Motion to reconsider FLDS "Hobby Lobby" ruling

8/11/2019 Motion to reconsider FLDS "Hobby Lobby" ruling

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Carlie Christensen, Acting United States Attorney (#633)Amy J. Oliver, Assistant U.S. Attorney (#8785)District of Utah185 South State Street, #300

Salt Lake City, Utah 84111-1506(801) 325-3319Email: [email protected] Local Counsel

M. Patricia Smith, Solicitor of LaborJames E. Culp, Regional SolicitorJohn Rainwater, Associate Regional SolicitorKaren 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 515Denver, CO 80204(303) 844-1745Email: [email protected]; [email protected]; [email protected]

Attorneys for Petitioner

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF UTAH CENTRAL DIVISION

THOMAS E. PEREZ, SECRETARY OFLABOR, UNITED STATESDEPARTMENT OF LABOR,

PETITIONER,v.

PARAGON CONTRACTORSCORPORATION; BRIAN JESSOP;DALE BARLOW; KEITH DUTSON;VERGEL STEED; NEPHI JEFFS; LYLE

JEFFS and CORPORATION OF THEPRESIDING BISHOP OF THEFUNDAMENTALIST CHURCH OFJESUS CHRIST OF LATTER-DAYSAINTS,

RESPONDENTS.

Case No. 2:13cv00281-DS

MOTION FOR RECONSIDERATION ANDREQUEST FOR FURTHER BRIEFING

The Honorable David Sam

Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 1 of 18


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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 Jesus 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 Judge Evelyn Furse issued a Report and Recommendation (Doc. 115) to

enforce the subpoena against Steed. The District Court rejected the Magistrate Judges

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 asindividual 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 histestimony or in any of the briefs that followed did Steed raise a defense under the ReligiousFreedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq.



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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 Judge; 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 RFRALegal 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



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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 Judge 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 Judge 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 Judges report (Doc. 116), Steed argued that the MagistrateJudge incorrectly relied on Employment Division v. Smith, 494 U.S. 872 (1990), because it wassuperseded by RFRA. He clarified that his arguments were framed under the First Amendmentand not RFRA, and he requested that the parties be given an opportunity to brief the applicationof RFRA if that was the legal framework the Court intended to use. See Doc. 116 at p. 4.



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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); s ee 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 Judge 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 Steedsobjections under a RFRA analysis but requests an opportunity for further briefing on this issue.

http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=1996204875&serialnum=1996071819&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=BC04AEEF&referenceposition=1494&rs=WLW14.07http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=1996204875&serialnum=1996071819&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=BC04AEEF&referenceposition=1494&rs=WLW14.07http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=1996204875&serialnum=1996071819&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=BC04AEEF&referenceposition=1494&rs=WLW14.07http://web2.westlaw.com/find/default.wl?mt=Westlaw&db=506&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=1996204875&serialnum=1996071819&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=BC04AEEF&referenceposition=1494&rs=WLW14.07


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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



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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 wheninterpreting 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 sisterstatute).



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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 necessaryWhile 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 notindicate 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 grouphe claimed to belong to was a masquerade designed to obtain First Amendment protections foracts which otherwise would be unlawful. 662 F.2d 1025, 1031 n.10 (3d Cir. 1981) (citations and



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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



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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 achurch where the Secretary of Labor sought information in the course of an FLSA investigationto evaluate the validity of the churchs claim, as construed by the court, that all of its employeesare 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), theFourth Circuit concluded that the Department of Labors power to inform itself throughinvestigations outweighed the free association claim raised in that case, so that the



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iii. The subpoena issued to Steed is the least restrictive means to obtain theinformation 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 constraintsconstitutionally valid.

https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1000546&docname=42USCAS2000BB-1&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2032475326&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=T&pbc=81EDB378&referenceposition=SP%3ba83b000018c76&rs=WLW14.07https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=1000546&docname=42USCAS2000BB-1&rp=%2ffind%2fdefault.wl&findtype=L&ordoc=2032475326&tc=-1&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=T&pbc=81EDB378&referenceposition=SP%3ba83b000018c76&rs=WLW14.07


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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 Joe 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 investigationof 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 Jessop, 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 presentat the ranch), which he has already denied, he can still answer questions regarding these othersubject matters that are relevant to Wage Hours investigation.



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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 fromSteed from Paragon, Jessop, or Barlow



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Contrary to findings made by the Court, Wage Hour cannot obtain the information it

needs from Paragon, Jessop, 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 Judge and Judge Shelby made adverse credibility findings against

Jessop (Docs. 21, 36) and the Court subsequently granted Petitioners first set of petitions to

enforce subpoenas against Jessop and Paragon, as well as Barlow. See Docs. 21, 23, and 36.

When Jessop, 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 Jessop and

Paragon) and move to enforce the subpoenas against Paragon, Jessop, 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

Jessop 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, Jessop, 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 andthe petition for adjudication of contempt pending against Paragon and Jessop (and all related

pleadings) (Docs. 2, 3, 16, 17, 21, 22, 28, 36, 90, 106, and 108); as well as the two subpoenaenforcement 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 thedecision at issue here (Doc. 122).



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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, Jessop, 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



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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 Judge 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.



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Respectfully submitted,

M. Patricia Smith, Solicitor of LaborJames E. Culp, Regional Solicitor

John Rainwater, Associate Regional SolicitorLydia Tzagoloff, Trial Attorney and Special

Assistant United States AttorneyAlicia A.W. Truman, Trial Attorney

/s/ Karen E. BobelaKaren E. Bobela, Trial AttorneyUnited States Department of LaborAttorneys for Plaintiff

Carlie Christensen, Acting United States Attorney,

District of UtahAmy J. Oliver, Assistant U.S. AttorneyAssociated Local Counsel for Plaintiff



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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

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Case 2:13-cv-00281-DS Document 129-1 Filed 09/30/14 Page 1 of 30


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A P P E A R A N C E S

For Petitioner: Karen E. BobelaUS DEPARTMENT OF LABOROFFICE OF THE SOLICITOR1244 Speer Blvd., #511Denver, Colorado 80204

Amy J. OliverUS ATTORNEY'S OFFICE185 South State Street, #300Salt Lake City, Utah 84111

For Respondent Steed: Jason D. HaymoreHAYMORE LAW11564 Gold Dust DriveSouth Jordan, Utah 84095

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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

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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.

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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

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answering the questions are -- what that belief is.

MR. HAYMORE: Absolutely.


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?

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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.

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(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

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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

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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

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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

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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

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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.


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

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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.

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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

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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.

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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?

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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

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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

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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?

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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

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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

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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?

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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

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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

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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.

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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

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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.


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

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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.)

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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: 5-5-14Official Court Reporter350 South Main Street, #146Salt Lake City, Utah 84101801-364-5440

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Documents

Motion to reconsider FLDS "Hobby Lobby" ruling