NASDAQ +19.98
DOW
S&P 500 +7.03

1 CAD = 0.9653 USD

Judge Lindberg Confers upon Bruce Wisan the Powers of a Judge

2010-07-27 13:48:34

By Donald Richter

A status conference is a pre-trial meeting of attorneys with a judge…. Counsel will confer regarding the status of the case, outstanding discovery issues, need for motions prior to the trial date, and readiness for trial. The judge is usually informed about any settlement negotiations, probable length of trial and other matters relevant to moving the case toward trial.[1]

On July 22, 2010, at the request of the Arizona Attorney General’s Office, Judge Denise Lindberg of Utah’s Third Judicial District Court held what attorneys were told was to be a telephonic status conference on issues regarding the administration of the UEP Trust. At the urging of Bill Richards, Arizona Assistant Attorney General, she proceeded to make a sweeping order that conferred on Special Fiduciary Bruce Wisan complete judicial authority to make whatever decisions he sees fit regarding Trust property, and even to determine what constitutes Trust property. His decisions would then have the effect of court orders and would have to be enforced by local city officials and police.

Not only was such an order completely beyond the scope of a status hearing, but it also was uttered under the emotion of the moment and without due consideration of how it would be applied or enforced. Judge Lindberg, in effect, rubber stamped whatever was proposed by Mr. Richards and refused to allow attorneys representing FLDS interests to present opposing arguments.

In his early statements, Mr. Richards appealed to Judge Lindberg’s pride, presented the FLDS people as a threat to her judicial authority, and spelled out exactly the order that he desired her to make.

Also participating in this conference were Rod Parker and Ken Okasaki, representing FLDS interests; Blake Hamilton, representing the towns of Hildale and Colorado City and the water authority; Tim Bodily from the Utah Attorney General’s Office; and Jeff Shields and Mark Callister, representing Bruce Wisan.

The following excerpts from the hearing show the bias of Judge Lindberg and the outrageous nature of her order:

Lindberg: This is the matter of the United Effort Plan Trust, and this is a telephonic status conference requested by the Attorney General for Arizona…. What you’re alleging in your emergency report is that the…orders of the Court are consistently and routinely being disregarded by a number of people, including most notably the police departments or the marshal’s office of Hildale and Colorado City….

* * *

Richards: Your honor…the issues go certainly far beyond just the local law enforcement, local city officials…The dispute that is alleged there is that members of the FLDS have…some sort of a preexisting religious stewardship...they do not make these stewardships by any sort of legal conveyance. But these folks have taken it upon themselves to simply go out and assume the property and to interfere with the use of that property by those who have been granted an occupancy agreement or a lease by the special fiduciary….

The police attitude is… the Court’s orders are not clear enough…we need another court order… Even in some cases there are comments made indicating that you do not have jurisdiction…in Arizona, for example… We would dispute that, Judge, on multiple grounds…. We believe your jurisdiction extends over the entire realm of the trust, and we believe that your pro tem powers extend certainly to anybody in violation of your order whether they’re in Arizona, Utah, or elsewhere.

Lindberg: I agree.

* * *

Richards: …we think it would be helpful to maintaining the peace, to deescalating the disputes in the local community…for the Court to issue some interim orders so that there is no continuing argument that you have not spoken clearly enough or that you have not addressed the issues or the special fiduciary’s authority to lease property….

Okasaki: Your Honor, we didn’t even know what this phone conference was about, and we are not prepared to argue anything. And I hear motions being made—

* * *

Lindberg: I don’t have to have oral argument on every motion….

Parker: But, your Honor…you’re having two problems. One is that you’re having half of an oral argument. But more than that, there are a lot of representations that were made by Richards that are simply not true…. And he’s attempting to make a factual argument that he’s then attempting to attach to a motion that was, say six months ago and then make new factual allegations to bolster the motion…. There is another side to the story that…you need to know about. They’re about evictions without due process…the fiduciary is taking the position, Arizona is taking the position that they are basically dictators down there and that people with property rights can simply be ignored….

Lindberg: Excuse me, Mr. Parker; I will not be hearing oral argument on this today….

* * *

Richards: ...the local police hide behind the argument that this is just a civil dispute… And they don’t believe that you have issued orders that are clear enough that they can follow or for them to have to acknowledge the lease rights that this Court has authorized Mr. Wisan…to issue.

We would ask the Court…to clarify that the Court does in fact stand behind those leases, that the person has those leases from the fiduciary as to (inaudible) rights that anyone else who doesn’t have a preexisting court order that predates that lease.

Parker: You can’t take away the existing property rights of somebody else, whether it is real property or personal property, by fiat like that.

Lindberg: Just a moment. There is no preexisting property rights of any alleged beneficiary to any land or to anything in the UEP. Okay. There is no pre-existing right, period! There is none. [Consider this in the light of what Lindberg says shortly regarding the need for any legitimate competing claims being resolved in a full trial. How much chance would the FLDS stand in such a trial?]

Parker: But, your Honor, there is. They’re in two senses. One is the sense of the unjust enrichment claims that these people may have in the real property; and number two, there are food and personal property down there that the UEP does not own…. The granary is one of those properties.

* * *

Lindberg: Granaries are not personal property! [See the court cases cited in our previous article.]

Parker: They are, your Honor. I—

Lindberg: Okay. They’re affixed to the land. They’re not. They are—they’re part of the realty.

But in any event, I don’t know how to make myself any clearer, but I will attempt again. Every order that this court has issued is to be enforced to the letter by anyone in authority, and it is to be obeyed by anyone with knowledge of the Court’s orders.

Number two, there is absolutely, without equivocation, I stand behind the actions of the fiduciary insofar as he has entered into leases with individuals, and individuals have relied on those leases…I stand behind those actions.

If there is a problem with those actions, then those can be brought to me, and we’ll hold a trial and we will resolve once and for all substantively what the issues are…. And if there are legitimate competing claims…, that can be certainly addressed in court on a full trial on the merits….

Parker: Well, your Honor, are you giving all of the residents of the property standing to participate in those trials insofar as their personal injuries are implicated? Because that seems to be the import of what you’re saying, that if someone claims they own a piece of personal property, they have standing in your court to dispute that.

In previous rulings, Judge Lindberg denied the FLDS standing in her court regarding the very land that they and their parents consecrated for the living of the United Order, the land that most of them have called home for their entire lives.

Lindberg’s agitated emotional state and resulting mental confusion are shown by her response to Mr. Parker’s question, in which she admits that she has not considered the consequences of her order.

Lindberg: I will need to think through how that process can work given my prior rulings of who does and doesn’t have standing.

But to the extent that there have been individuals that have been occupying UEP land…I will have to figure out and think through…how that evidence is best presented so that those concerns can be presented to the Court and evaluated. I’m not sure how to do that, and I’ll have to think about that….

The people…who have entered into those agreements with a fiduciary…take superior right…over any competing claim, pending a further determination by the Court of competing claims when they’re brought in due time and in proper fashion…. This order has to be unequivocal, and—

Hamilton: Are you saying that a person that’s given an occupancy agreement can come in and just self-help evict somebody? Because that is not the law of this case. That is not the law generally….

* * *

Richards: As a point of clarification for Mr. Hamilton, I don’t think that what the Court has been alluding to or that you were asking about is that you’re granting the fiduciary the authority to go in tomorrow and to find anyone who failed to get an occupancy agreement from him, who is exclusive—been in exclusive possession of that property since before the Court’s administration, since the Court’s administration instead of just kicking them out without going through some sort of a process whether—you know, through this Court…

Parker: This court doesn’t even have jurisdiction.

Lindberg: Well, whichever court has appropriate jurisdiction. I agree with Mr. Richard’s clarification.

In addition to the fact that the “point of clarification” is anything but clearly stated and seems almost contradictory to Judge Lindberg’s earlier statements, what gives Mr. Richards the right to speak for the court? The obvious collusion of the AG’s office and the judge is apparent here, as elsewhere.

Hamilton: Regardless of whether the granary is going to be considered personal or real property, it’s being used by somebody else. So if the special fiduciary gives a lease to somebody…are they allowed to come and remove grain and remove property and self-evict somebody?

* * *

Parker: [If] the fiduciary decides to give a lease to somebody to buy a personal vehicle…then it becomes presumptively valid under the scenario that Mr. Richards is putting forward. He simply says it and it becomes presumptively valid. Because I’m saying that the personal property that we’re talking about is not owned by the trust or by the fiduciary. And broad ownership claim is being ignored. That’s the objection that I have to what’s happening.

Lindberg: I disagree.

Shields: On behalf of the special fiduciary, we are not doing what Mr. Parker alleges we are doing. What we are doing is leasing UEP property… We are not asserting control over property that’s not UEP….

But Mr. Wisan is making the decision as to what constitutes UEP property and has already included numerous items of movable personal property, such as an irrigation pivot and potato processing equipment. (See the list of personal property enumerated in “Bruce Wisan, Fraudulent Fiduciary”) Mr. Shields, in effect, is saying that Wisan and his crew will make fair and reasonable determinations of what items belong to the UEP—just trust them. Mr. Parker is expressing a very valid concern.

Shields: What’s going on right now is the fiduciary has no chance to enforce its right because the police are siding with anybody who’s contrara-ficuciary.

* * *

Hamilton: The police...are not siding with one faction or the other. They…have been put in a difficult situation because the special fiduciary, for whatever reason, hasn’t gone through…the legal process. And Mr. Richards keeps talking about that there needs to be a process put in. Well, there is a legal process already— unlawful detainer action, abandonment statutes, so that…the special fiduciary has to go through that legal process before extinguishing rights.

Mr. Richards later attempts to excuse Wisan and his agents for the conduct that already has resulted in the conviction of Isaac Wyler for criminal trespass and that has Bruce Wisan and Jethro Barlow facing trial as accomplices to the crime.

Richards: Because of the fluid nature of the property…there are people moving in and out….in order to pin these things down, it seems to me reasonable that the court’s representative would have to go out and look at the property sometimes. It seems to me an incredible…duty to do that work if what you’re afraid of is to even show up and [have the police] say, no, you’re criminal trespassing. We’re going to cite you for that.

* * *

Okasaki: Occupancy and ownership are two different things…. People moving in and out…that’s an occupancy issue.

Presently it sounded like what you were asking for is the Court to order that these guys again have [carte blanche] to do whatever they want…. It seems like there’s one condition, there’s two trials pending. [Bruce Wisan and Jethro Barlow for accessories to criminal trespass] And it was in a court of law that made that determination that a law was violated. And it wasn’t appealed so that conviction stands. [Isaac Wyler’s conviction for criminal trespass]

So when you bring up these issues, I’m just confused as to what you want this Court to do.

Lindberg: Well, let me clarify what I think was being asked of me…. There are disputes about whether even a building that’s affixed to the ground or a silo that is affixed to the ground becomes a fixture. You know, whether that’s a fixture that becomes part of the realty or remains personal. And that’s obviously a legal issue that is for the Court to determine upon a presentation of the facts. [Is Lindberg now acknowledging that the silos could be personal property? Earlier she showed her bias by stating unequivocally that they were not.]

But there needs to be at some point an inventory… This is going to be a work in progress… And if the cities would instruct their police officers to make themselves available to…accompany and facilitate and ensure that a representative of the special fiduciary could at least enter a property to identify assets that the trust claims as its own…

Hamilton: First of all, cities have no desire to not obey court orders.

* * *

The police officers will keep the peace. That’s what they have been trying to do. But are you asking the police officers to come out… allow a representative of the trust to pick a lock, open a property to determine if it is occupied or not? [This is exactly the sort of thing that resulted in Isaac Wyler’s conviction for criminal trespass.]

Lindberg: I am asking that a police officer…assist…that at reasonable times and places property be opened for inspection….

Parker: The problem with all of these requests for these sweeping sort of authorizations like that is because you don’t know how they are going to be applied…

* * *

Lindberg: Well, but everything is governed by a rule of reasonableness, counsel…

In the light of her earlier orders, it is highly ironic that Judge Lindberg should at this time refer to all things being governed by a “rule of reasonableness.” What seems to be reasonable to her is anything the court or Mr. Wisan decides to do. This is a judge who is clearly out of control.

CLICK HERE for a complete transcript of the hearing

[1] “Status Conference Law & Legal Definition,” Legal Terms, Definitions & Dictionary, USLegal.com.

Printer Friendly Version

Comments