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A motion by the U.S. Department of Labor asking a federal judge to reconsider his decision on testimony in a child labor case, citing the U.S. Supreme Court's decision in the "Hobby Lobby" case.
Titre original
Motion to reconsider FLDS "Hobby Lobby" ruling
A motion by the U.S. Department of Labor asking a federal judge to reconsider his decision on testimony in a child labor case, citing the U.S. Supreme Court's decision in the "Hobby Lobby" case.
A motion by the U.S. Department of Labor asking a federal judge to reconsider his decision on testimony in a child labor case, citing the U.S. Supreme Court's decision in the "Hobby Lobby" case.
Carlie Christensen, Acting United States Attorney (#633)
Amy J . Oliver, Assistant U.S. Attorney (#8785)
District of Utah 185 South State Street, #300 Salt Lake City, Utah 84111-1506 (801) 325-3319 Email: amy.oliver@usdoj.gov Associated Local Counsel
M. Patricia Smith, Solicitor of Labor J ames E. Culp, Regional Solicitor J ohn Rainwater, Associate Regional Solicitor Karen E. Bobela, Trial Attorney, CO #37190 (Pro Hac Vice) Alicia Truman, Trial Attorney, CO #42235 (Pro Hac Vice) Lydia Tzagoloff, Senior Trial Attorney and Special Assistant United States Attorney, NY #2631299 (Pro Hac Vice) 1244 Speer Boulevard, Suite 515 Denver, CO 80204 (303) 844-1745 Email: bobela.karen.e@dol.gov; tzagoloff.lydia@dol.gov; truman.alicia.a@dol.gov
Attorneys for Petitioner
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION
THOMAS E. PEREZ, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR,
PETITIONER, v.
PARAGON CONTRACTORS CORPORATION; BRIAN J ESSOP; DALE BARLOW; KEITH DUTSON; VERGEL STEED; NEPHI J EFFS; LYLE J EFFS and CORPORATION OF THE PRESIDING BISHOP OF THE FUNDAMENTALIST CHURCH OF J ESUS CHRIST OF LATTER-DAY SAINTS,
RESPONDENTS.
Case No. 2:13cv00281-DS
MOTION FOR RECONSIDERATION AND REQUEST FOR FURTHER BRIEFING
The Honorable David Sam Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 1 of 18 2 Petitioner, THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor (Petitioner), respectfully brings this Motion for Reconsideration and Request for Further Briefing regarding the Courts Memorandum Decision and Order Addressing Vergel Steeds Motion to Sustain Objections (Doc. 121) (Order) issued on September 11, 2014. As grounds for this motion, Petitioner states as follows: I. PROCEDURAL BACKGROUND The Wage and Hour Division of the United States Department of Labor (Wage Hour) is conducting a child labor investigation involving Paragon Contractors Corporation (Paragon) and the Fundamentalist Church of J esus Christ of Latter Day Saints (FLDS Church), 1 who are believed to be joint employers engaged in the unlawful employment of children at a pecan ranch in Southern Utah in the fall of 2012. Wage Hour issued an administrative subpoena ad testificandum to Respondent Vergel Steed (Steed) based upon information that he is employed as a records custodian for the FLDS Church and is likely to have information relevant to Wage Hours investigation. Steed objected to specific questions during sworn testimony pursuant to the subpoena on grounds that the questions violate his First Amendment rights. 2
After briefing by the parties and an evidentiary hearing on Steeds alleged religious beliefs, Magistrate J udge Evelyn Furse issued a Report and Recommendation (Doc. 115) to enforce the subpoena against Steed. The District Court rejected the Magistrate J udges recommendation after determining on its own accord that Steeds First Amendment objections
1 Wage Hours investigation also includes individuals who may be jointly and severally liable as individual employers under 29 U.S.C. 203(d) for the alleged child labor activities. 2 Steeds objections were specifically based on the First Amendment. At no time during his testimony or in any of the briefs that followed did Steed raise a defense under the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq. Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 2 of 18 3 should be analyzed as a defense under the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. Petitioner respectfully seeks reconsideration of the Courts Order on the basis that Steed waived his right to raise the applicability of RFRA by failing to raise it with the Magistrate J udge; and if Steed did not waive his right, Petitioner should at least have the opportunity to brief issues related to a RFRA defense in this case. If permitted to brief Steeds claim under RFRA, Petitioner will show that (1) the Court mistakenly equated a general interest in keeping certain Church matters private with a sincerely held religious belief; alternatively, if such a general interest in privacy is deemed a sincerely held religious belief, the Court should not have determined that the belief was sincerely held without a credibility finding on this dispositive issue; (2) the Courts Order improperly limits Wage Hours investigation of the FLDS Church as a joint employer under the Fair Labor Standards Act; (3) the government has a compelling interest in this matter and questioning Steed under oath is the least restrictive means to obtain the information sought; and (4) the Courts Order improperly applies RFRA on a blanket basis to all of the questions objected to by Steed, which include child labor and commercial activities that Steed concedes do not implicate his alleged beliefs. II. ARGUMENT A. Steed Waived His Right to Assert a Defense Under RFRA; Alternatively, Petitioner Should Have An Opportunity to Brief Issues under the RFRA Legal Framework Utilized By the Court.
In the Tenth Circuit, a party waives his right to pursue arguments not raised before the magistrate judge. See, e.g., United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.); Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (Issues raised for Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 3 of 18 4 the first time in objections to the magistrate judges recommendation are deemed waived.). Here, Steed pursued only a First Amendment freedom of religion claim when arguing before Magistrate J udge Furse. A First Amendment freedom of religion claim is different from a RFRA claim as the claims are evaluated using different legal standards. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2772 & 2761 n.3 (2014). Therefore, because Steed limited his arguments before the Magistrate J udge to the First Amendment, and only mentioned RFRA for the first time in his objections to the report and recommendationin order to strengthen his First Amendment claim rather than pursue a RFRA claimSteed effectively waived any right to argue that RFRA applies in this case. 3 If the Court finds that waiver does not apply, Petitioner requests reconsideration on the basis that he did not have an opportunity to develop the record or brief this matter under the RFRA legal framework used by the Court. See United States v. Hardman, 297 F.3d 1116, 1124 (10th Cir. 2002) (considering RFRA sua sponte only because of the unique posture of the case, including the fact that the en banc order requested briefing of the RFRA issue); see id. at 1124 n.15 (RFRA does not automatically apply to all Free Exercise claims). As set forth below, Petitioner contends that Steeds objections cannot be sustained under RFRA because Steeds beliefs are not religious in nature and are not sincerely held, and because
3 In his objections to the Magistrate J udges report (Doc. 116), Steed argued that the Magistrate J udge incorrectly relied on Employment Division v. Smith, 494 U.S. 872 (1990), because it was superseded by RFRA. He clarified that his arguments were framed under the First Amendment and not RFRA, and he requested that the parties be given an opportunity to brief the application of RFRA if that was the legal framework the Court intended to use. See Doc. 116 at p. 4. Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 4 of 18 5 Petitioner can establish a compelling government interest and that the subpoena of Steed is the least restrictive means available to further that compelling interest. 4
B. Steeds Objections Cannot be Sustained Under RFRA In order to state a RFRA claim, the moving party must establish, by a preponderance of the evidence, three threshold requirements: the governmental action must (1) substantially burden (2) a religious belief, rather than a philosophy or way of life, (3) which is sincerely held by the plaintiff. Thiry v. Carlson, 78 F.3d 1491, 1494 (10th Cir. 1996). i. Steed does not sincerely hold religious beliefs that preclude Petitioner from investigating the FLDS Churchs involvement in child labor
a. Steeds beliefs are not religious in nature A party asserting that a belief or practice is religious has the burden of producing evidence to support that claim. In this case, the record does not support Steeds allegation that his religious beliefs prohibit him from divulging all aspects of the internal affairs and organization of the FLDS Church and its commercial activities. See PLANS Inc. v. Sacramento City Unified School Dist., 476 Fed. Appx 684, 685 (9th Cir 2012); see also United States v. Zimmerman, 514 F.3d 851, 854 (9th Cir. 2007). Instead, the evidence reveals that Steeds decision not to testify stems from a generalized preference to keep certain matters relating to his Church private rather than from a belief rooted in religious principles. Thus, at the evidentiary hearing before Magistrate J udge Furse, Steed characterized the identity of his religious leaders as sacred (and thus entitled to protection under the First Amendment) because, in his words, at times I am subject to ridicule and being mocked and derided by people who dont understand. So I would
4 Petitioner here is laying the foundation for the legal and factual arguments related to Steeds objections under a RFRA analysis but requests an opportunity for further briefing on this issue. Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 5 of 18 6 prefer not to discuss those things with people who I dont feel would understand. Therefore, its sacred to me. See Transcript of April 23, 2014 Evidentiary Hearing, attached hereto as Exhibit A, at 9:3-9 (emphasis added). Steed also testified that the operations and particulars of church function . . . are sacred to me for the same reasons, those who dont understand would mock or ridicule [me]. Id. at 9:18-22. Not wanting to discuss certain things to avoid ridicule does not make something religious in nature. Notably, Steed could not identify a specific vow he took, a covenant in his religion, or any religious writings or doctrines to support his contention that his belief in the privacy of Church affairs is religious in nature. Id. at 13:19-14:22, 17:8-22, 18:3-15. He simply described his alleged belief as something he was taught at [his] mothers knee. Id. at 16:4-10. Moreover, Steed expressed concern that the FLDS Church would impose disciplinary action against him if he were to discuss any aspect of the organization of the Church. Id. at 18:16-19:14. Fear of reprisal from Church leaders does not support Steeds contention that his alleged belief in secrecy or privacy is rooted in religion. To the contrary, Steeds testimony supports a finding that his alleged beliefs more accurately espouse a philosophy and/or way of life rather than a religion. United States v. Meyers, 95 F.3d 1475, 1484 (10th Cir. 1996) (citations omitted). Evidence to support Steeds claim is necessary because a preference for secrecy or privacy is not inherently religious in nature and RFRA requires the government to accommodate only the exercise of actual religious convictions. Id. at 1482; see United States v. Jeffs, No. CRIM05CR00503REB, 2006 WL 898112, *1-2 (D. Colo. Apr. 4, 2006) (the incantation that [church] documents [are] sacred was insufficient to warrant a protective order without further explanation). It is true, as the Tenth Circuit has recognized, that trying to separate the sacred Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 6 of 18 7 from the secular can be a tricky business. Yellowbear v. Lampert, 741 F.3d 48, 54 (10th Cir. 2014). However, although a court is prohibited from examining the centrality of a professed religious belief to the particular religion, it is permitted to determine whether the professed belief has a basis in the particular religion before affording it constitutional protection because the very concept of ordered liberty precludes allowing any person a blanket privilege to make his own standards on matters of conduct in which society as a whole has important interests. Africa v. Comm. of Penn., 662 F.2d 1025, 1031 (3d Cir. 1981) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972)). In examining whether something was a religious exercise pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA), 5 the Tenth Circuit cited with approval a decision from the D.C. Circuit, which concluded that in the First Amendment context a court is not precluded from considering whether a litigants belief find[s] any support in the religion to which they subscribe, or whether the litigants are merely relying on a self-serving view of religious practice. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1314 (10th Cir. 2010) (quoting Levitan v. Ashcroft, 281 F.3d 1313, 1321 (D.C. Cir. 2002)); see id. at 1314 n.6. In other words, it is entirely permissible for a court to determine whether an individuals views have any basis whatsoever in the creed or community on which they purport to rest their claim. Abdulhaseeb, 600 F.3d at 1314 (quoting Levitan, 281 F.3d at 1321).
5 The Tenth Circuit has recognized the relevance of RFRA and First Amendment case law when interpreting RLUIPA. See, e.g., Abdulhaseeb v. Calbone, 600 F.3d 1301, 1313 n.5 (10th Cir. 2010); see also Hobby Lobby, 134 S. Ct. at 2781 (describing RLUIPA as RFRAs sister statute). Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 7 of 18 8 Here, Steeds alleged belief in the principle that all Church matters must be kept private is more appropriately characterized as a way of life rather than a belief that is truly religious in nature. Steed could not identify any aspect of his religion that lends support to his alleged belief. Indeed, he expressly described the belief as a preference, not a religious tenet which he adhered to in order to avoid ridicule as well as discipline from his Church leaders. Steeds testimony does not pass muster under even the most liberal test of whether the alleged belief is religious in nature. b. To determine whether Steeds purported religious beliefs are sincerely held a credibility determination is necessary While the question of sincerity in the religious exercise context is understood to be exceedingly amorphous, . . . sincerity remains a discrete element in RFRA and Free Exercise analyses. U.S. v. Manneh, 645 F.Supp.2d 98, 111 (E.D.N.Y. 2008) (citing Patrick v. LeFever, 745 F.2d 153, 157 (2d Cir. 1984)). Although the religious nature of a particular belief can be difficult for a court to gauge without undue entanglement, the question of sincere belief is relatively unintrusive in its application and not infrequently dispositive under the first prong of a RFRA analysis. Yellowbear v. Lampert, 741 F.3d 48, 54 (10th Cir. 2014) (making this observation in a RLUIPA context). Importantly, the Tenth Circuit has stated that an inquiry into sincere religious belief is essential in ensuring that the law does not offer refuge to canny operators who seek through subterfuge to avoid laws theyd prefer to ignore. Id. Thus, courts are not only permitted but obligated to ask[] whether the claimant is (in essence) seeking to perpetrate a fraud on the court whether he actually holds the beliefs he claims to hold. Id. 6
6 In Africa v. Commonwealth of Pennsylvania, the Third Circuit noted that the record did not indicate whether a prisoner requesting accommodation of his asserted religious beliefs ha[d] merely adopt(ed) religious nomenclature and cynically use(d) it as a shield to protect (himself) when participating in antisocial conduct that otherwise stands condemned, or whether the group he claimed to belong to was a masquerade designed to obtain First Amendment protections for acts which otherwise would be unlawful. 662 F.2d 1025, 1031 n.10 (3d Cir. 1981) (citations and Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 8 of 18 9 Assessing sincerity requires a full exposition of facts and the opportunity for the factfinder to observe the claimants demeanor during direct and cross-examination. See Manneh, 645 F.Supp.2d at 111; see also United States v. Zimmerman, 514 F.3d 851, 854 (9th Cir. 2007) (remanding to district court to make specific findings on the sincerity of an individuals religious beliefs, as his credibility and demeanor will bear heavily on that determination). Here, the Court states in its Order that it would benefit from personally observing Steeds credibility during an evidentiary hearing. See Order (Doc. 121) at p. 7. Nonetheless, the Court ruled for Steed on this dispositive issue without making any credibility findings. Magistrate J udge Furse, who personally observed Steed at the evidentiary hearing, was in a better position to make a credibility finding based on her observations. Thus, Petitioner respectfully requests that, unless the Court finds a waiver of Steed's right to raise a RFRA defense, the Court should remand this case back to Magistrate J udge Furse for a credibility determination on the sincerely held prong; alternatively Petitioner respectfully requests that this Court hold an additional evidentiary hearing on this significant issue. See Quaintance, 608 F.3d at 721 (a district courts finding of sincerely held religious beliefs must have factual support in the record). Ruling for Steed on this highly contested and dispositive issue is inherently unfair and prejudicial to Petitioner. This is particularly problematic because the sweeping belief in privacy and secrecy as a general matter, unmoored to any particular religious belief or teaching, is being used to shield information relating to child labor and commercial activities of the Church.
ii. The government has a compelling interest in investigating alleged child labor violations and enforcing subpoenas in this case
internal quotation marks omitted). Moreover, in United States v. Quaintance, the Tenth Circuit agreed with the district courts finding that the evidence strongly suggest[ed] that the marijuana dealings at issue were motivated by commercial or secular motives rather than sincere religious conviction, and thus concluded that the professed beliefs were not sincerely held. 608 F.3d 717, 722 (10th Cir. 2010). Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 9 of 18 10 Petitioner has a compelling interest pursuant to a statutory mandate to enforce the countrys child labor laws. This compelling interest encompasses investigating alleged child labor violations as well as issuing and enforcing subpoenas when necessary to obtain information relevant to its investigations. See Hardman, 297 F.3d at 1127 (protecting childrens welfare is a compelling interest for RFRA purposes) (citing Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944)). The child labor provisions of the Fair Labor Standards Act (FLSA) reach religious organizations without exception. The Supreme Court and circuit courts alike have consistently upheld application of the FLSA to church-affiliated commercial businesses and schools in the face of First Amendment challenges. See, e.g., Tony & Susan Alamo Found. v. Secy of Labor, 471 U.S. 290, 303-06 (1985) (rejecting argument that Foundation's businesses differ from ordinary commercial businesses because they are infused with a religious purpose); Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1398-99 (4th Cir. 1990). In Brock v. Wendells Woodwork, 867 F.2d 196, 198-99 (4th Cir. 1989), the Fourth Circuit upheld the application of the FLSA's child labor provisions to a church-run vocational program, noting the government's compelling interest in enforcing that law. Although it recognized the sincerity of the church members' religious beliefs, the court concluded that they could not immunize the employers from enforcement of the federal statutes. Id.; see Shiloh True Light Church of Christ v. Brock, 670 F. Supp. 158, 162 (W.D.N.C. 1987) (The right to practice religion freely does not include the right to jeopardize a child's health.); Prince, 321 U.S. at 168. In Shenandoah Baptist Church, for example, when holding that the FLSA withstood the Church's free exercise challenge under the First Amendment, the Fourth Circuit observed that Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 10 of 18 11 Congress has here created a comprehensive statute, and a less restrictive means of attaining its aims is not available. 899 F.2d at 1398. Moreover, it is well settled that the FLSA extends broad authority to the Secretary of Labor to issue administrative subpoenas in the course of an investigation conducted pursuant to that statute. See Oklahoma Press Publg Co. v. Walling, 327 U.S. 186 (1946); CSG Workforce Partners, LLC v. Watson, 512 Fed. Appx 830, 836-37 (10th Cir. 2013). It is also settled law that the Secretarys subpoena authority can be exercised in the initial stages of an investigative proceeding to procure evidence necessary to establish a violation of the FLSA; in Oklahoma Press, for example, the Supreme Court specifically held that the FLSA provides the Secretary authority to issue a subpoena prior to determining not only whether there are any violations of the FLSA, but whether the entity is covered under the Act. 327 U.S. at 214. In other words, [t]he very purpose of the subpoena . . . as of the authorized investigation, is to discover and procure evidence, not to prove a pending charge or complaint, but upon which to make one if, in the Administrator's judgment, the facts thus discovered should justify doing so. Id. at 201. The subpoenas issued in this case, therefore, are well within the Secretarys investigative authority and are necessary to determine coverage and uncover potential FLSA violations. Id. at 214. 7
7 The following two cases are instructive in this regard. In Donovan v. Central Baptist Church, Victoria, 96 F.R.D. 4, 5 (S.D. Tex. 1982), for example, the Court denied a protective order to a church where the Secretary of Labor sought information in the course of an FLSA investigation to evaluate the validity of the churchs claim, as construed by the court, that all of its employees are members of the Church who have received a divine call to Christian education and who all believe that it is their right and duty to serve God by working for minimal compensation. And in Marshall v. Stevens People and Friends for Freedom, 669 F.2d 171, 178-80 (4th Cir. 1981), the Fourth Circuit concluded that the Department of Labors power to inform itself through investigations outweighed the free association claim raised in that case, so that the Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 11 of 18 12 iii. The subpoena issued to Steed is the least restrictive means to obtain the information sought
The Courts ruling in this case hinged on Petitioners alleged failure to show that forcing Steed to answer questions pursuant to Wage Hours investigative and statutory subpoena authority is, pursuant to RFRA, the least restrictive means to advance its compelling interest. See Doc. 121 at p. 9. As an initial matter, any analysis of the least restrictive means prong must be tied to Petitioners compelling interest. The court did not analyze the least restrictive means prong through that prism. Moreover, Steed neither raised a defense under RFRA, nor challenged the least restrictive means prong. Therefore, Petitioner did not respond to any such arguments in his response brief and he has not been given any other opportunity to make the requisite showing under the RFRA framework utilized by the Court. Petitioner can meet his burden and show that the subpoena issued to Steed is the least restrictive means available for Wage Hour to obtain the information sought. RFRA states that the Government may substantially burden a persons exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering [a] compelling governmental interest. 42 U.S.C. 2000bb1(b). By its plain language, however, RFRA does not require the government to abandon its compelling interests, but only to minimize the burden on religion by ensuring that it employs the least restrictive means of furthering those interests. See 42 U.S.C. 2000bb-1(b). As explained infra, the Petitioners questions to Steed were narrowly tailored to further Petitioners valid exercise of its subpoena authority.
Departments subpoenas issued under its statutory authority were within certain constraints constitutionally valid. Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 12 of 18 13 Wage Hour believes that Steed was employed by the Corporation of the Presiding Bishop (Corporation) as an administrative assistant or in a similar capacity. See Doc. 75-1, Affidavit of J oe Doolin attached to Petitioners Response to Steeds Motion to Sustain Objections. In this capacity, it is likely that Steed has information regarding the voicemail that was sent from the bishops office ordering children out of school to assist with the pecan harvest, including who recorded and distributed the voicemail and to whom the voicemail was distributed. Id. Steed also likely has information regarding the arrangements that were made by the Church to transport children to and from the pecan harvest; where records are maintained at the Corporation related to the Churchs activities at the pecan ranch; and the names of other individuals who have information relevant to the pecan harvest and the child labor activities. Id. 8 This information is relevant and material to Wage Hours investigation of the Church as a potential joint employer of children in violation of the FLSAs child labor provisions and at this investigative stage there are no other means known to Wage Hour to obtain this information. The information Petitioner seeks is related to the FLDS Churchs commercial activities, which Steed has conceded are not subject to his religious beliefs. See discussion infra at p. 16-17. a. The Courts Order unreasonably limits Wage Hours investigation of the FLDS Church as a joint employer under the FLSA
The Courts Order directs Petitioner to continue with efforts to obtain information from Paragon Contractors Corporation (Paragon), Brian J essop, Dale Barlow, and others who contracted to manage the pecan ranch. See Order at p. 9. It is not sufficient in the investigatory
8 Even if Steed has no firsthand knowledge of the 2012 pecan harvest (i.e. if he was not present at the ranch), which he has already denied, he can still answer questions regarding these other subject matters that are relevant to Wage Hours investigation. Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 13 of 18 14 context, however, to assume that the least restrictive means of acquiring information is to pursue it through another source. See In re Grand Jury Empaneling of Special Grand Jury, 171 F.3d 826, 832 (3d Cir. 1999) (rejecting argument that the government could obtain similar evidence from other sources); United States v. Institute for College Access & Success, -- F. Supp. 2d --, 2014 WL 1047669 at *4 n.4; see also Matter of Criminal Investigation, 7th Dist. Court No. CS- 1, 754 P.2d 633, 644 n.12 (Utah 1988) ([T]he reasonableness or relevance of a subpoena issued in the context of an investigation is measured by less exacting standards than one issued during the course of a trial . . . the investigator may run down every available clue and examine witnesses in every proper way to discover whether the law has been violated. (citations and internal quotation marks omitted)). Here, the Court fails to take into account that Petitioner, through Wage Hour, is also separately investigating the FLDS Church as a joint employer under the FLSA. As a joint employer, the FLDS Church is potentially responsible for the child labor activities that occurred at the pecan ranch. The Courts Order, by restricting Wage Hour from obtaining information from Steed, a source that is directly tied to the FLDS Church, effectively prevents Wage Hour from obtaining information that is critical and relevant to its investigation. Wage Hour is well within the bounds of its investigative and subpoena authority to issue subpoenas to Steed and other individuals who are believed to be employed by, or serve as administrators for, the Church and who may have information relevant to its investigation. Prohibiting Wage Hour from reaching individuals tied to the FLDS Church at the early stages of its investigation effectively insulates the Church from potential liability under the FLSA. b. The government cannot get the same information sought from Steed from Paragon, Jessop, or Barlow Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 14 of 18 15
Contrary to findings made by the Court, Wage Hour cannot obtain the information it needs from Paragon, J essop, or Barlow. In fact, Wage Hour has subpoenaed all three sources identified by the Court and all three have either refused to answer questions, denied having any personal knowledge of the Churchs involvement, provided information that is riddled with inconsistencies and lacks credibility, refused to produce documents, or have raised First Amendment claims similar to Steed (in addition to claims under the Fifth Amendment). This has necessitated parallel subpoena enforcement actions. 9
Both the Magistrate J udge and J udge Shelby made adverse credibility findings against J essop (Docs. 21, 36) and the Court subsequently granted Petitioners first set of petitions to enforce subpoenas against J essop and Paragon, as well as Barlow. See Docs. 21, 23, and 36. When J essop, Paragon, and Barlow refused to comply with the Courts orders enforcing the subpoenas, Petitioner was forced to move the Court for contempt (as it relates to J essop and Paragon) and move to enforce the subpoenas against Paragon, J essop, and Barlow a second time. The Court granted the relief sought against Barlow on September 11, 2014 (Doc. 122); the petition for adjudication of contempt and motion to enforce the subpoena against Paragon and J essop is currently pending before the Court (Doc. 90, 106, 108). Petitioner cannot be forced to limit its investigation of the FLDS Church as a joint employer under the FLSA by inquiring only of Paragon, J essop, or Barlow under these circumstances. These sources are not the least
9 Petitioner asks the Court to take judicial notice of the two subpoena enforcement actions and the petition for adjudication of contempt pending against Paragon and J essop (and all related pleadings) (Docs. 2, 3, 16, 17, 21, 22, 28, 36, 90, 106, and 108); as well as the two subpoena enforcement actions Petitioner has been forced to file against Barlow (Docs. 2, 3, 17, 19, 23, 46, 103, 107, 109, 117, 120, and 122), the latest of which the Court granted on the same day as the decision at issue here (Doc. 122). Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 15 of 18 16 restrictive means of obtaining the information that Wage Hour needs to further the governments compelling interest. Even if Wage Hour prevails on all aspects of the contempt and subpoena enforcement actions against Paragon, J essop, and Barlow, and is able to obtain some information from these sources (despite prior denials and inconsistencies), it should not be prohibited from obtaining additional information relevant to its investigation from Steed or any other individuals who are directly tied to the FLDS Church, or information that could corroborate or contradict other information gathered in the investigation. In fact, this is the only way for Wage Hour to conduct an investigation and gather the information and evidence it needs to perform its statutory duty of enforcing the provisions of the FLSA. C. Steed is Not Entitled to a RFRA Defense on a Blanket Basis
By granting Steeds motion the Court essentially sustained his objections to all of the questions asked during his testimony pursuant to Wage Hours subpoena. Many of these questions include topics that Steed later conceded were not sacred to him and did not infringe on his exercise of religion. For example, during his subpoena testimony, Petitioner inquired about the Churchs involvement with the 2012 pecan harvest, including the commercial nature of the harvest and related allegations of the FLDS Churchs use of child labor at the harvest, as well as Steeds employment and position with the Church. See Doc. 73-1, Transcript of Vergel Steeds subpoena testimony, at 10:2-14, 19:3-10, 21:4-9 & 16-24, 41:14-21, 41:24-42:2, 47:1-11, and 41:12-54:7. Petitioner also inquired about the organization of the harvest, including the recruitment of labor, the transportation provided to and from the ranch, and the distribution of Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 16 of 18 17 proceeds that resulted from the harvest. Id. Steed objected to all questions related to these topics and asserted the First Amendment. Id. At the evidentiary hearing held before the Magistrate J udge on April 23, 2014 (Doc. 102), Steed testified that commercial activities and child labor activities within the FLDS Church are not sacred and do not warrant First Amendment protection. See Exhibit A, at 14:23-25, 20:5- 7. He also testified that the collection of pecans at the Southern Utah Pecan Ranch and the organization of any such event, including the means of transportation to get people to and from the harvest is also not sacred and does not warrant First Amendment protection. Id. at 22:18-25 23:1-6, 23:7-9, and 25:14-18. Lastly, Steed testified that any position or employment he holds within the Church may or may not be sacred and subject to First Amendment protection. Id. at 15:14-17. At a minimum, in light of Steeds concession that these particular subject areas do not infringe on his exercise of religion, the Court should compel Steed to answer questions related to them, as well as any necessary follow-up questions and any questions necessary to test the credibility of his answers. III. CONCLUSION Based on the foregoing, Petitioner requests that the Court reconsider its Memorandum Decision and Order Addressing Vergel Steeds Motion to Sustain Objections (Doc. 121), and either reverse the outcome of its decision, or allow Petitioner to submit further briefing on the issues identified herein. While Petitioner has outlined in this Motion the merits position he believes to be correct, he is specifically requesting the opportunity to further brief those merits if the Court does not reverse outright on reconsideration. DATED this 30 th day of September, 2014. Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 17 of 18 18 Respectfully submitted,
M. Patricia Smith, Solicitor of Labor J ames E. Culp, Regional Solicitor J ohn Rainwater, Associate Regional Solicitor Lydia Tzagoloff, Trial Attorney and Special Assistant United States Attorney Alicia A.W. Truman, Trial Attorney
/s/ Karen E. Bobela Karen E. Bobela, Trial Attorney United States Department of Labor Attorneys for Plaintiff
Carlie Christensen, Acting United States Attorney, District of Utah Amy J . Oliver, Assistant U.S. Attorney Associated Local Counsel for Plaintiff Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 18 of 18 1 IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH CENTRAL DIVISION
THOMAS E. PEREZ, ACTING ) SECRETARY OF LABOR, UNITED ) STATES DEPARTMENT OF LABOR, ) Petitioner, ) vs. ) Case No. 2:13-CV-281-DS PARAGON CONTRACTORS ) CORPORATION, et al., ) Respondents. ) ____________________________)
BEFORE MAGISTRATE JUDGE EVELYN J. FURSE ---------------------------------------- April 23, 2014 Evidentiary Hearing
REPORTED BY: Patti Walker, CSR, RPR, CP 350 South Main Street, #146, Salt Lake City, Utah 84101 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 1 of 30 2 A P P E A R A N C E S
For Petitioner: Karen E. Bobela US DEPARTMENT OF LABOR OFFICE OF THE SOLICITOR 1244 Speer Blvd., #511 Denver, Colorado 80204
Amy J. Oliver US ATTORNEY'S OFFICE 185 South State Street, #300 Salt Lake City, Utah 84111
For Respondent Steed: Jason D. Haymore HAYMORE LAW 11564 Gold Dust Drive South Jordan, Utah 84095
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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 2 of 30 3 I N D E X Witness Examination By PAGE Vergel Kay Steed Mr. Haymore (Direct) 6 Ms. Bobela (Cross) 13 Ms. Bobela (Further Cross) 22
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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 3 of 30 4 SALT LAKE CITY, UTAH; WEDNESDAY, APRIL 23, 2014; 1:30 P.M. PROCEEDINGS THE COURT: Good afternoon. We are here in the matter of the United States of America -- or, sorry, in the matter of Thomas Perez vs. Paragon Contractors. Would counsel please put their appearances on the record. MS. BOBELA: Karen Bobela with the Secretary. With me is Amy Oliver from the U.S. Attorney's Office, and Joseph Doolin, the district director of Wage and Hour Division of the Department of Labor. MR. HAYMORE: Jason Haymore for Vergel Steed. THE COURT: Mr. Steed is here as well. MR. HAYMORE: That's correct. THE COURT: Thank you. I appreciate you all being here. We are here for an evidentiary hearing that I had set on the religious beliefs that were mentioned in the motion to enforce the First Amendment defense raised by Mr. Steed in his two testimony in Wage and Hour's investigation. So I think the way to proceed would be to have you, Mr. Haymore, put Mr. Steed on the stand and ask him any questions you would like, and then we can proceed from there. MR. HAYMORE: I think that would be great. 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 4 of 30 5 Your Honor, with your permission, I would like to just make a general objection on the record, just to begin with. I feel it would be most appropriate at this time. Mr. Steed's obligation concerning his First Amendment objections is to make a prima facie showing of First Amendment infringement, and he can do this by just articulating an arguable First Amendment infringement. But the First Amendment also provides an absolute protection against forcing one to reveal their religious thoughts and beliefs. So as we proceed today, it's Mr. Steed's intention to provide as much evidence as is necessary to meet his burden, but he wants to make sure to reserve all of his rights under the First Amendment, not to have to provide any more information than is required to meet his burden in this matter. THE COURT: Perhaps to assist you with doing that, I will tell you my particular concern in asking to have this hearing, which is -- let me just pull this document up. As part of Mr. Steed's affidavit, he states that he would -- that if he were required by the Court to answer questions regarding the internal affairs of the church, quote, I would be directly violating my sincerely held religious beliefs. So I'm trying to understand what the sincerely held religious beliefs with respect to not 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 5 of 30 6 answering the questions are -- what that belief is. MR. HAYMORE: Absolutely. THE COURT: Thank you. MR. HAYMORE: I would call Vergel Steed. VERGEL KAY STEED, Having been duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MR. HAYMORE: Q Sir, can you please state your name for the record. A My name is Vergel Steed. Q Will you spell that for us, please. A V-e-r-g-e-l. I have a middle name, Kay, K-a-y. Last name, Steed, S-t-e-e-d. Q Mr. Steed, what is your religious affiliation? A FLDS. Q Tell me what FLDS stands for. A Fundamentalist Latter-day Saint. Q Am I safe to assume today throughout the hearing that when we say the FLDS Church, we're referring to the Fundamentalist Church of Jesus Christ of Latter-day Saints? A Yes, sir. Q How long have you been a member of the FLDS Church? A Always. All my life. Q Mr. Steed, were you born a member of the FLDS Church? 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 6 of 30 7 A Yes, I was. Q Can you tell me the difference between things that are considered secret to members of the FLDS Church and things that are considered sacred? A Secrets is rather -- Q It appears somebody may not want your testimony here today. A Something that's sacred to me is something that I would not care to discuss or disclose to someone who I don't feel would understand that idea or concept and possibly would make fun of or deride that concept. If I hold it sacred, I may not discuss it with you because I don't want to have -- Q Who designates to you, according to your belief structure, what is sacred and what is not? A Well, the beliefs that I have in my heavenly father and the path that I must walk to please him. Q I'm sorry. I can't hear him. Could you please repeat your answer for me as best as possible. Who dictates, under your belief structure, what is sacred and what is not? A I consider sacred the things regarding my path back to the presence of my heavenly father. I avoid -- I don't care to discuss things that pertain to my choices of what I must -- THE COURT: We'll take a recess. 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 7 of 30 8 (Recess) THE COURT: Thank you all for your patience. Hopefully we have the sound issues worked out. Mr. Steed, if you would retake the stand, and I will remind you that you are still under oath. BY MR. HAYMORE: Q Mr. Steed, before our recess, we were talking about the difference between sacred and secrets things for the FLDS people and for yourself in particular. Can we just back up a second and have you remind us again what sacred things are to the FLDS people or what it means for something to be sacred. A Sacred things are things -- to me, things between me and my heavenly father. Secrets are kept between people. Sacred things are much bigger than that. Q So who designates whether something is sacred or not? A Well, for me, the God that I believe in who I call heavenly father, the things that pertain to him and his directives to me, the path that I should take back into his presence, these things are sacred. Q Can you give me an example of something that you consider sacred? A I consider my religious leadership sacred, information regarding that aspect of my life. Q Do you mind helping us understand that just a little 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 8 of 30 9 bit better? Why is it sacred -- a sacred matter being who your religious leaders are? A My religious leaders were set where they are not by men but by my heavenly father, and that's not well understood or accepted in the world we live in. And they and I suppose at times I am subject to ridicule and being mocked and derided by people who don't understand. So I would prefer to not discuss those things with people who I don't feel would understand. Therefore, it's sacred to me. Q Mr. Steed, do you believe that the identity of the leaders in the FLDS Church is a sacred matter? A I do. Q Do you believe that they were designated to be sacred by a higher power than yourself? A Yes. Q Can you give me another example of something that would be sacred to you? A To me, the operations and particulars of church function, how things are done in the church that I subscribe to are sacred to me for the same reasons, those who don't understand would mock or ridicule or deride my religion if I were to discuss those things. Q Do you believe that a higher power than you has designated the church organization and operations as sacred? A Yes, sir. Our church is organized by our heavenly 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 9 of 30 10 father. Q And you're referring to your heavenly father. Is he the one who has designated these to you as sacred? A Yes. Q And he is, for lack of a better word, God or a deity of the FLDS faith? A Yes. He's called God, but I avoid frequent use of his name. Q Can you tell me what a covenant or a vow is? A That would be a promise -- if I took a covenant or a vow, it would be a promise between me and my heavenly father and possibly other -- another person or people, that if I perform certain duties or privileges, that I would earn confidence or privileges from my heavenly father. Q What happens if you were to break one of these religious covenants or vows? A Well, then I wouldn't be living my religion. I would be choosing a different path than the religion that I've chosen. I suppose I would be cutting myself off from the church and forfeiting my relationship with my heavenly father. Q Have you taken religious covenants or vows? A I have. Q How were the covenants or vows that you had taken implicated by the testimony you were asked to give on 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 10 of 30 11 January 6th, this year, when you provided your testimony to the Department of Labor? A I was asked questions regarding my religion, my faith. I was asked questions regarding leadership -- church leadership and regarding some particulars of the operations of the church that I don't feel that I can discuss. Q Do you feel like you were asked about sacred things on January 6th when you gave your testimony? A Yes. Q Can you tell me exactly what those sacred things were that you were asked about? A Again, church leadership questions, church operations questions, and questions regarding myself and positions and particulars that I don't discuss with people, some of those things even with people inside my faith, let alone outside. Q What would happen if you discuss sacred things like the details of the leadership of the church or the church operations openly? A I don't know. I don't even want to go there. Q Would your relationship with your deity be altered if you were to do that? A Absolutely. Q How so? A I would lose the confidence that I feel I have earned between him and me. I don't think I could be a member of 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 11 of 30 12 his church if I didn't live up to what he expects of me in keeping these things sacred. Q Would you be subject to any disciplinary action from the FLDS Church for discussing those things openly? A I would think so. I haven't tried that. I don't know, but I would think so, yes. Q Would other members of the church treat you differently if you were to answer those types of questions in open court or in any forum? A Yes. Q Can you explain how? A Well, if I proved that those things were not sacred enough to me to keep close and that I would discuss those things, I wouldn't be invited to any further advancement or any even activity. Q Mr. Steed, how exactly would answering the Department's question about the leadership of the church or the operations of the church change your life? A I don't know. That would be profoundly different. I don't know. It would be a profound change to me, fundamental. Q In your mind would with change be for the better or the worse? A For the worse. I believe in my heavenly father and have lived to the best of my ability the religion that I 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 12 of 30 13 subscribe to. So to throw that away -- totally detrimental to all that I've lived for. Q Do you believe that answering the questions that you were asked would be throwing it away, to use your words? A Yes, I do, to discuss sacred things would be. MR. HAYMORE: I have no further questions. THE COURT: Thank you. MS. BOBELA: I assume I have an opportunity to cross? THE COURT: Yes, absolutely. Sorry. CROSS-EXAMINATION BY MS. BOBELA: Q Good afternoon, Mr. Steed. A Good afternoon. Q In your affidavit that you filed with the motion your counsel filed -- do you recall signing an affidavit in this matter? Let me start there. A Yes, ma'am. Q In that affidavit you state that you made religious vows not to discuss matters related to the internal affairs or organization of the FLDS Church. What vows specifically did you make? A I am not willing to discuss the specifics of the vows that I've made. Q Well, as far as the vow that you made -- I mean, you 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 13 of 30 14 state in the affidavit, that's already been filed with the court, that you made a vow not to discuss matters related to the internal affairs or organization of the church. Is that the vow that you took or is there more to that vow? A That was necessarily a specific vow. Q Is it a covenant? A Not one specifically, no. Q What is it, then? You described it as a religious vow in your affidavit. I just want a better understanding of what it is. A Well, possibly that's part of many different vows. Q Can you elaborate, please? A No. Q When did you make the alleged vow not to discuss matters within the church? A At many different times. Q When's the first time you made that vow? A I don't know. Q Can you recall any times that you made a vow not to discuss matters within the church? A I can recall many times that I've made vows that include not discussing sacred things. Q Do you consider commercial activities of the church to be sacred? A No. 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 14 of 30 15 Q Do you consider your employment relationship with the church to be sacred? MR. HAYMORE: Objection. He never testified that he was employed by the church, even in the deposition or today. MS. BOBELA: Well, your Honor, the witness refused to answer the question as to whether or not he was employed by the church. So I guess I can phrase the question as if you are employed by the church, would that be something that you would consider sacred. That clears the objection. THE WITNESS: There's not a fine line to me between employment and position in the church. BY MS. BOBELA: Q On either end of the spectrum between employment and position, are those matters that you would consider sacred? A If I held a position in the church or did some work for the church, it could be sacred, yes. Q What would make it sacred? A The fact that for me to discuss openly with a person not of my faith would damage my relationship with my heavenly father. Q Were you told to make a vow of secrecy? A I am not here talking about secrecy. I'm not particularly keeping any secrets. Q I can rephrase that question. Did somebody tell you 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 15 of 30 16 that you needed to make a religious vow not to discuss matters related to the internal affairs or organization of the church? A I was taught at my mother's knee that sacred things aren't discussed openly. Q Right. Did somebody tell you to make a religious vow not to discuss matters related to the internal affairs or organization of the church? A I was taught at my mother's knee not to discuss sacred matters openly. Q Did you make your own determination that internal affairs and the organization of the church is sacred? A I don't understand the question. Q Did you designate internal affairs or organization of the church as something that is sacred or is that something that is sacred to all FLDS members? A It's sacred to everyone who's been taught the way I have. Q Is that something that is taught by the church or something that was taught by your mother? A To not discuss sacred things is a tenet of the church, yes. Q Who determines that internal affairs in the organization of the church is sacred? A I don't know. It has always been that way. 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 16 of 30 17 Q Isn't it true that an order or instruction to keep church matters private and to not discuss church matters with people who are not members of the church is a recent development in the FLDS Church? A No. Q That's not something that was created by Warren Jeffs? A No. Q How long has that instruction been around in the FLDS Church? A I read the teachings of Joseph Smith, Jr. in the 1820s, of Brigham Young in the 1830s, '40s, '50s, and so on, that teach me these things. Q So there are written teachings about not discussing matters related to the internal affairs and organization of the church? A Yes. Q Did you bring any of those with you today? A No. You wouldn't have let me in with them anyway. Q Do those written teachings specifically state that members of the church are not to discuss the internal affairs or the organization of the church? A Not particularly in those words, but yes. Q What makes your vow not to discuss matters related to the internal affairs or organization of the church religious in nature? 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 17 of 30 18 A How would affairs of the church be anything but religious? It's a religious organization. Q You would agree that the alleged belief in not discussing matters related to the internal affairs or organization of the church is not codified anywhere in the FLDS body of teachings or instructions? A As I stated before, if you read the teachings of Joseph Smith, Jr., or Brigham Young, or other men who have led the FLDS Church, you would find these things taught. Q Do those teachings talk about not discussing voice mails that are distributed to church members? A I think that's a little ludicrous. Q So it's how you've interpreted these teachings? A I don't expect that Brigham Young would say anything about voice mails in his teachings. Just time frame. Q You talked a little bit about your fear of reprisal from people within the church if you were to cooperate with Wage Hour's investigation and answer the questions that were posed, right? A I don't remember discussing fear, no. Q Your counsel asked you questions about whether other members would treat you differently? A Yes. Q You had some concern that other members would treat you differently if you were to cooperate with Wage Hour's 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 18 of 30 19 investigation? A Yes, ma'am, if I were to not keep sacred things sacred. Q You fear disciplinary action from the FLDS Church? A There may be disciplinary action from the FLDS Church if I do not keep sacred things secret. Q So these two fears that you've identified, the fear is really coming from people within the church and how they would react to you, right? A Ms. Bobela, I didn't say anything about fears. You did. Q We can call them your concerns, however you want to talk about them. I am referring to your concern of disciplinary action from the church and your concern that other members of the church would treat you differently. A Those are beliefs that I have. Q There are no concerns that people -- that the government agencies would somehow retaliate against you, right? A No, there are not. Q You're not worried about members of the public, non-FLDS members? A I don't know what they would do. I don't think they would particularly care to get involved in that. Q On direct when you were describing something as being sacred, you said it's something that you do not care to 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 19 of 30 20 discuss or disclose with someone who would not understand. You are really describing your personal preference not to discuss these things, aren't you? A No, ma'am. Q If there are child labor activities occurring within the church, would those activities be sacred to you? A No. Q Is it your position that each and every question that was asked of you on January 6th touched on something that was sacred to you? A No. I answered many questions. Q But the questions you refused to answer were on the basis that the questions imposed on something that you considered to be sacred? A The questions that I refused to answer, I refused to answer based on my First Amendment right. Q That's what we're trying to flush out here today. So I'm trying to get a sense of the basis on which -- I can only assume that you believe all the questions that were asked of you discussed or got to something that you believe is sacred. Is that your position? A Yes, ma'am. Q What discipline would you face from the FLDS Church if you were to cooperate with Wage Hour's investigation and answer the questions that were asked of you? 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 20 of 30 21 A I don't know or want to know. Q Are you aware of any examples of other people within the FLDS Church who were disciplined? A I'm aware of people who have not kept sacred things secret, made choices that cut them off from the presence of their heavenly father, and I don't want to go there. MS. BOBELA: Your Honor, if I could just have one moment? THE COURT: Yes. MS. BOBELA: I don't have any further questions, Your Honor. THE COURT: Anything else, Mr. Haymore, that you would like to follow up with? MR. HAYMORE: Yes, just real briefly. REDIRECT EXAMINATION BY MR. HAYMORE: Q Mr. Steed, there's been a couple of matters that I just want to make sure we're absolutely clear on. Who designates, according to your belief structure, what's sacred and what is not sacred? Is that something that is determined by church leadership and by yourself or is that done by deity? A That's determined by my heavenly father and his teachings. Q And he has designated the church leadership and the 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 21 of 30 22 operations of the church as sacred matters? A Yes, sir. MR. HAYMORE: No further questions. MS. BOBELA: Just one quick follow-up question. THE COURT: Okay. FURTHER CROSS-EXAMINATION BY MS. BOBELA: Q Mr. Steed, how does the heavenly father designate certain things as sacred and not sacred? A Would you like to come to church? Q Can you answer the question? A No. Q Is that something that's communicated to the entire church at one time or something that was communicated to you? A These are things that I was taught at my mother's knee and from then until now. THE COURT: I have a couple of questions I would like to ask. So I believe you did answer that you did not believe that commercial activities of the church were sacred. Would the collection of pecans at the southern Utah pecan ranch, would that be considered a commercial activity, in your view? THE WITNESS: Your Honor, I have picked up pecans at various places in southern Utah every December of my 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 22 of 30 23 whole life, not as a religious activity, not as a commercial activity, gathering food. THE COURT: So you do not -- so if the -- so you do not consider the collection of pecans at the southern Utah pecan ranch as a religious activity? THE WITNESS: No, I do not. THE COURT: And do you consider how that event was organized to be a religious activity? THE WITNESS: No, not particularly. THE COURT: So those are things that you would not have a problem under the First Amendment testifying about? THE WITNESS: About those things directly, I would not. I believe I did answer those questions. THE COURT: Okay. And then there was this issue that we touched on a bit today about employment. And do you consider who is employed, meaning -- and I'll use the term broadly, to mean somebody who was paid by the FLDS Church or the Corporation of the Presiding Bishop of the FLDS Church, do you believe who is employed by the church to be a religious issue? THE WITNESS: Yes, I would think so. THE COURT: Is there a particular portion of either the church or the Corporation of the Presiding Bishop that is sort of separately designed to deal with commercial activities? 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 23 of 30 24 THE WITNESS: I don't know. THE COURT: We have talked here today in terms of the FLDS Church. In your testimony there was some testimony given about the FLDS Church and some given about the Corporation of the Presiding Bishop of the FLDS Church. Is there a distinction between those that you can explain to me? THE WITNESS: No. I don't know what the distinction is. THE COURT: So when you talk about the church, you're meaning that to apply both to the corporation and to the church? THE WITNESS: Yes, ma'am. THE COURT: Okay. Thank you. Those are my questions. Are there any questions either of you would like to ask based on those? MR. HAYMORE: I have no further questions, Your Honor. MS. BOBELA: I guess I'll just ask a few follow-up just to flesh this out a little further. FURTHER RECROSS-EXAMINATION BY MS. BOBELA: Q Mr. Steed, so you just confirmed with the Judge that how any pecan harvesting activities occur within the FLDS community, you do not consider that to be a religious 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 24 of 30 25 activity? A Not particularly, no. Q Does that also apply to voice mails that would have been sent to round up individuals to participate with that harvest? A No. Q Would the voice mail be considered a religious activity for you or you would agree that that also is not a religious activity? A I believe that how church leadership communicates with individuals in the church is sacred. That might be an invitation to the Easter picnic or an announcement of a meeting, or whatever. Q How about transportation used to transport individuals to and from the pecan harvest that would also go to how the event is organized, is that something that you would consider sacred or not sacred? A Not particularly sacred. Q How about records that are kept of any work performed by FLDS members at the pecan harvest, would you consider that to be sacred or not sacred? A Sacred. Q On what basis? A I think all religious records are sacred. Q These would be records pertaining to the pecan harvest 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 25 of 30 26 at the southern Utah pecan ranch. You consider those to be religious records? A If you volunteered at your church and kept a record of the time you spent or what you did, would that be sacred to you? To me, it would. If I had gone to the pecan harvest as a volunteer to help with that effort, I would not care to disclose to you the record of that religious activity. Q If you hold a position within the church as a record keeper or a secretary of sorts and it's not paid, that is a position held within the church, would you consider that to be sacred or not sacred? A Sacred. Q Whether or not individuals are paid for their work at the pecan harvest in any form or fashion by the church or compensated in any way, would that information be sacred or not sacred? A I think you are trying to lead me into making a statement as to whether people are paid. I am not comfortable with answering that. Q Is information about whether or not individuals who work at the pecan harvest, information about whether or not they were compensated in some way by the church, would that information be sacred or not sacred? A I would think that would be church records and should be sacred. 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 26 of 30 27 Q If there was an instruction or order given to certain individuals to participate at the pecan ranch by the FLDS Church, would that information be sacred or not sacred? That would also go to how the pecan event is organized. A Can you repeat the question? Q If there was a direction given from someone within the church to other church members to participate in the nut harvest, would that information be sacred or not sacred? A Communications between religious leadership and individuals within the religion is sacred to me. Q Lastly, information pertaining to what happens to the pecans after they are harvested, would you consider that information to be sacred or not sacred? A I don't feel that I have enough particulars to answer that question. Q If Wage and Hour were going to inquire of you about what happens to the pecans after they are harvested -- I mean, it's a pretty general question. What happens to the pecans? Are they sold? Are they given away? Are they kept by the church? I mean, questions of that nature, would that information about where the pecans go after they harvested be sacred or non-sacred? A I think that would depend on who you are asking. Q If you were asked those questions, would you consider the information responsive to those questions to be sacred 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 27 of 30 28 or not sacred? A I would just say I don't know, just like I did last time you asked those questions. MS. BOBELA: I don't have anything further. Thank you. THE COURT: Thank you. Anything further, Mr. Haymore? MR. HAYMORE: Nothing further from me. THE COURT: And that's everything I have. Thank you, Mr. Steed, for being here. I appreciate your presence and your time. Anything further I can address for the parties today? You can take a seat. MS. BOBELA: I guess I would just be curious if Your Honor would like additional briefing following this hearing, or if you find it not necessary. THE COURT: I think I will just go ahead with what we have. I think both of you -- unless there is new law, but I think you both have addressed the issue fairly, fully, and it will just be a matter of me making a decision -- or, rather, recommending a decision for Judge Sam on the point, since it is a contempt proceeding. Anything further on this -- so I don't think I will need briefing, unless either of you feel strongly about 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 28 of 30 29 that. MR. HAYMORE: I don't. I'm very comfortable with the evidence that's been submitted. THE COURT: All right. Thank you very much. We'll be in recess on this matter. MS. BOBELA: Thank you, Your Honor. (Whereupon, the proceeding was concluded.) 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 29 of 30 1 C E R T I F I C A T E I hereby certify that the foregoing matter is transcribed from the stenographic notes taken by me and is a true and accurate transcription of the same. PATTI WALKER, CSR-RPR-CP DATED: 5-5-14 Official Court Reporter 350 South Main Street, #146 Salt Lake City, Utah 84101 801-364-5440 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 Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 30 of 30