United States of America v. Colorado City, Town of et al

Filing 523

ORDER Plaintiff's motion to compel 473 is granted. Plaintiff may re-notice Officer Cooke's deposition. Officer Cooke shall attend the deposition and answer the questions to which he previously took exception as well as related follow-up questions. Signed by Judge H Russel Holland on 10/28/2014.(KMG)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA,

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Plaintiff, )
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vs.
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TOWN OF COLORADO CITY, ARIZONA;
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et al.,
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Defendants. )
__________________________________________)

No. 3:12-cv-8123-HRH
(Prescott Division)

ORDER
Third Motion to Compel Deposition Testimony1
Now before the court is plaintiff’s third motion to compel deposition evidence. The
motion is opposed by the Hildale defendants. Oral argument has been requested, but is
not deemed necessary.
By two previous orders on motions to compel deposition testimony,2 the court has
ordered reopening of depositions taken by plaintiff. The motion now before the court
raises the same issues as to Officer Curtis Cooke, whose deposition testimony was not the
subject of either of the previous orders.
On June 21, 2012, plaintiff, the United States of America, commenced this action
against defendants The Town of Colorado City, Arizona; City of Hildale, Utah; Twin City
Power; and Twin City Water Authority, Inc. Plaintiff alleges that “[d]efendants have
1

Docket No. 473.

2

Docket Nos. 205 and 322.

Order – Third Motion to Compel Deposition Testimony

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engaged in a pattern or practice of illegal discrimination against individuals who are not
members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (“FLDS”).”3
Plaintiff alleges that defendants “have acted in concert with FLDS leadership to deny nonFLDS individuals housing, police protection, and access to public space and services.”4
As was the case in the two earlier motions to compel deposition testimony, Officer
Cooke has declined to answer questions having to do with his FLDS membership, the
United Order, FLDS leaders and their directives, communications with fugitive Warren
Jeffs, the United Effort Plan Trust (the “Trust”), and FLDS church security.5
Plaintiff argues that the court’s disposition of earlier motions to compel deposition
testimony should control disposition of the instant motion. The Hildale defendants argue
that the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, and decisions based upon
that act control and should lead to denial of plaintiff’s motion to compel. The Hildale
defendants argue that requiring Officer Cooke to answer the questions which he refused
to answer based upon First Amendment rights would substantially burden his religious
beliefs, and that his religious beliefs are sincere and would be violated by answering the
questions to which he took exception. The Hildale defendants also argue that plaintiff has
no compelling governmental interest in the answers it seeks, and that plaintiff has not
employed the least restrictive means of furthering its interests.
The Hildale defendants’ arguments based upon the Religious Freedom Restoration
Act are neither instructive nor helpful because the court has employed in its two previous
orders on motion to compel deposition testimony and will apply here the same strict scrutiny test that is embodied in the Religious Freedom Restoration Act. Summarizing what

3

Complaint at 2, ¶ 4, Docket No. 1.

4

Id. (footnote omitted).

5

See plaintiff’s L.R. Civ. 37.1(a) attachment, Docket No. 473-1.

Order – Third Motion to Compel Deposition Testimony

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the court has previously held, the party asserting a First Amendment privilege (here
Cooke) must first make a prima facie showing of a First Amendment infringement. He
must show that requiring answers to questions will result in harassment or other consequences. If that prima facie showing is made, the plaintiff then has the burden of demonstrating that the information sought through discovery is rationally related to a compelling
government interest and that the discovery sought is the least restrictive means of obtaining the information. See Perry v. Schwarzenegger, 591 F.3d 1147, 1160-62 (9th Cir. 2010).
In an affidavit in support of the instant motion, Cooke avers that “I have made
religious vows not to discuss matters related to the internal affairs or organization of the
Fundamentalist Church of Jesus Christ of Latter-day Saints.”6 Cooke further status that if
he answers the plaintiff’s questions, “others would be less likely to associate with the
church[,]” and “less likely to associate with me and harm my relationship with my God.”7
Officer Cooke’s showing of harassment or other consequences is weak. It is not at
all clear that his vow is something more than a self-imposed, testimony avoidance
technique, as opposed to a tenet of his church. His showing of adverse consequences is
both speculative and conclusory. Assuming, however, that the requisite prima facie
showing has been made, the court again finds that plaintiff has a compelling governmental
interest in obtaining the answers to questions which it seeks. Plaintiff alleges that the
defendants have engaged in a pattern or practice of illegal discrimination against non-FLDS
members, and that defendants have acted in concert with the FLDS leadership to deny nonFLDS individuals housing and police protection. Plaintiff seeks to enforce the civil rights
of non-FLDS members and has a compelling interest in doing so.

Eradication of

6

Hildale Defendants’ Memorandum in Opposition to Plaintiff’s Motion to Compel
Deposition Evidence, Exhibit B – Affidavit of Curtis Cooke (page 2 of 4), Docket No. 490-2.
7

Id. (page 3 of 4).

Order – Third Motion to Compel Deposition Testimony

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discrimination, the enforcement of civil rights laws, are compelling governmental interests.
They are important public goals.
Officer Cooke is or was a law enforcement officer employed in the cities’ marshal’s
office. The conduct of the defendant cities’ marshals and their interaction with the FLDS
church, its officials, and its associated entities and with non-FLDS residents of the cities are
critical to understanding how the FLDS church and defendants interact. What the law
enforcement officers of the cities know and how the FLDS church and the defendants
interact in the performance of city functions is highly relevant.
In its earlier orders, the court has instructed plaintiff to focus its inquiries on the
interactions between the defendants and their employees and the FLDS church and its
members. It is those interactions that are highly relevant to the plaintiff’s claims. The
questions posed by counsel for plaintiff reasonably adhere to the court’s earlier
instructions, and the questions posed to Officer Cooke were rationally related to the
plaintiff’s compelling governmental interest in the protection of civil rights.
The court rejects the Hildale defendants’ contention that plaintiff’s inquiries are not
the least restrictive means of obtaining the desired information. To be sure, plaintiff has
examined other deponents on the subjects which plaintiff seeks to explore with Officer
Cooke; but these deponents are not fungible. What Cooke as a police officer knows about
the interactions between the FLDS Church and the defendants is unique.
Plaintiff seeks an award of attorney fees in connection with the instant motion. The
court has not heretofore entered an order requiring Officer Cooke to respond to questions
that he did not answer. Plaintiff’s request for attorney fees is denied at this time.

Order – Third Motion to Compel Deposition Testimony

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Plaintiff’s motion to compel8 is granted. Plaintiff may re-notice Officer Cooke’s
deposition. Officer Cooke shall attend the deposition and answer the questions to which
he previously took exception as well as related follow-up questions.
DATED at Anchorage, Alaska, this 28th day of October, 2014.

/s/ H. Russel Holland
United States District Judge

8

Docket No. 473.

Order – Third Motion to Compel Deposition Testimony

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