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A pair of Utah Supreme Court arguments Wednesday could be the beginning of the end of a massive legal struggle over a polygamous sect property trust once controlled by imprisoned leader Warren Jeffs.
The hearings will mark the 10th and 11th times that the case has come before Utah's highest court since the United Effort Plan trust was taken over by the state in 2005.
"It doesn't compare to any other case from the standpoint of the amount of time or … the importance of the issues," said Utah Solicitor General Bridget Romano.
The justices will clarify their 2010 ruling against the Fundamentalist Church of Jesus Christ of Latter-Day Saints. They dismissed the case because the group's three-year wait to challenge the takeover was too long but did not specifically deny the FLDS claims the takeover had violated constitutional separation between church and state.
The sect kept fighting and several months later it paid off: A federal judge ruled the state had no right to seize control of homes and businesses of a religious group without proving a crime involving the trust, no matter how nefarious the leader might be. Jeffs, 56, was convicted in Texas last year of sexually assaulting two girls, 12 and 15, who he took as polygamous wives.
"This is one of those cases where the rubber meets the road on the Constitution and the ends do not justify the means," said FLDS attorney Rod Parker. "Sometimes what the Constitution demands may not be what people are comfortable with … if you start to make those kind of exceptions, where does it stop?"
The Utah Attorney General appealed, saying that the Utah Supreme Court dismissal should have been final and the federal judge should never have been involved.
But such a dismissal is rare and there's no legal precedent in Utah on whether it should be the final word on a case, so the federal appeals court sent it back to the Utah Supreme Court to clarify.
That question is "hugely important," Romano said. "It really is the answer on which a lot of the questions hang about how the trust can and will be managed into the future."
Though a federal appeals court would still have to weigh in, if the justices side with Romano, it would likely mean the trust would stay in state hands, under the management of accountant Bruce Wisan.
He's the subject of a second hearing set for Wednesday. Since the FLDS started fighting the takeover in 2008, neither he nor his attorneys or other employees have been fully paid and the bill now tops $5.5 million, much of it legal fees.
Wisan says the state should pay it, and the lower-court judge overseeing the case agreed. He says he'll pay the money back by selling pieces of the trust, including land and a dairy, if it stays in his hands.
"The administration of the fiduciary has been doing work that has benefited the state of Utah and Arizona," Wisan said. "No one knew at the time all the problems and issues that would surface."
But Utah Attorney General Mark Shurtleff disagrees, saying Wisan knew there were risks when he took on the project and taxpayer money shouldn't go toward bills for managing the trust.
If the Utah Supreme Court sides with Wisan, a special legislative session could be called to appropriate the money, which is due Aug. 1.
"We don't have money," Romano said. "The only way the state creates the ability to pay is with appropriations from the Legislature."
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About the UEP trust
Worth about $114 million, the trust holds nearly all the land, homes and businesses in the FLDS home base of Hildale, Utah, and Colorado City, Ariz. The state moved to take control of the trust as FLDS leaders avoided lawsuits from former members, raising the possibility members could lose their homes as assets were sold to pay default settlements.