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

Filing 524

ORDER Plaintiff's motion to compel 474 is granted. Plaintiff may re-notice Mr. Steed's deposition. Mr. Steed 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,

)
)
Plaintiff, )
)
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
Fourth Motion to Compel Deposition Testimony1
Now before the court is plaintiff’s fourth motion to compel deposition evidence. The
motion is opposed by defendant Colorado City. Oral argument has been requested, but
is not deemed necessary.
By three 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 the three prior motions and orders, but this time as to Vergel
Steed. Mr. Steed’s earlier deposition testimony reflects that he formerly sat on the
Colorado City town council as well as the board of defendant Twin City Power.
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
1

Docket No. 474.

2

Docket Nos. 205, 322, and the court’s order on third motion to compel (ruling on
the motion at Docket No. 473 with respect to Officer Cooke, issued concurrent herewith).
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Power; and Twin City Water Authority, Inc. Plaintiff alleges that “[d]efendants have
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 with deponents who were the subject of the three earlier motions
to compel deposition testimony, Mr. Steed has declined to answer questions having to do
with the United Order, FLDS leaders and their directives, the United Effort Plan Trust (the
“Trust”), and church security.5
Plaintiff argues that the disposition of earlier motions to compel deposition
testimony should control disposition of the instant motion. Colorado City argues (as did
Officer Cooke) 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. Colorado City argues that requiring Mr. Steed 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. Colorado City also argues 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.
Colorado City’s 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 the court
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. 474-1.

Order – Fourth Motion to Compel Deposition Testimony

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has previously held, the party asserting a First Amendment privilege (here Steed) 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, Mr. Steed 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 These are the exact same
words that appear in a similar affidavit, that of Officer Cooke.7 It seems unlikely that both
Mr. Steed and Officer Cooke would employ the very same words in the same sequence if
these statements were their own as opposed to being written by someone else. As did
Cooke, Steed also avers that if he were required to answer the questions put to him about
internal affairs of the church, “others would be less likely to associate with the church.”
Again, these are the same words employed by the Cooke affidavit.
If the foregoing were the totality of Steed’s showing in support of a prima facie
showing of First Amendment infringement, the court would find – as it did with Cooke –
that Steed’s affidavit was self-serving, speculative, and conclusory. However, Mr. Steed
submits a whole lot more evidence in the form of testimony taken in an evidentiary hearing
before United States Magistrate Judge Furse in the Utah District Court in connection with
a disagreement involving the Department of Labor. The distinctions that Mr. Steed makes
in that testimony – between commercial matters that are not protected by the First
6

Colorado City’s Response to the United States’ Motion to Compel Deposition
Evidence, Exhibit 2 – Affidavit of Vergel Steed (page 13 of 45), Docket No. 486-1.
7

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.
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Amendment and matters that he considers to be sacred and protected by the First
Amendment – are difficult to understand, some might say illogical. Nevertheless, the
overall impression created by Steed’s testimony is that he sincerely believes what he says.
Mr. Steed has made the necessary prima facie showing that plaintiff’s questions infringe
upon his First Amendment rights. Thus, plaintiff has the burden of demonstrating that
Mr. Steed should nonetheless be required to answer the questions put to him.
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 non-FLDS individuals housing and police protection. In this
action, plaintiff seeks to enforce the civil rights of non-FLDS members and has a compelling
interest in doing so. Eradication of discrimination, the enforcement of civil rights laws, are
compelling government interests. They are important public goals.
Mr. Steed was previously a member of the Colorado City town council and a board
member of defendant Twin City Power. The conduct of defendant Colorado City’s officials
and employees and their interaction with the FLDS church, its officials, and its associated
entities are critical to understanding how the FLDS church and defendants interact. What
the officers and employees of Colorado City 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’ officers and employees and the FLDS church and its
members. The questions posed by counsel for plaintiff to Mr. Steed reasonably adhere to
the court’s earlier instructions and the questions posed to Mr. Steed were rationally related
to the plaintiff’s compelling governmental interest in the protection of civil rights.
The court rejects Colorado City’s 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 that plaintiff seeks to explore with Mr. Steed; but these

Order – Fourth Motion to Compel Deposition Testimony

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deponents are not fungible. What Mr. Steed as a city councilman and/or Twin City Power
board member knows about the interactions between the FLDS church and the defendants
is unique.
Plaintiff’s motion to compel8 is granted.

Plaintiff may re-notice Mr. Steed’s

deposition. Mr. Steed 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. 474.

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