3 Mar 2011

Jeffs retakes legal control of FLDS from prison, court rules Utah illegally took over sect's property trust

Salt Lake Tribune - Utah February 23, 2011

Jailed Warren Jeffs retakes FLDS presidency

BY LINDSAY WHITEHURST   |  The Salt Lake Tribune

At least two leaders in the Fundamentalist Church of Jesus Christ of Latter Day Saints have resigned their posts in what some former church members say is part of the expulsion of more than 30 people by jailed leader Warren S. Jeffs.

Jeffs, 55, took over legal control of the polygamous sect’s corporate entity last week, according to documents filed with the Utah Department of Commerce. An imprisoned Jeffs handed the church’s Corporation of the President to his first counselor, Wendell Nielsen, a year ago following Jeffs conviction on accomplice-to-rape charges.

Meanwhile, longtime Hildale Mayor David Zitting resigned his post last month, effective Tuesday.

"I’ve been mayor for 25 years," Zitting said Wednesday, by way of explanation. He declined further comment.

Though names and numbers couldn’t be confirmed with members of the church, former members who still live in the communities say Jeffs exiled both Nielsen and Zitting, along with several other top leaders: Merril Jessop, head of the group’s Yearning for Zion Ranch in Texas; James Oler, bishop of the group’s Canadian settlement; and Terrill Johnson, mayor of Colorado City, Ariz.

Church spokesman Willie Jessop didn’t return calls seeking comment.

The expulsions are coming directly from Jeffs, who is able to telephone the community from his cell, said Richard Holm, a former member of the FLDS who still lives in the area. It started about two months ago.

"He’s been calling into their church, somehow piping [his voice] into the Sunday church meetings," Holm said.

Staff at Reagan County Jail in Big Lake, Texas, where Jeffs is housed awaiting trial on bigamy and sexual-assault charges, said that all inmates have phones in their cells and are able to make calls on prepaid plans.

Jeffs had been housed at Utah State Prison since he was convicted in 2007 on accomplice-to-rape charges related to presiding over a marriage between an unwilling 14-year-old girl and her 19-year-old cousin. The Utah Supreme Court overturned his conviction last year, and he was extradited to Texas.

"Word on the street is, he said that Wendell and Merril weren’t doing their jobs," said Isaac Wyler, a former member of the church. "He’s not [exiling people] once a week. Typically, this is averaging every other day."

Nielsen, a businessman who started a high-tech machining company, generally ran the day-to-day affairs of the church. Both he and Merril Jessop are thought to have between 20 and 30 wives.

For now, Holm said, Jeffs’ brother, Lyle, has apparently taken a leadership role.

When a member of the FLDS is exiled, or "handled," it means he or she is asked to leave the church’s property and repent from a distance, Holm said. Some eventually return.

"’Handled’ means either a man’s priesthood is lost, or it’s in question between Warren and the Lord," he said.

Expulsions became more common after Jeffs took over leadership of the church from his father, Rulon, in 2002, said former church member Jethro Barlow. The numbers of people asked to leave tends to increase near the end of each year and around April 6 — about the time the Church of Jesus Christ of Latter-day Saints was established and Mormons believe Jesus was born, he said.

"This is similar to what has been done before," Barlow said.

In 2004, about 20 people were exiled, including longtime Colorado City Mayor Dan Barlow, and left their families and children behind.

Jeffs’ Texas charges relate to alleged spiritual marriages to underage girls, one 12 years old and the other under 17. The charges came after a massive raid on the group’s Yearning for Zion Ranch in Eldorado, Texas, two years ago. Using marriage and birth records gathered in the raid, prosecutors indicted 12 FLDS men on charges that included bigamy and sexual assault of a child. Seven have been convicted, while five, including Nielsen and Merril Jessop, are awaiting trial.

The secretive sect has about 10,000 members, mostly in Utah, Arizona, Texas and British Columbia, Canada.

In Utah, the group is facing another legal challenge: Members are trying to wrest back control of their communal property trust, which includes nearly all the land and houses in Hildale and Colorado City. The state of Utah took over the trust in 2005 amid allegations of mismanagement by the FLDS trustees.

Utah Attorney General’s Office spokesman Paul Murphy said the legal change from Nielsen to Jeffs may have an effect on that case, but he couldn’t immediately say what the effect could be. FLDS lawyer Rod Parker couldn’t be reached for comment. [see article below]

Murphy planned to meet with social-service providers Thursday to discuss what help they could give to people leaving the community.

"It’s hard to prepare for what you don’t know has happened but we have to make sure we’re ready," he said.

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Salt Lake Tribune  -  Utah   February 24, 2011

Utah takeover of FLDS property trust ruled unconstitutional

BY LINDSAY WHITEHURST  |  The Salt Lake Tribune

In a decision that could have major implications on a long-running court battle, a federal judge ruled Thursday that the state of Utah violated the Constitution when it took over a polygamous sect’s property trust nearly six years ago.

U.S. District Judge Dee Benson’s decision is a victory for the Fundamentalist Church of Jesus Christ of Latter Days Saints. Its leader, Warren S. Jeffs, reinstated his legal control over the church last week from the Texas jail cell where he is awaiting trial on charges of bigamy and sexual assault.

"Virtually from its first step after it decided to reform the trust, the state court was in forbidden territory," Benson wrote. "The defendants speak at long length about how bad — even criminal — Warren Jeffs’ behavior was, but they say little that is relevant to defend their own wholesale interference with an established church."

While state attorneys appeared to argue that the $110 million trust was supporting Jeffs’ criminal acts, that wasn’t the case officials made for taking it over in 2005 — and it hasn’t been proven in court, Benson wrote. The church’s property was inextricably tied to its religion, and the state’s attempt to pull the two apart was a violation of the separation between church and state, he decided.

"It’s a really great day for constitutional rights," said FLDS attorney Rod Parker, who represented 6,000 members of the church in the case. "It takes a lot of courage on the part of judge to say, ‘OK, I know this group is out of favor, but this isn’t right.’ "

In the short term, the decision grants a preliminary injunction blocking the sale of the 700-acre Berry Knoll Farm, considered sacred by the church. The long-term future of the trust, however, wasn’t immediately clear. A separate order will define the "precise extent" of the injunction, Benson wrote, though no hearings or deadlines were immediately set.

Attorneys for the state will likely appeal.

"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.

Valued at $110 million, the trust contains nearly all the property in the group’s home base in the twin towns of Hildale, Utah, and Colorado City, Ariz., along with its settlement in Canada.

Called the United Effort Plan, the trust was created in 1942 to fulfill the fundamentalist Mormon principle of communally holding property.

Before the state takeover, it suffused nearly all aspects of life for the church’s approximately 10,000 members. Their homes belonged to the trust, they worked in trust fields, factories and dairies, and the food they ate came from the trust, Benson wrote. All decisions were made by church leaders based on FLDS principles such as commitment to the faith.

The 2005 state takeover was virtually unprecedented, Benson wrote.

"The defendants cite no case that is even suggested to be remotely similar enough to the instant case to support their defense. This is because there isn’t one," he wrote.

The Attorney General’s Office made the move after FLDS trustees failed to respond to lawsuits filed in 2004 by former members seeking damages for abuse they suffered under Jeffs. The plaintiffs included a nephew who said Jeffs and other uncles sexually assaulted him as a child and six "lost boys," young men who said they were forced to leave the community to reduce the competition for wives.

State officials said they feared people could lose their homes if those plaintiffs were awarded hefty sums in damages. The trust was structured so that if it failed, ownership reverted to Jeffs, who, in 2006, was charged with rape as an accomplice for presiding over the marriage between an unwilling 14-year-old girl and her cousin. His conviction was later overturned.

Third District Judge Denise Lindberg decidedto reform the trust. She tried to avoid running afoul of the separation of church and state by removing religion from the trust itself. But for the FLDS, religion and property were so intertwined that any action was unconstitutional, Benson said.

"One may as well attempt to make Deuteronomy secular, or the Koran, or to eliminate football from the Super Bowl," he wrote. The only option the court had was revoking the trust — but that might have meant it reverted to Jeffs.

Instead, the court appointed accountant Bruce Wisan to run the trust.He began the process of separating the homes into subdivisions and giving back property to excommunicated members. At first, no FLDS members protested the decision or responded to repeated efforts to involve them in the case. Jeffs apparently ordered his followers to "answer them nothing" and disdained the land on the Utah-Arizona border in favor of a compound built in Texas, Benson wrote.

But the members no longer donated their time, labor and money to the trust. They stopped paying property taxes. With little money coming in and fees mounting, the trust fell into debt.

Then, in 2008, the same year Texas authorities raided Yearning for Zion Ranch, "Jeffs apparently had a change of opinion," Benson wrote. When Wisan proposed selling Berry Knoll Farm, the FLDS entered the legal fray.

A cascade of court hearings in St. George, Salt Lake City and Kingman, Ariz., followed. When the state court denied their petition to intervene in the case, the FLDS filed a federal lawsuit in 2008. Benson decided then to wait and let it play out in state court.

With additional legal costs adding to the financial woes, the trust fell more than $3 million in debt by August 2009. Conflicts over who had rights to farms, homes and the church cemetery proliferated. Utah Attorney General Mark Shurtleff admitted the situation was a "mess."

The church won delays of the Berry Knoll Farm sale, but it lost in Utah Supreme Court, which unanimously ruled last year that members had waited too long to challenge the takeover and restructuring. In October, FLDS attorneys revived the federal suit. Benson granted their request for a temporary restraining order.

"It is one thing for a state to tell a church and its members that they, just like all other residents of the state, may not smoke peyote, or commit child sexual abuse, or violate any other law of general application," Benson wrote. "But it is quite another thing, altogether, to reorganize the religious activities of such churches and their members to make them conform to the states’ version of appropriate secular behavior."

But Wisan’s partner, W. Val Oveson, said he has been "preserving property and protecting the homes for families living on the UEP property ... for the last six years. Clearly, the federal court is directly at odds with all five members of the Utah Supreme Court. We will continue to do our best to administer the trust while an even higher court resolves this dispute."

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Salt Lake Tribune     March 8, 2011

Did federal judge overstep in ruling on FLDS trust?

BY LINDSAY WHITEHURST   |  The Salt Lake Tribune

Following a federal ruling that slapped the state takeover of a polygamous sect’s property trust as unconstitutional, the Utah Supreme Court wants to clarify a legal point that could sideline the decision.

In an unusual move, the Utah Supreme Court issued an order Tuesday asking for more information on a gray area of state law that could determine whether the federal judge was able to rule on the case even though the Supreme Court had already dismissed it.

“The state Supreme Court wants to make clear to all concerned — including the federal court — what Utah law is on this important procedural issue,” said Eric Andersen, a professor at the University of Iowa College of Law who has studied the case.

In 2005, the state took over the trust amid allegations of mismanagement by the trustees of the Fundamentalist Church of Jesus Christ of Latter Day Saints, led by Warren S. Jeffs. A state court judge reformed the trust to remove religion and appointed an accountant to run it. Members of the sect did not protest the takeover until 2008, when they challenged the takeover as an illegal violation of the separation between church and state.

Last year, the case came before the Utah Supreme Court, which dismissed it by saying the FLDS had waited too long. Then attorneys for the FLDS brought the case before U.S. District Judge Dee Benson. Typically, cases cannot be tried more than once. But Benson decided he could still rule because the Utah Supreme Court dismissed the challenge for being too late — without getting to the sect’s constitutional argument.

With little Utah case law on the subject, Benson based his reasoning on what other state supreme courts have done. In his ruling, he sided with the sect, writing the state had been in “forbidden territory…virtually from its first step.”

But the potential impact of a sweeping ruling is simply too significant to leave to Benson’s assumptions based on other states, Chief Justice Christine Durham wrote in Tuesday’s order.

So instead, the court asked lawyers for the state and the FLDS to prepare briefings by March 25 on the issue, so the justices can clarify the law.
“We’re delighted. I think it will bring the rule of law back,” said Jeff Shields, attorney for court-appointed administrator Bruce Wisan.

FLDS attorney Stephen Clark, meanwhile, said “I think if they take another look…they’ll reach the same conclusions Benson did.”

If the court does decide that a decision dismissed because the plaintiffs waited too long cannot be tried in another court, it could call Benson’s ruling into question, said Brigham Young University professor David Moore.

“If the Supreme Court comes along and says this is binding under Utah law ... then there would be some sort of motion to reconsider in front of Benson, to say, ‘You got Utah law wrong,’” he said.

Utah Attorney General Mark Shurtleff said last week his office plans to appeal Benson’s decision. If they do so before the Utah Supreme Court rules on the issue, that motion could come before the 10th Circuit Court of Appeals in Denver.

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