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The Utah Supreme Court on Thursday pondered whether a polygamous trust operated by the state can be held liable for Warren Jeffs' role in forcing a 14-year-old girl to marry.
Jeffs is president of the Fundamentalist Church of Jesus Christ of Latter-Day Saints and, in 2001, was head of the United Effort Plan, the charitable trust that still holds much of the property in Hildale, Utah, and Colorado City, Ariz.
Attorneys argued Thursday before the Utah Supreme Court about whether Jeffs was acting in his capacity as trustee of the United Effort when he forced the teen, Elissa Wall, to marry her 19-year-old cousin that year.
Justices took the case under advisement and are expected to rule in the coming months. If Wall prevails, the case will return to a lower court for trial where Wall will have to prove the trust's liability, and the damages it should pay perhaps as much as $40 million.
The justices seemed skeptical that Jeffs' religious role was separate from that as head of the trust.
"One of its fundamental tenets of this [FLDS] religion is plural marriage and … underage marriage," said Justice Thomas Lee.
"That's a huge debate," responded United Effort lawyer Jeff Shields, saying former FLDS members claim the number of underage marriages was low until Jeffs took control of the sect.
Shields pointed to case law saying that if a trustee's conduct is so far outside the bounds of his duties, the charitable organization he leads cannot be held liable. Shields also contends that the United Effort should not be held liable when Wall has failed to pursue claims against the cousin she was forced to marry, Allen Steed.
"Without the conduct of Allen Steed, there is no rape," Shields said.
Wall and Steed signed an agreement releasing Steed of liability minutes before he pleaded guilty in 2011 to a misdemeanor count of engaging in sexual relations with a minor.
On Thursday, Wall's attorney told the Utah Supreme Court that settlement agreement is a "red herring." The issue, Alan Mortensen said, is the role the United Effort played in the marriage, and the sex abuse that followed.
Both Steed and Wall needed to follow Jeffs' instructions to get married in order to remain on United Effort property, eat food grown or purchased by the United Effort and use other trust resources, Mortensen contended.
"This was all done in the administration of the trust," Mortensen said.
Utah seized the trust in 2005 out of concern that Jeffs was mismanaging it.
Thursday's proceeding included a number of technical legal arguments about the role of trustees, and whether changes made to the terms of the trust after the state seized it remove the trust from liability for actions that happened earlier.
Justice Deno Himonas told Shields that if the United Effort wanted to guard itself from liability, the court-appointed fiduciary should not have amended terms of the trust, but should have dissolved it.
"You may be putting the trust in a tough position, but [liability is] the logical result of not terminating the trust," Himonas said.
Shields acknowledged that dissolution was an option. But outside the courtroom, he explained to reporters that terms of the trust were such that dissolving it would have resulted in giving the assets to Jeffs.
The United Effort has about $110 million in assets. If Wall were to prevail at a trial and receive an award of seven figures or greater, the trust would likely pay her in Hildale and Colorado City houses and property rather than cash.
The Utah Supreme Court case is titled MJ v. Wisan. MJ was Wall's moniker in court documents when she was a juvenile. Bruce Wisan is the United Effort's court-appointed fiduciary.
In 2007, a St. George jury convicted Jeffs of rape as an accomplice for his role in Wall's marriage. The Utah Supreme Court later overturned that conviction.
In 2011, a Texas jury convicted Jeffs, now 59, of sex assault charges related to his taking underage girls as brides. He is serving a sentence of life plus 20 years.