Polygamous town leaders, feds fight over First Amendment
By Jim Dalrymple II
The Salt Lake TribuneFirst published Oct 05 2013 01:01AM
Earlier this year, federal attorneys asked the police in a polygamous community if they spoke with or gave money to FLDS leader Warren Jeffs while he was running from the law. The police refused to answer that question, as well as many others, and that response sparked a legal skirmish.
The confrontation was over what information is protected by the First Amendment and rises out of a religious discrimination lawsuit accusing Colorado City, Ariz., and Hildale, Utah, of "operating as an arm of the Fundamentalist Church of Jesus Christ of Latter-Day Saints." Attorneys for the Department of Justice felt that town officials should be required to share information about their religion.
Those officials’ attorneys disagreed, saying that requiring the officials to share that information infringes on the men’s rights.
Federal attorneys filed the lawsuit last year and, among other things, claim town and law enforcement officials enforced the edicts of sect leader Warren Jeffs above the law. The lawsuit also accuses officials of holding people against their will, practicing housing discrimination, euthanizing the town’s dogs and other misdeeds.
In the end, a judge split the difference — saying the First Amendment protects some religious information. But even before that happened, the town officials’ depositions provided a unique look into the workings of the FLDS Church and the twin towns where many church members reside.
"First Amendment privilege" • In a July 26 interview, later transcribed and filed in court documents, federal attorneys asked Vance Barlow — a former Colorado City town marshal and current town clerk — if he was "in communication with Warren Jeffs during the time period that you were an officer and he was a fugitive."
Barlow refused to answer the question, citing his "First Amendment privilege," documents reveal.
A similar exchange repeated several times in the interview. When prosecutors asked Barlow about his religion, he acknowledged being a member of the FLDS Church but refused to say if he was part of the church’s more-elite United Order. Barlow also wouldn’t say if he "consecrated," or promised control of, any property to the church.
However, Barlow did say he never treated anyone differently based on religion. He also denied receiving orders from FLDS leadership.
Federal attorneys also brought up consecrated property in an interview with Jeremiah Darger, a current Colorado City town marshal. The attorneys were apparently trying to figure out whether Darger had consecrated his official police handgun or other official property to the church, but Darger refused to answer. He also cited his First Amendment rights.
In another interview with Shem Jessop, attorneys asked about the current leadership of the FLDS Church. Jessop, also described in court documents as a current town marshal, said he believed the church is still led by Warren Jeffs.
The attorneys also interviewed Willie Jessop, who served as FLDS security before leaving the faith. In his interview, Willie Jessop spoke about "block elections" in the polygamous town, saying that church leaders would choose candidates and control the political environment.
At one point, church leaders even ordered Mayor David Zitting to leave town. Zitting complied, and Willie Jessop didn’t know if a new mayor was elected, though he said "it was a scam if there was."
Willie Jessop’s responses notwithstanding, the other men’s frequent use of the First Amendment sparked a legal disagreement. Court documents filed last month reveal that attorneys representing Colorado City and other defendants in the case asked to have certain types of religious information excluded based on case law and First Amendment privilege.
Jeffery Matura, an attorney representing Colorado City, explained that the First Amendment guarantees freedom of religion, as well as the right to keep religious information private.
"It also includes the right not to be compelled not to talk about your religion," he said.
Blake Hamilton, an attorney representing Hildale, said he and his clients were arguing that divulging religious information could have a "chilling effect" on their ability to freely practice their religion.
Matura said a judge ruled that the men had First Amendment rights, but documents also show that the court denied a requested protective order that would have made some religious information off limits in depositions. Hamilton explained that the order was denied because only people, not organizations such as cities, have First Amendment rights and up until that point no person had asserted those rights.
The result was that when the men were finally interviewed, their lawyers told them they had a First Amendment right to not answer some questions. At the same time, federal attorneys believed the men had to answer the questions.
Impasse • The two sides were essentially at an impasse over the issue.
"Defense counsel essentially enforced their failed protective order by advising their witnesses that they had a First Amendment right not to answer certain questions," the documents state.
Following the men’s depositions, federal attorneys asked a judge to force them to answer questions about their religion. Matura, Hamilton and others disagreed, writing that "the case involves religion only because the United States has alleged religious-discrimination claims." They also argued that the men already provided any relevant answers.
Ruling fallout • The court sided with the federal attorneys, but only to a certain point; while they can still ask questions, Matura said the ruling requires those questions to be "narrowly tailored" to the men’s official capacities.
"They can ask the questions, but the questions have to be tied to their jobs as city officials," Hamilton further explained.
The fallout of that ruling is yet to completely play out. Shem Jessop, Barlow and Darger haven’t been subpoenaed again for new depositions, and Matura said it’s up to the Department of Justice to decide whether the men will have additional depositions.
Attorneys have subpoenaed several other people, including Jeffs’ brother Lyle Jeffs last week, but due to the federal government shutdown this week, federal attorneys were forced to cancel those depositions for the time being.
Matura said Friday the case was effectively on hold while the government remains in shutdown. He added that he doesn’t know why the Department of Justice has pursued information about the men’s religion.
"I think the questions are wholly inappropriate," he said.
Federal attorneys working on the case could not be reached for comment.