They Punted

Okay, I'm not a lawyer, although I play one in my house.  It's time for me to weigh in on the urination contest between Utah's very Supreme Court and Federal Judge Dee Benson.

The Utah Supremes are miffed because, after they elected to ignore the merits of the FLDS church's claim against the State for reforming its trust, Judge Benson addressed the merits head-on and found egregious Constitutional violations (primarily from Diseased Lintbag).  The Supremes hinged their decision (to effectively "punt" the matter) on a legal doctrine known as "Laches".  The idea of Laches is that, if you feel you have been wronged, you have a duty to make any valid protests within a reasonable time period (or else too much water will flow under the bridge, and people will have moved on with their lives and placed faith in the new status quo).  This is not necessarily a bad principle but, the way Judge Benson looked at it, if what the State (and Limprag) did was a Constitutional violation ab initio, then irrespective of the (late) timing of the complaint, the trust beneficiaries had been being abused from the very start, and on a continual, ongoing basis.

If I am comfortable with Benson's argument for any reason, it is at least because Brute Wisass conducted a spiteful, selfish, disdainful campaign of disregard against the FLDS leadership and membership from day one.  It might well be argued that, if Warren Jeffs was telling the folks to "Answer them nothing!", they were risking having everything taken from them by the Fooles and the Hischers.  Judge Benson sagely noted that, if that was what the beneficiaries really wanted, it was NOBODY's business to charge in and compel them to do otherwise.  Attorney Rod Parker suggested that the period of inaction was framed as a "test of faith" for the membership.  Let's not also forget that, whenever an FLDS member showed his or her face in a Utah courtroom, he or she was immediately slapped with a subpoena to cough up the whereabouts of Warren Jeffs or else face detention in Arizona's Florence dungeon till the start of the next millennium.  The persecution of the people became intolerable.

So what are the key principles in this situation?

1.  The Fooles and the Hischers had conflicts of interest in the trust reformation in that they were suing the trust for gain and then colluded in the rewriting of the UEP trust language.

2.   Jugg Desleaze Lintrag showed extraordinary prejudice at every turn and should have been removed from the start.

3.  Brutal Wisass was a disgrace to the LDS Church and to the accounting profession in that he waged a personal and self-serving war against a generally innocent community.

4.  The Utah Supreme Court waxed spineless (as it did in State v. Holm) and did not want to get to "the merits", so it punted the case, finding comfort in the convenience of the "Laches" excuse.

5.  Judge Benson watched the case from a distance and agreed (in 2008[?]) to get involved in the event that the Utah Supreme Court failed to take appropriate action.  The Supremes punted the case, so Benson thought long and hard about the merits and his own eligibility to decide the matter.  He concluded that he does have jurisdiction, that the reformation of the trust was fraudulent at the start, and that, since the Supremes had punted the matter of the merits, he must step in and remedy the error.

The Supremes are irritated because Benson disagreed with the Laches excuse and insisted that a State can never invade a private trust and alter it at will in violation of its original intents.  The Supremes are now toying with motions from both sides regarding whether they can or should disregard the federal court's ruling (plus there are two other FLDS matters still pending in their court).

The hardest part of this is that this is relatively uncharted legal territory.  The last (and perhaps only) instance of such an egregious trust invasion was the one perpetrated against the LDS Church in the 1880's.  Either way, the entire siege was disingenuous, deceitful, collusive, and criminal from the beginning.  It was reminiscent of Missouri Governor Boggs' extermination (of Mormons) order - - public officials twisting the legal process in an effort to achieve devious political ends.  Such gross official license and creativity has no place in honorable government.  Even the LDS Church must be having second thoughts about the wisdom of confiscating church trusts for mere gits and shiggles.

I think that despite Justice Christine Durham's sincere desire to hear reasonable new pleadings from both sides, it is (ironically) too little - too late.  They had their chance to explore the merits before, and they punted. Now, everybody involved can see the writing on the wall. This is another tar baby.  Whisetrash is about to be convicted of felony trespass.  Snortlips doesn't need any more public embarrassments.  The 10th Circuit is bound to stand behind Benson, and, if Spent Bunshaker is onto something more than a rumor (for the first time in his weasely career), there could well be a season of healing and renaissance in the community. In large part, Fundamentalist Mormons are extraordinarily loyal and committed people.  Public officials prefer the "divide and conquer" program, since they fear that united we will be strong.  It's one thing to boast of having tackled the "polygamy problem", but entirely another to trample on the property and free agency of an entire culture.  It backfired in 1953 and 2008, and backfire it will again.

Well Wishes

If you haven't noticed, my commentary in this blog has been cynical and harsh at best. When I see bigotry, hubris or silliness, I can't resist the temptation to criticize it. When political officers do oppressive things, I need to protest. I have been especially critical of Utah's Attorney General, if only because of his statements and actions which appear to directly threaten or harm Fundamentalist Mormons (he recently vowed to appeal Judge Benson's decision to return the UEP Trust to the FLDS). Whether those gestures were driven by personal or official motivations, I cannot know. I do know that public officials who are members of the LDS Church face a special challenge when trying to distinguish their official objectives from their Church's agenda.

All this notwithstanding, I have learned from news reports that AG Mark Shurtleff is battling health issues associated with his colon (not long after suffering the torment of a long recovery from a serious leg injury). I would not wish such suffering on anyone, and I pray that Mark's treatments will be successful and that he and his family will enjoy good health and a long life.

Strange Bedfellows

Some ironies can reach historic proportions.  I would argue that it was the religious Christian folks of the 1870's who clamored the loudest for the eradication of the Mormons (or at least the "barbaric" Mormon practice of polygamy).  Whether unintended or not, the eventual consequence was that the Supreme Court weighed in and authorized the states to limit First Amendment "free exercise" when associated with certain claims of religious protection. This amounted to a legislative "blank check".  You could "believe" what you wanted to, but the "exercise" of those beliefs had to now be supervised by government moods.  It was understood that the government would thenceforth control the sacrament of holy matrimony.  Marriage contracts went from common-law ecclesiastical to civil-law legal.

Now that marriage is a government institution (where the state is a party to your marriage), it might be easy to limit the number of the spouses, but much more difficult to dictate the gender of the parties to the contract.  Several states (and Canada) now marry same-sex couples - mostly because there is no intelligent argument for why our government should favor one religious theology or sacrament over another (not to mention family arrangements post-Griswold and Roe).  Our nation may have been founded as a Christian republic, yet, with the fraudulent "ratification" of the Fourteenth Amendment, we are now a secular corporation in which religion should hold no influence.

The irony of this situation now is that those same religious Christian folks (who yearned to curtail the rights of the Mormons) are upset with the (unintended) outcome.  They are not sure of whom to be most afraid - the gays or the polygs.  Even more ironic still, is the mass migration of the Mormons themselves into this petulant crusade (evident in the Proposition 8 madness).  Last Friday (2/5/11) LDS Apostle Dallin H. Oaks gave an impassioned speech arguing for the protection of Americans' rights to "exercise" their religious beliefs.  Before you get fooled into thinking that he is arguing for a full-scale reversal of the Reynolds decision, let's see what his primary focus is:

Said Elder Oaks: "Along with many others, I see a serious threat to the freedom of religion in the current assertion of a 'civil right' of homosexuals to be free from religious preaching against their relationships."

Problem is - Dallin - you cannot have your cake and eat it too, so, while you are busy championing your right to exercise your belief that government must not allow gays to marry, I am grateful that you are simultaneously championing my right to call my three girl-friends "plural wives" without having to go to prison for felony bigamy. Oaks also said:

"If that [constraining the freedom of religious speech] happens, we will have criminal prosecution of those whose religious doctrines or speech offend those whose public influence and political power establish them as an officially protected class." 

Am I the only one who sees the irony and hypocrisy of these statements when they are analyzed against the backdrop of political/ecclesiastical policies in Utah?  Judge Desleaze Lintbag said that she cannot give the UEP Trust back to the FLDS people because their practice of plural marriage makes them criminals!  Remarkably, she is re-enacting the conduct of earlier government officials who would not return the property of the LDS Church in the 1890's unless it repudiated one of its core doctrines. I think Lintbag, Snortlaff and Oaks need to get their stories straight before they talk or try to shape public policy.  Let's read more of what Oaks said - -

Religious individuals should insist on their constitutional right and duty to exercise their religion, to vote their consciences on public issues and to participate in elections and debates." Elder Oaks said.  He called for a unified, broad coalition defending religious freedoms — a proposal that doesn't require common doctrinal ground between faiths, but a shared belief that the rights and wrongs of human behavior have been established by a Supreme Being. "All who believe in that fundamental should unite more effectively to preserve and strengthen the freedom to advocate and practice our religious beliefs, whatever they are." he said. "We must walk together for a ways on the same path in order to secure our freedom to pursue our separate ways when that is necessary according to our own beliefs." 

YEAH  - NO KIDDING !!!

Also - did Dallin Oaks write (or collaborate on) this recently proposed Utah bill? - -(HB 109)

Section 3. Section 63G-12-103 is enacted to read:
Prohibitions on state and local governments.
Except in the most limited instances when strictly necessary to avoid the gravest abuse of a constitutional right and more paramount public interest and subject to the provisions of Section 63G-12-104, the state or a political subdivision of the state may not:
(1)  infringe or substantially burden a person's religious liberty, including compel, restrain, or burden a person in their goods and civil capacities; or
(2)  restrict or deny freedom of religious speech and the free expression of religious and moral beliefs in public.

Section 4. Section 63G-12-104 is enacted to read:
Compelling state interest.
(1)  Religious liberty is substantially burdened when a person is coerced or required to act or significantly modify behavior contrary to sincerely held religious beliefs and principles and freedom of conscience.
(2)  The state or a political subdivision of the state may not substantially burden a person's religious liberty unless the state or political subdivision can demonstrate by clear and convincing evidence:
......(a) that the application of the burden to the person is:
............(i) in furtherance of a compelling state interest required to protect the peace, health, and safety of the state; and
............(ii) strictly necessary to avoid the gravest abuses endangering a constitutionally recognized and more paramount interest; and
......(b) that there are no other means reasonably available to achieve such ends.

If you're not confused, I am.  COME ON, GUYS.  MAKE UP YOUR SCHIZOPHRENIC MINDS !!!

He Gets It, He Really Gets It!

The UEP trust controversy surfaced again a couple of times this week - first in the Utah Supreme Court (some FLDS bishops want to be intervenors in trust issues) and secondly in the local federal District Court with Judge Dee Benson (the FLDS want to reverse Judge Lintbag's decision to rewrite/reform the UEP trust).

I'm going to distill this topic down to the simplest possible element. WHY? because I understand that that is what Judge Benson did (in Federal Court) yesterday. Apparently the government (defense in the case = Shields, Jensen, and Richards) tried (for hours) to defend the wisdom of Judge Diseased Lintbag's actions:

"She had no choice"
"She did what she thought was best"
"No FLDS person protested the reformation"
"It's not healthy for the FLDS to honor their leaders' inspiration"
"We couldn't let Warren Jeffs control the trust; he's bad!"
"We couldn't let those poor, poor people lose their homes"
"We had to protect the disaffected ex-members"
"Poor Bruce Wisan needs a paycheck"

Arguing for the Plaintiffs (FLDS people), Judge Benson reiterated 100 times that, despite the fact that the State had a duty to go in and protect this (charitable) trust from doom and destruction (threatened by the Hischers and the Fooles), it did not have a Constitutional right to barge in and start controlling everything else about the trust, even to the point of changing the very founding language of the trust, removing its religious intents, and selling off big chunks of it to put ill-gotten lucre in Wisass's pocket. Judge Benson argued that Judge Lintbag should not have gotten her dirty fingers into this pie in the first place. He argued that, if all of Lintbag's overreaching interference constituted a breach of the people's Constitutional, First-Amendment "Free Exercise" rights, then the whole thing has to be re-wound - Laches or no Laches.

The A.G. attorneys kept trying to say that Judge Lintbag had no choice but to do what she did, and Judge Benson kept saying that it doesn't really matter one teensy weensy little bit what she thought was in the best interests of those poor, beleaguered, criminal polygamists, if what she did was JUST PLAIN DOWNRIGHT VIOLATIVE OF THEIR CONSTITUTIONAL RIGHTS.

I think he gets it - he really really gets it. Maybe Lintbag can now reimburse all those poor, poor people who have suffered loss.