Leaders of a Southwestern polygamist enclave lose latest court battle

Courthouse News/May 13, 2013

Leaders of a Southwestern polygamist enclave cannot use a dispute over one man's property rights to challenge 10-year-old court-ordered reforms, a federal judge ruled.

The ruling is the latest in a legal saga playing out in the joined towns of Colorado City, Ariz., and Hildale, Utah - a rural, isolated haven for members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS). About 95 percent of the land in the two small communities is controlled by the United Effort Plan (UEP), a religious trust set up in the 1940s by the sect's leaders.

Allegations of misuse by notorious sect leader Warren Jeffs, who was later convicted of child sexual assault and is now in prison, eventually led a federal court in Utah to order certain reforms in 2005 that made the trust more "neutral" and less reliant on its "religious underpinnings."

The trust has been under the control of special fiduciary Bruce Wisan since 2006. In 2008, a group an association of FLDS members challenged the move, claiming freedom of religion, but ultimately lost their bid for an injunction because they waited too long to sue.

While that case was pending in 2010, Ronald Cooke, a severely disabled man who had left the sect when he was young but now wanted to return to the area to live near his family, sued the towns and their utility companies for denying him water and power. He had signed an occupancy agreement with Wisan and the reformed UEP trust in 2008 to take over an abandoned, unfinished home in Colorado City, but later alleged that town leaders had conspired to drive him out by denying him the bare necessities.

The attorneys general of Utah and Arizona both intervened in the lawsuit, and last year the federal Justice Department launched its own case against the towns under the Fair Housing Act.

After Cooke filed his federal civil rights action in Arizona, Colorado City-Hildale shot back with its own complaint seeking a judgement as to whether Cooke's agreement with the reformed trust was even valid under the allegedly unconstitutional 2005 court order.

Cooke and the trust argued that the towns were using the current lawsuit to relitigate an issue they had already lost.

While U.S. District Judge David Campbell wouldn't go that far in tossing the towns' constitutional challenge, the Phoenix judge did find Wednesday that the towns, like the previous association of FLDS members, had waited too long to assert their rights.

"Plaintiffs' argument that they did not have a sufficient interest in challenging the constitutionality of the trust until the Cookes filed their civil rights lawsuit is unpersuasive and belied by plaintiffs own actions and the facts on the record," Campbell wrote. "Up to 95 percent of the land in the cities is owned and managed by the trust, and the majority of the cities' citizens are members of the FLDS church. The cities could hardly have been unaware in 2005 and 2006 that the removal of all former trustees, the appointment of a special fiduciary, and the reformation of the trust according to secular principles would impact their interests."

Campbell added that "plaintiffs cannot now assert just cause for delay simply because the association's claims failed."

"Allowing claimants to wait for other litigants to exhaust their claims would defeat the purpose of laches - to ensure that those with potential claims do not 'sleep on their rights' to the detriment of individuals prejudiced by their delay," he wrote.

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