Introduction and Guest Welcome

Radio Free Mormon [00:00:00] Good evening, everyone. This is Radio Free Mormon coming to you live from Mormon stories. It is August 8, 2023, at 7pm on the nose Mountain time, and I hope all of you are joining us for this wonderful podcast and an important podcast where we review and discuss an opinion that was issued yesterday from the United States Court of Appeals for the Ninth Circuit in the matter of James Huntsman versus the corporation of the president of the church, Jesus Christ of Latter Day Saints. I am here tonight hosting this episode because John Dehlin is otherwise unavoidably detained, which means I tied him up and stuck him in a closet. This is part of my slow but incremental plan to take over Open Stories foundation entirely. And to help me do that, tonight, we have a couple of very, very wonderful guests, one of which is Kolby Reddish. Kolby, are you with us? There's Kolby.

Kolby Reddish [00:00:58] I sure am. How are you?

Radio Free Mormon [00:01:00] Kolby, your wall is completely blank. It's like you're in a jail cell or something.

Kolby Reddish [00:01:04] Yeah, my previous wall was too busy, according to a certain host.

Radio Free Mormon [00:01:08] Okay, well, I'm glad you changed it. It's for the better. But I like the shirt. It makes your beautiful blue eyes pop.

Kolby Reddish [00:01:14] Oh, I'm flattered.

Radio Free Mormon [00:01:15] Kolby Redish is an attorney, by the way. I am, too. Kolby, can you just tell a little bit, like five words or less about your experience as an attorney?

Kolby Reddish [00:01:26] Sure. I have been both a criminal practitioner and a civil litigator, and that's what I do today, and that's why I'm here.

Radio Free Mormon [00:01:33] For how long?

Kolby Reddish [00:01:35] For seven years going on.

Radio Free Mormon [00:01:38] And you are, by the way, I've spoken with you on a number of occasions. You are a rising star among attorneys wherever you are. You're very, very intelligent. And by the way, the squeaky noise is my chair. It's nothing else. Just so you know, when I lean forward or lean back, I've got a squeaky chair. I can't help it. Also on the show tonight is Rebecca Biblioteca. Hello, Rebecca. How are you?

Rebecca Biblioteca [00:01:59] Hello. I'm so excited to be here on this program tonight. Thanks for inviting me.

Radio Free Mormon [00:02:04] Well, you're not a lawyer, but you had a semester of law, I understand, in college.

Kolby Reddish [00:02:08] I.

Rebecca Biblioteca [00:02:09] That just makes it sound so terrible. No, my background is in librarianship, and I did spend time in the law library and have always been fascinated, so here I am.

Radio Free Mormon [00:02:17] Well, you have been doing a lot of work. I know. I've read through this opinion. It's 41 pages. When you include the majority opinion and the dissent. And you have, too. I know. And I know that Kolby has as well. So this has been making a lot of news. This was filed, which means it was issued and published yesterday, August 7th, 2023. And the short. And if we get everybody on the screen now, it'd be fine. There we go. Okay. And the long and short of it is what, Kolby?

Kolby Reddish [00:02:53] Well, the short of it is that James Huntsman's lawsuit, which was dismissed by a California federal district court judge, has been overturned by the Ninth Circuit by a panel of Ninth Circuit judges, and will go back to the trial courts, at least in theory.

Radio Free Mormon [00:03:08] In theory. So in other words, what was dead now lives again. A true wrestler, James Huntsman. Screaming it's alive. It's alive. And it's something that I had kind of lost track of. It was argued last November, actually, on November 15, 2022, is when it was argued before the court. And it took them this long to issue their opinion, which is, you know, it's a long time, but as far as appellate courts go, it's probably about average, but it came down and it reversed the original trial court. And what we want to do is we want to go through this and in the order that we have the opinion so that we can talk about it. And hopefully, those of you who might have some questions about it and what it means, well, we'll be able to talk about it and hopefully answer some of those questions. Okay. That was weird. My automatic electronic lock on my door just locked itself. There's a malevolent spirit abroad. All right, so we have a summary here. First off, and what happens is that you have the opinion, but also for people like me, they have a summary at the very beginning. Now, the summary is not part of the opinion. Right. It's written by the clerks. It's based on the opinion, but you don't cite the summary. If you're citing to a case or quoting from it, that would be a rookie error. And, Rebecca, are you able to take us through this summary? Do you feel comfortable doing that?

Overview of the Ninth Circuit Opinion

Rebecca Biblioteca [00:04:37] Do you want me to read the summary? The entire summary, or just sort of paraphrase the summary? Well, how about I read very quickly? I could do it.

Radio Free Mormon [00:04:46] Yeah. And you've got a wonderful voice for reading. So if you can just read the first paragraph.

Rebecca Biblioteca [00:04:50] Yeah, I'll read the first.

Radio Free Mormon [00:04:51] We're not going to read the whole opinion, but the summary is important.

Rebecca Biblioteca [00:04:54] Okay, so it's a summary. Diversity fraud, ecclesiastical abstention doctrine. It says, channel abstention. Did I pronounce already on word four? I'm having a problem. This is not voting.

Radio Free Mormon [00:05:07] Kolby, can you take over for Rebecca?

Rebecca Biblioteca [00:05:08] No, no, no, no, no, no, no. I can do it. I probably just need to put on my reading glasses. All right, here we go. The panel reversed the district court's grant of summary judgment in favor of the corporation of the president of the Church of Jesus Christ of Latter Day Saints in a diversity action brought by James Huntsman, a former member of the church, alleging fraud under California state law.

Radio Free Mormon [00:05:29] That's the first paragraph, so there's a lot there. Basically, James Huntsman, who is the plaintiff, alleged fraud under California state law against the LDS Church at the trial court level, which they call the district court. And I find the federal court system endlessly confusing with its districts and its circuits, and it's all. All that stuff. So for purposes of the conversation tonight, I. At least I'm going to talk about the trial court level and the judge who initially dismissed James Huntsman's case out of the court, and then it was appealed by Huntsman to the appellate court level. I'll just call it the appellate court, if that's okay. And this is the appellate court decision that reversed the trial court's dismissal and now has reinstated the lawsuit. So it's alive and well again. Did you have anything you wanted to add to that, Kolby?

Kolby Reddish [00:06:23] I think just two terms that people might be wondering, hey, what do those mean? So, you know, the panel reversed the district court's grant of summary judgment. So in civil litigation, summary judgment is a motion that a defendant or a plaintiff technically, but more often a defendant can make to say, basically, according to all the facts alleged by the other party, we still win. Whether it's due to the holding of some case or some statute or some exception in. It's basically saying, I accept all of your arguments about the facts and I still win. And so that's what happened at the trial court level. I think the only other term people might have a question on is what is a diversity action? That's just a technicality of invoking federal court jurisdiction. It just means that James Huntsman is a resident of California or has jurisdiction in California and he's suing above a certain amount, a Utah corporation, which is the church or the corporation of the president of the church.

Radio Free Mormon [00:07:22] Okay, really good. Thank you. And also the panel where it says the panel reversed, when they're talking about a panel, you have an appeal and you have a panel, and the panel is three judges. Do they call them judges here or justices?

Kolby Reddish [00:07:37] They're judges because they're not on the highest appellate level.

Radio Free Mormon [00:07:41] Okay, so just Judges. All right, that makes it easier to remember. But three judges, and the three judges constitute the panel. So that's what it's talking about here. Are you ready to go over the second paragraph, Rebecca?

Rebecca Biblioteca [00:07:52] I think I'm ready. I would like to say about the first paragraph, just in layman's terms, and correct me if I'm wrong, it basically means that that court just threw it out, said no juror would ever, no jury would ever convict. So we're just throwing it out. Right. Tossing you right out.

Radio Free Mormon [00:08:05] Right. Summarily, the trial court throws. Threw it out because what the trial court said was on the church's motion for summary judgment, the church said, and we'll get a little bit more into that as it, as it goes into the procedural history after the summary. But what the church said was we take all the facts that are alleged and all the reasonable inferences that can be drawn from those facts that Huntsman has alleged, and even if we do that and give them all the benefit of the doubt on the facts and the inferences that can be drawn from it, they still don't have a case. There's no reasonable juror that would find for them. And so in those instances, which is what a summary judgment motion is, the judge. If the facts are agreed. Let me just break in for just a second. The judge's province is to make decisions about the law. The jury's province, if there is a jury, it's their province to make decisions about what the facts are. So a jury is essential if there are any facts that are contested. If one party says the light was green at the time of the accident and the other party says, no, it was red, that is not an issue for the judge to decide. That's beyond his purview unless he's sitting as a trier of fact. It is the jury's province to make the determination and to figure out what really happened as far as the facts go. So once again, the judge now, if all the facts are agreed to, and that's what the church is saying, okay, we're going to agree to all their facts. But even agreeing all their facts, they still don't have a case. And the trial court judge says, we agree with the church, it's kicked out. And it was that order dismissing Huntsman's case at the trial court level that Huntsman then appealed up to this court, which was argued in November. And now we've got the decision.

Rebecca Biblioteca [00:10:08] And here it is, paragraph two. Huntsman alleged that he contributed substantial amounts of cash and corporate shares to the church as tithes. He further alleged that he relied on false and misleading statements by the church that tithing money was not used to finance commercial property projects, when in fact the church used tithing money to finance a shopping mall development and to bail out a troubled for profit life insurance company owned by the church.

Radio Free Mormon [00:10:39] Okay, anything to say about that, Kolby?

Kolby Reddish [00:10:43] Not in particular, no.

Radio Free Mormon [00:10:45] Okay, so this is what the allegation was from Huntsman, basically, that he relied on. On false and misleading statements by the church that tithing money was not used to finance commercial projects, when in fact it was. And the two commercial projects it's talking about our City Freak Mall and Beneficial Life and Money came out of the EPA in order to finance those projects. Okay.

Kolby Reddish [00:11:13] And this is important, we'll get to it later in the opinion. Out of the EPA and into another subsidiary or separate or, you know, separately operated arm of the church to obfuscate the direct connection between EPA and funding City Creek. So we'll get to that in a second, I'm sure.

Radio Free Mormon [00:11:32] I know there's more shady dealings that the church is engaged in in order to hide what it is they're doing. They seem to have an established pattern of this that's a bit disturbing. Are you ready for the third paragraph? Are you hearing my chair?

Court Rejects Church's Motion to Seal Opinion

Rebecca Biblioteca [00:11:46] I'm ready. So I think I'm getting ready. I was kind of making my face at the chair. Yeah, no, it's okay.

Radio Free Mormon [00:11:50] I'm getting another chair.

Rebecca Biblioteca [00:11:51] This is.

Radio Free Mormon [00:11:51] Okay, hang on.

Rebecca Biblioteca [00:11:52] You go ahead and moving to another chair. I'm going to go.

Radio Free Mormon [00:11:54] Wait a second. Just go ahead and read. I want to see how long it is. It's not that long if I'm not back. Continue into the next.

Rebecca Biblioteca [00:11:59] I'm going to read really slow and then Kolby and I'll just talk. It'll be just fine.

Kolby Reddish [00:12:03] So.

Radio Free Mormon [00:12:03] Okay, thank you.

Rebecca Biblioteca [00:12:04] Yeah. And what Kolby just mentioned about that other company that it was funneled into, that was news to me. That was very interesting. That we'll get into later. So next paragraph of the summary. Here we go. The panel denied the church's request to seal these portions of the opinion that include business and financial information relating to church operations, noting that the opinion reveals very little of the church's financial information and some of the relevant information has already been publicly revealed. So I found that not surprising, don't you think, Kolby?

Kolby Reddish [00:12:40] Well, I'm not surprised at all that the church requested to seal portions of an opinion, but I don't know how often portions of a judicial opinion are actually sealed to protect some type of, you know, financial proprietary information that. That's very irregular from. Okay.

Radio Free Mormon [00:12:58] Have you ever seen one, Kolby? I haven't, but then again, I, I read mostly criminal law opinions, but I've never seen anything like that except for, you know, not using the name perhaps of a victim and using initials instead.

Kolby Reddish [00:13:10] That's the only type of redaction or, or seal with regard to a court opinion that I've ever seen, also rfm. So that would be very irregular in my view.

Radio Free Mormon [00:13:19] It's like, why do this? Except to make it really clear in case anybody's thinking that you are trying to be upfront and transparent about your finances and to slap them upside the face and say, oh, I guess you're not. So they wanted the court to seal the financial information, which was not that much, but, man, they don't want to get out there. They don't want anybody to know about their financial information. So they make a motion to have that sealed in some way in the court's opinion, and they say, are you kidding? No, we're not going to do that. So. And I've read the opinion, of course, as you have. It's not substantial, but, boy, do they get itchy when it comes to anything with a dollar sign next to it that they claim ownership in. They just don't want it known. All right, so now we're to the next paragraph. The panel.

Rebecca Biblioteca [00:14:02] The next paragraph, and I will say what they didn't seal. There were some numbers that I had not seen before, and I was kind of asking others, do you remember this exact number? So there were some things that was a little revelatory.

Radio Free Mormon [00:14:13] Right. And one of the numbers is $1.6 billion billion dollars.

Rebecca Biblioteca [00:14:16] That's it.

Radio Free Mormon [00:14:17] To the City Creek Mall from the EPA.

Rebecca Biblioteca [00:14:21] I don't think we knew the number.

Radio Free Mormon [00:14:22] Via another account. Sorry, that's me going around to another account. Right. So that's one number. And the other number was basically 6 billion that went to beneficial life out of the EPA through a different account, by the way, Y. But never just from the epa, because, you know, people might see what we're doing and they might think it was wrong.

Rebecca Biblioteca [00:14:42] No, there has to be a clone company somewhere in the middle. I can't just go straight at it, so. And the church has a history of sealed portions of things, so it all fits to me. Okay, let's go to the next paragraph. The panel rejected the church's argument that Huntsman's fraud claims are barred by the First Amendment. The panel held that the ecclesiastical. I'm going to say it right now. Abstention doctrine did not apply. Was I wrong again? Yeah, next time. Third time's a charm.

Radio Free Mormon [00:15:12] You've got a street going now.

Rebecca Biblioteca [00:15:14] I've got a streak. You know, I feel it should just be pronounced this way. For the lay audience. This doctrine did not apply because the questions regarding the fraud claims were secular and did not implicate religious beliefs about tithing itself, nor was the panel required to examine Huntsman's religious beliefs about the appropriate use of the church money.

Radio Free Mormon [00:15:35] Okay, thank you. So there's the first thing, and I'll just mention here, and then I'll hand it over to Kolby, which is this is always the first issue, and it's always the first issue that the church is going to argue. They argued it below at the trial court level. The trial court judge didn't buy it. They tried it again at the appeal court level. None of the three judges on the appeal court panel bought this argument. And one of the reasons is because it patently doesn't apply here. This is the problem that other lawsuits have gotten into, which is they start alleging things about fraud, that the Church misled them regarding religious beliefs or religious teachings or historical events like the first vision or how the Book of Mormon was translated. That's what they call the ecclesiastical abstention doctrine. And I believe what they mean by that is that if it involves an exercise of ecclesiastical authority, doctrine, church governance, anything like that, that's going to be protected by the First Amendment, and the courts are not going to get involved in litigating whether Joseph Smith actually dictated the Book of Mormon by the gift and power of God or whether he did it by some other means. But here, here it seems clear cut, at least to all four of the judges who've been involved so far, which is that when you're talking about paying tithing, and James Huntsman paid a lot of tithing over this time period. And if you're talking about paying tithing on reliance or in reliance on things that the church leaders said about how that tithing would be used, and it turns out that what the church leader said was not true about how the tithing would be used. And if you paid your tithing and reliance on that misrepresentation by the church leader, then there's a lawsuit and it's secular. It has nothing to do with religion. So just because. And there's a wonderful line that they quote from another case here when you get to the opinion itself, but basically what it says is just because you're a religion doesn't Mean, you get to defraud people, at least not secularly. Okay, not in a secular way. So they divide it. Churches can be held legally liable for fraud if it involves secular issues like money and misrepresentations. And I probably gone on too long already. Kolby, anything else?

Why the Fraud Lawsuit Was Initially Dismissed

Kolby Reddish [00:18:10] No, I think that was great. I think just to highlight, really what you said, the takeaway from this paragraph is that this is the prime reason why this lawsuit has, at least at this stage, succeeded where others ran aground. Is this steered clear of the First Amendment's protection because it wasn't looking for the courts to interfere in religious claims or theological claims? I know specifically there was a lawsuit in the UK several years ago that was, like, specifically challenged. It was also challenging on the same grounds, by the way, the City Creek Fund and the Beneficial Life Funding. But it was also seeking to establish that the church was just fraudulent on its theological claims. And I remember specifically two of the issues were the book of Abraham and the existence of the global flood as established in Genesis. And courts are just never going to go there. They're never going to recognize even the most ridiculous religious claims as fraudulent. And so that's my real takeaway, is if you want to make a suit for fraud, it has to not touch on theological claims.

Radio Free Mormon [00:19:23] Right. And by the way, can I just add, that's a good thing. I know a lot of times we get frustrated because the people that we want to win get thwarted because of this. In previous lawsuits, it's a good thing because if you actually have judges, public officials who are judges, government paid officials who are judges determining religious beliefs, you now have a state religion. So that's the reason that they won't get involved. It's for a very, very good reason. I know it leads to results that sometimes we don't like that can actually be harmful. But that's part of the trade off for not having a state religion is that these things will happen sometimes. And caveat emptor. Okay. Oh, by the way, I did find that that one quote, what it said, it was from the 1940 case, and it says that under the cloak of religion, persons may not with impunity commit frauds upon the public. So just because you're a religion doesn't mean you get to commit frauds, at least as long as they're secular in nature. All right, are you ready for the next paragraph?

Rebecca Biblioteca [00:20:28] I think I'm ready. Could I just say this, though? I agree. That's why the Tom Phillips lawsuit in the UK and also Gaddy didn't have Success. And it kind of reminds me of Miracle on 34th Street. Right. Judge would not rule that Santa Claus was or wasn't real. You just can't go there. So kind of a thought.

Radio Free Mormon [00:20:45] All right, let's go to the next movie. All the way to the end.

Rebecca Biblioteca [00:20:48] Oh, stop it. It's one of my favorite Maureen o'. Hara. You didn't watch it? Natalie Wood. No.

Radio Free Mormon [00:20:52] I must fall asleep before that happens. You forgot Edmund Gwyn.

Rebecca Biblioteca [00:20:56] I did. I. I knew you were going to quiz me on that. I did forget his name. Now we know I can't pronounce abstention, and I don't know who Edwin Gwynn is. We've learned a lot.

Radio Free Mormon [00:21:05] You know, when you were thinking about it, you just pronounced it perfectly.

Rebecca Biblioteca [00:21:09] Did I really say. Oh, my God? Okay, I learned something new tonight. All right, here we go. Two things. New. Next paragraph. The panel held that there was a genuine dispute of material fact as to whether the church fraudulently represented the source of money used to finance the shopping mall development. Based on the evidence in the record, including statements by church officials and in church publications, a reasonable juror. That's a key right there. Could conclude that the church knowingly misrepresented that no tithing funds were being or would be used to finance the shopping mall development and that Huntsman reasonably relied on the church's misrepresentations.

First Amendment and Church Autonomy Doctrine

Radio Free Mormon [00:21:47] Okay. And like you said, that's a key point of this summary and it will be a key point of the opinion. Kolby, can you explain why that is?

Kolby Reddish [00:21:55] Well, this is really the, the, the crux of the case is that the panel, after reviewing the evidence, basically says the trial court got it wrong. That a reasonable juror could conclude that the church knowingly mis. Made misrepresentations that Huntsman relied on. And frankly, I agree. We'll talk a little bit later when we get kind of in depth on where this paragraph comes from in the full opinion. But yeah, I, I agree fully after looking at this opinion compared to the trial court opinion.

Radio Free Mormon [00:22:29] Okay, really good. Anything from you, Rebecca, before we go to the next paragraph and we're almost done with the summary. Once again, this summary summarizes the entire opinion, at least the entire majority opinion, which is the lengthier opinion of the two. After the majority opinion is the dissenting opinion. It's a two to one split. Two of the judges on the panel agreed with Huntsman, and the third one, Harvey Corman, I believe is his name, he wrote a dissenting opinion because he agreed with the church. So the dissenting Judge lined up with a trial court judge and the other two judges on the panel on the appellate court agreed with Huntsman.

Kolby Reddish [00:23:11] And let me just step in here for one second. Rfm, the dissent actually only dissented as to this portion of the opinion.

Radio Free Mormon [00:23:18] Right.

Kolby Reddish [00:23:18] So it agreed with the fact that the First Amendment is not a bar to these claims. And so this is really the only conclusion that the dissenting judge disagreed with.

Radio Free Mormon [00:23:28] The other thing I want to bring up here, because I think it's a good point and I think it will help, is that all the judges on the panel agreed to throw out the Beneficial Life claim, okay? The 0.6 billion that went out of EPA to the Beneficial Life Insurance Company to help it out when it was having some problems, all of them threw that out. What survives is the 1.6 billion to city Creek Mall. So basically, and I hope this is okay to mention here, basically what it is, is that none of the judges appear to be very impressed by the general kind of statements that the church has said and which were produced to them about how tithing is used, because it's also general. So there were never any specific statements made about Beneficial Life. Nobody stood up in general conference and said no tithing funds will be used to bail out Beneficial Life. If they had said that, then there would be a cause of action. But because of that, none of the judges have thought that this was a fraud of any kind, that there were any specific statements made saying that tithing funds wouldn't be used to bail out beneficial life. You can agree or disagree with the practice, but it doesn't amount to the level of fraud and misrepresentation that's needed. But. And that's a big but. And I say that in honor of Peewee, who I'm still mourning he. When it comes to City Creek, there are five statements by either church leaders or church owned publications that did state that tithing money would not be used for City Creek Mall or would never be used for City Creek Mall. And those are the kind of specific statements that they hang their hat on in this opinion.

Kolby Reddish [00:25:33] I think that's one of the things that I was struck by reading the opinion is that you know the Shakespeare, you know the Shakespeare quote better than me. Rfm, does it involve a big butt test too much? Right. There were so many concerns about the church's funding of City Creek that they went above and beyond to make statements to reassure the members that tithing wasn't going to be used. And that's what ends up, you know, that's the Petard that they end up getting hoisted on.

Radio Free Mormon [00:26:00] Oh, nice. Hamlet. I like it. Two Shakespeare references from the same play. But it's okay, you're learning anyway, that's very, very important. If they had just zipped the lip about assuring everybody. But you remember, I mean President Hinckley announces it in 2003. So it's prospective that they're going to do this right. And that's becomes the critical, the critical statements in general Conference. But if they had just zipped their lip about assuring people that no tithing money was going to be used in City Creek Mall, then this claim would have met the same fate as the claim involving beneficial life. There would have been no misrepresentations. But Gordon B. Hinckley starts it off in 2003. And thereafter you recall the controversy that erupted over the church funding a high end retail mall in the middle of downtown Salt Lake City. And so repeatedly, church officials and church publications printed things to reassure the church membership that no tithing was being used. And it's those things that end up coming back to bite them in this opinion.

Kolby Reddish [00:27:17] Yeah. One last thing I wanted to say as we're looking at the summary earlier when you asked me about really this, this critical paragraph about the findings regarding City Creek, I said, you know, I agree. I want to make clear one reason I do. It's because at this summary judgment stage, it's important to note that Huntsman is due every favorable inference of fact. And that's one of the reasons that I feel like, I feel very confident that I think the panel's decision is the legally correct one versus the trial courts and the dissenting judge is because that's the standard of review at play here on a summary judgment motion for the non moving party. And I think that that really helps inform why I think the court reached the decision. It did.

Radio Free Mormon [00:28:00] Yeah, I agree with you. Anything from you, Rebecca, before you read the rest of the summary?

Rebecca Biblioteca [00:28:05] Yeah, I was going to say that I feel the mall had a lot of buzz. Right. You is very ostentatious. You cannot raise your arms and say let's go shopping without people taking note for good or for bad. I don't think a lot of us knew about beneficial life. I don't think we really realized that was anything that was happening and therefore they don't need to address it. But the mall that was out there, people were questioning, they were wondering. So they had to put everybody's minds at ease, I feel to of course their detriment here in this situation.

Radio Free Mormon [00:28:30] But yeah, And I know you're going to read the rest of the summary, but I have to jump in and say, and nobody knew, at least nobody on the outside of the secret knew that tithing money was being used for the mall. All we knew was that the. The church kept saying over and over again, no tithing money is going to be used or has been used for this mall. So it wasn't until David Nielsen blows the whistle about what he learned when he was working for epa, which was different than what the church was saying. And he Learns actually that $1.6 billion has gone from EPA through this other company, which was Property Reserve Inc. And then funding the City Creek Mall. That's the first that a lot of us had heard of it. And according to Huntsman, that's the first he had ever heard of it, too, which, I mean, is completely believable. Who else knew about it except people who were on the inside of the secret?

Rebecca Biblioteca [00:29:27] But didn't you suspect? I mean, I remember joking with friends and saying, I bet there's got to be some tithing involved. So I think people wondered and questioned it, even though there was no proof.

Radio Free Mormon [00:29:40] I think they did, and I think they questioned it a lot. And that's why it kept being reiterated, these denials, which turned out to be, well, according to this court of appeals, misrepresentations on the part of the. The church, which are intentionally done, a

Kolby Reddish [00:29:56] reasonable jury could conclude that they were misrepresentations.

Radio Free Mormon [00:30:00] Okay, very good. Thank you.

Kolby Reddish [00:30:02] That's it.

Rebecca Biblioteca [00:30:03] Okay, moving ahead toward the end here, we'll just reiterate this. It says the panel agreed with the district court that the evidence did not provide a sufficient basis for a fraud claim with respect to bailout payments of the life insurance company, which we just discussed last paragraph. Concurring in part and dissenting in part. And now I'm going to get the name of the judge correct, because district left.

Kolby Reddish [00:30:30] Okay.

Rebecca Biblioteca [00:30:30] It is not Harvey Corman. It is Edward R. Corman. Harvey Corman is a wonderful actor on the Carol Burnett show, so I can see why you'd be confused. RFM so, concurring in part and dissenting in part, District Judge Corman dissented from Part 4B1. I don't know how you say that in official legal terms, but that's what it is of the majority opinion. Because in his view, no reasonable juror. There it is again. Could conclude that the church fraudulently misrepresented the source of the money used to finance the shopping mal development. Summary judgment in favor of the church was therefore appropriate on all claims.

Radio Free Mormon [00:31:08] That's what the dissent says. So he agreed with the trial judge. And what this comes down to is that the issue is whether a reasonable juror could conclude that the church fraudulently misrepresented the source of the money used to finance the shopping mall development. One of the key issues here, and two of the judges say a reasonable juror could find that they did. And the one dissenting judge said no reasonable juror could find that they did. So that's going to be really something that's focused on in the balance of the opinion which we're going to get to next. So if we turn to. By the way, if anybody wants to read along with this opinion, I know a place you can find it. When I. When I need to find, I just go to my Facebook page where I posted it yesterday. That's the easiest way for me to find it on the Internet. So if you go to Radio Free Mormon on Facebook page, go down a couple of entries and you'll find a link to the actual opinion there. And you can follow along if you so desire.

Rebecca Biblioteca [00:32:09] Just one question. Sorry to cut you off. Can I ask you a question? So since this was a split vote 2 to 1, does that indicate that it could not be pushed up to the Supreme Court, that it has to go back down to district? Is that.

Radio Free Mormon [00:32:20] No, not at all.

Rebecca Biblioteca [00:32:21] It doesn't. It doesn't. Okay.

Radio Free Mormon [00:32:23] No majority is good. I mean, how many, how many Supreme Court decisions are split? The answer is, I don't know, probably a majority.

Rebecca Biblioteca [00:32:34] Okay.

Radio Free Mormon [00:32:35] It's rare that the Supreme Court all nine agree. You get a 9, 0 opinion. It happens from time to time. But generally there's a split of opinion.

Kolby Reddish [00:32:43] I'm sorry, I think only once this whole last term there was a 9, 0 opinion.

Radio Free Mormon [00:32:47] Okay. And it's probably on something that wasn't particularly controversial.

Rebecca Biblioteca [00:32:53] Interesting. Do you have any sense that they might try to go for the en banc, you know, like say we've got to get the other judges involved at all?

Radio Free Mormon [00:33:00] I have no idea about that. But can we save that for the end? It's a good question, but you're interrupting my flow right now.

Rebecca Biblioteca [00:33:07] Oh, so sorry.

Kolby Reddish [00:33:12] Rfm. I was going to ask before we address the rest of the opinions, just because I'm scrolling down as we go through, one of the things I wanted to share is that there was an anarchist cure on this case. An amicus cure. So an amicus cure is. It is. Amicus cure is Latin for friend of the court. And what it is, is it's usually some type of nonprofit or special interest group or like states, will join as amicus cure. In some instances, it's where a party that is. Well, I shouldn't have said party. It's where a non party is trying to provide the court with some guidance on the case. And so the amicus curate on this particular case was the Beckett Fund for Religious Liberty. So I haven't reviewed their brief, but I'd be willing to wager that their. Their brief has to do probably only with the First Amendment claims and probably arguing that the First Amendment should bar these type of claims. Don't. Don't overstep courts. But one of the things I wanted to know is that the lead counsel for the Beckett Fund for Religious Liberty, at least at the time this was argued, was an attorney named Eric Baxter. And I just found this interesting because I had met Eric Baxter at a continuing legal education program several years ago where he talked about religious liberty. So he was the lead counsel for the Beckett Fund in this case as amicus cure. And then he was called in April of 2022 as a general authority.

Radio Free Mormon [00:34:43] Wait a second. You're saying he's a Mormon?

Kolby Reddish [00:34:46] He is.

Rebecca Biblioteca [00:34:48] What else?

Radio Free Mormon [00:34:49] Baxter. Baxter's a Mormon. Well, we can't hold that too much against him. Good research, by the way. But he managed to get this court to allow him and hit the foundation that he represents, the Beckett foundation, to file amicus brief. We won't get into the whole side issue on that of how. What you have to do in order to do it, but he did that, and apparently he did not prevail because he was trying to weigh in for the church on the side of the church. Right, right.

Kolby Reddish [00:35:20] I don't necessarily know what to make of it. I just think it's interesting that he, because he's a pretty young guy, he's, I think, mid-40s, and he's, you know, now a general authority. So good for him.

Radio Free Mormon [00:35:33] Okay, thank you very much. I'll remember that when it comes time to sustain in October. Now we're to the opinion, and there's a. There's a number of things. We can probably start skipping over a few things, nothing important, of course, but we've covered everything now in the summary, and actually we could stop now and consider it a, I think, a good and educational podcast. But if we go to the opinion page, this starts with page four, it talks about what happened, what Huntsman's allegations are, at least as to what happened. And let me go ahead and read that if that's okay, since I have it highlighted here. See, this is the difference between me and Kolby. Kolby scrolls down in the opinion. I turn pages. See, that's the difference. Huntsman alleged that from 1993 until 2015, so for that period of 12 or 15 years, or 12 or 13 years, he contributed substantial amounts of cash and corporate shares to the church's tithes. See, this was news to me. People who have shares in stocks and lots of them can donate those as ties as well. I've just never been in that position before. It's interesting to know how the other half lives. He alleged that during at least some of that time, he relied on false and misleading statements by the church about its use of tithing money. Huntsman alleged that the church represented that tithing money or represented that tithing money was not used to finance commercial projects, but that in fact the church used tithing money to finance a shopping mall development and to bail out a troubled for profit life insurance company, Beneficial Life, owned by the church. After limited discovery, the district court, that's the trial court. The district court granted the church's motion for summary judgment. It held that no reasonable juror could find that the church had fraudulently misrepresented how tithing funds were used. We disagree with respect to the shopping mall, but agree with respect to the life insurance company. We hold. By the way, in law school, one of the first things you learn when reading opinions is that when the court says we hold, that's when you get your marker out and you start taking notes, because that's the important stuff. What the court holds. We hold that there is evidence in the record from which a reasonable juror could conclude that the church knowingly misrepresented that no tithing funds were being or would be used to finance development of the shopping mall. And that Huntsman reasonably relied on the church's misrepresentations. So that's their holding. Now, anything that anybody wants to say about that, that either Kolby or Rebecca.

Kolby Reddish [00:38:23] I think that's a good summary of what we'll continue reading.

Huntsman's Background and Tithing History

Radio Free Mormon [00:38:26] Okay, so now they give some background on James Huntsman where they talk about how he grew up in a prominent family of observant members of the church, served the two year mission leadership callings, etc. Etc. And as part of that being observant member paying tithing. I'm on page. Let me see here. Excuse me, I just turned to page six. If anybody wants to say anything, if I'm skipping anything, please jump in. I have highlighted this part. It is undisputed on page 6. It is undisputed that between 2003 and 2011, Huntsman contributed in tithes, $1,148,735 in cash. And that between 2017 and 2015, he contributed in tithes, 1857 shares of Sigma Designs stock and 28,332 shares of Huntsman Corporation stock. Huntsman made his. It doesn't say how much that was worth, but I guess it could be calculated by somebody who knew how to do that. Hint, hint. Widows might. Huntsman made his last tithing contribution to the church on January 9, 2015. So that's the end date of his tithing. He stopped tithing because, in his words, he became disillusioned with the church's doctrines, including its support of polygamy and its open disdain for members of the LGBTQ community. So any comments from anybody about that part?

Rebecca Biblioteca [00:40:03] You know, I took some notes from some of those original articles when he first filed back in December 21st of 2020, and it did say the amount he was asking back as far as tithing was $2,621. Yeah. To over $2,000,000, basically. So it's.

Radio Free Mormon [00:40:20] So maybe it was 1,500,000 or thereabouts. The value of the stock that he was claiming. Possibly. Anything from you, Kolby?

Kolby Reddish [00:40:29] Well, I think the other thing I find really interesting, especially because one of the reasons we wanted to do this presentation together is to talk about what does this opinion mean and what does it not mean. So one of the things I focused on in the passage you just read, RFM, is it's looking at Huntsman's tithing paid between 2003 and 2011. And the reason it's focused on 2003 as the beginning date is because that's when President Hinckley first started talking about City Creek. And when the church went public with its plans to announce City Creek, the

Radio Free Mormon [00:40:59] first alleged misrepresentation was made.

Kolby Reddish [00:41:02] Right. And so I think one of the things that people are going to have to wrap their heads around if they're thinking what does this mean for me and my tithing? Is the bottom line is we don't know yet because this isn't a class action. This is likely going to be a precedent setting case, regardless of how it resolves and where it resolves. And we'll talk about that, I think, towards the end of the opinion. But one of the things that's very important is this basically starts in 2003, because one of the things you have to establish for Fraud is that you relied on some misrepresentation. And at least according to this opinion, that at least allegedly or arguably starts in 2003.

Radio Free Mormon [00:41:39] Or a reasonable juror could conclude that President Hinckley was being a little sneaky and deceptive in his General Conference address on the subject. That's the best place for deception is General Conference. Like Sherlock Holmes used to say, the best place to commit a murder is in a crowd. Yes. Rebecca, do you have something you want to say?

Rebecca Biblioteca [00:42:04] No, I was just actually going to tell you that if you do want me to read something again, and I do have the pages for the evidence and records, so I was just going over President Hinckley's statement. So whenever we're ready for that, we can go to there.

Tithing Funds and the City Creek Mall Development

Radio Free Mormon [00:42:14] Okay, I'm going to bother everybody by reading the next two paragraphs. Here's where they get into the details. Okay. And I think this is interesting because it talks about the money that goes from EPA in the roundabout fashion and ends up in the City Creek mall project in 1997. This should be a review for a lot of us. In 1997, the church incorporated Ensign Peak Advisors to serve as its primary investment vehicle for tithing funds received from church members. In 2003, the church announced the City Creek Mall Project, the redeveloping or redevelopment of a shopping mall bordering Temple Square in downtown Salt Lake City, across from the church's headquarters, headquarters and central Temple. On or before January 1, 2004, Ensign Peak transferred $1.2 billion from Enzyme Peak to an entity with a different name. What that will end up being is Property Investments, Inc. Is the name of this entity with a different name. That'll come out later. They don't mention it here. So on or before January 1, 2004, Enzyme Peak transferred $1.2 billion. That's a lot of somolies. From Enzyme Peak to an entity with a different name. Enzyme Peak transferred additional smaller amounts in 2007 and 2009. This is going to end up totaling the amounts transferred, plus any interest on those transfers when they were being held before it was used for the mall, to 1.68 billion. That's a definite number that we haven't heard before. So Enzyme Peak transferred additional smaller amounts in 2007 and 2009, apparently. My sense is that they thought the 1.2 billion would be enough, but they ended up needing some more injection of funds. So they ended up having two smaller amounts in 2007 and 2009. As of April 30, 2007, before any money was dispersed for the project. The money transferred from Ensign Peak combined with earnings on that money. So that's the part about the interest on the money totaled over $1.68 billion. Any comments about that so far? And then I'll read this small paragraph at the end.

Kolby Reddish [00:44:52] So one thing I always do when I'm looking at dollar amounts in cases, and this is just because I'm a nerd, is I always pull up the CPI government inflation calculator. So, just so everyone's aware, 1.68 billion in 2007 equals 2.53 billion today. So that's what we're talking about in today's value.

Radio Free Mormon [00:45:15] No wonder I can't afford comic books anymore. I mean, inflation is killing us all, but thank you for doing that. Yeah. That's not just a lot. A lot of money. That's a real lot. A lot of money. So here we go. The Church spent. This is once again from the opinion. The church spent over 1.438 billion, which would be 1,438,000, if you say it differently, to develop the City Creek Mall project over and above the value of the underlying property. And I may need some of your analysis, Kolby and Rebecca, on what that means. All of this development money came from funds transferred from Ensign Peak and later earnings on those funds. The City Creek Mall project was completed in 2012.

Kolby Reddish [00:46:02] So I think your question about the 1.438 billion. What that's saying. RFM. Because I used to do property valuation cases.

Radio Free Mormon [00:46:10] Okay.

Kolby Reddish [00:46:11] What it's saying is that's basically what the Church spent in development over and above the actual cost it paid for the ground.

Radio Free Mormon [00:46:20] Okay. Does that make sense? You look like you have a quizzical look on your face, Rebecca.

Rebecca Biblioteca [00:46:25] I was just thinking. So as far as purchasing the property and then developing the property, those are the two differences that you're talking about?

Kolby Reddish [00:46:33] Yeah. So if we looked at the difference, that's what point. Basically 0.15 billion is roughly what went to buying the actual ground.

Radio Free Mormon [00:46:42] Did the Church didn't own that already?

Kolby Reddish [00:46:46] I guess not, no.

Radio Free Mormon [00:46:48] Okay.

Rebecca Biblioteca [00:46:49] And no one donated it because that's typically how it works. Right.

Radio Free Mormon [00:46:52] But they can put a value to it anyway. But okay, now that I understand that, because that's what it looks like. But it didn't make sense to me because what they're saying is the Church, through enzyme peak, contributes $1.68 billion to the building of the mall, but the church only spends 1.438 billion to develop the City Creek Mall. Project. In other words, what the church gave to fund them all was more in value than the actual cost to develop the City Creek Mall itself. Am I reading that correctly?

Kolby Reddish [00:47:28] I think so. I think the other thing I was just struck by, and I know that we've talked a lot about Ensign Peak, and we talked a lot about Ensign Peak with regard to the SEC order that came out in February, is, man, you look at that 1997 decision to incorporate Enzyme Peak Advisors, and I just think, and I'm not trying to be facetious to any believers who are listening, but man, what a bad decision. Like, for a church that claims to be led by a prophet that can literally speak to God, that has proven to be one of the worst decisions the church ever made. And I'm sure they feel the exact same way.

Radio Free Mormon [00:48:07] Well, is this opinion, are the facts in this opinion basically telling us that the church, through EPA and tithing funds, at least as far as the appellate decision goes, arguably tithing funds finance the entirety of the development of the City Creek Mall.

Kolby Reddish [00:48:26] Yeah, 100%, because in 1997. So this is actually referring to the SEC order findings, but the church started Ensign Peak with I think it was 7 billion in excess tithing funds that it had received over the years. That's why it first started Enzyme Peak. So there is no, when we talk about tithing funds, we're going to talk about this distinction between tithing funds and invested reserve funds later. There is no non tithing fund in a colloquial layman's definition ever involved here. Everything used was tithing funds.

Radio Free Mormon [00:49:01] Okay, well, I think this is just, this is mind blowing to me because at the same time as they're apparently fully funding, not just funding, part of like they're trying to help out Beneficial Life with the 0.6 billion, but they're fully funding the development of City Creek Mall by epa, which is the primary place where the tithing goes to be invested. And they're doing that, not directly, but they're doing it through another entity, the Property Investment Inc. Entity, which is what the church and its leaders are saying is financing the mall. They're taking that money going there to this intermediary company with a different name and then they're completely financing the mall at the same time as they're telling the members over and over again that no tithing funds are being used. Any new way to even pay for a penny's worth of development or the property. Okay, I see two nodding heads. All right, well, I guess I've got it right. Can I just say this strikes me as really sneaky.

Rebecca Biblioteca [00:50:13] Well, this is.

Radio Free Mormon [00:50:14] I wrote it right here. See, there. It's right there.

Rebecca Biblioteca [00:50:17] Does it say sneaky?

Radio Free Mormon [00:50:20] This is sneaky. I. And I'm starting to see now, maybe this is the part. Maybe this is one of the parts that the church wanted to have suppressed because that's what they wanted from the opinion and to have it sealed so we wouldn't know this.

Rebecca Biblioteca [00:50:38] Well, if they turn a blind eye. If they turn a blind eye to the concept of principal versus earnings, and they think everything is just earnings and they ignore what principal is and the role that it played in the earnings, and then they probably can stand up there and say, yep, no tithing was used. But to a reasonable person, which we keep going back to, that doesn't make any sense at all.

Huntsman Files Suit and Seeks Damages

Radio Free Mormon [00:51:00] Okay, well, can we go to page 7? Thank you for that comment. Rebecca and Kolby, can you read up until I ask you to stop? It's about halfway through this paragraph because I. Once again, I don't want to read everything. And this is where we're going to start picking and choosing. By the way, Kolby and Rebecca, feel free to add anything that I don't add that you think is important that I might skip over.

Kolby Reddish [00:51:23] Do you want the top paragraph? Rfm.

Radio Free Mormon [00:51:25] Yeah. Halfway through to project period.

Kolby Reddish [00:51:28] Okay. We highlighted the exact same sentences beginning in like. All along the way, we've highlighted the exact same sentences beginning. In 2003, church officials and church publications issued five statements about the source of the church funds used to finance the City Creek Mall project. All five of them recited that no tithing funds would be or were being used to finance the City Creek Mall project.

Radio Free Mormon [00:51:51] Okay. And we're going to get to those statements pretty soon, but not quite yet. There are five statements, and it's amazing that there are five statements, but they have them. They were part of the record, and they are central to the court's ruling here. So it was in 2019, Huntsman learned of an IRS complaint filed by David Nielsen. He used to work at Ensign Peak. And Huntsman wrote in his declaration, by the way, this declaration is part of the record before the trial court and therefore part of the record on appeal. Here's the quote from David Nielsen's declaration. It was only in. No, I'm sorry. This is Huntsman's declaration. I apologize for that. It was only from David Nielsen that Huntsman realized this. But he wrote in his declaration that was submitted before the lower court. It was only in 2019, after I learned of the facts contained in David Nielsen's IRS whistleblower complaint. And after I realized for the first time in my life that the church had lied to me about where my tithing donations had gone, that I quietly asked for my tithing donations back on December 21, 2020. Now, without looking, class, guess what the church's response to that request was. Rebecca, what do you think?

Rebecca Biblioteca [00:53:11] Oh, I think they thought it over. I think, yeah, they were very kind, and they said, probably not this time.

Kolby Reddish [00:53:18] Yeah, I think it was, get the hence Satan.

Radio Free Mormon [00:53:21] I think it was, forget about it. So Huntsman writes them again and says, no, come on, really, give me my money back, because I paid it under false pretenses. I thought you were going to be doing charitable stuff with it. I thought you were going to be doing what you said, which was not using it for a commercial enterprise, when actually you were using it for a commercial enterprise, and that the churches get stuffed. So he files the lawsuit. And this is where we are in the lawsuit today. And I don't know if the church is regretting that decision. And if not, maybe it will in the future, if it isn't already.

Kolby Reddish [00:53:53] I would expect today they are. Yeah.

Radio Free Mormon [00:53:57] Okay, so I'm ready to go to the next page. Okay.

Kolby Reddish [00:54:01] Oh, I do have one tiny little thing on this page. So it says Huntsman then filed suit in federal district court alleging fraud by the church and seeking a return of his tithing donations. He also sought exemplary and punitive damages. So this is another one of those legal terms I wanted to explain for people who are unfamiliar with the system. Punitive damages are not about reimbursing the plaintiff for any damage they've actually suffered. They are literally about sending a message. So the most famous case that I always use to explain the concept of punitive damages is there was a case in the seventies involving Ford Motor Company and a calculated decision they made to not fix Ford Pintos that they knew could explode. They thought that the economics of settling wrongful death lawsuits was going to be better than actually going and fixing the defective design. And in that case, the jury ended up awarding a huge punitive damage award to send the message that that type of calculus is not appropriate. And the reason I just wanted to highlight this is because while ultimately I think I remember that the tithing sought collectively by huntsman is like 5 million, the punitive damages can be much bigger. The other thing I wanted to talk about is because ultimately the court here or the panel is remanding back to the trial court, and we'll talk about the procedural steps near the End. But one of the things that one of our Mormon stories superstars, Mark Pugsley, shared with me today is the idea that in his experience, litigating against the church, anytime the church gets to the point where discovery starts, speaking to this question of punitive damages, where the church is having to provide discovery to the other side about its financial records, that is usually the point where the church rolls over and offers a very, very generous settlement because they really, really care about that financial privacy and don't want to provide that transparency. I think the problem for the church here is that James Huntsman really doesn't have any incentive to settle at this point. And I think probably, I mean, I don't know him, I don't want to speak for him, but I think he probably has no interest in doing that because I think this is more about sending the message. So I just wanted to share that part about exemplary and punitive damages, what that means.

Radio Free Mormon [00:56:22] Thank you. Yeah, punitive, like punishment. It's not to reimburse the claimant so much as it is to punish the defendant, the wrongdoer, because their wrongdoing is just so exorbitant and grotesque that they deserve to be punished for it. But the money still goes to the plaintiff. All right, going to the next page now. Now, there's a standard of review they have here for summary judgment, but I think we already talked about that. The main thing is a summary judgment. That's what the trial court does. And then when it's appealed on a summary judgment issue, the appellate court looks at it the same way as the trial court looks. They call it de novo review. That means we're looking at it as if it were newly done before us. So that's what they're doing. And they're doing the same analysis that the trial court judge did, but reaching a different result. So now we get. Oh, yes, we get the separate section. This is wonderful. The request to maintain the church's request, by the way, to maintain confidentiality of financial information. So now we've got the church revealed as taking money from epa, sticking it into City Creek Mall, apparently, for the entire development, while telling the members of the church that tithing funds are not being used and then using another company to do it through. Right. Shades of shell companies. It's not a shell company, but it's being used in that manner, sort of to launder that money so that people won't know where it's coming from. But the church also made this motion at the appellate court level that certain parts relating to the finances of the church that are mentioned in this opinion be sealed.

Kolby Reddish [00:58:13] Can I please read these quotes?

Radio Free Mormon [00:58:15] Would you please? Because they have it all in orange. It's my favorite color.

Kolby Reddish [00:58:18] It is my absolute favorite part of this opinion that the majority specifically, specifically quotes from the Church's own motion. So it says the Church has requested that we seal portions of our opinion that include, and then, quote, so this is from the Church's own motion. Confidential and competitively sensitive business and financial information relating to the operation of the Church and its affiliated commercial entities. Then, end quote, there. And then it says the Church contends that the, quote, disclosure of such information would put the Church's commercial activities at an unfair disadvantage and cause the Church irreparable harm. And man, this just cracks me up so bad because one of the things I was struck by reading the entirety of this opinion is that the Church wants it both ways. They want all of the protection that is due to large multinational for profit companies, and then they also want the protections of a church that are, are due to them under the First Amendment. I probably should have read the last little quote here too, says the Church. The Church further contends that Huntsman seeks to make the Church's financial information, or, sorry, make public the Church's financial information, quote, for improper purposes, end quote. And that disclosure of such information, quote, risks violating the Church's First Amendment rights. And then, end quote. I'm going to be a little strong here. I think that is patently ridiculous. The Church, I think here is showing very clearly that it believes the First Amendment makes it above the law. And I don't see any other way to read their own motion, that they want it both ways and that they think the First Amendment means that they don't answer to anybody.

Radio Free Mormon [01:00:05] Right. First off, they think they should win as a church because this falls under the ecclesiastical abstention doctrine and they lose on that. But they make that argument. That's their first opening gambit. And then they also say that if the opinion discloses their financial information, by the way, it's just a tiny little bit of financial information. It's not like we're getting into the guts of EPA or anything. If the opinion discloses this financial information, it will risk violating the Church's First Amendment rights. I don't understand that either. That seems like an argument that's not especially made in good faith. I don't see how disclosing some of your finances violates your right to freedom of religion in any meaningful sense. What do you think?

Kolby Reddish [01:00:58] Particularly, particularly when you're on the other hand arguing that you have competitive, competitively sensitive business information. Like which is it? Are you a church or are you a giant business?

Radio Free Mormon [01:01:11] Yes,

Rebecca Biblioteca [01:01:13] it's a hybrid situation, I think. No, and I feel like when they say irreparable harm, it's obviously the members finding out like they have when the information trickles out. And it does cause them to lose members. It does cause people to see them in a different light. And that's why I feel that disclosure is the key word. And that is why they're just hell bent on keeping everything secret. Because disclosure lets us, the common person, the post Mormon, the Mormon, know what is happening. And it's all about consent, knowing the information and then doing with it what you will, but disclosing that information. And they don't want it to happen.

Radio Free Mormon [01:01:47] No. And if we had any doubts about it, just read this opinion. The court goes on to give short shrift to this argument, saying there are no compelling reasons to seal the financial information in this opinion. And it basically goes on to say, look, there's nothing here to distinguish the church from a big corporation. We wouldn't do it for any other corporation. Why would we do it for a church? Forget about it.

Kolby Reddish [01:02:09] Yep. If you act like a business, you're subject to the same legal standards that every other business is. And that's what the court says. They say if this were a fraud case brought against a secular institution, there is nothing about these expenditures that would warrant protection. There you go. You can't have it both ways.

The Church's First Amendment Defense Examined

Radio Free Mormon [01:02:26] Can I ask you a question, Kolby?

Kolby Reddish [01:02:28] Sure.

Radio Free Mormon [01:02:29] It's like Gimli talking about the odds of making into Mordor. Right. With the ring. And you know, actually he's not talking about. He's talking about getting to the black gates. But anyway, he's talking about certain death, small chance of success. When do we start? Right. The odds of winning this motion are like that. They are so small, they're infant, infinitesimally small. You're almost going to certainly lose it. And when you lose it, it then becomes exposed because the court has to deal with the issue that you've raised in your own motion in their opinion. When you lose it, then it gets broadcast that you made the motion in the first place and you didn't want anybody to know about these pieces of information. Do you think that was a wise move on the Church's part?

Kolby Reddish [01:03:11] No. I think to pivot from Gimli to Sean Bean, Sean Bean's character, Boremer, one does not simply ask the Ninth Circuit to seal Material like this.

Radio Free Mormon [01:03:24] Bravo. If I had pants on, I'd give you a standing ovation. Obviously I do. I just went and got a chair anyway. But fantastic. I love it. I love it. You out geeked me, sir. And I will. I will have my revenge while you sleep, pal. Okay, so now we go on to the discussion. They talk about the First Amendment. We've already talked about how they get past the church's argument that this is something that invades their First Amendment right. They as a church, and I'm not sure there's anything else in here that we haven't already talked about.

Kolby Reddish [01:04:02] I do have one quote from that paragraph I wanted to read. So the. The court basically says, in support of its First Amendment argument, the church contends that Huntsman objects to the use of any church funds for City Creek. And then the majority rights in so contending the church collect or the church selectively quotes from Huntsman's brief and misrepresents the nature of his claim. And I thought, well, you know, I guess that's where Fairmormon gets it from.

Radio Free Mormon [01:04:31] No kidding. This is called a straw man. This is a straw man argument. So they sit there and say, oh, Huntsman is saying this and he's saying this. And the court of Appeals is going, what are you talking about? That's not what he's saying at all. You see, it's a wonderful thing when you actually have a judge or a panel of judges that can call you on your BS straw man arguments. And this is exactly what they're doing here. They're saying you're mischaracterizing his argument. That's not what he's saying. He's not saying that. Rather. And this I have underlined in green. Rather. Oh, you go. You go ahead and read it, Kolby, please.

Kolby Reddish [01:05:01] Yeah, so it says, rather, he objects to how the church represented the project would be funded. Huntsman contends that the church solicited tithes from him by misrepresenting the purposes for which the ties were being and would be used. Specifically, Huntsman contends that the church denied that tithing funds would be and were used to pay for the City Creek mall project, when in fact the tithing funds were being used for that purpose. And really, that quote, it's as simple as that. The facts of this case really are.

Radio Free Mormon [01:05:29] Yeah, and I tell you, I mean, it shows a certain amount of impunity and disrespect to the court to sit there and think that they're going to believe what you're saying in spite of what you can see with your own eyes. Where would Mormon lawyers get that attitude from? I don't know, but it's insulting. And they act like they've been insulted, and that's why they respond in this way. This is an insulted panel, or at least two of them were insulted by it. And so that's why they include that. They don't have to include it. This is included in order to show them, hey, guys, we didn't fall for it.

Kolby Reddish [01:06:05] I mean, to. For. For a panel of judges like this to say that one side of the litigation is misrepresenting the other side.

Radio Free Mormon [01:06:13] Yes,

Kolby Reddish [01:06:16] that happens a lot, frankly. It does between lawyers. There's some, you know, professional courtesy on. On how you quote things. But for. For the judges to draw attention to it, I think is very irregular in my experience.

Radio Free Mormon [01:06:31] Yeah, misrepresents. There's an irony there. There's an irony there, of course, when this. One of the crucial issues that they're dealing with is misrepresentation by the church about it claims. But. And I got to think that these. Who was it who wrote this? It was one of the two judges. His name was there at the beginning. I can't remember it because it's not as memorable as Harvey Corn. Oh, it was. Tim Conway wrote the. The majority opinion. No, it's W. Fletcher. Fletcher, apparently. But yeah, I. I sense a Rice smile gracing his lips as he pins these very words and thinking, ha, ha ha, got you on this one. So that's what happens when you try and pull one over on the court of Appeals. I don't think it was a good gambit for them to do. And they got spanked appropriately. Now I'm going to the next page, by the way, at the bottom of the page before. And this is one of the problems of having it in hard copy. There's really nothing else I want to mention as they dispose of the religious First Amendment claim, except for the interesting fact, and this is another one of those wry smile moments I think is when Fletcher, the majority opinion cites to the Gaddy case as authority in dismissing the church's First Amendment argument. What do you think of that, Rebecca? I know we were talking about this earlier.

Rebecca Biblioteca [01:08:02] It's true, we were. And I've been talking to other friends about this today. Just the fact that the cases seem to be building upon each other. You've got the Tom Phillips case. Now you have Gaddy being cited in Huntsman. I feel like, look at Boy Scouts. Look at the Catholic Church. It starts out with just one and Then they build on top of each other, they're citing each other, and pretty soon it has so much momentum that it can only move forward. So I think it's positive.

Radio Free Mormon [01:08:26] What do you think about it, Kolby?

Kolby Reddish [01:08:29] No, I think that's exactly the way the legal system operates, Rebecca. Like it. These things take incremental time because our legal system is premised off of the common law and off of obeying precedent. It takes precedent making cases like this and cases like Gaddy to recognize the legitimacy of claims like this that are new. I think the one last thing on this page, I wanted to know before

Radio Free Mormon [01:08:53] you note that, I just want to add that what you just said about the precedential nature of these cases, because these cases are dealing with areas of the law which we certainly have an idea of, a fuzzy idea, at least of the parameters of them. But these issues have not necessarily been ruled on before. They have precedential value. And that increases the likelihood that higher courts will accept review of appeals of these matters, potentially all the way to the United States Supreme Court. Now, what was that other point you wanted to make, Kolby?

Kolby Reddish [01:09:28] Well, I think you already. I think you already read this quote, RFM. But the. The court quotes from a U.S. supreme Court decision can't well be Connecticut from 1940. And really, the great quote is, under the cloak of religion, persons may not with impunity commit frauds upon the public. So that's one of. That's really the central reason why they're saying the First Amendment does not bar these claims, that these are not theological claims. The fact that you are a religion doesn't prohibit you from being held accountable for fraud.

Radio Free Mormon [01:10:01] Thank you. And yes, I did read that before because I liked it as well. They. They didn't. Nobody writes like they did back in 1940. Sometimes they try, but I think it looks pretentious. Okay, so now we get to Paige, and I'm sorry, I have to keep. Because I have to keep changing pages because only half of my pages have page numbers on them, because I stapled it in the upper left. Anyway. Page 12. Page 12. Now we finally get down to subsection B, the fraud claims, and they're going to talk about them in order because there are two claims, the one involving City Creek and the one involving beneficial life. City Creek is the one to watch because that's the one that gets sustained. Beneficial life gets thrown out. So number one is a City Creek mall project that's at the bottom of page 12. Then we go over to page 13 and the evidence on the record. So now we get to the five statements, Five statements that were produced by the plaintiff, Huntsman, in support of his claim that the church had misrepresented that the funds for City Creek Mall would not come from tithing funds. And the first one they start with. They go through them in order. First, when they start with, in chronological order is 2003. And this is from the church's April 2003 general conference. Church President Gordon B. Hinckley, you may remember him not that long ago, generally very well liked. His reputation may go down in value after some of these issues come up. He announced the City Creek Mall project and explained its funding process. Funding sources. Thank you, Julia. That was, like, perfect. This is the one slide that we have. Because this statement he made is so carefully worded that just to read it or to hear it read is not going to do it justice. You actually have to see it, because here is where this ends up being a critical statement, at least for the dissent. This is where Gordon B. Hinckley tries to have it both ways. And I'm just going to give my impression about this, which is that he's trying to give the impression that no tithing funds are being used. And then after having said that, not once, but twice, he lists a few other things. And then one of them is going to be very general and undefined and unspecific. But if you look at it, technically, it could include the investment proceeds from tithing. Okay. So is it okay if. Kolby, can you read this?

Five Church Statements Denying Tithing Was Used

Kolby Reddish [01:12:38] Yeah. I can't match Bill Real's impression of President Hinckley, but I will when you need him.

Rebecca Biblioteca [01:12:45] No one can.

Kolby Reddish [01:12:48] We feel we have a compelling responsibility to protect the environment of the Salt Lake Temple. The property needs very extensive and expensive renovations. We have felt it imperative to do something to revitalize this area.

Radio Free Mormon [01:13:01] Okay. Now, I wish emphasize this part like President Hinckley would have, because this is where he starts assuring the membership of something that seems very important that he wants to assure the membership of.

Kolby Reddish [01:13:14] Yeah. And one, you're asking me to emphasize this. It's important to note the quote we have here doesn't have an emphasize. The opinion does starting at this point. But I wish to give the entire church the assurance that tithing funds have not and will not be used to acquire this property.

Radio Free Mormon [01:13:29] Okay. Now, he's given two assurances in one sentence. You'll notice that tithing funds have not and will not be used to acquire this Property. This is 2003.

Kolby Reddish [01:13:40] Right.

Radio Free Mormon [01:13:40] Nor further. Yes.

Kolby Reddish [01:13:42] Yeah. Nor will they be used in developing it. For commercial purposes. That seems incredibly clear to me.

Radio Free Mormon [01:13:49] It covers everything because he wants to assure the audience of this. And now he gives a few other things that are just sort of throwaway lines. But what is it? What else does he say after that? Kolby?

Kolby Reddish [01:14:00] So then he says, funds for this have come and will come from those commercial entities owned by the church. These resources, together with the earnings of invested reserve funds, will accommodate this program.

Radio Free Mormon [01:14:18] Okay, so let me just break this down. We've already talked about the assurances, which appears to be the main thrust. It appears to be the main thrust of what he's saying. But then he says funds for this, which would of course refer to the property and development of City Creek Mall. Funds for this have come and will come from those commercial entities owned by the church. Notice he doesn't say all funds for this have come and will come from those commercial entities owned by the church. It's difficult when you have to treat a prophet like a lawyer, and I'm sure it was lawyers who wrote this for him. He goes on, these resources together with the earnings of invested reserve funds. And by the way, that's going to be the critical clause there for the dissent. These resources, together with the earnings of invested reserve funds, will accommodate this program. So a lot of the argument now comes down to is Gordon B. Hinckley being clear here that no tithing funds are going to be used for the City Creek Mall upside, downside, backward or forward, in no way is it going to be used. Or when he says these resources together with the earnings of invested reserve funds, is he now subtly and yet very clearly from the dissent's point of view, is he saying that they will use the earnings from tithing that has been invested? That's the whole issue here, or at least one of the main issues. What do you think? Rebecca?

Rebecca Biblioteca [01:16:05] Well, I think it has to do with intent. That's kind of what it all boils down to. And some of the judges say, ah, he intended to mislead. Others say a reasonable person would find this a reasonable explanation and they would not be deceived. So I love the fact that they're even bringing up the intent of this statement, because that tells me that going forward, we'll be able to look into that and we'll get some more information about that. But again, it's also that principal versus earnings. Does a reasonable person think those are two different things? I don't know. Do they? I don't.

Radio Free Mormon [01:16:37] Kolby?

Kolby Reddish [01:16:40] Well, I think one of the things I actually just want to read this little portion from the dissent while we're talking about this statement.

Radio Free Mormon [01:16:46] Okay. Do you have a page?

Kolby Reddish [01:16:50] This is actually on page 35.

Radio Free Mormon [01:16:52] Okay.

Kolby Reddish [01:16:53] And one of the reasons I want to read this is because I think the district judge. My memory from the reading the district judge's opinion last year or the last time I read it, which wasn't last year, is that the district court did the same thing. So he talks about these reserves, and he says near the top of page 35, Hinckley thus clarified that the church would use earnings from invested reserve tithing funds.

Radio Free Mormon [01:17:22] Can I get a camera on this?

Kolby Reddish [01:17:26] Yeah, perfect.

Radio Free Mormon [01:17:29] Yeah, I highlighted the same thing. Go ahead.

Kolby Reddish [01:17:32] Yeah. And what I wanted to say. So statutory interpretation or, like, how to read legally operative language, Because I practice mostly in the government sphere. That's just been a thing that I've dealt with a lot in my career. And in fact, I can't remember if it was last year or the year before. I even wrote an article for, like, our Idaho State Bar publication about this, which, fun fact, is named Fat Schmidties and Friends. And I named it that because the name is objectively hilarious. And I want to be able to stand in front of a court one day and say, because Fat Schmidties is named for a case that's named after a bar in Idaho Falls. And I want to be able to one day stand up in front of an Idaho appellate court and say, your Honors, Fat Schmidties tells us that. Because that is. But one of the things that, at least here in Idaho, where I practice, that our court, our appellate courts really hammer home is the plain meaning rule, which is that the law is about words, and it's supposed to be understandable by everybody. And if you have to insert a word, our courts have very clear precedent about this. If you have to insert a word, you're pretty much admitting that you're not going with the plain meaning. And that's what the dissent does, and that's what the district judge did. They insert the word tithing because Hinckley actually said invested reserve funds. And the sentence before that is talking about the church's for profit entities. So I would contend it is actually a much more reasonable interpretation to say that what Hinckley. What any reasonable person listening to Hinckley say that statement in the context of what he said it, is that the invested reserve funds are coming from those for profit commercial entities, not from tithing funds. Hinckley had already talked about how tithing funds wouldn't be used to insert tithing funds. I think just purely admits that that's not like that's not what Hinckley said. And the majority opinion thankfully makes that point.

Radio Free Mormon [01:19:25] Right. And one thing that's interesting to me is that when you read legal opinions and they're doing statutory construction or contract construction, which is sort of what this is, this language construction, frequently you're in the middle of a, an English class and they're talking about English rules of construction and how we understand sentences and the predicate and, you know, things that are right after the predicate or describing the predicate immediately proceeding and not something before that. Right. Which is what you're getting at. And I was surprised that nowhere in this opinion do I find any of the judges engaging in exactly that, just like you did. I think that would be a huge benefit to the decision itself. And I don't know, maybe some of the Huntsman's lawyers made that argument in their briefing. I wouldn't be surprised if it shows up in a further appellate court opinion, because I think it's a really important point you make, because what the dissent is saying, which is what the district court said, excuse me, I should say the, the trial court, I want to try and keep that clear. What the trial court said is that the statement by President Hingley, if we can put it up there for one more second, Julia, that when it says all of this stuff about but I wish to give the entire church the assurance that tithing funds have not and will not be used to acquire this property, nor will they be used in developing it for commercial purposes. Funds for this have come and will come from those commercial entities owned by the church. These resources, together with the earnings of invested reserve funds, funds will accommodate this program. What the dissent is saying is that when President Hinckley says these resources, together with the earnings of invested reserve funds, that that language right there, he says Hinckley thus clarified that the church would use earnings from invested reserve tithing funds. And that is such an off base and cracked kind of interpretation of this that I suppose all I can say is that I would not reach the same conclusion reading the same language.

Kolby Reddish [01:21:33] And one of the reasons I harped on the standard of review in this case so heavily earlier is because actually what that, that dissenting judge is saying is that the only reasonable way to interpret what Hinckley is saying here is invested reserve tithing funds. And I just, frankly, I think that's ridiculous. There's a comment here I'm seeing, right,

Radio Free Mormon [01:21:56] because he's saying that a reasonable juror, no reasonable juror could find that it was Anything other than a clarification.

Kolby Reddish [01:22:03] Right.

Radio Free Mormon [01:22:04] That he's talking about tithing funds.

Kolby Reddish [01:22:06] He's saying the only way. The only reasonable way to read that sentence is that President Hinckley inserted a hidden tithing in there, which, if you have to insert a word that isn't there to say, that's the only reasonable way to read it. That just seems patently ridiculous to me. One of our YouTube viewers commented. Hobgoblin commented. But the dissenting judge argues that sophisticated Mormon would know what Hinckley meant. And I want to address this right now. One of the ways that the dissenting judge makes that insertion of this invisible asterisk typing right there is he relies on the church's representation that Hinckley made a statement or two statements clarifying what the church uses tithing funds for and invested reserve funds for. One of the statements was made 12 years before this statement was made, and the other one in 1991, and the other was eight years before that. So just to round this out with an analogy, that's like me saying to my wife today, honey, I would never cheat on you, and then me telling her 12 years ago, well, when I said cheat, what I meant was. And that. That's really what they're saying, is that to be reasonable, you have to have had this. This statement that Hinckley had made about how the church uses tithing funds 12 years before in mind at the time he made this. I just think that idea is super, super ridiculous and strained.

Radio Free Mormon [01:23:42] I think it is, too. And by the way, I want to clarify for everybody that, of course, in 1991, President Hinckley or whoever, and it was President Hinckley on both occasions, is not talking about the City Creek Mall. He's not talking about the funding of City Creek Mall. City Creek Mall is not even on the radar yet, or at least it's not being talked about in general conference. And President Hinckley's not talking about it, but what he's talking about is simply tithing and saying some sort of general kind of words about tithing and how we put some aside for a rainy day. And all of this is somehow magically supposed to inform and clarify what it is he means when in 2003, he announces the creation of the City Creek Mall. Yeah, I think that's a very, very weak argument. I think the church lawyers were delighted that somebody bid on that. I expect that the. The trial court judge bid on it. And now they've got. At the appellate level, they've got one Judge Harvey Corman biting on it. They only wish that they'd gotten two to bite on it at the appellate court level. I'm sorry, did you have something to say, Rebecca? I thought I heard.

Rebecca Biblioteca [01:24:48] I was laughing at Harvey Korman again. Yes, but I feel like maybe members are expected to hear that word tithing with their spiritual ears. Don't you think maybe that's it? Possibly. But just the whole concept of the idea that. So some of them are a little more sophisticated, like Huntsman, and they'll get what you're saying. The others, the rest of us, we're not going to understand at all. So it's these mixed messages, hidden messages. They're just not being truthful.

Radio Free Mormon [01:25:12] Yeah, Harvey. I mean, Judge Corman shows every appearance of. I don't. I'm not saying he's in the tank for the church. I'm not saying he's been paid or his palms, you know, covered with silver. I'm just saying this guy is in love with the church, in love with the church's position in that sense. He's in the tank for the church. You can read his opinion if you don't believe me. We'll about talk, talk a little bit about when we get there. And he just loves the church. And so he's going to find for it no matter what any argument the church is making, he's going to buy. And I think that the two judge majority have the better part of the argument. By the way, we've been talking about five statements. We've only talked about one. We've talked it to death because it's the only one that is even arguably squishy both ways. It says one thing, but it says another. Later on, maybe if you look at it sideways in the dark and it says what, you know, the descending judge thinks it says that it actually clarifies it when I don't think it does. But there are four other statements that come chronologically after this 2003 April statement by President Hinckley that are also in the record. And this is very important evidence as well. So if we're ready to go to those statements, can I make one more?

Kolby Reddish [01:26:30] Well, I just wanted to make one more comment about the level of obfuscation that President Hinckley is engaging in here. So. So I'm an 80s baby. So I was growing up in the 90s in a very conservative area here in Idaho, around a bunch of Mormon. And I heard all the time about how terrible Bill Clinton was as a president and how morally bankrupt he was. Because when he denied having sexual relations with that woman, as everyone's famously heard, that he applied some private definition, like some special non colloquial definition of what sexual relations meant. Right. That's really what that whole thing was about. And here President Hinckley is doing the same exact thing, the same exact behavior when he's talking about invested reserve funds. If he really meant invested reserve tithing funds, he could have just said that. And so it's just like he could have.

Radio Free Mormon [01:27:26] And he's going to get faulted for it by the majority. Yeah, I think that what President Hinckley said was, I did not have sexual relations with that woman, Wendy Nelson, or I guess it would have been Wendy Watson at the time. Anyway, he might have been telling the truth on that. Here he got in trouble.

Kolby Reddish [01:27:42] Okay.

Radio Free Mormon [01:27:43] Rebecca, are you okay?

Rebecca Biblioteca [01:27:44] No, just laughing because he, you know, I used to love President Hinckley. He was one of my favorites. So folksy. And his. Kane, is, is he still, though?

Radio Free Mormon [01:27:51] Is he still right now as we speak?

Rebecca Biblioteca [01:27:54] No, no, no. And not even just now. But on my podcast, Mormon Ish, we did a joint episode with BYP on the whole what Happened to My Planet. Right. And that all boils down to Hinckley statements in, you know, different periodicals, different news sources, where he talks about, I don't know that we said that, you know, and he says it in a very folksy way. And he's just. He's a spin doctor. That's what he is. And he's very good at it. And you don't really realize it till much later.

Radio Free Mormon [01:28:19] And at some point we could actually do a of him talking about modest stipends, which is what the general authorities get. Modest stipends. He didn't mention that they're six figure salaries, base salaries. He's also the guy who came up with, I don't know that we teach that. I don't know that we emphasize that. You can call him a spin doctor, but calling him a spin doctor is a nice spin for the deception that he practiced upon the members of the church who sustain him or sustained him as their prophet and spiritual leader. But now we get to go to the other four statements, which are not equivocal. There's no squishy in these statements. And by the way, the dissent is going to say, okay, well, President Hinckley was so clear in his first statement in 2003 that all these unequivocal statements should be read in light of that. I mean, I don't know who actually buys that, but, you know, I've disagreed with judges before. This just seems kind of out there as far as I'm concerned. But if we go to statement number two, which is at the bottom of page 13, Rebecca, you haven't read in a while, could you read for Bishop David Burton, please? Are you there at the bottom of page 13?

Rebecca Biblioteca [01:29:41] I'm muted. Yes, I do actually have the evidence in record printed out. So here we go. Second, on October 8, 2003, another church official made a statement regarding the funding of the City Creek Mall project. At a press conference concerning the project, Presiding Bishop H. David Burton stated, none of this money comes from the tithing of our faithful members. That is not how we use tithing funds. So that seems extremely clear.

Radio Free Mormon [01:30:11] Not even an arguable clarification on his part, like with President Hinckley Kolby. If you want to make any comments about that, please do. Otherwise, can you read the third statement?

Kolby Reddish [01:30:22] Yeah. The one tiny little comment I was just going to say is, under President Nelson, they've done a reorganization of the church's corporate structure. But one of the things I wanted to note is that the person who made that statement was the Presiding Bishop at the time and during this period, the Presiding Bishop. Their exclusive calling is to focus on the financial arm of the church. So I think you could argue that this statement is much more important because he's directly responsible for navigating the Church's finances, more even than the President of the Church was before. They've done the reorganization and stuff that they've done.

Radio Free Mormon [01:30:59] It's a good point. Between the two of them, they both were in that very small group of maybe four or five people in the world who knew everything that was going on in the Ensign Peak Advisor account. So the Presiding Bishop knew presumably almost certainly what was going on with the funds and the secure. This route they took from Ensign Peak over to the Property Reserve Inc. And then to City Creek Mall.

Kolby Reddish [01:31:33] And in fact, I'll. I'll go even further. Rvm, we know from the SEC order that the. I can't remember the exact term they used, but it was like high level leaders of the church or something that included the First Presidency and the Presiding Bishopric. So this man knew definitively, according to the SEC order, how exactly this whole thing was flowing. Okay, I'll read that. 2006.

Radio Free Mormon [01:31:56] Now we get to statement number three out of five.

Kolby Reddish [01:31:59] Right. So this is from the December 2006 enzyme. So before I even read it, I think that says a lot about the concern that members of the church were having at this time. The fact that they addressed it in general conference. They then addressed it a second time in that same general conference.

Radio Free Mormon [01:32:16] If I remember right, this is October,

Kolby Reddish [01:32:19] I think, press conference. Burton's was at a press conference. Now three years later, they're addressing it directly in the ensign. I think that tells you again to come back to the idea. I think the lady doth protest too much. Here's the quote the church first announced three years ago it was planning to redevelop the downtown area to energize the economy of the city that houses its headquarters and to bolster the area near Temple Square. No tithing funds will be used in the redevelopment period.

Radio Free Mormon [01:32:47] End of quote. Unequivocal. So then we get to the fourth one and Rebecca, can you read the fourth statement once again, unequivocal. This one from March 27, 2007.

Rebecca Biblioteca [01:32:59] Yeah. And this one's from the Deseret News. And again, like Kolby said, just a few months later, they just keep having to reiterate this over and over. Money for the project is not coming from LDS Church members, tithing donations. City Creek center is being developed by Property Reserve Inc. The church's real estate development arm, and its money comes from other real estate ventures.

Radio Free Mormon [01:33:22] Okay, this is really problematic because this is the one of the five quotes that specifically mentions Property Reserve Inc. Being the company, the church's real estate development arm, as it says here, and its money comes from other real estate ventures. This is a real problematic statement, I think, because not only is it naming the company that the money came through from EP to City Creek, it's also saying that Property Reserve Inc. The church's real estate development arm and its money comes from other real estate ventures. Well, except for $1.68 billion, which came from Enzyme Peak. What do you think about that, Kolby? And then we'll go back to you, Rebecca.

Kolby Reddish [01:34:16] Well, I was looking at the, the comments from the YouTube viewers and someone said, why does a church have so many arms? And that's, that's really just the thing I'm struck by is like the church is such a large business that it has a full real estate development arm that makes money from other real estate ventures. Like, again, I'll just come back to the comment I made earlier. Is it a church or is it a business? And I guess they say, why not both.

Radio Free Mormon [01:34:47] Rebecca, any thoughts from you?

Rebecca Biblioteca [01:34:49] Yeah, I think in this particular quote here, they're really tipping their hand. They're letting people know, oh, there's something called the property reserve. And they're, oh, what other real estate ventures. I mean, I don't know exactly when the widows mite started, but I think this kind of information is what led people to start wondering what exactly is this? How deep does this go? So I think they kind of tip their hand here in this quote.

Radio Free Mormon [01:35:10] Okay, so once again, a another unequivocal quote about the source not being from members tithing to fund the City Creek Mall. And the fifth and last one, if we'll go back. I'm so sorry, didn't you. Did you just read Rebecca?

Rebecca Biblioteca [01:35:28] I just read the fourth one. Yes.

Radio Free Mormon [01:35:29] Okay, I thought you did. Go ahead and you'll read the fifth one. Kolby.

Kolby Reddish [01:35:33] I will read the fifth one, but real quickly, I actually just want to, I want to emphasize the, the first sentence of that one because I think it's actually a little bit, it's even clearer about this definition between tithing and tithing reserve funds. That first sentence says money for the project is not coming from LDS church members tithing donations. So that doesn't use the term tithing funds. That says it will not come from tithing donations. Like that seems to break the dissent and the district judge's idea of that. There's some distinction between tithing funds and invested reserve tithing funds right in half because it's talking about coming from tithing donations. And both of those would come from tithing donations. Anyways, I'll move on to the fifth one. So fifth was made on October 5, 2012. So we're a few years later. Keith McMullen, a church leader and head of the church affiliated Deseret Management Corporation, was quoted in the Salt Lake Tribune. McMullen said not one penny of tithing goes to the church's for profit endeavors. Specifically, the church has said no tithing went towards City Creek Center.

Radio Free Mormon [01:36:44] Not one penny. How many pennies are in $1.68 billion? I guess just move the decimal point over to right. Okay.

Rebecca Biblioteca [01:36:55] It's a lot of pennies.

Radio Free Mormon [01:36:56] It's too much for me. Yeah, it's a lot of pennies. That's a lot of cost.

Rebecca Biblioteca [01:36:58] Oh, he's not wrong. He said not one penny. Millions of pennies went toward it. He's not wrong.

Radio Free Mormon [01:37:04] There's a place for you at church pr.

Kolby Reddish [01:37:06] I was going to say, are you sure you're not a lawyer, Rebecca?

Rebecca Biblioteca [01:37:08] I'm looking for a job. So, yeah, please. Anybody out there?

Radio Free Mormon [01:37:12] So they go and they summarize the five statements. And I'll go ahead and read that if it's okay. In each of these five statements, a church official or a church publication represented that no tithing funds were used to develop the City Creek Mall project. Now, we've been swinging back and forth between the majority opinion and the dissent. I hope that hasn't been confusing for anybody. This is the majority opinion, so this is part of their holding. In all five statements, a church official or church publication, including President Hinckley in 2003, represented that no tithing funds were used to develop the City Creek Mall project. Four of the five statements were unqualified. Those were the last four only. President Hinckley's 2003 statement was arguably, hedged is the word they use. He first stated that tithing funds have not and will not be used to acquire this property. He then went on to state that church funds for the project would come from, quote, earnings of invested reserve funds or reserve funds, end quote. However, President Hinckley nowhere explained that as he was using the terms reserve funds were tithing funds. That's critical because that's the argument against the dissent. You know, you're interpreting it this way. You're adding the word tithing to it in order to make it say what you want it to say. But what the majority is saying is the opposite. President Hinckley nowhere explained that as he was using the terms reserve funds were tithing funds. That's what the church wants to argue now. That's what he meant when he said it. That's why he stuck it in there, so he'd have a fallback position if the crap ever hit the fan, which it is doing in spades here. But the. The majority is not buying it. They're not. They're saying, no, no, you don't get to get away with this in trying to insert that later and then pretend that it clarifies when you never said that reserve funds were tithing funds.

Kolby Reddish [01:39:15] I love that thought. Rfm, can I. Can I address a live comment here? So, JD Westfall says, I love how much energy goes into trying to take down the true church. It actually verifies its truthfulness. And I just want to say, my dude, if you think that that is a valid epistemology, when a legitimate court of the United States has found that there is arguably fraud, and you're saying, oh, no, that actually proves my beliefs true. Like, you need to look in the mirror and really evaluate whether that's the epistemology you apply to any other thing. Because it can't be, because that's nonsensical. Like the fact that you think persecution justifies this. Dude, that's crazy. Like, that's this? You need to read and consider this stuff. Stuff. Because these are the church's own statements. Read the church's own arguments as the. As the majority addresses them. Because they're embarrassing. They. They are. Well, I just want to address that because that epistemology is so flawed and it really. I'm not trying to be rude to JD. I was there 2 1/2 years ago, my dude. And the bottom line is that like. Like people can't see until they want to see. But the fact that you're just saying, like, what do you think the 9th Circuit is on the take against the church? Like, that's ridiculous. People outside of Mormonism don't care about Mormonism. They don't. You've been fed this narrative that the world is going to do anything it can to take down the true church. Like, this is just fraud. It just is.

Radio Free Mormon [01:41:00] Okay. Did you want to say anything after that, Rebecca?

Rebecca Biblioteca [01:41:03] Yes, I would. And I agree it's very hard to be objective sometimes, so. But thank you for commenting and watching. So I would like to offer an explanation for Hinckley's statement. And I would say perhaps loose translation. What does anyone think?

Radio Free Mormon [01:41:18] Oh, it's a loose translation.

Rebecca Biblioteca [01:41:19] I can come up with.

Radio Free Mormon [01:41:20] Yeah, very loose translation on this. A high translation is going to look a little too much like he's being deceived. Lethal.

Rebecca Biblioteca [01:41:25] Exactly.

Radio Free Mormon [01:41:26] Thank you so much, Alex Shaw, for the super chat donation 19.99. By the way, all Super Chat donations go directly to Radio Free Warren tonight. I haven't mentioned that to John. I hope he doesn't have a problem with that.

Kolby Reddish [01:41:38] It's only fair.

Rebecca Biblioteca [01:41:40] Only fair. You took the range.

Radio Free Mormon [01:41:42] We have got to lighten the mood here. There's too much law floating around.

Kolby Reddish [01:41:47] I really.

Rebecca Biblioteca [01:41:47] I tried with my loose translation joke.

Radio Free Mormon [01:41:49] I tried epistemology.

Kolby Reddish [01:41:51] Jeez.

Radio Free Mormon [01:41:53] Okay, so we've gone through all five of those statements, right? And I was reading what it was they said about it. Oh, right, right, right. Okay. Now the record also includes three sworn declarations, by the way. So everybody knows when you do a summary judgment motion, there's no testimony, there's no witnesses taking the stand, getting sworn in, testifying. Right. You do it all by documents and frequently by declarations of witnesses. That's how it's done. So they had the five statements from the church that were introduced. The other side obviously didn't argue because those are actual statements from the church from church sources. But there were also three sworn affidavits that were submitted. And when they're submitted to the trial Court, they get transmitted to the court of appeals upon appeal, and they review them as well, because they're making the same determination as the trial court judge did, except here they get the different. Different conclusion. At least two out of three did, which is all you need. So there were three sworn declarations put in. One of them was put in by the plaintiff, James Huntsman, and two of them were put in by the church. So if we can deal with the first declaration that was put in by Huntsman. And this is the declaration of David Nielsen, the whistleblower who used to work at the epa. This is dynamite. His declaration. And can we get. Would it be okay for Rebecca. Can you read this part? It's not the entirety, but this is the part that they're going to quote here from David Nielsen's declaration.

Rebecca Biblioteca [01:43:25] Yeah, and I was going to say that these declarations, I think this is where it gets really good. And this makes me think that as we go forward, and if there is disclosure and if there are depositions that especially like Roger Clark, I mean, some of these people, they have this information, and we can find this out if disclosure goes forward. So. But this one I'm going to read is by the whistleblower, David Nielsen. It was August 15, 2021. He had been a senior portfolio manager at Ensign peak from 2010 and 2019. And here is his declaration, or at least a portion of it. It says, during my employment at epa, Ensign Peak Advisors, EPA senior leadership and other EPA employees referred to all funds as EPA as tithing money, regardless of whether they referring to principal or earnings on that principle. In addition, during my time at epa, tithing donations from the church's members were commingled with earnings that EPA had made. That is a key statement to me.

Radio Free Mormon [01:44:23] Right. And it becomes a key statement in the majority opinion because once again, the church is playing this game. Oh, yay, David. Debbie Donovan, thank you so much. We're gonna have a huge pizza party afterward over at the RFM garage. So what they're trying to do, the church is playing the game of, oh, this isn't tithing. This is the proceeds we made from tithing. Right. So when they say no tithing funds were used, they're being technically accurate because they're not using any of the principle of the tithing. They're just using the proceeds they got from investing the tithing. And this is also one of the big issues. Once again, the dis. The trial court judge bought off on that. The one dissenter on the appellate court bought off on that. But the other two judges on the appellate court did not. And they're quoting this in their opinion because they're using this to argue or to show that talking about tithing to include both the principal as well as the investment interest on the invested tithing altogether as tithing. That was part of the common usage of the language of tithing within the church. Kolby, do you have anything you want to say?

Kolby Reddish [01:45:39] No, I. I think, you know, I think it's just interesting to me how many things David Nielsen's initial, you know, whistleblower report and it being leaked to the press has shaken loose because this lawsuit really only exists because of that disclosure and because of, you know, the facts that he gives in this. In this declaration. I think the one thing. And this is where, you know, I don't want to be a Debbie Downer for people who are excited about potentially where this could go if it goes back to trial against the church. But declarations, you know, are usually prepared in conjunction with the lawyer for that side or the. The individual who's making the declarations. Lawyer. So they're usually the strongest presentation of the case. Like, they're not subject to cross examination. So one of the things I think is important to note is just if this ends up going in front of a jury, the jury will have to determine credibility, and that includes the credibility of witnesses like David Nielsen, who I think, if this goes to trial, will probably be a central, if not the

Radio Free Mormon [01:46:44] central witness, and so will Roger Clark. I'm sure he's looking forward to that prospect. Okay, so it continues to quote from the same affidavit by David Nielsen, and we're at the bottom of page 15. Rebecca, could you read that onto where it ends on page six?

Rebecca Biblioteca [01:47:04] The next page, yeah. So here's another declaration, and this time Nielsen describes a presentation given at Ensign by Ensign Peaks President Roger Clark. As I said, he is a key player at a meeting of Ensign Peak employees. This is March of 20 for anybody who doesn't know.

Ensign Peak Declarations and Reserve Funds

Radio Free Mormon [01:47:21] Roger Clark was the managing director of Ensign Peak from its inception all the way up to 2020 when he retired. So he's the top dog at Ensign Peak. He's the other person who knows everything that goes on. He's one of the seven people at the time, which was the three members of the First Presidency, three members of the Presiding Bishopric, and the Managing director, Roger Clark of Inside.

Kolby Reddish [01:47:45] He knows a lot about 13 Fs I've heard.

Radio Free Mormon [01:47:47] Oh, he knows how to file them, and then he knows how to follow the directions of the prophet. To not file them properly in order to hide the amount of money the church had invested in the u. S. Stock market, which we've talked about before, and hopefully everybody knows what we're talking about. You can go back to prior episodes at mormon stories and at mormonism Live to find out about that.

Rebecca Biblioteca [01:48:11] Hopefully. I also feel like he tends to say things off the cuff, sometimes without thinking. And that's why if he were to give a deposition, I think that would be really spicy. I'm looking forward to it. So Clark presented a slide giving examples of withdrawals from Ensign peak, which Nielsen attached as an exhibit to his declaration. Two examples of withdrawals were City Creek, 1400. What does that amount. I can't even read that. What are they saying? Over five years. Yeah, okay, that makes sense.

Radio Free Mormon [01:48:40] It's 1.4 billion. But the slide itself says city Creek. Colon. Yeah, 1,400 million.

Rebecca Biblioteca [01:48:47] Okay, that's what they're trying to say.

Radio Free Mormon [01:48:49] Yeah, it's either that or millimeters, but I think it's.

Rebecca Biblioteca [01:48:53] I think it's a monetary increment. Yes. Over five years and beneficial life, 600 million in 2009. Is that as far as you wanted me to go, or would you like

Radio Free Mormon [01:49:02] me to continue right now? That's enough. Because apparently David Nielsen grabbed a copy of the slide in some way. I don't know if you took a picture of it or what, but he grabbed the slide so he could attach it to his declaration that he was really there. This is the slide. And this is the slide I saw and the slide that Roger Clark showed me and everybody else who was at this meeting. Anything from you, Kolby, before Rebecca continues to read from the balance of this same declaration by David Nielsen.

Kolby Reddish [01:49:31] No, I am ready for this next note from Roger Clark.

Radio Free Mormon [01:49:34] Oh, by the way, and the individual with the. The epistemology problem might want to pay special attention here.

Rebecca Biblioteca [01:49:42] Here we go. All right. At the presentation, Nelson asked Clark how the church's public statements about no tithing funds being used for the city creek mall or for beneficial life could be consistent with the result withdrawals for those projects. According to Nelson, Clark answered that funds for the city Creek mall project were transferred from Anson peak to property reserve in order to conceal the source of the funds.

Radio Free Mormon [01:50:11] Okay, so that is not quoting from it. That is summarizing it in the opinion. And now it's going to quote a block of text that is from the declaration from David Nielsen reporting what it is that he says Roger Clark told him.

Rebecca Biblioteca [01:50:27] Yep. So he says. Mr. Clark responded that two other church affiliated entities Property Reserve Inc. And Deseret Management Corporation had received From EPA the 1.4 billion and the 600 million respectively paid by EPA, I. E. Ensign Peak for City Creek Mall and Beneficial Life. And essentially that as a result people would not know that EPA was the source of this funding to City Creek Mall and beneficial life. Mr. Clark stated that it was important that people should not know EPA's role in the source of the funds as

Radio Free Mormon [01:51:04] the source of the funds. Right. So this was super Secret Squirrel stuff. Roger Clark obviously knew about it and apparently David Nielsen was high enough or somebody who is trusted enough with this information by David. Excuse me, by Roger Clark. So he is making it very clear that the money from EP or EPA that went to City Creek Mall first went through the Property Reserve Inc. This is where we find this showing up again, Property Reserve Inc. And that's 1.4 billion in this statement. And the 600 million that went to prop up Beneficial Life went through a different company. It went through the Deseret Management Corporation on its way to help out Beneficial Life. So they were using similar methods through different entities in order to funnel the money out of EP and into these two other commercial projects. By the way, I don't know, maybe we. Was it J.D. j.D. Somebody with a problematic epistemology. Do you remember?

Kolby Reddish [01:52:16] Yeah. J.D.

Radio Free Mormon [01:52:18] i don't know if you would agree. I don't know if he would think that this also proves the church. Church is true.

Kolby Reddish [01:52:23] And I should apologize to him. I just, you know, over the last year as I've really been listening to more apologetics and counter apologetics and not just Mormon stuff, like Christian stuff, more general, just theistic notions. Epistemology has just become my, my biggest thing and I just had to comment on it because if you use. Just think of what that person's saying. If you use any disconfirming evidence or potentially disconfirming evidence and you turn it around and you paradoxically turn it into evidence to support the proposition. There's. You've created an unfalsifiable proposition. This is what Jonathan Streeter and Bill Real uses the term all the time, is a wood tool. It's a tool that can't tell you truth from fiction or truth from actual fraud, which is what we're talking about, right?

Radio Free Mormon [01:53:19] Because we, we can all come up with examples that uses the same procedure, the same epistemology. Let's look at the Manson family, okay? I mean, they committed their murders. There's the Tate and the LaBianca murders back in the summer of 69 and, you know, they get arrested, they get prosecuted, they get put in jail. I mean, Manson dies in jail, for crying out loud. Talk about persecution. I guess it proves the Manson family was true.

Kolby Reddish [01:53:45] Or her. How? Even closer to Mormonism. And in my neck of the woods. How about Lori Valo just. Just sentenced and gave basically a testimony about how she knew that she did the right thing, like, just last week. Like, when you look. When you look at any potentially disconfirming evidence as paradoxical evidence, that's a really problematic epistemology. And honestly, if you want to talk more about that, jd Reach out to me, and I. I'm willing to have an honest and open conversation. I. I promise that I am not out here to destroy the church. And I know the two individuals on this call and I know John Dehlin are also not out here to destroy the church. We are here to help people understand these things and understand what they mean.

Radio Free Mormon [01:54:33] All right, very good. Well, that. So that's the one declaration. H. Benzula, 49.99. We're gonna have more than just pizza in the RFM garage tonight. Thank you so much. Really, really appreciate it. By the way, you two are also invited over to my garage. And if you're not here in 15 minutes, then I guess I'll have to start without you. All right, so. But there's two more declarations, by the way. Declaration is a fancy term. What it means. Means is a statement that. Signed under penalty of perjury, blah, blah, blah. Okay, so that's what makes it a declaration. Also has to have the date and place of signing. We all know that. Okay, so there are two other declarations. That's the one declaration presented by the plaintiff, Huntsman. Two declarations presented by the church. And they are so strange. Okay, they're strange. The first one's not going to sound that strange. It's by a guy named Writing R, Y, T, T, I, N, G, who the court points out a deficiency in his declaration. And basically what they say is Writing stated that he is a director within the finance and records department of the church and that he had worked in similar or related positions for over 15 years. But neither Writing's declaration or anything else in the record shows that Writing ever worked at or had any direct contact with Enzyme P. In other words, he's got no basis of knowledge. There's nothing in his declaration that says he has any idea about what goes on in Ensign Peak. And yet the balance of his declaration is going to talk about his inside knowledge about what goes on at Inside Peak. And basically what he's going to say. I'll read it here in a second. He is the shill for the church to say no tithing principle was ever used on either of these projects. City Creek Mall or Beneficial Length. It was only the investments. Let's go ahead and read his words. It was the. The surplus that was made from investing the principal. I don't know how you tell that. Did he go into the bank accounts and start examining, you know, the serial numbers on the hundred dollar bills? They're kind of fungible. They all look the same. But he is absolutely convinced, and he will testify under penalty of perjury that this is the case writing stated in his declaration, bottom of page, page 16, that all of the $1.2 billion originally transferred from Ensign Peak to finance the City Creek Mall project came exclusively from earnings on the church's reserve funds invested by Ensign Peak. Writing also stated that additional amounts transferred from Enzyme Peak to the project came from the church's earnings on its general reserve funds from Ensign Peak's main investment account. So that is his only point to make. Even though he's got no way of knowing how it is. It's a deficiency in the person who drafted the declaration for him to sign. This is a problem with the lawyers. They should have recognized that they had to have that in there. But they're not going to make a big deal out of it. They're just going to note it in passing. Do you have anything to mention about that, Kolby? And then we'll go to Rebecca.

Kolby Reddish [01:57:38] Just one tiny thing, which is that the real relevant part of his quote is he talks about reserve funds invested by Enzyme Peak, that that's where this money came from. And again, to draw back to the dissent, Right. They insert this hidden tithing into this same phrase, that this is the same phrase from Hinckley's 2003 statement. And you can see that even now, in the middle of this litigation, they don't put invested tithing reserve funds. They still don't do it. Like, they're still not being as honest as the dissent says that they're being. It's just funny to me. It's the same.

Radio Free Mormon [01:58:16] You're mentioning the T word.

Kolby Reddish [01:58:18] Yeah.

Radio Free Mormon [01:58:20] Yep. Tithing with a capital T. So now, the other declaration is by Roger Clark, and Roger Clark is his declaration is remarkable for what it does not say say. Can you take us through that? Oh, I'm sorry, I skipped you. Did you have anything you wanted to add before we went on? Rebecca?

Rebecca Biblioteca [01:58:37] I did have one thought. This just comes up over and over. I feel it's like that meme Corporate needs you to find the difference between these two pictures. Earn it. Principal and earnings. It's the same picture.

Radio Free Mormon [01:58:50] Good point. Thank you, Kolby. Tell us about Roger Clark's declaration, please.

Kolby Reddish [01:58:56] Yeah, so Roger Clark's declaration and the way I've seen these types of declarations used in practice is it's basically just a. It's basically used to just admit certain things and get them in front of the court. Basically used to have the person say, I worked for whatever company. I have knowledge of that company's business records. And everything that I'm attaching to this declaration is a valid copy. And that. And I'm making this declaration on personal knowledge and they're trying to get those things in front of the court. I think actually what's much more interesting about Roger Clark's and what the majority notes about Roger Clark's declaration is that they. They say in the paragraph after just quickly describing Clark's declaration, they say even though Clark had been president and managing director of enzyme peak from 97 to 2020 and was therefore in a position to know whether Nielsen statements were true, he nowhere contradicted the statements in Nielsen's declaration. And I don't think we need to reiterate all of the statements again, but keep in mind that that means that Nielsen's declaration was filed first. The church got a chance to respond. So that means that Nielsen's declaration puts in all these statements about what Roger Clark said and did while Nielsen was there and worked for Ensign Peak. Roger Clark does not correct those or contradict them in any way. So I guess we have found that he has some moral lines that he won't cross. And the majority is noting that, that his declaration is only used to get basically exhibits admitted into the process, that it's going to go before the court. And he doesn't really contradict Nielsen's statements at all. That's what I found interesting about Clark's declaration.

Radio Free Mormon [02:00:35] Right. All that Clark does is he confirms what writing says in his declaration says. The rest of Clark's declaration consists only of confirmations that the documents attached, attached to writing's declaration are true and correct copies of the originals and that writings, descriptions of the documents are accurate. I'm going to disagree with you on one thing, Kolby. I think it is worthwhile pointing out these different facts that are not contradicted by Roger Clark's declaration. And then I'm going to make a comment about it. He nowhere contradicted the Statements In Nielsen's declaration, 1, that enzyme peak employees referred to all funds held by Enzymes Peak, both principal and earnings on principal, as tithing funds to he nowhere contradicts that Clark had told Nielsen that the money for the City Creek mall project was transferred to Property Reserve, Property Reserve, so that people would not know Ensign Peak was the source of this funding to City Creek. And three, that Clark had told Nielsen that it was important that people should not know Ensign Peak's role as the source of the funds. Those are three things that were not contradicted in Roger Clark's declaration. Even though David Nielsen's declaration submitted by Plaintiff Huntsman says that that's exactly what Clark told him. Now, that sounds very damning, but I've got to ask you something, Kolby, attorney to attorney, why would the church, when it's moving for summary judgment, insert into its own record, by means of its own affidavit, it a contradiction between facts?

Kolby Reddish [02:02:14] No, that's a good point. That's. Yeah, that is a very good.

Radio Free Mormon [02:02:18] They would defeat their own motion effectively, wouldn't they? Once again, the idea being that summary judgment, all the facts have to be agreed. If there's any contested fact that's considered to be relevant, if there's a contested fact, boom, it blows your summary judgment motion out of the water. So what I think is, is that when they were doing the declaration, they probably thought about it at some point, but then they said, wait a second. If we do that, we're cutting off the branch that we're sitting on. We're killing our own motion for summary judgment because we've just said we're contesting these facts. And if they're contested facts, we don't get to win our motion for summary judgment. So I think there was probably some strategy that went into that.

Kolby Reddish [02:02:56] That's a good point, though I will add that the statements two and three, basically that the church didn't want people to know about Enzyme Peak funding this and that there has to be secrecy around this. We already know that Roger Clark made statements like that when David Nielsen originally, when David Nielsen's original whistleblower report was leaked to the press, Roger Clark did an interview and he made a statement, basically, that would be completely consistent with what the court lists here as the second and third, you know, uncontested fact. So I think the church, you know, say on remand, they'll have a really difficult time having Roger Clark basically contradict another statement that he's already made.

Radio Free Mormon [02:03:41] If memory serves, he was the individual who, in the Washington I say Washington Wall Street Journal article on the subject specifically stated that the reason that they, the church didn't want people to know how much money the church had in Enzyme Peak was because they were concerned that they would stop paying tithing.

Kolby Reddish [02:03:59] Right, Right. That's what I mean. That's the statement that I think, really, if he were trying to contest and say, well, I didn't say these things, that's going to be a bit of a stretch when he said things that are basically the same basic statement.

Closing Analysis and Significance of the Ruling

Radio Free Mormon [02:04:15] All right, well, we've been at this for two hours and four minutes now. I want to try and see if we can streamline this, because part of my job as the new director of Operations at the Open Stories foundation is to try and keep these things at manageable length. They talk about the City Creek Mall fraud claim, and they talk about California law. It's brought under California law because it's filed in California, even though it's in federal court. It sounds confusing, but that's the way it is. And Kolby talked about this. That's why it's called a diversity action. I think we know what that is. I just want to go down to the bottom paragraph where it says there are two questions before us. First, could a reasonable juror conclude that the Church fraudulently misrepresented that no tithing funds, neither tithing principle nor earnings on tithing principle, would be or were being used to finance the City Creek Mall project? Their answer is yes. A reasonable juror could conclude that. Second, could a reasonable juror conclude that Huntsman justifiably relied on the church's representations? Their answer is, yeah, a reasonable juror could conclude that, too. That's why they toss out the dismissal of this case on summary judgment at the trial court level. Now, now, I've got to tell you something. There are a few things that I want to talk about specifically, but let's not beat a dead horse here, okay? One of the things that delights me about this opinion is the analysis of President hinckley's statement in 2003 General Conference. The reason why that delights me is because what he is doing there is classic. It's not just Mormon, but it happens so often within Mormonism. That's what I focus on. That's where I see it so often among the leadership. The equivocation, which I've talked about before. The equivocation, which means you are giving one impression to your audience that you mean one thing when actually you mean something else. And you insert words in such a deceitful way, in such a clever way that if you're ever called on the obvious impression that you're trying to give the audience to say, well, wait, that's not true, something happened, they found out. You can always go back, because the words that you use, like a couple of sentences later, like they're trying to do here to clarify that he's talking about tithing investment income, when he doesn't use the word tithing. That's what the majority doesn't fall for. And they call out President Hinckley on it. Like I have called out leader after leader who's done the same kind of things. And it's very obvious. I mean, once you've been a lawyer for 33 years and this is what you deal with in reading police reports and talking to people, some do it better, some do it worse, but it's all deceptive. And the issue I have is that in order to craft words so carefully that you can give a fake impression of what it is you mean, while actually not saying that and having a fail safe, that requires so much more work, energy and commitment than just lying, this is much harder to do, to deceive that you're saying one thing when really you're not actually saying it. And that's why you have to parse the words so carefully. And that's what a large part of this opinion does, is parsing President Hinckley's words. But the majority does not let him get away with it. And there were a couple of things that I wanted to say about that. Let me see, see. Oh. Equivocation caught. This is why I said, the chickens of deceit have come home to roost. I had mentioned that in a text to Rebecca last night. And what she did was, or did I post anyway? Chickens coming home to roost. Chickens of deceit coming home to roost. And you put it into AI and the wonderful way you have. And it came up with this picture and I posted on my Facebook page with that saying, the chickens of deceit have come home to roost. This is what I'm talking about. I didn't make it clear there. I'll make it clear tonight. This kind of deceit is coming home to roost because President Hinckley was clever enough to fool Huntsman, he was clever enough to fool me, he was clever enough to fool every member of the church who wasn't. The few who were in on the secret and the deception. But now that it's come out that actually they were funding from EP and tithing funds and the surplus to City Creek Mall. Now they're looking at the statement again. And two out of the three judges on the panel were not fooled. They say, and I'm at page 21 now, President Hinckley first stated that tithing funds had not been used to acquire and would not be used to develop the City Creek Mall. By the way, Julia, could we put that quote up again? So much of this analysis has to do with that quote. And actually, they quote it right before they say this again. It gets quoted, like, three times. Twice by the majority and once by the dissent. President Hinckley first stated that tithing funds had not been used to acquire and would not be used to develop the City Creek Mall. He did not define tithing funds. That's important. All right, because. Because what they're saying is he's engaging in squishy language. Some people would call them weasel words. This is part of what one does in order to equivocate and give a false impression. He did not define tithing funds. That is, he did not tell his listeners that in denying that tithing funds would be used. He was denying only that tithing principle would be used. I'm going to read that again. I understand it, but I've read this a couple times already. That is, President Hinckley did not tell his listeners that in denying that tithing funds would be used, because he denies here the tithing funds will be used for City Creek Mall. He did not tell them that. He was also denying. Oh, no. That he was denying only that tithing principle would be used. So here comes the argument, right? Well, is it principal or is it the proceeds from investment? What this ends up saying is it doesn't make any difference and it's Hinckley's fault. I should say President Hinckley's fault, because he didn't make that clear. He didn't define it. He's using squishy language in order to convey this false impression. And the fault is with him for not defining it and not being clear. It goes on. President Hinckley then stated that earnings on invested reserve funds. The last sentence would be used to develop the project. He did not define reserve funds because he's trying to make it sound like they're two completely separate things. Whereas the church is now arguing, no, no, he's talking about the reserve funds are the. The reserve funds. That's the. The earnings from the invested tithing. But they're saying, no, this is up to President Hinckley. He's the one who's Got to make this clear. You don't get to go and back and fill and add words, words in order to save this. It goes on. President Hinckley could have explained that as he was using the terms, reserve funds were tithing funds. All right. It shows what President Hinckley could have done in order to make it clear, if indeed he were trying to make it clear and not just obfuscate and deceive the members of the church. President Hinckley could have explained that as he was using the terms, reserve funds were tithing funds. Doesn't do that. If he had said that, his audience, everybody in the. The conference center. If he had said that, his audience would have understood that earnings on tithing funds would be used to develop the City Creek Mall project. Right? But he didn't do that. But President Hinckley did not say that. Instead, having stated that tithing funds, funds would not be used to develop the project, President Hinckley then used an entirely different and unidentified term saying that earnings on reserve funds. That's the entirely different and undefined term, reserve funds saying that earnings on reserve funds would be used. So how are you supposed to interpret that? Well, a reasonable person could interpret that as meaning that no tithing was used and no investment on tithing funds was used. Your comments, Rebecca, and then Kolby.

Rebecca Biblioteca [02:13:14] Yeah, I think you hit it right on the head. I think this is a complete misrepresentation. It's extremely calculating and it all hinges on you. Are you justified as a reasonable person, like we keep mentioning, in believing these misrepresentations? And that's what the whole case, I think, hinges on. On you are justified in believing these as a reasonable, a reasonable person because they were very calculated to make you misunderstand and to make you believe what he was saying.

Radio Free Mormon [02:13:42] Really good point. Because what they're saying is a reasonable person not only could have understood it differently, but it also, a reasonable person could conclude that President Hinckley was intentionally misleading his audience to believe that tithing funds or the interest from tithing fund investment was not to be used and would never be used on the City Creek Mall project. What do you think, Kolby?

Kolby Reddish [02:14:11] Well, the one thought I had, listening to you, I think explain this portion of the majority opinion, which is so great, is one of the biggest complaints that that Christ in the New Testament has or the authors of the New Testament have about the Pharisees and Sadducees about their treatment of Christ is that they use their. They tried to use their words to trap him. Right? Like that's A phrase that's recurs throughout the New Testament, that they tried to lay these, like, verbal traps for him. And so I guess I just paused there and say, which of the two figures in the story does President Hinckley look more like? Does he look more like Jesus, or does he look more like the Pharisees and Sadducees that tried to play word games and set traps for people?

Radio Free Mormon [02:15:01] Yes, I want to go to page 25. This is one of the last points I'll make. And I think we're winding down now because there's a lot more written. But, you know, that horse is starting to stink. It's been beat so much. But I want to beat this one a little bit more because once Again, on page 25, they come back to this issue of President Hinckley intentionally misleading the audience in this 2003 April General Conference Address. And yes, I will amend that to say that a reasonable person is what the holding is. A reasonable person could conclude that he was intentionally misleading his audience in this regard. So, bottom paragraph, page 25, for those following along at home. Even if True, President Hinckley's 2003 statement about reserve funds is not necessarily a defense to Huntsman's fraud claim. First, if President Hinckley had stated in English that tithing funds would not be used to finance the project and had been added in a foreign language unknown to his audience, that the financing came from earnings on tithing funds, the added statement would not defeat a fraud claim. So, of course, this didn't happen. They're analogizing. They're arguing by analogy. And what they're saying is, look, if he had said first that no tithing funds would be used to finance the project, and then later on, he uses a foreign language that nobody understands to add what it is the dissent thinks is clear, this foreign language to add the statement that financing came from earnings on tithing funds, that would not defeat the fraud claim because you can't get around it by saying something in a language that clarifies it that nobody can understand, nor they go on getting a little bit closer to what really happened. Nor would it defeat a fraud claim if President Hinckley spoke entirely in England English, which he did first, saying in plain language that tithing funds would not be used, which he did, but then using undefined or specialized terms that his audience would not understand, saying that some other money earnings on reserve funds would be used. In either event, the audience would have heard stated in plain English that tithing funds would not be used to finance the project and then would have heard in opaque language, can't see through it. Not transparent wouldn't be prudent. And then would have heard in opaque language that earnings on some other kind of funds would be used. I think that is a really good analogy and gets to the point of showing how what the dissent thinks is clarifying the language in the 2003 statement by President Hinckley is actually just obfuscation. What do you think, Kolby?

Kolby Reddish [02:18:12] Well, I think to drive it home, I love the way the majority analyzes this, and I think to drive that home, this is not consistent with what, but this behavior is not consistent with what the church taught me honesty means, and it's not consistent with what they've held out to the members honesty means. And that's where, you know, to our individual with the flawed epistemology, I would just say, like, what's, what's the harm? Like, what's the harm in requiring the church to mean what it says in plain English, like, that's, that's going to be the end. Like, if the church loses this case and it goes all the way up and they lose, that will be the end result is just that churches have to mean what they say. What is the harm of that? That's not persecution. That's just what the church taught me, how the church taught me how to act. At the end of that paragraph, I just wanted to highlight this because the we already talked about the dissent basically says, well, you need to understand President Hinckley's 2003 statement in reference to this one statement from 12 or eight years before. And the majority heads that off at the pass. I think very effectively right here, they say even if an astute listener could have understood the 1991 and 1995 statements, as the church would have would have us understand them, the listener would have had to have those statements in mind in order to understand the 2003 statement, as the church would have us understand it. And that's where I think, honestly, the church's position is just ridiculous to expect people to hear a statement in 2003 that's carefully worded to mislead people and say, like, well, if you listened to something we said 12 years ago, it would have been very clear. One that's not even true because the 1991 statement is about as clear as the 2003 statement. But that's, that's just patently ridiculous. What they're arguing, like, just be honest. You taught me how to be honest, so do it.

Radio Free Mormon [02:20:08] Rebecca?

Rebecca Biblioteca [02:20:09] Yeah, I agree with what Kolby said. And I also think the audience is very motivated to hear the answer that makes everything okay. Right. They don't. They don't want to think that tithing money was used. And so they're going to hear this first part. We did not use tithing money. And then the rest of it kind of trickles off into reserves and property. You know, they're not even listening at that point. They have heard what they need to hear. They have heard that there's no tithing. Case closed. Moving on.

Radio Free Mormon [02:20:36] Right. Well, what I want to do here is I want to read the summary from page 27, which puts everything together in a neat bundle. If you were really, really busy and behind in law school, as I frequently was, what with dance practice and church duties, you can go to the end of most opinions and you'll find pretty much everything you need to know there in the summary. If not, it's a real bummer because then you got to go back to the. The beginning and start waiting through. But here's what they say, but. And then after this, I want to get people's thoughts. I'm going to let you make one comment each, if you want to, on the dissenting opinion, and then we will close for tonight. Okay. That's the problem with dissents. You know, nobody cares about them. Who cares? Unless later on things get reversed and the dissenter ends up having a majority later on. Okay, so here we are, page 27. In sum, a reasonable juror could rely on the following evidence to conclude that the church fraudulently misrepresented that neither tithing principle nor earnings on tithing principle would be or were being used to develop the City Creek Mall project. Number one, the four unqualified statements by church officials and in church publications that tithing funds were not used to finance the City Creek Mall project. Number two, the statement by President Hinckley in which he denied that tithing funds would be used to develop the City Creek Mall project, and in which he failed to tell his listeners that as he was using the terms reserve funds were tithing funds. Number three, common usage in the church, under which the term tithing funds includes both tithing principle and earnings. On tithing principle, they're referring back to the David Nielsen affidavit. And number four, Roger Clark's statement that money was transferred from Enzyme Peak to property Reserve in order to conceal the source of the funds used to develop the City Creek Creek Mall project. And then the final paragraph, which I'm sure Huntsman and his lawyers rejoiced in reading we therefore hold, contrary to the district court, that there is a genuine dispute of material fact as to whether the church fraudulently misrepresented the source of the money used to finance the City Creek Mall project. Kolby, what do you think?

Kolby Reddish [02:23:15] No, I think the majority really knocked it out of the park. I think the only last thought I'd give on the majority opinion is that procedurally. So the next steps, really, that the church is going to look at is to petition for an en banc rehearing, which just means that it'll go in front of the entire 9th Circuit panel. I don't know how likely the church is to do that because I don't know well enough what the 9th Circuit's demographics look like, like the entire panel, whether the church thinks they'll prevail there. But ultimately, whether it goes en banc or not, this case potentially is headed to the Supreme Court of the United States. And I, I just wanted to share that. I personally think the biggest issue that will be facing our Supreme Court in the next five to 20 years is really how and maybe this case doesn't directly get there, but who knows? The Supreme Court, when they take a look at a case, can reverse the First Amendment part of the case. And that's where I think the tension between what the First Amendment actually means is going to be the biggest issue that our Supreme Court has to address in the next five to 20 years. They've recently addressed that in decisions like Kennedy versus Bremerton School District, that was last year, and the 303 creative decision that was just a few weeks ago, actually. And so that's kind of my next big thought is if viewers are thinking, well, what does this mean? Where does this go from here? Putatively, it's headed back to the trial court for potentially jury trial and additional discovery. We'll see what happens with that. But eventually it could make its way all the way up to the Supreme Court, whether before or after trial.

Radio Free Mormon [02:24:55] But here's the thing that we both know. It's not going back down. That's what the court of appeals has to say. Reversed and remanded. They can't say reversed and bumped up. That's up to the parties to do. It's going to be the losing party who's going to do it. It's going to be the church who's going to do it. They're going to have 30 days probably in which to appeal this or file a notice of appeal from the date of the entry of the order, which was yesterday, 08-07-2023 and when you say this could go all the way up to the Supreme Court, I just want to clarify this a la president at Hinkley in 2003. I'm going to clarify here. What you're saying is that this one issue about whether summary judgment was properly granted by the original trial court judge and the case dismissed, whether that was a correct decision, that could go all the way up to the Supreme Court, and the Church will certainly try and make it go that far, at least if they don't win any along the way. Obviously, if they win something along the way, then it would be up to the other side to file a notice of appeal within 30 days. Now, they've already exhausted. If the appellate structure there in federal court is the same as it is here in the state, they've already exhausted their one automatic appeal. Okay, you get an appeal of right once, but after that, now that they want to go up to another court, they have to ask the higher court for permission. They have to ask the higher court to allow to be heard on this appeal. And that's. What is that called again?

Kolby Reddish [02:26:27] It's a petition for a writ of certiori.

Radio Free Mormon [02:26:29] Right, right, right, right. It's all those lawyer terms that we use to keep the riff raff out and make it, you know, justify our exorbitant and hourly rates. A writ of certiorari. Yeah, it's a request. So now a higher court doesn't have to take an appeal. A higher court anywhere after this could say, no, we're not going to take it. But of course, that could be appealed as well, or it could be requested to be appealed. And like I say, because this is not well trod legal area or doctrine, it's kind of new, we're going into new areas. That is one of the main reasons that higher courts will accept review of an appellate case when they don't have to. So it could definitely go all the way to the Supreme Court. But if it went to the United States Supreme Court and the United States Supreme Court now says this original trial court judge way down there, and I think it was California, wherever he was, that he was right. If five out of nine justices on the United States Supreme Court says he was right to dismiss it because summary judgment should have been granted, then the case is over. But if five out of four or more justices on the United States Supreme Court say no, this original judge was wrong, and the first court of appeals, the opinion we just got done reviewing, they were right, okay? And summary judgment should not have Been granted. You can go all that way up to the Supreme Court, and now it's gets kicked back down finally to the original court, and now you start all over again, because now you've just found out what it is that the first appellate court said was correct. Summary judgment was inappropriate, and now you get to continue from square one. Well, square one might have been the summary judgment motion, but you're back to the drawing board in trial court. What do you think about that, Rebecca? Does that strike you as a fair and just and economical kind of justice system?

Rebecca Biblioteca [02:28:34] I feel like we're all going to need a lot more popcorn and probably more episodes to dive into this. But, you know, I love. I love the majority here because I feel like they are the little kid in the emperor's new clothes. I feel like they are reasonable and they saw it and they ruled that way. And I have some questions about the dissenting boat because, boy, he seemed to really, really be on board with Mormonism and their persecution and their history, if you want to read that. I don't know what page it is, but, boy, he went into some points of view on our history and how we pulled ourselves up by our bootstraps and all of that, and then he met his judgment. So that was kind of interesting to me, to the point that I even went on FamilySearch to look Harvey Corman up and see if he had any ties to Mormonism. It was kind of that disturbing to me.

Radio Free Mormon [02:29:21] But, no, he does have to. Harold Burnett.

Rebecca Biblioteca [02:29:24] Yeah, he does. To Carol Burnett. That's right. And Tim Conway. That's exactly right. So, nope. I mean, I'm sure we're in for it, and I'm sure we'll be watching it. But today I'll celebrate and be happy with that majority vote and say that finally some cooler has prevailed. Some reasonable people got a hold of it and looked at it, and there was a positive outcome.

Radio Free Mormon [02:29:44] Great summary, by the way. You know something? The church just looks sneaky as hell through all this. And. And if it's been my experience that sometimes if judges are kind of on the fence and they see someone playing dirty, they're less likely to go on that side. There's something about a person playing dirty or a church playing dirty or a party playing dirty that makes you kind of want to vote for the other side if you're on the fence. And I don't know if that. That happened here, but that's just my impression. The church does not look like it has clean hands here. Cole, do you want the last Word.

Kolby Reddish [02:30:24] Well, I just wanted to give my closing thought on the dissent, which is that the dissent. So the dissent hyper focuses on that 2003 statement. And I already talked about the one big quote from it. But one of the things the dissent doesn't deal with at all is the four unqualified statements that we read. It doesn't even address those. It doesn't even pretend like they exist. And that's very interesting to me because that's basically saying that there's no legal effect if I tell, like, say I'm entering into some contract with rfm, if I tell him four provable lies about that, and then I tell him one, like kind of qualified truth. Apparently, according to, you know, Judge Corman, that's all fine and dandy, which is just very odd to me that that just can't be what the law stands for. I'm much more on board with the majority's reasoning. And yeah, I just wanted to thank you, rfm, and Rebecca, and I guess John, even though he's not here for putting this together, I think it's important that we go through and talk about these things. I really care about increasing the public's access to understanding the legal system because I think it's really important for people to understand the effects of the these decisions and what these things mean and don't mean. So thank you for putting this together and letting me be a part of it.

Radio Free Mormon [02:31:40] Well, thank you so much. I was going to mention that I think that on page 39, 38, the dissent does mention those statements. It's kind of like what I had summarized before, like a couple hours ago, that basically the first statement in 2003, chronologically, all the other subsequent statements should be understood in light of that crystal clear explanation that President Hinckley gave, according to the dissent, that in fact, he was talking not only about. About tithing principle, but he was also talking about tithing income or investment earned on tithing investments. And this is the bottom paragraph of page 38, because I thought he was doing the same thing too. And then I saw that it says the subsequent statements. This is really all he does with him. The subsequent statements made by the church about the City Creek project also do not permit a fraud claim because they do not conflict with Hinckley's 2003 statement. The district judge, once again, this is the dissent who agrees with the trial court judge, the district judge, the district judge rightly found that none of the four statements are inconsistent with Hinckley's statement. Thus, they do not change the fact that Hinckley said that earnings of invested reserve funds would be used, any subsequent statement would have been understood in the context text of that earlier statement. So I did remember that correctly. But that is really all that he says about him and he gives them short shrift. And that's probably because he didn't have anything that was any more convincing really to say about the issue.

Kolby Reddish [02:33:10] Yeah, I, I probably overstated. So thank you for correcting that. I mean, I guess I would just suggest people compare the majority's like, very clear analysis on why they reached the result. They did. And the fact that the dissent just says this is the way it is because it is that way. Like it doesn't tell you why these things don't conflict. I think they very clearly do, especially in light of the change in the terms that we highlighted earlier.

Radio Free Mormon [02:33:34] Yeah. Well, Rebecca Kolby, thank you so much for coming on my Mormon Story show tonight. I really appreciate that. Thank you for everybody listening, both live and in the future. All donations that would normally go to Mormon Stories should be directed to radiofreemormon.org just go there and click on the donate button if you have any left over. You go to Mormonish. I suppose you've got a donate button there now too, don't you, Rebecca?

Rebecca Biblioteca [02:34:02] Kinda, sort of. We figured out a Venmo link and a PayPal link, so. Sure.

Radio Free Mormon [02:34:06] Okay.

Rebecca Biblioteca [02:34:06] Mormonish.

Radio Free Mormon [02:34:07] Well, fantastic. And she's got a coffee mug. I got a coffee mug, too.

Rebecca Biblioteca [02:34:11] I've got a coffee mug. I sent you one.

Radio Free Mormon [02:34:13] Yeah, I could go get it, but I'd have to get up again. I'm not going to do that.

Rebecca Biblioteca [02:34:17] No, we don't. If you're not wearing pants, we certainly don't want you.

Radio Free Mormon [02:34:21] Well, thank you, everybody. Thank you for coming on tonight. We look forward to having you back next time on Mormon Stories. And have a great evening. Bye. Bye.

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