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SALT LAKE CITY — If the Utah Attorney General's Office doesn't pay the bills to run a polygamous sect's trust, as ordered by a judge, the assets of the trust could be left unprotected.
Third District Judge Denise Lindberg issued a ruling Monday stating that Attorney General Mark Shurtleff's office must pay $4.6 million in costs incurred by special fiduciary Bruce Wisan and those he has hired, including attorneys, since early 2008.
Shurtleff said he was "surprised and outraged" by the court order.
The trust was created by the Fundamentalist LDS Church in 1942 on the concept of a "united order," allowing followers to share in its assets.
"It's based on absolute misstatement of fact and I think the judge has overstepped her authority," he said. "I have my team analyzing what the next step might be."
Shurtleff said the funds and assets in the United Effort Plan Trust — valued at $110 million — aren't at risk right now as they are not to be touched until the 10th Circuit Court of Appeals determines who has rightful control over it, per a court-ordered stay.
In her ruling, Lindberg warned that if Wisan and those he has hired are not paid, the trust — which has been run by the state since 2005 — could find itself in trouble.
"The trust now faces the real and financial threat that it will be left without someone to manage it, attorneys to defend it or other professional assistance," she wrote.
The trust was created by the Fundamentalist LDS Church in 1942 on the concept of a "united order," allowing followers to share in its assets. The trust holds most of the property and homes in the twin FLDS communities located in the border towns of Hildale, Utah, and Colorado City, Ariz.
Attorney Jeff Shields, who was hired by Wisan to assist in the ongoing litigation involving the trust, said it was the original, and ultimate, plan for costs and fees to be paid by the trust.
"This trust should pay for its own expenses, but because everything is locked up and it needs help now — it's like a bridge loan," he said. "It doesn't do any good if two years down the road you start selling stuff and collecting fees. It needs help now."
Shields said that before April 2008 or so, they were paid regularly and hoped to sustain the trust's costs by implementing a $100 per home occupancy fee, which Lindberg approved. Shields said it was estimated the fee would bring in $70,000 or so a month.
Lindberg said in the ruling that she agrees that payment should come from the trust itself, but there is an "issue of timing" to make Wisan and those working with him "whole."
In her ruling, Lindberg heavily criticized the Utah Attorney General's Office, which she says brought Wisan in as the special fiduciary in the first place.
If payment is not made in the interim, Lindberg wrote, "the special fiduciary and others with whom he has contracted on the trust's behalf are unlikely to continue rendering necessary services to the trust."
In her ruling, Lindberg heavily criticized the Utah Attorney General's Office, which she says brought Wisan in as the special fiduciary in the first place.
"Having brought the special fiduciary and his attorneys into this complex case, it is noteworthy that the Utah A.G. has made few, if any, efforts to assist Mr. Wisan in recouping his fees and costs from the limited sources available to the trust," Lindberg wrote.
Shurtleff said his office merely asked that a special fiduciary be appointed. He said that since they have had no control over Wisan, "no way to monitor his actions" and have been requesting billing statements for the past three years that they have not received.
In her ruling, Lindberg states that a representative from the attorney general's office has been at every court hearing involving the trust, including those regarding costs.
"Although the Utah A.G. now complains about the fees and expenses that have accrued in this case, he fails to credit the fact that as a direct result of actions by the special fiduciary to recover assets that had been improperly removed from the trust, the trust has actually expanded," Lindberg wrote.
But the fees have gone unpaid, Lindberg said, due to the ongoing litigation in the case and the fact that members of the trust have not paid the "modest occupancy fees" for their use of trust land.
"As a result, the special fiduciary, the attorneys he has engaged and other professionals with whom he has contracted have received, at most, partial payment," she wrote.
Shields said his office alone is owed $2 million. Wisan, who, according to Lindberg, is paid $205 an hour, is owed another $1 million or so, Shields said. Other attorneys and professionals have also done work and are owed payment, though many of them contributed knowing "payment would be deferred," Shields said.
Shurtleff said he understands the frustration of those who haven't been paid — especially the attorneys who have been involved — but said there is no reason the state of Utah should bear the costs.
Email:emorgan@ksl.com
