Case: United States v. Town of Colorado City

3:12-cv-08123 | U.S. District Court for the District of Arizona

Filed Date: June 21, 2012

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Case Summary

On June 21, 2012, the United States Department of Justice filed this action against the town of Colorado City, Arizona, the city of Hildale, Utah, and utilities serving them. The lawsuit was filed under the Fair Housing Act Amendments (42 U.S.C. § 3601); Title III of the Civil Rights Act (42 U.S.C. § 2000b); and 42 U.S.C. § 14141. The DOJ sought declaratory and injunctive relief, claiming that the municipalities had unconstitutionally established a religion, and denied equal protection of the laws and use of public facilities on the basis of religion. Specifically, the DOJ alleged that the municipalities had become arms of the Fundamentalist Church of Jesus Christ of Latter-Day Saints ("FLDS") and had failed their duty to provide policing, housing, and utilities to non-members and former members of the FLDS. This was the DOJ's first lawsuit to include claims under both the Fair Housing Act and Section 14141, the federal statute that allows the Attorney General to address patterns or practices of police misconduct.

A religious and charitable trust called the United Effort Plan Trust (UEP Trust) owned much of the land in Colorado City and in Hildale, and was controlled until 2005 by the FLDS. Because a Utah court determined that the UEP Trust had violated its legal duties to the beneficiaries of the trust, the FLDS was removed as trustee, and a Special Fiduciary, not affiliated with the FLDS, was appointed in 2005.

The Special Fiduciary's repeated attempts to administer the trust for the benefit of non-FLDS and FLDS members were rebuffed by the Marshall's Office of the two municipalities. The legal rulings relating to property agreements had been ignored, and the Marshall's office began occupying UEP Trust land.

The DOJ alleged that the Marshall's Office refused to arrest FLDS members accused of assaulting or committing crimes against non-FLDS members, and also that the office arrested non-FLDS members without cause. The Marshall's Office was also accused of assisting in illegal evictions of non-FLDS members from UEP Trust-owned property, and of taking non-FLDS members' property without cause.

The municipal utilities were also implicated in the lawsuit. The DOJ alleged that water and electric service had been outright denied or unreasonably delayed to non-FLDS members. Some residents had been waiting on water or electric service since 2009.

Lastly, the municipalities were accused of denying non-FLDS members access to public parks and the city zoo. The Marshall's Office was accused of threatening non-FLDS members with arrest if they played in or otherwise used the park or zoo.

Three weeks after filing the complaint, the DOJ moved to transfer the matter to Judge James A. Teilbog, suggesting that the case was related to Cooke v. Colorado City, 3:10-cv-8105-PCT-JAT, which was pending before Judge Teilbog. Judge Teilbog denied the motion, which was filed in Cooke, because the DOJ's case might include factual and legal issues distinct from Cooke and because the cases were in different stages of litigation.

The defendants filed a motion to dismiss in August 2012, which the Court (Judge H. Russel Holland) denied on November 29, 2012, finding that the U.S. stated a plausible cause of action for its first two claims and dismissing its third, with leave to amend. 2012 WL 12842256.

On December 10, 2012, the court denied the defendants' motion for an order changing venue from the District of Arizona to the District of Utah. Considering the availability of witnesses, the burdens on the witnesses and the parties, the interest of justice, and the plaintiffs' preference for remaining in the District of Arizona, the court held that a transfer of venue was not appropriate. 2012 WL 12929901.

In March 2013, the defendants moved for judgment on the pleadings, contending the statute of limitations precluded the DOJ's Fair Housing Act claim. The court denied the motion on June 6, 2013, holding that the statutory period did not begin until a plaintiff had reasonable cause to believe the defendants had engaged in a practice of housing discrimination--the timing of that clock-starting point had yet to be determined.

The parties then engaged in extensive and contentious discovery. The court issued many rulings from 2013 to 2015 regarding evidence, including sanctions against the defendants for spoliation of evidence on July 28, 2014. 2014 WL 3724232 (D. Ariz. July 28, 2014).

In late 2014, the defendants moved for summary judgment regarding damages and the DOJ moved for partial summary judgment. On June 17, 2015, Judge Holland denied the DOJ's motion for partial summary judgment and granted in part the defendants' motion for summary judgment; he held that the DOJ was precluded from requesting FHA damages from any defendant on behalf of the aggrieved persons, should the DOJ prevail on its FHA claims in Count II. The court also dismissed the DOJ's claims against the power company. The defendants' motions were otherwise denied.

The case proceeded to trial before a jury, which lasted for 25 days in January-March 2016. On March 7, 2016, the jury returned a verdict finding that the towns of Colorado City, Arizona, and Hildale, Utah, and their joint water company systematically discriminated against individuals who were not members of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS) in the provision of housing, utility and policing services in violation of the Fair Housing Act.

The jury also issued an advisory verdict on the DOJ's claims under Section 14141 of the Violent Crime Control and Law Enforcement Act. Because this statute (in contrast to the Fair Housing Act) did not include a right to a jury trial, the jury’s verdict as to the Section 14141 claim was advisory and could be considered by the court, but was not binding. In its advisory verdict, the jury found that the Colorado City Marshal’s Office (CCMO), the cities’ joint police department, operated as an arm of the FLDS church in violation of the establishment clause of the First Amendment; engaged in discriminatory policing in violation of the equal protection clause of the 14th Amendment and the establishment clause; and subjected individuals to unlawful stops, seizures and arrests in violation of the Fourth Amendment. Because these advisory findings were not binding, the 14141 claim remained under consideration by the district court, who would issue a ruling on whether the defendants engaged in these constitutional violations, and if so, what relief was appropriate. The court scheduled a non-jury evidentiary hearing for October 24, 2016, regarding the 14141 claim.

On April 18, 2016, the parties filed a settlement agreement that defendants would pay $1.6 million to resolve the monetary claim under the Fair Housing Act. The settlement agreement memorialized the settlement terms reached by the parties and presented to and approved by the court on March 7, 2016. The court issued an order officially approving the settlement agreement on April 19, 2016.

An evidentiary hearing was held on October 24 through 27, 2016, addressing the U.S.'s request for injunctive relief based on the Fair Housing Act violations and the jury's advisory findings with respect to policing. After receiving comments under seal from the parties about simplifying and facilitating implementation of injunctive relief, Judge Holland issued a Judgment and Decree Granting Injunctive Relief on April 18, 2017. The Court permanently enjoined the defendants from engaging in any conduct violating the Establishment Clause of the First Amendment, the Fourth Amendment, and the Equal Protection Clause of the Fourteenth Amendment.

Regarding policing practices, the Court required that the defendants do the following: hire a professional consultant in the field of policing; develop new policies and procedures for hiring new officers; conduct a wide-ranging search for candidates to fill two police officer positions (to be filled within six months); implement new policies and procedures for internal affairs investigations; conduct a comprehensive review of all CCMO policies and procedures; purchase body cameras for CCMO officers and implement a pilot program for their use; provide annual training to officers on the First, Fourth, and Fourteenth Amendments, state and federal Fair Housing Acts, landlord/tenant law, and trespass law; and hire a Mentor for the Chief Marshal.

Regarding fair housing practices, the Court enjoined defendants from violating the Fair Housing Act. Specifically, the injunction prohibited the defendants from making housing unavailable or denying housing opportunities to individuals because of their religion; discriminating in the terms, conditions, or privileges of housing rentals or sales; or coercing, intimidating, threatening, or interfering with a person in the exercise or enjoyment of a right granted by the Fair Housing Act.

Additionally, the Court called for the renewed discussions between the UEP Trust and Colorado City regarding approval of a subdivision plat; development of objective, uniform, and non-discriminatory policies and procedures to govern the operation of the defendants' building departments; amendments to the defendants' water services regulations; review of the defendants' culinary water impact fee; the development of publicly available internet websites for each municipality; in-person training on the requirements of this injunction and the policies, procedures, and regulations adopted in accordance with it; and the appointment of one or more monitors, who will review municipal decisions by the defendants implicating the Fair Housing Act, oversee implementation of all aspects and terms of the injunction, and issue written reports every 90 days. The injunctive relief was to remain in effect for ten years or until otherwise ordered by the Court.

On August 1, 2017, Judge Holland issued an order amending the decree granting injunctive relief with respect to training. The Court ordered that the Fair Housing Act training will be completed by August 16, 2017 by the Southwest Fair Housing Council. The Court further ordered that constitutional training was to be completed by September 15, 2017 (with was extended to September 25), and that training on policies and procedures was to be completed within 30 days after the last policy, procedure, regulation, or ordinance was adopted or amended.

On July 19, 2017, the defendants appealed the District Court's grant of a permanent injunction to the U.S. Court of Appeals for the Ninth Circuit. On June 7, 2018, the City of Hilldale withdrew its appeal. The remaining defendants' continued litigation. On August 26, 2019, the Ninth Circuit issued an opinion affirming the district court. They found that, "In holding that the Towns violated § 12601, the district court correctly interpreted the statute and did not err in admitting the statements of FLDS leaders. We need not address Colorado City’s arguments about the district court’s Fourth Amendment-related factual findings because, even if those arguments are correct, the error was harmless." 935 F.3d 804.

Monitor reports from 2018 indicated that there were no outstanding Fair Housing injunction requirements. Additionally, the police consultant's reports noted staffing changes in the marshal's office and progress in relationships between the marshal's office and other law enforcement agencies. On December 23, 2019, Judge Holland issued an order reducing the frequency of monitors' reports to two per year. On May 13, 2020 Judge Holland wrote a letter thanking the court monitor and police consultant and affirming that defendants were still in compliance with the injunction.

On November 12, 2020, the court reduced the reporting period for the Court Monitor’s reports to six-month intervals. Also, on November 12, 2020, the Court received two reports. The report from Roger Carter, the Court Monitor, covered the period from May 1, 2020 to October 31, 2020. The report covered three areas of work. First, with respect to the Policing Act Injunction, the report found that Hildale, Utah and Colorado City were in compliance with all mandatory orders given in the judgment and the decree granting injunctive relief. Second, with respect to the Fair Housing Act injunction, the report found that the towns have completed all orders outlined in the judgment and the decreeing. The report found that some of the ordered training were scheduled but past due. Third, with respect to the non-compliant injunction items, the report stated that the Monitor requested all minutes from the city’s governing bodies. Overall, the report found that the cities are generally compliant with the judgment and the decree orders and demonstrate a desire to stay compliant with the orders. The second report was submitted by Jim Keith, Professional Police Consultant for the Colorado City Marshals Office. The report noted that the police chief was continuing efforts to increase trust and confidence with the community.

The defendants, on July 30, 2021 filed a motion to modify the judgment and the decree granting injunctive relief. The defendants requested that the court remove the requirement to maintain the services of a consultant, because the consultant had completed all the tasks identified in the injunctive order. However, on August 31, 2021, the court denied the defendants’ motion, finding that there were no changed circumstances that would justify dispensing with the requirement that the defendants engage a police consultant. The court further found that there was a need for services of a consultant regarding the hiring and training of staff, the review of policies and procedures, and the investigation of complaints.

On November 1, 2021, the court received another report from Roger Carter, covering the period from May 1, 2021 to October 31, 2021. The report found that cities were in compliance with the policing act. The report noted reorganization with the dispatch services of the cities. The monitor did not oppose the reorganization, but noted that future reports would monitor the changes to assure proper checks and balances, reporting procedures, and auditing capabilities. The report also noted that the towns were in compliance with the fair housing act injunction. However, the report found that the website and public notice website overhauls were incomplete. As such, the town officials assured the monitor that the necessary information would be posted within 60 days. The monitor also provided a number of recommendations to assure that the implementation of programs was stable and sustainable for the future.

The court commended the defendants’ willingness to engage in face-to-face communications to address the issues identified on the status report on November 30, 2021.

Roger Carter, on May 2, 2022, submitted another report to the Court. The report indicated that the defendants were in compliance with the policing act injunction and would continue to monitor the change over to the new computer aided dispatch and report writing system. The report continued to express concern about the delays in posting relevant information to the website and public notice system. The report also identified ways to continue to ensure the stability of changes to ensure that the local governments would provide fair, responsive, and equal protection for all citizens.

On October 31, 2022, Roger Carter provided a report to the court at the halfway point of the injunction. The report found that the defendants were in compliance with the policing act and the fair housing act, the adoption of building department policies and procedures, the amendments to the water service regulations, and the mandatory education and training requirements. However, the defendants were not in compliance with the culinary water impact fee.

The court, on November 4, 2022, issued an order thanking the court monitor for its work. However, it noted concern with the hiring and retention of the local CCMO officers. The court encouraged the police consultant to work with the defendants to improve.

On April 30, 2023, Roger Carter, the Court Monitor, submitted another report to the court. The report noted that the defendants were generally in compliance, however, they were not in compliance with the culinary water impact fee and the website and public notice requirements. The report indicated measures to be taken to become compliant.

Roger Carter, the Court Monitor, on May 17, 2023, submitted a supplemental report to the previous report to elaborate on the website and public notice requirements. The report indicated that the Monitor was working with the Mayors and managers of both cities to understand the reasons why the cities had yet to prioritize this requirement. The report also stated that the requirements were intended to be met by June 30, 2023.

On July 7, 2023, Roger Carter submitted a report stating that the Cities have completely posted all city council and planning commission minutes on their public website.

The Court Monitor, Roger Carter, on October 31, 2023, submitted another report to the court. The report found that the defendants were in compliance with most of the requirements of the injunction except for the culinary water impact fee. The report also noted areas for continued improvement, including self-determination, employment stability, and stakeholder involvement.

	Document
3:12-cv-08123	Docket [PACER] United States v. Colorado City	May 14, 2020	May 14, 2020 Docket
	Justice Department Files Lawsuit Against the Twin Cities of Colorado City, Arizona, and Hildale, Utah, and Local Utility Companies Alleging Religious Discrimination [Town of Colorado City] No Court	June 21, 2012	June 21, 2012 Press Release
1 3:12-cv-08123	Complaint	June 21, 2012	June 21, 2012 Complaint
35 10-08105	Order (Denying U.S. Motion to Transfer Related Case)	Nov. 16, 2012	Nov. 16, 2012 Order/Opinion
106 3:12-cv-08123	Order (Denying Defendants' Motion to Dismiss)	June 6, 2013	June 6, 2013 Order/Opinion 2013 WL 11826544
3:12-cv-08123	Order	July 28, 2014	July 28, 2014 Order/Opinion 2014 WL 3724232
556 3:12-cv-08123	Joint Status Report Concerning Altered Police Reports	Jan. 5, 2015	Jan. 5, 2015 Pleading / Motion / Brief
577 3:12-cv-08123	Second Joint Status Report Concerning Altered Police Reports United States v. City of Cleveland	Feb. 6, 2015	Feb. 6, 2015 Pleading / Motion / Brief
607 3:12-cv-08123	Third Joint Status Report Concerning Altered Police Reports	March 20, 2015	March 20, 2015 Monitor/Expert/Receiver Report
618 3:12-cv-08123	Order	June 17, 2015	June 17, 2015 Order/Opinion 2015 WL 3774315

Title	Description		External URL Date / External URL
Justice Department Wins Religious Discrimination Lawsuit Against Colorado City, Arizona, and Hildale, Utah		March 7, 2016	March 7, 2016 https://www.justice.gov/...
Review of the Use of Monitors in Civil Settlement Agreements and Consent Decrees Involving State and Local Government Entities Attorney General Merrick Garland and Assoc. AG Vanita Gupta	Today, the Justice Department will begin implementing a set of principles and specific recommendations regarding the use ofmonitors in civil settlement agreements and consent decrees involving state …	Sept. 13, 2021	Sept. 13, 2021 https://www.justice.gov/...

ECF Number	Description	Date	Link Date / Link
1	Complaint 1 Civil Cover Sheet View on PACER	June 21, 2012	June 21, 2012 Clearinghouse
2	Notice (Other)	June 21, 2012	June 21, 2012 PACER
3	New Case Opened 1 Magistrate Consent Form View on PACER	June 21, 2012	June 21, 2012 PACER
4	Agreement to Magistrate Judge Jurisdiction	July 5, 2012	July 5, 2012 PACER
5	Notice (Other) 1 Exhibit - motion filed in 3:10cv8105-JAT View on PACER	July 12, 2012	July 12, 2012 PACER
6	Election to Assign Case to District Judge	July 27, 2012	July 27, 2012 PACER
7	Add and Terminate Judges	July 27, 2012	July 27, 2012 PACER
8	Election to Assign Case to District Judge	July 27, 2012	July 27, 2012 PACER
9	Waiver of Service Executed	July 30, 2012	July 30, 2012 PACER
10	Waiver of Service Executed	July 31, 2012	July 31, 2012 PACER
11	Waiver of Service Executed	July 31, 2012	July 31, 2012 PACER
12	Waiver of Service Executed	July 31, 2012	July 31, 2012 PACER
13	Motion for Admission Pro Hac Vice	Aug. 1, 2012	Aug. 1, 2012 PACER
14	Motion for Admission Pro Hac Vice	Aug. 1, 2012	Aug. 1, 2012 PACER
15	Motion for Admission Pro Hac Vice	Aug. 1, 2012	Aug. 1, 2012 PACER
16	Order on Motion for Admission Pro Hac Vice	Aug. 1, 2012	Aug. 1, 2012 PACER
17	Notice of Waiver of Electronic Service	Aug. 3, 2012	Aug. 3, 2012 PACER
18	Motion for Extension of Time	Aug. 15, 2012	Aug. 15, 2012 PACER
19	Notice of Appearance	Aug. 22, 2012	Aug. 22, 2012 PACER
20	Motion to Dismiss Case 1 Exhibit 1-3 View on PACER	Aug. 27, 2012	Aug. 27, 2012 RECAP
21	Motion to Dismiss Case 1 Exhibit A View on PACER 2 Exhibit B View on PACER	Aug. 27, 2012	Aug. 27, 2012 PACER
22	Mail Returned	Aug. 27, 2012	Aug. 27, 2012 PACER
23	Mail Returned	Aug. 27, 2012	Aug. 27, 2012 PACER
25	NOTICE re Filing Response to United States' Motion to Transfer Related Case by Colorado City, Town of . (Matura, Jeffrey) (Entered: 09/10/2012)	Sept. 10, 2012	Sept. 10, 2012
26	RESPONSE in Opposition re 20 MOTION to Dismiss Case and Motion For More Definite Statement on Count One MOTION for More Definite Statement filed by United States of America. (Keveney, Sean) (Entered: 09/13/2012)	Sept. 13, 2012	Sept. 13, 2012
27	RESPONSE in Opposition re 21 MOTION to Dismiss Case or in the Alternative for a More Definite Statement MOTION for More Definite Statement filed by United States of America. (Keveney, Sean) (Entered: 09/13/2012)	Sept. 13, 2012	Sept. 13, 2012
28	ORDER granting the 18 Motion for Extension of Time − Like motions to transfer have been filed in both this case and Judge Teilborg's case (CV 10−8105−PCT−JAT). Pursuant to L.R. Civ. 42.1(b), the motion for transfer will be taken up "by the district judge assigned the lowest case number." Accordingly, Judge Teilborg will decide the pending motion for transfer of Judge Holland's case. In consideration of the foregoing, further proceedings in this case will be held in abeyance, by which the court means: (a) Development of currently pending motions in this case shall continue as usual; and (b) Judge Holland will take no action on currently pending motions until a decision by Judge Teilborg as to the motion to transfer. Signed by Judge H Russel Holland on 9/17/2012.(KMG) (Entered: 09/17/2012)	Sept. 17, 2012	Sept. 17, 2012
29	NOTICE re of filing by United States of America . (Attachments: # 1 Exhibit United States' Reply)(Wagner, Lori) (Entered: 09/20/2012)	Sept. 20, 2012	Sept. 20, 2012
30	REPLY to Response to Motion re 20 MOTION to Dismiss Case and Motion For More Definite Statement on Count One MOTION for More Definite Statement filed by Colorado City, Town of. (Matura, Jeffrey) (Entered: 09/24/2012)	Sept. 24, 2012	Sept. 24, 2012
31	REPLY to Response to Motion re 21 MOTION to Dismiss Case or in the Alternative for a More Definite Statement MOTION for More Definite Statement filed by Hildale, City of, Twin City Power, Twin City Water Authority Incorporated. (Hamilton, R) (Entered: 09/24/2012)	Sept. 24, 2012	Sept. 24, 2012
32	Joinder re 24 MOTION to Change Venue/Transfer Case to District of Utah by Defendant Colorado City, Town of. (Matura, Jeffrey) Modified to correct event "Joinder" on 9/27/2012 (KMG). (Entered: 09/26/2012)	Sept. 26, 2012	Sept. 26, 2012
33	RESPONSE to Motion re 32 MOTION for Joinder re 24 MOTION to Change Venue/Transfer Case to District of Utah , 24 MOTION to Change Venue/Transfer Case to District of Utah filed by United States of America. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Wagner, Lori) Document is not in compliance with LRCiv 7.1(c) − text searchability; Attorney notified on 9/28/2012 (KMG). (Entered: 09/27/2012)	Sept. 27, 2012	Sept. 27, 2012
34	REPLY to Response to Motion re 24 MOTION to Change Venue/Transfer Case to District of Utah filed by Hildale, City of, Twin City Power, Twin City Water Authority Incorporated. (Attachments: # 1 Exhibit A−Plaintiff−Intervenor State of Arizona's 11th Supplemental Disclosure Statement)(Hamilton, R) (Entered: 10/08/2012)	Oct. 8, 2012	Oct. 8, 2012
35	ORDER the United States' Motion to Transfer Related Case (doc. 275 in CV-10-8105) is denied. The Clerk of the Court shall file a copy of this Order in CV-12-8123-PCT-HRH and CV-10-8105-PCT-JAT. Signed by Judge James A Teilborg on 11/16/12. (TLJ)	Nov. 17, 2012	Nov. 17, 2012 RECAP
36	ORDER FROM CHAMBERS − The court is prepared to take up the motions of defendants City of Hildale, Utah, Twin City Power, and Twin City Water Authority (collectively the "Hildale Defendants") and defendant Town of Colorado City, Arizona, for a change of venue. (Docket Nos. 24 and 32 .) Oral argument has been requested. Ordinarily, the court would not hear oral argument on motions such as these; however, in light of the following, oral argument will be scheduled.	Nov. 20, 2012	Nov. 20, 2012
38	ORDER denying 21 Hildale's Motion to Dismiss as to first and second causes of action and granted as to plaintiff's third cause of action, with leave to amend on or before December 21, 2012. Hildale's Motion for More Definite Statement 21 is denied. Signed by Judge H Russel Holland on 11/29/12.(SJF) (Entered: 11/29/2012)	Nov. 29, 2012	Nov. 29, 2012
39	ORDER: The City's motion for a more definite statement is denied as to plaintiff's first and second causes of action. The City's motion to dismiss is denied as to plaintiff's second cause of action and is granted as to plaintiff's third cause of action, with leave to amend. Signed by Judge H Russel Holland on 11/29/12.(SJF) (Entered: 11/29/2012)	Nov. 29, 2012	Nov. 29, 2012
40	Minute Entry. Proceedings held before Judge H Russel Holland: Motion Hearing held on 11/30/2012, Motions Taken Under Advisement: 24 MOTION to Change Venue/Transfer Case to District of Utah. (ECRO Denali Elmore.)(LAD) (Entered: 11/30/2012)	Nov. 30, 2012	Nov. 30, 2012
41	ORDER the 24 Motion to Change Venue is denied as to all of the defendants. Signed by Judge H Russel Holland on 12/7/2012.(KMG) (Entered: 12/10/2012)	Dec. 10, 2012	Dec. 10, 2012
42	Town of Colorado City, Arizona's ANSWER to 1 Complaint by Colorado City, Town of.(Matura, Jeffrey) (Entered: 12/13/2012)	Dec. 13, 2012	Dec. 13, 2012

Case: United States v. Town of Colorado City

3:12-cv-08123 | U.S. District Court for the District of Arizona

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