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The Two Little Cities Who Can’t

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The Department of Justice (DOJ) is stomping its jackboot down on two little towns that straddle the Arizona-Utah border. The Civil Rights Division has brought an unprecedented and vague federal religious discrimination lawsuit against the cities and their utility companies (PDF).

In its June 21 announcement, the DOJ stated, “This is the first lawsuit by the Justice Department to include claims under both the Fair Housing Act and the Violent Crime Control and Law Enforcement Act.”

Hildale, Utah (population ca. 2,700 in 2010) and Colorado City, Arizona (population ca. 4,600 in 2006) may be Davids against the federal Goliath, but they are hardly underdogs for whom many will cheer. They are strongholds of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), with an estimated 10,000 members living in or around the adjoining towns. An FLDS trust known as the United Effort Plan (UEP) owns most of the property in those communities.

(The FLDS is a Mormon fundamentalist sect that broke away when the main Mormon church ceased to practice polygamy and excommunicated any members who continued to do so.)

The towns are also the last fistful of influence wielded by FLDS leader Warren Jeffs, who was convicted on two counts of child sexual assault in 2011 and is serving a sentence of life in prison plus twenty years. Known for arranging polygamous marriages for girls as young as twelve, Jeffs continues to rule the FLDS sect from prison through edicts that sound increasingly bizarre. For example, the Deseret News (June 19) reported a rumored edict that named 15 men who are to father all the future children of faithful members.

The unpopular nature of the two cities is unfortunate. Even if the suit is unjust, few people will defend these Mormon communities if it means seeming to defend aberrant religious practices that may include child rape. But the DOJ’s focus on Hildale and Colorado City does seem highly questionable.

The DOJ’s dubious maneuvering

The towns are accused of religious discrimination against residents who are either non–FLDS members or ex-members. Any fundamentalist group — Christian, Jewish, Muslim, etc. — tends to prefer dealing with “its own” in terms of where goods are bought and sold or who is hired. Some fundamentalist groups even practice “shunning” — that is, the refusal to so much as acknowledge the presence of non- or ex-members. In both cases, people are exercising their right to free association, which entails the right to not associate.

But the lawsuit alleges more than shunning. The DOJ claims that such public services as utilities and police protection were unevenly and inequitably provided to non-members.

The DOJ announcement of June 21 explained,

The complaint contends that the cities, their joint police department and local utility providers under the cities’ control have allowed the FLDS Church to improperly influence the provision of policing services, utility services and access to housing and public facilities, and that this improper influence has led to discriminatory treatment against non-FLDS residents.

The complaint specifically accuses the cities’ joint police force and the Colorado City Marshal’s Office of misusing their state-granted authority by refusing to protect non-members and by harassing them. The officers are also accused of refusing to cooperate with other law-enforcement officials on matters concerning FLDS members.

The joint water authority and the utility company are accused of denying or delaying the provision of water and electricity to non-members. The municipalities are charged with such offenses as issuing or refusing building permits based on religious affiliation. Thus, the DOJ lawsuit alleges that the defendants have violated the constitutional rights of non-members as well as violating the Fair Housing Act and Title III of the Civil Rights Act of 1964.

The specific constitutional violations cited are of the First Amendment (freedom of religion), as well as the Fourth Amendment (due process), and the Fourteenth (subordination of state law to the Constitution). In short, the DOJ is throwing the book at the two cities.

Attorney Blake Hamilton, who represents Hildale and the Marshal’s Office, reported on a meeting with DOJ lawyers, “[the] DOJ asked us to dismantle a community.” Hamilton insisted, “There’s nothing to support the allegation that non-FLDS members are treated differently.” For example, he claimed that the desert towns simply ran out of the water needed to supply new users.

Attorney Jeff Matura, who represents Colorado City, observed further, “There hasn’t been a successful civil rights lawsuit against Colorado or Hildale ever.” Moreover, “no one has ever taken the time to meet the communities to see if there is a problem.” Apparently, the suit is based on complaints from ex-members of the FLDS, many of whom were expelled.

This case — United States of America v. Town of Colorado City, Arizona; City of Hildale, Utah; Twin City Power; and Twin City Water Authority, Inc. — does have the air of a vendetta about it. For one thing, it is the end result of years of unsuccessful legal assaults on the FLDS. It also comes on the heels of the Arizona and Utah legislatures both failing to pass laws intended to rein in the communities.

Moreover, the lawsuit is a civil complaint, not a criminal one; with the exception of certain prominent FLDS leaders, there has been little success in pressing criminal charges against members. In civil court, however, the DOJ has to meet a much lower burden of proof and can exploit looser standards of evidence. The suit also names no plaintiffs other than the United States, although it includes several specific stories of individuals whose rights were allegedly abused. Unspecified compensatory and punitive damages are sought for such individuals, but their names do not occur in the accounts; rather they are identified by such descriptions as “a mother of six.” By contrast, the allegations against defendants, such as police officers, often include names.

And then there is the fact that 11 attorneys are listed as representing the United States, Assistant Attorney General Thomas E. Perez being among them. Restraining orders and civil penalties are sought against all defendants, and the judge is requested to order any “additional relief as the interests of justice may require.” The open-ended damages could bankrupt both cities.

It is also unclear why the suit is necessary. In past years, several “erring” officers have been decertified by state authorities, which strips them of power. Moreover, all utilities operate under state supervision. Applying existing sanctions and regulations would seem to be an easier, faster solution to whatever abuse exists. This is especially true given the DOJ’s poor track record with lawsuits.

Indeed, state authorities seem to be hedging the DOJ’s bet. The San Angelo Standard-Times (July 5) reported,

Mohave County sheriff’s deputies soon will increase their presence in the Northern Arizona border town of Colorado City.… Approval of a grant by the Board of Supervisors this week in Kingman sets the stage for Sheriff Tom Sheahan to increase deputy patrols.… Sheahan thanked Attorney General Tom Horne for a $420,000 grant that will allow him to pay deputies overtime.

So why is the DOJ suing? One aspect could be political. The Obama administration is spotlighting a Mormon sect that most people consider criminal at the same time a Mormon is running for president. But politically embarrassing Mitt Romney may be nothing more than a side benefit to this lawsuit.

Suing for revenge and profit

On the federal and state levels, authorities have been in hot pursuit of the FLDS since 2008. In April of that year, Texas law officers conducted a series of raids on the FLDS-owned YFZ Ranch, at which several hundred people lived. Acting on what it now admits to be a fabricated account of child abuse, Child Protective Services (CPS) ultimately removed over four hundred children. The episode turned into a debacle that bankrupted a branch of the CPS, mortified authorities, and resulted in the return of every child.

In ensuing years, 11 men were prominently tried on various charges of child abuse related to the practice of marrying “child brides.” The men showed defiance to the court; their leader, Jeffs, refused to recognize the authority of the court to judge him. So, quite apart from the justice of the prosecution, embarrassed and flaunted authorities may have vengeance as a motive.

And then there is the money.

On June 9, 2012, Utah’s KCSG Television stated, “The number of times the Utah Supreme Court has heard cases connected to a Utah-based polygamist sect’s trust reached into the double digits Wednesday [June 6].”

The trust in question is the United Effort Plan (UEP), which was established in 1942 by the FLDS in order to unify the wealth of members and allow them to share assets. For example, the trust owns most of the land and homes of Hildale and Colorado City, which it allows members to occupy. In the past, the assets were estimated at approximately $110 million. In 2005, the state of Utah seized control of the trust, alleging mismanagement. The FLDS cried out that this was state violation of religious rights.

By 2009, KSCG noted,

3rd District Judge Denise Lindberg, who presides over legal issues involving the trust, ruled that a liquidity crisis of the UEP trust made selling trust property necessary. The trust has around $3 million in debt and no source of revenue. The FLDS Church appealed the ruling to the Utah Supreme Court.

The Utah Supreme Court ruled against the state lawsuit on a technicality. Meanwhile, in federal court, Utah’s control of the trust was ruled to be unconstitutional, and the DOJ was ordered to return the property to the FLDS.

This ruling was appealed, and the legal battles continue to this day, some of them splintering off to address secondary issues. For example, who should pay the UEP management fees that have been largely unpaid since 2005 — the FLDS or the state? The outstanding total is estimated at over $5.5 million. The state maintains the bills were unpaid because of FLDS lawsuits that froze the assets. The FLDS argues that the takeover was unconstitutional and therefore they have no responsibility for the bills.

So far, the courts have ruled in favor of the FLDS on the payment issue. Nevertheless, the UEP remains under supervision of a court-appointed special fiduciary.

Now, as the DOJ seeks unspecified compensatory, punitive, and “other” damages against the two cities, it gives the UEP prominent mention in its lawsuit. The complaint reads,

Members of the FLDS traditionally contribute a significant portion of their money, property, and time to a trust called the United Effort Plan Trust (“UEP Trust” or “Trust”).… Much of the land, and many of the improvements thereto, in Colorado City and Hildale, including most of the Cities’ residences, belong to the UEP Trust.

After providing some background on the legal history of the UEP, the DOJ suit declares that “the stated purpose of the Trust is ‘providing for the just wants and needs of the beneficiaries which purpose is beneficial to the community.’”

If the DOJ can show that ex-members were wrongfully shut out of benefits to which they contributed, then some or all of the UEP may be up for grabs. Thus, even if the DOJ is unsuccessful in prosecuting the FLDS for religious discrimination, it may still destroy the sect by stripping it of assets. Indeed, the acquisition of assets may be the primary purpose.

Awful defendants make for bad precedents

Few people want to defend FLDS, but dangerous precedents are being set. The state has seized and held the assets of a church for years, even though a federal court has ruled the seizure to be unconstitutional. Two towns are accused of religious discrimination without victims being named. At the very least, the anonymity of the victims makes it difficult for the defendants to prepare a case.

The DOJ is accusing the FLDS of religious discrimination, even though legal authorities have targeted the religious sect for years; the Texas raid is only the highest-profile example. Moreover, if the DOJ is able to “dismantle” two communities over alleged religious discrimination, what will be next? Will other church or municipal assets be seized for discrimination against minorities, gays, the transgendered?

Conspicuously absent from the DOJ complaint are the accusations of child abuse that have haunted the FLDS. Given the vigor with which the DOJ is proceeding, this means it either cannot make criminal charges stick or it does not wish to do so. If criminal charges are not feasible, then the prosecution increasingly seems based upon vengeance and desire for money. The same is true if criminal charges are not desired.

The one advantage the FLDS has in court is that it is a religious sect. Freedom of religion may well be the strongest constitutional right still standing. And being a sect means that FLDS members will band tightly together. As Matura explained, the FLDS “think of themselves like the Amish. The more the government and the states try to change them, the more they will dig in their heels and refuse to change.”

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).