Professional Documents
Culture Documents
2
3
4
7
8
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
10
11
12
Plaintiff,
13
14
15
v.
Defendants.
17
19
20
Pursuant to this Courts Order [Doc. 983], defendants Town of Colorado City,
Arizona, and the City of Hildale, Utah (collectively the Defendants) submit the
following closing argument regarding injunctive relief.1
I.
21
22
23
24
25
16
18
INTRODUCTION.
The evidence the United States presented during the October 2016 evidentiary
hearing confirmed that the United States seeks injunctive relief that is disconnected from
the facts, the law, and the jurys verdict. The United States offered ideas such as
disbandment or subdivision approval or new impact fees but did not offer any
actual plan. The United States witnesses also completed little, if any, analysis, were
26
27
28
This closing brief supplements the Defendants Joint Response to the United States
Post-Trial Brief Regarding Injunctive Relief [Doc. 940]. The Defendants incorporate the
arguments raised in that Post-Trial Brief into this closing brief.
largely ignorant about the facts, and generally testified in whatever way they believed
would most benefit the United States. The Defendants, in contrast, presented this Court
with a specific plan and detailed, unbiased steps this Court can order with respect to
injunctive relief, including how to restructure and improve the Colorado City Marshals
Office (CCMO), how to handle the subdivision dispute that the United Effort Plan Trust
(UEP Trust) has created, and how to ensure that housing and utility decisions are made
in a non-discriminatory manner.
8
9
The United States also continues to ignore the legal standard this Court must
apply.2
The Supreme Court has held that injunctive relief should be no more
10
burdensome to the defendants than necessary to provide complete relief to the plaintiffs.
11
Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Any injunctive relief must also be
12
tailored to remedy the specific harm alleged. Lamb-Weston, Inc. v. McCain Foods,
13
Ltd., 941 F.2d 970, 974 (9th Cir. 1991). An injunction that is overly broad, unduly
14
burdensome, or not narrowly tailored is an abuse of the Courts authority and subject to
15
reversal on appeal. See United States v. BNS, Inc., 858 F.2d 456, 460 (9th Cir. 1988).
16
It is within this backdrop that the Defendants offer the following proposals
17
regarding the appropriate injunctive relief this Court should enter under 42 U.S.C.
18
14141 and the federal Fair Housing Act. These proposals are based upon the testimony
19
20
II.
21
22
In its advisory verdict under 42 U.S.C. 14141, the jury concluded that the
23
Defendants, through the CCMO, violated the Establishment Clause of the First
24
25
26
27
28
The United States Closing Brief [Doc. 1022] contained 26 pages of text, which violates
this Courts order that the closing briefs shall not exceed 25 pages, total. See Order
[Doc. 983], at p. 2.
3
The United States Closing Brief [Doc. 1022] includes facts and arguments not
presented during the evidentiary hearing, which again violates this Courts order that the
closing briefs should focus primarily upon evidentiary hearing testimony. See Order
[Doc. 983], at p. 2.
2
Amendment, the Equal Protection Clause of the Fourteenth Amendment, and engaged in
without probable cause in violation of the Fourth Amendment.4 Importantly, the jury also
concluded that the CCMO did not engage in unreasonable searches of property,
unreasonable investigatory stops, or use excessive force under the Fourth Amendment.5
The United States therefore did not succeed on all of its claims, and this Court cannot
ignore the jurys findings in favor of the CCMO when considering the appropriate
injunctive relief.6
A.
10
11
for the CCMO. He is the former Pueblo County Sheriff, a position he held for 17 years.
12
13
and that had a history of problems. Mr. Corsentino improved the Sheriffs Office and
14
15
16
17
Corsentino also worked as the Chief of Police for Fountain, Colorado, a small community,
18
and served on the Colorado POST Board, during which he reviewed officer discipline and
19
certification issues.7
Mr.
20
Mr. Corsentino completed substantial analysis on the CCMO that the United
21
States police expert, Chief Harris, did not. For example, Mr. Corsentino made two trips
22
to Colorado City and Hildale to evaluate the CCMOs systems, including the hiring,
23
firing, internal affairs, policies and procedures, and communications center. He also
24
25
26
27
28
interviewed the officers and reviewed their training, report-writing skills, vehicles, and
weapons. He then completed a ride-along with Deputy Hyrum Roundy and met with the
local municipal judge to obtain her insights into the conduct of the officers and the
5
6
Based upon Mr. Corsentinos background, experience, and analysis, he offered the
following steps to improve the CCMO:
1.
Restructure the Hiring Committee for New Officers. The Town Manager
and a representative from the Town Council should not sit on the hiring committee for
new officers. Rather, the Chief of Police and other law enforcement professionals should
10
sit on the committee and then recommend candidates for hiring to the Town Council.9
11
2.
This
12
additional staff will help free-up the Chief of Police so that he can focus on administrative
13
and management responsibilities. It will also allow the Chief to improve his visibility
14
within the community, including building relationships with community groups, attending
15
16
3.
17
Town Manager and the Town Council from the internal affairs process and evaluating
18
19
4.
20
policies and procedures will help address specific issues that the jury identified, including
21
search and seizure of property, seizure of a person, and probable cause, as well as issues
22
raised in this case under the First, Fourth, and Fourteenth Amendments.12 The new
23
24
25
26
27
28
policies and procedures will meet nationally-accepted standards for constitutional policing
5.
and using body cameras will help remove doubt about what occurred during any particular
6.
on the First, Fourth, and Fourteenth Amendments, the state and federal Fair Housing Acts,
7.
The Chief of
10
Police should meet with Washington County Sheriff Cory Pulsipher and Mohave County
11
Sheriff Doug Schuster to develop a better working relationship and to seek their input on
12
13
community or regional boards so that he can interact with other law enforcement
14
personnel.15
15
8.
Hire Mentor for the Chief of Police. The CCMO should hire an individual
16
to mentor the Chief of Police in the performance of his job and to help him improve the
17
CCMO. This individual should provide mentorship for at least one year and should come
18
19
20
Mr. Corsentino outlined these and other steps in a strategic plan that was submitted
21
to this Court.17 He also analyzed the Defendants finances and concluded that, although
22
23
13
24
14
25
26
27
28
implementing these steps will involve increased costs, they are not cost prohibitive.18
These steps are appropriate under the law to remedy the jurys conclusions. This Court
should therefore adopt them as its form of injunctive relief with respect to the CCMO.19
B.
The United States request to disband the CCMO is contrary to the long-standing
judicial principle to not use a sledgehammer where a more delicate instrument will
suffice. Dean v. Coughlin, 804 F.2d 207, 213 (2nd Cir. 1986). Disbandment is also
inconsistent with how the United States has treated other police departments alleged to
10
have committed the same or far worse conduct as the CCMO, would provide less
11
coverage to the residents of Colorado City and Hildale, is too costly, and would take away
12
the authority of Utah POST and Arizona POST. Each issue is discussed below.
13
14
15
A comparison chart showing the United States investigations into other police
16
departments under 42 U.S.C. 14141 was provided to this Court during the evidentiary
17
hearing.20 This chart includes information about the United States investigations into six
18
separate police departments under the First, Fourth, and Fourteen Amendments that
19
involved allegations of conduct far worse than anything alleged against the CCMO,
20
including officers using Tasers and canines on African Americans, using deadly force
21
against individuals with mental illnesses, failing to properly investigate sexual assault
22
claims, and other extreme misconduct.21 The remedies the United States sought and
23
24
25
26
27
28
1.
18
obtained included new policies and procedures, improved community outreach, improved
training, improved internal affairs processes, and for some departments a monitor.22
In not one of these investigations did the United States seek or obtain disbandment.
the comparison chart, compared it to the United States request to disband, and described
8
9
10
11
12
13
14
This Court should maintain consistency within the law and reject the United States
15
16
2.
17
The United States idea is to force the Defendants to contract with Mohave County
18
19
20
The Mohave County Sheriff did not testify during the evidentiary hearing, and so
21
this Court does not know his thoughts, ability, or willingness to assume police coverage.
22
Instead, the United States presented James Schoppmann, who discussed a proposed
23
contract for the Mohave County Sheriffs Office to provide police coverage in Colorado
24
25
26
27
28
22
Id.
See Dan Corsentinos Hearing Transcript, at p. 571.
24
The United States effort to treat the CCMO officers differently based upon their
perceived religious beliefs also became clear when Chief Harris the United States
expert testified that he would only advise letting the CCMO officers reapply for their
positions if they were not a member of FLDS. See Chief Harris Hearing Testimony, at
pp. 357 358.
23
City.25 A simple review of this contract shows a significant reduction in the available
services. For example, Mohave County Sheriff Deputies are only certified in Arizona,
and so the contract covers police services in Colorado City, not Hildale, meaning that
Mohave County Deputies would have to stop at the Arizona border.26 In contrast, the
CCMO officers are dual certified in Arizona and Utah. Mohave County would also have
only one deputy to patrol Colorado City from 6:00 am to 2:00 am each day, unless the
deputy was on another call within the county, in which case no Mohave County deputy
would be on patrol in Colorado City.27 Even if another call does not occur, however, no
Mohave County deputy would patrol Colorado City from 2:00 am to 6:00 am, a critical
10
time when many incidents occur. Currently, the CCMO provides 24-hour police presence
11
and has six deputies available to respond to a call. Finally, the contract states that the
12
Mohave County substation would only be open during regular county business days and
13
14
Cory Pulsipher is the Washington County Sheriff. He also testified about the
15
reduction in police services that would occur if the Washington County Sheriffs Office
16
were to assume policing in Hildale. First, Sheriff Pulsipher admitted that the Washington
17
County Sheriffs Office does not have the resources or manpower necessary to provide
18
24-hour police presence in Hildale.29 In fact, he currently has only four deputies on duty
19
to cover the entire 2,500 square miles within the county, which Sheriff Pulsipher
20
described as already thin coverage due to the vast area of the county.30 Second, the
21
Washington County Sheriff Deputies are not dual certified, which means they would also
22
stop at the Utah border, except in an emergency situation, in which case they would travel
23
into Arizona to hold the scene (not process it) until a Mohave County Sheriff Deputy
24
25
25
26
27
28
arrived.31 This idea is contrary to the position that Arizona POST has taken, which is that
an officer from another state cannot respond to a call in Arizona without first obtaining an
Arizona certification. Arizona POST has also stated that this conduct violates A.R.S.
13-2411, which prohibits impersonating a peace officer. Finally, Washington County also
shows that disbandment will result in less police services for the residents. This Court
3.
10
13
14
15
18
19
20
21
22
23
24
25
26
27
28
Obtain
Equivalent
injunctive relief that the United States proposes. See United States v. Puerto Rico, 922
F.Supp.2d 185 (D. Puerto Rico 2013) (rejecting proposed settlement agreement under 42
U.S.C. 14141 because it was likely Puerto Rico could not afford the proposed changes).
The evidence shows that they cannot.
Daniel Rondeau is a forensic accountant.34
16
17
To
Another factor this Court must consider is whether the Defendants can afford the
11
12
Hildales financial statements and audits, as well as the CCMOs expenditures and
budgets, to determine their current economic status.35 His opinion is that the Defendants
are in a state of plateau financially because they have not grown in the last several years
and do not expect any major future growth.36 He also concluded that the cost for the
31
Defendants to obtain equivalent police services from the counties exceeds the Defendants
Yeah, I do not see how the communities could possibly afford the
proposals that have been put forth. Although Ive heard the
testimony that its sort of a menu that somehow somebody could
select some lesser amount. Any lesser amount would be less
coverage than having somebody in these cities because of these state
line issues.38
The Defendants cannot afford to pay for equivalent replacement police services, with both
Colorado City and Hildale having to contract for outside services at a cost much higher
than the current cost for the CCMO. This Court should therefore reject the United States
4
5
10
idea.39
11
12
13
Each CCMO officer is dual certified in Arizona and Utah, and therefore subject to
14
4.
15
This Court heard that Utah POST began investigating the CCMO officers in 2012
16
for many of the same issues that the United States alleged in this case. Yet, in August
17
2016, Utah POST cleared all the officers of any misconduct because there was not
18
sufficient evidence to warrant any discipline.40 Mr. Corsentino explained the importance
19
20
21
22
23
24
25
26
27
28
37
10
charges its then referred to either the local prosecutor and/or the
Attorney Generals Office.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Utah POSTs conclusion with respect to each officer is uncontroverted. And although the
United States argues that the standard Utah POST applies is different than what the United
States wants it to apply, the Utah State Legislature has set that standard. It is not for the
United States to change it or to exert its political influence on how it is administered. It
would also be improper for this Court to take away Utah POSTs authority to investigate
and discipline (or, in this case, exonerate) certified police officers as it deems necessary.
17
18
19
20
21
22
23
This Court is also aware that Arizona POST began investigating the CCMO
officers in coordination with, and conveniently just before, the trial in this case. But this
Court also heard that Detective Travis Meadows, who headed the investigation, reached
his conclusions against the officers early in his investigation and before he even
interviewed the officers.42 Not surprisingly due to that imbalance, Arizona POST decided
to file administrative complaints against the officers. These complaints, however, are just
the next step in the process, not the end. Each officer denied the allegations in their
24
25
26
27
28
41
11
respective complaint and requested a hearing before the Arizona Office of Administrative
Hearings.43 These hearings will likely occur in April or May 2017, during which each
officer will have the opportunity they were not afforded during the POST investigation to
defend themselves. An Administrative Law Judge will then issue a recommendation back
to Arizona POST. The CCMO officers are confident that the Administrative Law Judge
and then Arizona POST will clear them of wrongdoing, just as with Utah POST, once
they hear all the evidence and do not prejudge them as did Detective Meadows.44
Arizona POST and Utah POST have systems to deal with police officer
misconduct. Utah POST already cleared the CCMO officers. If Arizona POST finds that
10
one or more of them acted improperly, it will take appropriate action, which could include
11
a wide-range of discipline. But for this Court to take officer discipline away from Arizona
12
POST would usurp Arizona POSTs authority. This Court need not disband the CCMO,
13
or even consider such an extreme option, because Arizona POST and Utah POST are
14
15
III.
16
The United States seeks comprehensive injunctive relief against the Defendants
17
18
19
20
21
under the federal Fair Housing Act. This additional relief is unnecessary because identical
injunctive relief already exists. The Defendants have also taken proactive steps to ensure
compliance with the Fair Housing Act, and the UEP Trust is already litigating its
subdivision dispute in the Mohave County Superior Court.
22
23
24
25
26
27
28
43
12
A.
This Court is familiar with the Cooke case brought against the Defendants. Most
3
4
5
6
7
of the issues the United States alleged in this case were the same as those alleged in the
Cooke case; in fact, Jinjer Cooke testified on the United States behalf during the liability
trial. After the Cooke case, Judge Teilborg issued an injunction against the Defendants
under the Fair Housing Act, which states the following:
During the ten-year period beginning from the date of this Judgment,
Defendants and their agents shall not (1) discriminate because of
religion against any person in the terms, conditions, or privileges of
the provision of services or facilities in connection with the sale or
rental of a dwelling; or (2) coerce, intimidate, threaten, interfere
with, or retaliate against any person in the enjoyment of his or her
dwelling because of religion or because that person has asserted
rights, or encouraged others to assert their rights, protected by the
federal Fair Housing Act or the Arizona Far Housing Act.46
8
9
10
11
12
13
14
15
16
17
18
19
This language is patterned after the same provisions of the Fair Housing Act that the
United States pursued in this case, including 42 U.S.C. 3604(b) and 3617.47 Judge
Teilborg has therefore already enjoined the Defendants from engaging in the same
conduct that the United States asks this Court to include in its injunction. Judge Teilborg
also created an expedited process for individuals who believe the Defendants have
violated his injunction to have their concerns heard.48
If this Court were to issue another injunction under the Fair Housing Act,
20
21
22
23
24
25
26
27
28
confusion would result. For example, which Court would retain jurisdiction? If an
individual believed the Defendants violated one or both of the injunctions, would they
46
See Judge Teilborgs November 26, 2014 Amended Judgment and Permanent
Injunction, admitted as Exhibit 723. Judge Teilborgs issued his first injunction on
September 4, 2014, which was admitted as Exhibit 3372. The United States argues that
these injunctions have somehow expired, but their language shows otherwise. It is also
clear that Judge Teilborg issued the Amended Judgment and Permanent Injunction to
correct a legal error contained within the original injunction. See David Dargers Hearing
Transcript, at pp. 793 804.
47
See Complaint [Doc. 1], at 57 61.
48
See Judge Teilborgs September 14, 2014 Order, at p. 7, lines 3 10, admitted as
Exhibit 3372.
13
seek relief in this Court or Judge Teilborgs? And if an individual does not receive relief
in one Court, can it then go to the other Court and make the same arguments again under
the second injunction? These and other problems are all avoided if this Court simply
The Defendants have also taken affirmative steps to improve their conduct under,
and ensure compliance with, the Fair Housing Act. For example, all employees (including
the CCMO officers) received two sessions of Fair Housing Act training from the
discrimination training and participated in the annual Fair Housing survey with the State
10
of Arizona.50 The Defendants filmed this training to make it available to any employees
11
who could not attend, to use as a refresher, and to show to new employees.51 The
12
Defendants have also asked the Southwest Fair Housing Council to provide yearly or bi-
13
yearly training.52
14
15
Judge Teilborgs injunction, and the Defendants proactive steps to comply with it,
show that yet another duplicative injunction covering the same issues is unnecessary.
16
B.
17
20
21
22
23
24
25
26
27
28
The United States wants this Court to order Colorado City to stamp with approval a
18
19
UEP Trust subdivision proposal, even though its proposal does not comply with Colorado
Citys subdivision ordinance or Arizona law, and even though it has not been reviewed for
the health, safety, and welfare of the Colorado City residents.53 The United States also
seeks this relief even though it has never identified the UEP Trust as an aggrieved
49
Id. at p. 804; see also Training Materials, Sign-In Sheets, and Certificate of Attendance,
admitted as Exhibits 3430, 3431, 3432, and 3433.
50
Id. at pp. 804 805.
51
Id. at p. 817.
52
Id. at pp. 816 818.
53
Right now, no proposal exists from the UEP Trust because it has not submitted any
proposed plats or other required subdivision documents to Colorado City for review. See
David Dargers Hearing Transcript, at pp. 840 841.
14
person under 42 U.S.C. 3602(i). Regardless, this Court need not enter any injunctive
relief regarding the UEP Trusts subdivision issue because whether it subdivides or not is
entirely within its control.54 Yet, it has chosen not to, and even to this day it refuses to
1.
This Court heard from Dale Miller regarding the subdivision issue. Mr. Miller is a
8
9
10
11
12
13
14
15
professional engineer who works for Rick Engineering and who was proactively hired by
Colorado City to work with Zachary Renstrom, the UEP Trusts engineer, on the UEP
Trusts subdivision and platting requests.55 Mr. Miller began working with Mr. Renstrom
in 2014. Before he began this work, however, he first conducted a formal review of
Colorado Citys subdivision ordinance and concluded that, other than some minor
cosmetic changes, the ordinance was standard and appropriate.56 He also invited Mr.
Renstrom to comment on the ordinance, but Mr. Renstrom refused.57
After some initial meetings and conversations, Mr. Miller and Mr. Renstrom
16
17
18
19
20
21
22
23
24
25
26
27
28
agreed to a process by which the UEP Trust could use a modified process to plat its
property without following all the steps of the subdivision ordinance.
This process
became known as an abbreviated and modified platting process.58 Mr. Miller and Mr.
Renstrom then appeared before the Colorado City Town Council on February 2, 2015 to
present the proposed process, after which the Town Council voted to tentatively approve
an abbreviated subdivision process for a UEP subdivision with a clear definition of what
54
The United States argument that Colorado City refuses to approve UEP Trust
subdivision plats is false. Colorado City has encouraged the UEP Trust to subdivide
through the appropriate lawful process and has repeatedly tried to work through the issues
and facilitate the subdivision, only for the UEP Trust to improperly accuse it of
discrimination.
55
See Dale Millers Hearing Transcript, at p. 941.
56
Id. at pp. 941 943; see also Subdivision Ordinance, admitted as Exhibit 1022.
57
Id. at p. 943.
58
Id. at pp. 944 946.
15
is considered improved and unimproved, with the understanding that the Council may
he and Mr. Renstrom had agreed to, and what the Town Council had approved.60 The text
Renstrom and Bruce Wisan dated February 17, 2015 and attaching the Memorandum of
Understanding, Mr. Miller stated that the MOU addresses the Town Council directive
and is in line with our discussions during and immediately following the Council meeting
10
on February 2.62 Mr. Miller asked Mr. Renstrom and Mr. Wisan to identify any revisions
11
In an e-mail to Mr.
12
Instead, Mr. Renstrom submitted a dot map to Mr. Miller to try and visually
13
convey the information in the Memorandum of Understanding.64 The dot map itself,
14
however, was not an agreement. Mr. Miller also identified several errors on the dot map,
15
16
The next step was for Mr. Miller to draft a Development Agreement to turn the
17
18
19
20
21
22
23
24
25
26
27
28
59
Id. at pp. 946 949; see also February 2, 2015 Meeting Minutes, admitted as Exhibit
3343.
60
See Memorandum of Understanding, admitted as Exhibit 486.
61
Id.; see also Dale Millers Hearing Transcript, at pp. 950 956.
62
See February 17, 2015 E-Mail, admitted as Exhibit 3361.
63
See Dale Millers Hearing Transcript, at pp. 951 952.
64
See Dot Map, admitted as Exhibit 3495; see also Dale Millers Hearing Transcript, at
pp. 957 958.
65
See February 23, 2015 E-Mail, admitted as Exhibit 3511; see also Blow-Up Example of
Dot Map Problems, admitted as Exhibit 3522, and Dale Millers Hearing Transcript, at pp.
956 965.
66
See Development Agreement, admitted as Exhibit 3363.
67
Id.
16
Mr. Miller sent the Development Agreement to Mr. Renstrom on March 6, 2015 and
asked for any comments or changes, but once again he did not respond.68
Mr. Miller believed that the UEP Trust would sign the Development Agreement so
the parties could commence subdividing.69 But instead, the UEP Trust refused. Mr.
Renstrom sent an e-mail to Mr. Miller on March 13, 2015 with a series of questions and
accusatory statements.70 Mr. Miller expressed his surprise over receiving such an e-mail
as follows:
9
10
11
12
13
14
So, you know, it leads you to believe that somebody got to him and
told him, you will not agree, you know, with this document, even
though its the same thing.71
15
16
17
Mr. Miller answered Mr. Renstroms questions and tried to convince him to have the UEP
Trust sign the Development Agreement, but the UEP Trust still refused.72
18
19
20
The UEP Trust then demanded that Colorado City sign an agreement that the UEP
Trusts attorneys had drafted and called an Agreement to Record Subdivision.73 This
agreement violated Arizona law regarding subdivision and was contrary to the agreement
21
22
23
24
25
26
27
28
68
See March 6, 2015 E-Mail, admitted as Exhibit 3364; see also Dale Millers Hearing
Transcript, at pp. 966 967.
69
See Dale Millers Hearing Transcript, at pp. 968 969.
70
See March 13, 2015 E-Mail, admitted as Exhibit 3496.
71
See Dale Millers Hearing Transcript, at pp. 974 975.
72
Id. at pp. 976 980.
73
See Agreement to Record Subdivision, admitted as Exhibit 490.
17
that Mr. Miller and Mr. Renstrom reached and that the Town Council approved
Mr. Miller attended a Town Council meeting on April 13, 2015.75 He updated the
Understanding, the Development Agreement, and the UEP Trusts demand that Colorado
City instead sign its Agreement to Record Subdivision.76 After discussion, comments
from the public, and concerns to ensure that everything was handled correctly, the Town
Council voted to withdraw its offer of an abbreviated and modified platting process
(which the UEP Trust had already rejected), advise the UEP Trust to comply with the
10
subdivision ordinance, and seek guidance from Judge Teilborg.77 The UEP Trust then
11
12
Despite the UEP Trusts refusal to sign the Development Agreement that it had
13
previously agreed to, it can still subdivide its property today if it so desired. All it has to
14
15
ordinance. Mr. Miller and David Darger have repeatedly advised the UEP Trust to submit
16
an application to move the process forward, but it refuses.78 The reason is because it does
17
not want to incur the costs normally associated with subdivision, and instead wants this
18
Court to order Colorado City to approve the UEP Trusts non-compliant subdivision
19
proposal and thereby shift the costs to Colorado City and its residents.79 The UEP Trust
20
74
21
22
23
24
25
26
27
28
18
created this entire situation and has used its false accusations against Colorado City about
discrimination just to avoid the required and customary costs to subdivide.80 The United
States bought the UEP Trusts argument and decided to support a property owner who
wants to violate Arizona subdivision statutes, rather than a municipality that is trying to
protect the health, safety, and welfare of all residents. This Courts intervention in this
2.
This Court should also decline to issue any injunctive relief regarding the UEP
Trusts subdivision issue because the Mohave County Superior Court has already retained
10
jurisdiction.
11
threatened litigation, Colorado City filed a Complaint for Declaratory Relief to obtain a
12
final judicial decision on the issue.81 Colorado City seeks declaratory relief regarding
13
whether it has the authority under Arizona law to regulate subdivision issues for property
14
located within its boundaries, and whether it can require the UEP Trust to comply with its
15
subdivision ordinance for the property it seeks to subdivide.82 Judge Conn from the
16
Mohave County Superior Court is now handling this Complaint. The UEP Trust moved
17
to dismiss it and argued, in part, that Judge Teilborg should resolve the issue. Judge Conn
18
denied the motion to dismiss, retained jurisdiction, and has since issued a scheduling order
19
to resolve the dispute in a fairly quick timeframe.83 The UEP Trust can present all its
20
evidence and arguments to Judge Conn, after which Judge Conn will make a final ruling,
21
which Colorado City will then follow.84 Additional judicial relief from this Court is
22
80
23
24
25
26
27
28
After the UEP Trust refused to sign the Development Agreement and
The UEP Trusts claim that it would have to dig-up and replace every utility pipe is
false. In fact, this claim is such an abuse of the truth that it undermines its own
credibility.
81
See Complaint for Declaratory Relief, admitted as Exhibit 3377; see also David
Dargers Hearing Transcript, at pp. 836 839.
82
Id.
83
See Judge Conns Order denying the UEP Trusts motion to dismiss and the Scheduling
Order, both attached as Exhibit 5.
84
See David Dargers Hearing Transcript, at p. 839, in which Mr. Darger responded as
follows when asked whether Colorado City would follow the Courts ruling: Yes. Thats
why we filed it, so that we could have that Court give direction on it and Of course.
19
unnecessary and could cause confusion because this Court and Judge Conn could reach
different conclusions. It therefore makes more sense for Judge Conn to resolve the issue
because he will have the benefit of full briefing, the presentation of all the evidence and
C.
The United States wants this Court to order the Defendants to adopt new policies
and procedures to state that they will only issue building permits if the property owner
Andrew Barlow is the Building Official for Colorado City and Hildale.85 He is
10
certified through the International Code Council to issue permits and complete
11
inspections.86
12
completes an application, submits plans for review, pays any required fees, and then
13
schedules any necessary inspections for final approval.87 Mr. Barlow does not require an
14
applicant to submit documentation that they own the property or that they have an
15
16
This Court heard substantial testimony regarding the unique way in which property
17
ownership works in Colorado City and Hildale. The FLDS Church originally organized
18
the UEP Trust upon tenants of the FLDS faith and under the laws of the State of Utah.
19
Members of the FLDS Church consecrated their property to the FLDS Church as part of
20
their religious expression and beliefs. In 2005, the State of Utah took over the UEP Trust,
21
which is a function of the FLDS Church, and has since systemically evicted hundreds, if
22
not thousands, of residents from homes that they or their ancestors built and consecrated
23
to the FLDS Church, including most recently elderly women with serious medical
24
25
26
27
28
problems and nowhere else to live. Colorado City and Hildale are not parties to these
property disputes and have told everyone to comply with the law. Requiring the property
owners consent to obtain a building permit will not solve these problems.
Mr. Barlow has firsthand experience dealing with the property disputes while
trying to ensure that proper and safe permitting occurs. He provided the following
explanation for why the property owners signature is not necessary to obtain a permit:
8
9
10
And when asked why he believes that removing the owners signature line from the
11
application form helped to avoid discrimination, Mr. Barlow explained the following:
12
Because I just think that it would make it easier for people to get the
permit. I dont feel like we need to complicate the permitting
process. The purpose of the of the Building Department is to
ensure that its safe housing safe housing building practices. Its
not my its not the Building Departments responsibility to help
even help decide who is in the home, or its not its not something
thats part of the Building Department.90
13
14
15
16
17
18
The Building Department should not get involved in resolving property disputes
19
between the UEP Trust and an applicant. Nor should it enforce rental agreements or
20
require the payment of rental fees before it issues a permit. Yet, that is what would occur
21
if this Court orders the Defendants to issue a building permit only if the property owner
22
consents.91
23
24
25
26
27
28
89
Id. at p. 56.
Id. at pp. 61 62.
91
The United States also fails to recognize that any individual or entity, including the
UEP Trust, can file a request with Judge Teilborg under his injunctive order if they
believe the Defendants have acted in a discriminatory manner with respect to building
permits. This protection alleviates the need for any additional injunctive relief.
90
21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
D.
In 2014, and following the Cooke case, the Defendants revised water regulations to
further define the water conservation policy, allow one meter to serve additional buildings
on the same property, recognize existing non-conforming uses, prohibit the needless waste
of culinary water, clarify the responsibility for construction costs, and describe the
conditions for impact fees. The Defendants again revised the water regulations in 2015 to
provide greater clarity and to address customer complaints. These revisions included
adopting a meter sizing chart, clarifying that an application expires after six months if no
fees or deposits are paid, and requiring an applicant to obtain the existing customers
consent to transfer the water connection for a particular property or, in the alternative,
providing a five-day notice to cancel a service agreement to the customer of record if
contact attempts fail. This procedure was developed to protect the due process rights of
the existing customer and the applicant.
The Defendants again revised the water regulations in 2016 in response to
customer complaints and removed the requirement that a new applicant obtain the current
customers consent when applying for service to property that has an existing service
agreement. The regulations instead outline a simple verification that a current customer is
no longer occupying the property. The intent is to facilitate the transfer of service to a
new applicant as quickly as possible, yet protect a current customer occupying that
property from illegal self-help evictions.
David Darger testified that the Defendants have responded to citizen complaints in
a positive effort to resolve concerns and have revised the water regulations to provide
non-discriminatory service. Mr. Darger also provided an example of the kind of disputes
that the Defendants face to show why it is important to protect the due process rights of all
individuals involved:
So we had a person by the name of Merril Harker who has an
account. He has a son-in-law named Spencer Black, Jr. And they
have a disagreement. Mr. Black was living in this at this lot. And
22
so Mr. Harker wants to evict or tell Mr. Black, you get out of this
property.
So Mr. Harker has the account. Hes the customer on the record. He
comes to the Utility Department and says, I want this account
temporarily turned off. I want the water shut off. And so the Water
Department says, well, youre the account holder, so well shut it
off. So they shut it off and locked up.
3
4
5
6
Mr. Black goes and cuts the lock. So what does the City do? Well,
we refer it to our legal counsel, and its in process.
7
8
Thats our only issue. That is our only issue, is if theres somebody
there, maybe theyve been there for a year, maybe 15 years, and
theyre a current customer, we want to handle that appropriately.
We want to give everyone due process. And thats why we have
we try to have a level of due process. And were sensitive to the
complaint of someone having a hard time trying to get water into
their name. And I believe that weve resolved that.92
9
10
11
12
13
If an applicant or existing customer believes they are being treated unfairly, and their
14
concerns are known, the Defendants are positively responding to resolve those concerns.
15
If their concerns are still not resolved, they can seek redress from Judge Teilborg. No
16
17
E.
18
19
The United States request that this Court order an independent engineering firm
20
to review the Defendants culinary water impact fee ignores the fact that an independent
21
22
This Court heard from Dustyn Shaffer, who works for Sunrise Engineering and
23
who wrote the Culinary Water Impact Fee Facilities Plan for Colorado City and Hildale in
24
December 2014.94 Mr. Shaffer explained that Arizona and Utah have very strict laws on
25
92
26
27
28
23
how impact fees can be developed, and those are laid out specifically on notifications,
public hearings, exactly what can and cannot be used for the impact fee analysis, [and]
what kind of improvements are eligible for that study.95 Mr. Shaffer also explained that
he held a public meeting in Colorado City in January 2015 to explain his conclusions
regarding the impact fee and that Zach Renstrom and Bruce Wisan were present on behalf
of the UEP Trust, but neither raised any complaints or critiques about the impact fee or
the work that Sunrise Engineering completed even though they were invited.96
Based upon Sunrise Engineers analysis, Mr. Shaffer concluded that the maximum
eligible impact fee is $12,210.97 The Defendants then adopted an impact fee in the
10
amount of $12,000, which Mr. Shaffer believes is reasonable.98 If the UEP Trust
11
believes it is unreasonable, it can file a complaint with the Utah State Ombudsman, but it
12
has not done so.99 Mr. Shaffer also recommends that Colorado City and Hildale update
13
their impact fee every three to five years, which means the next update will occur between
14
2017 and 2019.100 No reason exists for this Court to issue any injunctive order regarding
15
16
F.
17
The United States request for a monitor is unnecessary. Judge Teilborg has
18
already retained jurisdiction until November 2024 to resolve any fair housing issues
19
through his injunctive order.101 The fact that the Defendants have complied with this
20
21
22
23
24
25
26
27
28
95
24
injunction for the past two years (as evidence by the lack of any adverse order from Judge
Teilborg) shows that additional oversight via a monitor is unnecessary. The Defendants
are proactively responding to complaints to resolve them and prevent discrimination. The
United States also fails to consider the cost of a monitor and the Defendants inability to
pay. Finally, long-standing case law shows that this Court should be reluctant to impose a
monitor because it is not the least intrusive method to remedy the jurys conclusions, but
rather would result in overreaching federal intrusion into the Defendants business
operations. See e.g., United States v. City of Parma, Ohio, 661 F.2d 562, 576 and 579 (6th
Cir. 1981); United States v. Jamestown Center-In-The-Grove Apartments, 557 F.2d 1079,
10
11
IV.
CONCLUSION.
12
The Defendants request that this Court reject the United States ideas for injunctive
13
relief, which are disconnected from the facts, evidence, and law. Instead, this Court
14
should adopt the specific plans that the Defendants have outlined above.
15
commonsense is needed here, not the destroy-at-all-costs attitude of the United States.
16
The Defendants hope that this Court will be the voice of reason.
Some
17
18
19
20
21
22
By:
23
24
25
26
27
28
25
2
3
By:
4
5
6
7
8
9
10
CERTIFICATE OF SERVICE
11
12
13
14
15
16
17
18
19
R. Tamar Hagler
Eric W. Treene
Sean R. Keveney
Matthew J. Donnelly
Emily M. Savner
Sharon I. Brett
United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Attorneys for Plaintiff United State of America
20
21
22
23
24
R. Blake Hamilton
Ashley Gregson
Durham Jones & Pinegar, P.C.
111 East Broadway, Suite 900
Salt Lake City, Utah 84111
Attorneys for Defendants City of Hildale, Utah,
Twin City Water Authority, and Twin City Power
25
26
27
28
26