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Judge erred in handling aspects of FLDS trust, high court rules

Published: Wednesday, March 13 2013 4:18 p.m. MDT

SALT LAKE CITY — The Utah Supreme Court has ruled that the state reformation of a polygamous trust turned it into a different — and secular — entity.

In a ruling handed down Tuesday, the high court found that when the state of Utah took control of the Fundamentalist LDS Church's United Effort Plan trust in 2005, it focused on only one of two of the trust's "primary purposes." Those purposes, as determined by 3rd District Judge Denise Lindberg, were to advance the FLDS Church's doctrines and goals while providing for the "just wants and needs" of the FLDS members.

"The district court held that although the trust could not be reformed to advance its religious purposes, it could be reformed to advance its charitable purpose to provide for UEP trust beneficiaries’ 'just wants and needs,'" Justice Jill Parrish wrote. "Using secular principles, the district court reformed the UEP trust. The purpose and provisions of the reformed trust are vastly different from those of the UEP trust."

Because of this, Parrish said Lindberg was wrong when she determined that attorneys from the law firm of Snow, Christensen and Martineau — who had represented the United Effort Plan trust — should turn over attorney-client information to the fiduciary appointed by the state to oversee the reformed trust. The high court found that the UEP trust and reformed trust were different to the point that the reformed trust could not be seen as a continuation of the UEP trust.

"We hold that the UEP trust was an entity that was capable of forming an attorney-client relationship," Parrish wrote. "Nevertheless, we hold that the reformed trust and the UEP trust are not the same entity for purposes of analyzing the attorney-client relationship."

Further, the high court ruled that Lindberg also should not have disqualified the Snow, Christensen and Martineau attorneys from representing FLDS Church members who opposed the reformed trust. Parrish found that because the attorneys never represented the reformed trust and the two trusts were "not the same client," the attorneys should have been allowed to represent those opposing the reformed trust.

Though the ruling largely supported the arguments of FLDS members loyal to the UEP trust, it did not change the fact that many of their claims challenging the reformation of the trust and sale of trust property came too late.

Justice Christine Durham and Court of Appeals Judge William Thorne, who sat in for a retiring judge, joined in Parrish's ruling. Chief Justice Matthew Durrant partially agreed and partially disagreed with their opinion and Associate Chief Justice Ronald Nehring joined in Durrant's opinion.

The United Effort Plan was created by the FLDS Church in 1942 on the concept of a "united order," allowing followers to share in its assets. Valued at more than $110 million, the trust holds most of the property and homes in the twin border towns of Hildale, Utah, and Colorado City, Ariz.

The Utah-based polygamous church also holds property in Bountiful, British Columbia, and Eldorado, Texas.

E-mail: emorgan@deseretnews.com

Twitter: DNewsCrimeTeam

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