Utah’s takeover of polygamous sect’s land trust ruled unconstitutional

In a decision that could have major implications for a long-running court battle between the state of Utah and the polygamous FLDS sect, a federal judge ruled Thursday that a state takeover of the sect’s property trust six years ago was unconstitutional.

The Salt Lake Tribune reports:

U.S. District Judge Dee Benson’s decision to grant a motion for a preliminary injunction is a victory for the Fundamentalist Church of Jesus Christ of Latter Days Saints, which is led by Warren S. Jeffs.

“Virtually from its first step after it decided to reform the Trust, the state court was in forbidden territory,” Benson wrote in his ruling.

Benson’s ruling blocks the sale of Berry Knoll farm, an approximately 700-acre parcel that church members say has both economic and spiritual significance to the community.

The Deseret News explains the property trust:

The United Effort Plan was created by the Fundamentalist LDS Church in 1942 on the concept of a “united order,” allowing followers to share in its assets. Members consider sharing its assets a religious principle and see state intervention in the trust as a violation of their religious rights. 

Valued at more than $110 million, the trust holds most of the property and homes in the twin FLDS communities located in the border towns of Hildale, Utah, and Colorado City, Ariz. The church also holds property in Bountiful, British Columbia, and Eldorado, Texas.

Utah’s state courts seized control of the trust in 2005 amid allegations of mismanagement by church leaders, including Warren Jeffs, the newly reinstated head of the church who is currently in jail in Texas pending trial on charges of bigamy, aggravated sexual assault and assault.

Benson said he’s heard various complaints about conduct on the part of Jeffs’ and his followers, but said those “allegations as a matter of law do not justify the constitutional infirmities of the state action.” 

FLDS members consider communal living — a principle known as the Law of Consecration and the United Order — an integral part of their religion.

But while the UEP was meant to be a good thing, cult leader Warren Jeffs used the trust for his own purposes.

A scene in Sons of Perdition, a documentary about teens banished by Jeffs from the FLDS community, provides some details:

The Deseret News writes:

Heber Hammon, who has written on the UEP issue and whose father was an initial trustee, said those who organized the trust intended for it to be a positive thing to unite the community.

“It was a benevolent trust,” he said. “It was intended to help us develop the property, to be kept in one place and to be passed from one generation to generation. It’s the legacy we hoped to give to our children.”

But he said he lost faith in the ability of the FLDS leadership when it came to managing the property. He said he felt that the state’s intervention was necessary after church leaders, including Jeffs, began to use the property to “cajole and coerce” members of the sect. […]

He said if control of the property were returned to the the FLDS people, there would be “too much emotion and bad feelings all around” to foster effective management. But he expressed his fear that without some form of oversight, many would lose their hard-earned property.

In 2005, Judge Denise Lindberg took control of the UEP Trust amid allegations that FLDS prophet Warren Jeffs and other top church leaders were fleecing it. She appointed certified public accountant Bruce Wisan to act as the court-appointed special fiduciary, managing the trust. Among other things she later ruled that the trust can’t support or benefit the illegal practice of polygamy, even though it is a tenet of the church.

At the time lawyers said religion has been “carved out” and people within the polygamous border towns of Hildale, Utah and Colorado City, Ariz., would eventually have the chance to own property for the first time in the UEP’s history.

However, FLDS members contended that the court-ordered reorganization of their property trust violated their constitutional rights to religious freedom and sued to reverse the changes or regain control of the trust.

Meanwhile the FLDS refused to deal with Bruce R. Wisan, the fiduciary appointed to oversee the trust. The sect did not respond to trust reforms or pay taxes. Therefore in 2008 , sought the court’s permission to sell Berry Knoll Farm to solve the trust’s “liquidity” crisis. At the time the trust had incurred debts of about $3 million, mostly in fees owed to Wisan’s firm and that of his attorneys.

Berry Knoll Farm is of great significance to the FLDS. It consists of 711 acres of agricultural property that includes a “a sacred and consecrated temple site.”

Joseph W. Musser, an early leader in the fundamentalist sect of the Mormon Church, prophesied in 1934 that Berry Knoll Farm would some day be a temple site.

In a October 2008 lawsuit seeking to halt the sale of the farm FLDS members claimed Wisan never advertised the property for sale and instead worked an “inside deal” with Knudson, whose brother Joseph is on the priesthood council of The Work — another polygamous sect of the Mormon Church, based in Centennial Park. Members of The Work also consider the site “holy ground,” they alleged:

“The mere act of vesting ownership and control of the Berry Knoll temple site to members of The Work is an act of religious desecration,” the filing states, because the two groups have competing claims to priesthood succession. “The audacious ‘in your face’ nature of this proposed sale is not lost on the FLDS people.”

The Deseret News reports:

In 2009, 3rd District Judge Denise Lindberg ruled that a liquidity crisis of the United Effort Plan trust made selling the farm necessary. The trust has around $3 million in debt and no steady source of revenue. The FLDS Church appealed the ruling to the Utah Supreme Court. 

In August 2010, the state’s high court found that the pending state lawsuit, filed in 2008, came too late. […]

In 2008, Benson decided against an injunction so the matter could be argued in state court. The FLDS renewed its federal petition to block the sale in October after Lindberg ruled the sale should go forward.
Benson issued a temporary restraining order in federal court in December 2010, blocking the sale of various assets held by the trust while he mulled whether Utah authorities had violated the constitutional rights of the FLDS faithful.

Thursday’s ruling denied the state’s motion to dismiss the case and implemented an injunction against the sale of the land, effective immediately. Benson states in the ruling that the arguments offered up by the state to defend its actions are “so tepid as to be nearly nonexistent.” […]

FLDS attorney Rod Parker said the judge’s ruling was one of the biggest victories the group has had, second only to the return of FLDS children to their homes in Texas. He called the opinion “remarkable” and commended Benson’s bravery.

“Constitution and religion questions always come up in an unusual context,” Parker said. “It’s usually a minority group and it takes a lot of courage on the part of the judge to stand up for their constitutional rights. It was a big victory for religious freedom.”

According to The Salt Lake Tribune:

Attorneys for the state may appeal Benson’s decision.

“We strongly disagree with Judge Benson’s ruling and now we’re going to look at our options, including an appeal,” said Paul Murphy, spokesman for the Utah Attorney General’s Office. Officials will consider their next move in a meeting next week.

The long-term future of the trust was not immediately clear. Benson wrote in his ruling that a separate order will define the “precise extent” of the injunction.

In a statement, a spokesman for the accountant appointed by the state court to run the trust said: “We were appointed by the state court, and under the direction of that court for the last six years we’ve been preserving property and protecting the homes for families living on the United Effort Plan property … We will continue to do our best to administer the trust while an even higher court resolves this dispute.”

Read the decision: Fundamentalist Church of Jesus Christ of Latter Day Saints v. Wisan

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Religion News Blog posted this on Friday February 25, 2011.
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