The high court has been ordered to clarify one of their own rulings from 2010, when they weighed whether the state of Utah violated the Constitution when it took over the communal property trust held by the Warren Jeffs-led Fundamentalist Church of Jesus Christ of Latter-Day Saints in 2005.
Instead of fully hashing out that issue, however, the Utah Supreme Court decided the FLDS had waited too long to come forward and dismissed the case.
But the sect had also filed with the federal court, and early last year they scored a major legal victory when U.S. District Judge Dee Benson ruled the takeover was illegal and the trust should go back to the FLDS.
Though Benson's hand-back order was paused by the appeals court, sect members still live and work on trust property located along the Utah-Arizona border. The approximately $114 million trust holds most of the land and buildings in the sect's home base of Colorado City, Ariz., and Hildale, Utah.
In appealing Benson's decision, the Utah Attorney General argued there had to be clarity on what the Utah Supreme Court meant when it tossed out the FLDS claim: Should that dismissal be considered a final order, barring any other judge from considering the case? If so, then the Attorney General's Office says Benson had no business ruling and the whole saga should end there, with the trust in state hands.
But attorneys for the FLDS say the Utah Supreme Court decision never got to the meat of their argument, leaving the door open for another judge Benson to make a ruling.
The next step now is for the 10th Circuit to publish a carefully worded question for the Utah Supreme Court to make a ruling, said FLDS attorney Rod Parker.
"It certainly is a setback in terms of timetable," Parker said. There will likely be another round of legal briefings and possibly a hearing before the Utah Supreme Court makes its decision.
Then the appeals court will react to the Utah Supreme Court's ruling and regardless of what the Utah Supreme Court decides, the appeals judges may yet decide to keep the case alive, Parker said.
If the 10th Circuit agrees with Benson who has said that each day the state holds the trust is a violation of the Constitution they couldgive the trust back to the sect, no matter what the Utah Supreme Court decides.
In any case, the appeals court ruling could mean another year before there is a final decision.