Judge rules state's control of FLDS trust unconstitutional and an illegal 'takeover' by Utah

Published: Thursday, Feb. 24 2011 4:00 p.m. MST

Warren Jeffs

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SALT LAKE CITY — In a monumental ruling that could overturn five years of work done by a state-appointed team charged with managing the funds of a Utah-based polygamous sect, a federal judge ruled Thursday that the seizure of the sect's assets was unconstitutional and a "virtual takeover."

"Virtually from its first step after it decided to reform the trust, the state court was in forbidden territory," U.S. District Court Judge Dee Benson wrote in the ruling. "It not only had no authority to determine the 'just wants and needs' of the members of the FLDS Church, but it had no authority to interpret or reform the trust at all."

Benson writes that the state's involvement constituted becoming "entangled with religion" and amounted to efforts to "disestablish" the sect.

"The resulting intrusion into the everyday life of the FLDS Church and its members fostered not only 'excessive government entanglement with religion,' but was a virtual takeover by the state," he wrote.

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." 

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.

"We put our heart and soul into it," he said. "We worked hard to get this going and then they started using it to cajole people into believing what they said. (People) were being coerced. People were being threatened. The UEP was never meant to be a cajole, to force people to take a line."

Hammon said he was one of the trustees given an eviction notice because he wouldn't "adhere to the official line" being handed down by the FLDS leadership. He said the implications of the judge's ruling is unclear, but he thought the court-appointed special fiduciary, Bruce Wisan, was doing the right thing with the trust.

"Mr, Wisan, I think, was taking a pretty aggressive view on things," Hammon said. "He was just seeing that the property was given to the people who had an interest in it."

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.

Benson said he will issue a second order detailing the extent of the injunction.

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