement denying wrongdoing, the Snow, Christensen & Martineau law firm said in part: "Our work in protecting religious liberties and other civil rights of the FLDS was not an endorsement of or complicity in illegal behavior."

10th Circuit:Dismisses As Moot Challenge To Utah Polygamy Law

In Brown v. Buhman, (10th Cir., April 11, 2016), the U.S. 10th Circuit Court of Appeals dismissed on mootness grounds the constitutional challenge to Utah's anti-polygamy laws that had been filed by the polygamous family from the television show "Sister Wives." A federal district court had held most of Utah's ban unconstitutional. (See prior posting.) The 10th Circuit, however, concluded that a new prosecution policy announced by the County Attorney for Utah County after the suit was originally filed has mooted the case.  County Attorney Jeffrey Buhman issued a policy that states:

The Utah County Attorney’s Office will prosecute the crime of bigamy under [the Statute] in two circumstances: (1) When a victim is induced to marry through their partner’s fraud, misrepresentation or omissions; or (2) When a person purports to marry or cohabits with another person in violation of [the Statute] and is also engaged in some type of abuse, violence or fraud. This office will prosecute the crime of child bigamy under Section 76-7-101.5 regardless of whether one of the parties is also engaged in some type of abuse, violence or fraud.

Further supporting the finding of mootness is the fact that the Brown family has moved to Nevada. AP reports on the court's decision.  Jonathan Turley, counsel for the Brown family, said in a posting that the decision will be appealed.  [Thanks to Tom Rutledge for the lead.]

In Utah, "In God We Trust" License Plate Now Costs Less

As reported by the Salt Lake Tribune, Utah Governor Gary Herbert on Monday signed into law H.B. 127 (full text), making the state's "In God We Trust" license plates available for the standard licence plate fee. The law removes the prior $5 specialty plate surcharge for this plate design. Three plate designs are now available for the standard fee.  In signing the bill, Herbert referred to Utah's creation by people seeking refuge from religious persecution. As reported on the Governor's blog, he added: "Our nation’s motto bears extra importance at a time when free worship of God and religious rights are being challenged."

10th Circuit Hears Oral Arguments In "Sister Wives" Challenge To Utah Polygamy Ban

The U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in Brown v. Buhman, a case in which a Utah federal district judge struck down most of Utah's statute banning polygamy. (See prior posting.)  While the 10th Circuit does not post recordings of oral arguments, AP reported on the arguments.  Plaintiffs in the case are the polygamous family featured on the TLC reality series "Sister Wives,"

Utah Supreme Court Hears Arguments In Suit By FLDS Victim Against UEP Trust

The Utah Supreme Court yesterday heard oral arguments in another case growing out of Utah's attempts to reform the United Effort Plan Trust-- the trust that holds much of the property in Hildale, Utah, and Colorado City, Ariz., the home of many of the members of the polygamous FLDS Church.  According to the Salt Lake Tribune, plaintiff Elissa Wall is suing the Trust for damages growing out of her 2001 forced marriage to her 19 year old cousin.  She claims that sect leader Warren Jeffs who was also at that time trustee of the UEP Trust forced her into the marriage.  She argues that Jeff's role as trustee and as sect leader cannot be separated so the Trust is also liable for his actions even now that it has a different trustee.

Appeals Court Affirms Decision On Ownership of Buddhist Pagoda

As reported by the Salt Lake Tribune, in Dao Trang Phap Hoa v. Vietnamese Unified Buddhist Association of Utah, (UT App., May 21, 2015), a Utah state appeals court upheld a trial court's decision that a Salt Lake City Buddhist temple-- the Pho Quang Pagoda-- is owned by a local affiliate of the California-based Vietnamese-American Unified Buddhist Congress.  Some members of the temple claimed that the Congress held the Pagoda in trust for the local Vietnamese Buddhist Alliance Society of Utah.  The appeals court held that even if there were questions of fact on that issue, the plaintiff in this case, the  Vietnamese Unified Buddhist Association of Utah, lacked standing to assert the claim on behalf of the Society because the two groups are separate corporations, even though they have overlapping membership.

Utah Enacts LGBT Anti-Discrimination Law With Extensive Religious Exemptions

As reported by JDSupra, on March 12, Utah Governor Gary Herbert signed S.B. 296,  Antidiscrimination and Religious Freedom Amendments to Utah's laws banning disrimination in employment and housing.  The bill reflected a compromise backed by the Mormon Church, as well as by supporters of LGBT rights, to ban discrimination based on sexual orientation and gender identity while giving broad religious exemptions from the anti-discrimination requirements. (See prior posting.)  Here is the full text of the religious exemptions:

  34A-5-102. Definitions -- Unincorporated entities
(i)(ii) "Employer" does not include:
(A) a religious organization, a religious corporation sole, a religious association, a religious society, a religious educational institution, or a religious leader, when that individual is acting in the capacity of a religious leader;
(B) any corporation or association constituting an affiliate, a wholly owned
subsidiary, or an agency of any religious organization, religious corporation sole, religious association, or religious society; or
(C) the Boy Scouts of America or its councils, chapters, or subsidiaries...

   34A-5-111. Application to the freedom of expressive association and the free exercise of religion.
       This chapter may not be interpreted to infringe upon the freedom of expressive association or the free exercise of religion protected by the First Amendment of the United States Constitution and Article I, Sections 1, 4, and 15 of the Utah Constitution....

    34A-5-112. Religious liberty protections -- Expressing beliefs and commitments in workplace -- Prohibition on employment actions against certain employee speech.

(1) An employee may express the employee's religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the  employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer.

(2) An employer may not discharge, demote, terminate, or refuse to hire any person, or  retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified, for lawful expression or  expressive activity outside of the workplace regarding the person's religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer....

  57-21-3. Exemptions -- Sale by private individuals -- Nonprofit organizations --Noncommercial transactions....

(2) This chapter does not apply to a dwelling or a temporary or permanent residence  facility if:
(a) the discrimination is by sex, sexual orientation, gender identity, or familial status for reasons of personal modesty or privacy, or in the furtherance of a religious institution's free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution; and
(b) the dwelling or the temporary or permanent residence facility is:
(i) operated by a nonprofit or charitable organization;
(ii) owned by, operated by, or under contract with a religious organization, a religious association, a religious educational institution, or a religious society;
(iii) owned by, operated by, or under contract with an affiliate of an entity described in Subsection (2)(b)(ii); or
(iv) owned by or operated by a person under contract with an entity described in
Subsection (2)(b)(ii).

... (4) (a) (i) Unless membership in a religion is restricted by race, color, sex, or national origin, this chapter does not prohibit an entity described in Subsection (4)(a)(ii) from:
(A) limiting the sale, rental, or occupancy of a dwelling or temporary or permanent residence facility the entity owns or operates for primarily noncommercial purposes to persons of the same religion; or
(B) giving preference to persons of the same religion when selling, renting, or selecting occupants for a dwelling, or a temporary or permanent residence facility, the entity owns or operates for primarily noncommercial purposes.

       (ii) The following entities are entitled to the exemptions described in Subsection (4)(a)(i):
(A) a religious organization, association, or society; or
(B) a nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society.

... (7) This chapter does not prohibit a nonprofit educational institution from:
(a) requiring its single students to live in a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution;
(b) segregating a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution on the basis of sex or familial status or both:
 (i) for reasons of personal modesty or privacy; or
 (ii) in the furtherance of a religious institution's free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution....

Summum Loses Monument Bid Again-- This Time In Utah Supreme Court

Since 2003, Summum has been attempting to require Pleasant Grove City, Utah to accept a "Seven Aphorisms" monument to be placed in a city park where a Ten Commandments monument already stands.  In litigation, part of which went to the U.S. Supreme Court, federal courts held that the city had violated neither the 1st Amendment's free speech or Establishment clause in refusing the monument.  Summum then filed suit in state court contending that the Utah Constitution's religious liberty clause requires the city to erect the Seven Aphorisms monument.  In Summum v. Pleasant Grove City, (UT Sup. Ct., Jan. 30, 2015). the Utah Supreme Court rejected Summum's contention. The Court, emphasizing that Summum had not asked for it to order the removal of the Ten Commandments monument, held that monuments are different than sectarian prayers before city council. The neutrality test the Court had developed in the context of legislative prayer does not apply to public monuments:

[R]equiring Pleasant Grove to erect a second religious monument would not render the allocation of public property and money to the two monuments neutral. The citizens of Pleasant Grove, and Utah in general, undoubtedly espouse a broad variety of religious views.... Displaying monuments that communicate the beliefs of only two of these viewpoints would not amount to an impartial distribution of public property.... And because there is a finite amount of space in Pioneer Park, allowing all interested groups to install their own religious or antireligious monuments in the park would be unworkable.... 

Because the government property at issue in this case is itself the message, it cannot be allocated in an impartial manner.... Summum attempts to use the neutrality test as a tool to facilitate the placement of its own proposed monument in Pioneer Park. It argues that the district court should order the installation of a Seven Aphorisms monument in order to establish an impartial allocation of public property towards religious expression in the park. But because the neutrality test does not apply in the context of public monuments, this tool is unavailable to Summum.

Justice Lee filed an opinion concurring in part and concurring in the judgment.

Court Awards Attorneys' Fees In Utah Polygamy Law Challenge

Last year, a Utah federal district court held that most of Utah's anti-polygamy statute is unconstitutional. (See prior posting.) After that grant of summary judgment, there remained a claim for monetary damages by plaintiffs based on 42 USC Sec. 1983. Yesterday in Brown v. Shurtleff, (D UT, Aug. 27, 2014) the court entered judgment on this remaining claim, awarding attorneys' fees, costs and expenses to plaintiffs.  The court concluded that defendants had waived their claims of prosecutorial immunity and qualified immunity.  Plaintiffs, subjects of the reality series "Sister Wives," decded to drop their claim for addtiional damages stemming from the criminal investigation and public comments in their case. The court's order reiterated last year's holding that the only portion of the Utah statute which is constituitonal is a provision that bars marriages inwhich an individual seeks multiple marriage licenses from the state. Provisions barring cohabiting or entering a religious marriage with someone else are unenforceable. Salt Lake Tribune reports on the decision.

Utah Files First Cert Petition In Same-Sex Marriage Challenges

The state of Utah-- acting 6 weeks before its deadline-- yesterday became the first to file a petition for certiorari with the U.S. Supreme Court in the growing number of decisions striking down state bans on same sex-marriage. The petition (full text) in Herbert v. Kitchen urges Supreme Court review of the 10th Circuit's 2-1 decision (see prior posting), saying in part:

This case presents an immensely important question: whether the United States Constitution compels states to adopt a single marriage policy that every individual is allowed “to marry the person of their choice.”... The Tenth Circuit said yes and struck down Utah’s definition—statutorily enacted and adopted into the Utah Constitution by two-thirds of voters in a statewide referendum—that marriage is only between a man and a woman. That ruling deprives Utah citizens of the “fundamental right” to “act through a lawful electoral process,” ... and ignores that the Constitution says nothing about how states must define marriage.

Salt Lake Tribune reports on the filing, and SCOTUS Blog has more background.

Utah Supreme Court Refuses To Set Aside Default Judgment In FLDS Land Case

In Wisan v. City of Hildale, (UT Sup. Ct., June 17, 2014), the Utah Supreme Court, in the latest decision in the long running litigation over the Fundamentalist Church of Latter Day Saints United Effort Plan Trust, refused on procedural grounds to set aside a default judgment that had been entered against Hildale, Utah and the Twin City Water Authority.  The default judgment came in an attempt by the court-appointed trustee to subdivide the trust land in order to facilitate distribution of separate parcels that did not carry liability for neighbors' tax delinquencies.  The court held that the grounds asserted by defendants are not ones that can be raised in a direct appeal of a trial court's refusal to set aside a default judgment.

Hearing Discloses Developments In Reformation of FLDS Land Trust

On Friday, a Utah state trial court held a one-and-a-half hour hearing in the state's 9-year long effort to reform the United Effort Plan Trust.  The Trust holds property of the polygamous FLDS Church in the sect's twin towns of Hilldale, Utah and Colorado City, Ariz.  AP and Fox13 report that a number of developments were revealed at the hearing. Judge Denise Lindberg urged the court-appointed trustee to begin evicting residents who have been ignoring the $100-per month housing fee for as long as 7 years. Collectively over $4.18 million in back fees is owed. During the hearing, Utah Attorney General Sean Reyes urged the court to appoint a board to take over redistribution of the 750 homes owned by the Trust.  Judge Lindberg said that she has chosen seven people for the board, but will not set it up until fees are being paid so the trust will have a stable source of revenue, and until liability insurance can be obtained for board members. It was also announced that former-FLDS member Willie Jessop has agreed with the court-appointed trustee to cooperate with investigations and litigation in exchange for receiving land.  In yet another development, the Arizona Attorney General's office told the court that it plans to file papers today to dismantle the Hildale/ Colorado City Town Marshal’s Office.

Another Temporary Stay For Same-Sex Couples Married In Utah During Gap Period

As previously reported, on May 19 in Evans v. Utah a Utah federal district court granted a preliminary injunction requiring the state to recognize same-sex marriages solemnized under Utah marriage licenses on the 17 days between a federal district court decision striking down Utah's ban  on same-sex marriages, and the U.S. Supreme Court's stay of that order. However the district court postponed the effectiveness of its order for 21 days to give the state time to decide how to proceed.  The 21-day period would expire on Monday.  Yesterday the Utah Attorney General's office announced that it has filed a notice of appeal and a request for a stay with the 10th Circuit in Evans.  In response, within hours, the 10th Circuit issued a temporary stay and ordered plaintiffs to respond by June 12 to the motion for a stay pending appeal. (AG office announcement.)

Utah Must Recognize Same-Sex Marriages Performed During 17-Days Before Stay; But This Order Temporarily Stayed Also

In Evans v. State of Utah, (D UT, May 19, 2014), a Utah federal district court granted a preliminary injunction requiring the state of Utah to recognize same-sex marriages solemnized under Utah marriage licenses between Dec. 20, 2013 when a federal district court struck down Utah's ban  on same-sex marriages, and Jan. 6, 2014 when the U.S. Supreme Court granted a stay of that order, pending appeals. The court concluded:

Even though the Supreme Court’s Stay Order put Utah’s marriage bans back in place, to retroactively apply the bans to existing marriages, the State must demonstrate some state interest in divesting Plaintiffs of their already vested marriage rights. The State has failed to do so.

However the court granted a 21-day stay to allow the state to file an emergency motion with the 10th Circuit for review. Fox News reports that Utah's attorney general had not made an immediate determination of whether or not to pursue an appeal. The court's decision affects some 1200 marriages performed during the 17 days involved here.