FLDS v. Hon. Lindberg

2010 UT 51
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
The Fundamentalist Church 	No. 20090859
of Jesus Christ of Latter-Day
Saints, an association of
individuals,
Petitioner,
v.
The Honorable Denise P. Lindberg, 	F I L E D
Third District Court Judge,
Respondent. 	August 27, 2010
---
Original Proceeding in this Court
Attorneys: 	Kenneth A. Okazaki, Stephen C. Clark, Richard A. Van
Wagoner, Rodney R. Parker, James C. Bradshaw, Salt
Lake City, for petitioner
Brent M. Johnson, Salt Lake City, for respondent
Mark L. Shurtleff, Att’y Gen., Annina M. Mitchell,
Randy S. Hunter, Timothy A. Bodily, Asst. Att’ys
Gen., Salt Lake City, for State of Utah
Mark L. Callister, Jeffrey L. Shields, Michael D.
Stanger, Spencer E. Austin, Mark W. Dykes, Brandon J.
Mark, Salt Lake City, for United Effort Plan Trust by
Bruce R. Wisan
Roger H. Hoole, Gregory N. Hoole, Salt Lake City, for
Richard Jessop Ream, et al.
Michael D. Zimmerman, Salt Lake City, for Dan
Johnson, Merlin Jessop, and William E. Jessop
Peter Stirba, Meb W. Anderson, R. Blake Hamilton,
Salt Lake City, for Hilldale City, Colorado City, and
Helaman Barlow
J. Ryan Mitchell, Salt Lake City, for Harker Dairy,
LLC
Terry Goddard, Att’y Gen., William A. Richards, Chad
B. Sampson, Asst. Att’ys Gen., Phoenix, AZ, for State
of Arizona
---

1 The FLDS Association currently petitioning is not the FLDS
Church, nor the corporation of that church’s president. 	Rather,
the association describes itself as “The Fundamentalist Church of
Jesus Christ of Latter-Day Saints, an association of
individuals.”
No. 20090859 	2
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	This case concerns the United Effort Plan Trust (“UEP
Trust” or “Trust”)--a trust originally formed in 1942 by what
petitioners characterize as a fundamentalist religious group that
was the predecessor of the Fundamentalist Church of Jesus Christ
of Latter-Day Saints. 	The Trust was modified in 1998 so that it
qualified as a charitable trust under Utah law. 	In 2006, the
Utah Third District Court issued an order that modified the Trust
again. 	This order was not appealed or otherwise challenged for
nearly three years. 	In a petition for extraordinary writ, an
association of members of the Fundamentalist Church of Jesus
Christ of Latter-Day Saints (the “FLDS Association”) 1 challenges
the district court’s modification and subsequent administration
of this Trust as unconstitutional and in violation of Utah law.
We hold that because the FLDS Association has delayed this
challenge for nearly three years, and because during this time,
many parties have engaged in numerous transactions in reliance on
the Trust’s modification, the FLDS Association’s trust
modification claims are barred by the equitable doctrine of
laches. 	We also hold that all of the FLDS Association’s
remaining claims regarding trust administration, except one, are
also barred by laches because they involve the same delay and
prejudice as the modification claim. 	The claim that is not
barred by laches is barred because it is not ripe for
adjudication.
BACKGROUND
¶2 	In 1942, the spiritual leadership of a fundamentalist
religious movement called the “Priesthood Work” formed the United
Effort Plan Trust. 	The UEP Trust stated that its purpose was
“charitable and philanthropic,” but conditioned membership in the
Trust upon “consecration” of real and mixed property to the
Trust. 	For this fundamentalist group--predecessors of the
Fundamentalist Church of Jesus Christ of Latter-Day Saints (the
“FLDS Church” or “Church”)--consecration was an act of faith
whereby members deeded their property to the UEP Trust to be
managed by Church leaders. 	Church leaders, who were also

2 Jeffs v. Stubbs, 970 P.2d 1234, 1239 (Utah 1998).
3 Id. at 1252 (emphasis added) (quoting Olivas v. Bd. of
Nat’l Missions of Presbyterian Church, 405 P.2d 481, 485 (Ariz.
Ct. App. 1965)).
4 Id. at 1252-53.
3 	No. 20090859
trustees, then used this property to minister to the needs of the
members.
¶3 	In 1986, some Trust property residents sued the UEP
trustees for breach of fiduciary duty. 	The district court
rejected those claims, finding that since the UEP Trust was
charitable rather than private, the plaintiffs lacked standing to
sue. 	In 1998, we reversed the district court’s holding that the
Trust was charitable. 2 	We first noted that charitable trusts
differ from private trusts because “‘in a private trust[,]
property is devoted to the use of specified persons who are
designated as beneficiaries of the trust; whereas a charitable
trust has as a beneficiary a definite class and indefinite
beneficiaries within the definite class, and the purpose is
beneficial to the community.’” 3 	We then found that the UEP Trust
was not a charitable trust because it was intended, from its
inception, to benefit specified persons, namely the Trust’s
founders. 4
¶4 	In response to our decision, Rulon Jeffs, the sole
surviving founder and beneficiary of the 1942 Trust, acting for
himself and also in his capacity as president and Corporation
Sole of the FLDS Church, along with the other trustees, executed
the “Amended and Restated Declaration of Trust of the United
Effort Plan” (the “1998 Restatement”). 	It is not disputed that
the 1998 Restatement of the 1942 UEP Trust qualifies as a
charitable trust. 	It broadened the class of beneficiaries beyond
the founders of the Trust to all of those who “consecrate their
lives, time[], talents, and resources to the building and
establishment of the Kingdom of God on Earth under the direction
of the President of the [FLDS] church.” 	The 1998 Restatement
provided that “in the event of termination of this Trust, whether
by the Board of Trustees or by reason of law, the assets of the
Trust Estate at that time shall become the property of the
Corporation of the President of the [FLDS Church].”
¶5 	In 2004, then-FLDS Church president, Warren Jeffs, the
Trust, and the FLDS Church were sued in two separate tort
actions: 	the first action alleged child sexual abuse, assault,
and fraud primarily against Warren Jeffs; the second alleged

No. 20090859 	4
civil conspiracy, fraud, breach of fiduciary duties, and other
torts against Warren Jeffs, the FLDS Church, and the Trust.
Rodney Parker of the law firm of Snow, Christensen & Martineau
served as attorney for the Trust and the FLDS Church in these
actions until he withdrew because his clients insisted upon a
course of conduct with which he fundamentally disagreed, and
because his clients had discharged him. 	Warren Jeffs, as
controlling trustee, did not appoint a substitute attorney to
defend the Trust in the litigation, leaving the Trust vulnerable
to default judgments against it.
¶6 	With this concern in mind, Mr. Parker filed motions in
the district court asking the court to give notice to the Utah
Attorney General (“Utah AG”) and the Trust land residents before
entering a default judgment against the Trust. 	In response, the
Utah AG petitioned the district court for (1) removal of the
trustees for breach of fiduciary duty; (2) an order compelling
Warren Jeffs and the other trustees to appear and file an
inventory, final report, and accounting of the administration of
the Trust; and (3) appointment of a special fiduciary to serve
until new trustees were appointed. 	The Utah AG’s petition was
filed in May 2005. 	Personal service was made on those trustees
who could be found. 	Trustees who could not be served personally
were served via substitute service. 	Publications were made where
Trust participants resided.
¶7 	In a June 2005 preliminary injunction, the district
court suspended the trustees and appointed a special fiduciary
for the Trust. 	The special fiduciary’s powers and authority were
outlined in various district court orders. 	The district court
gave the special fiduciary authority to act on behalf of the
Trust. 	The district court also ordered the suspended trustees to
prepare an accounting, deliver records, and cooperate with the
fiduciary, but the suspended trustees failed to comply with this
order. 	The district court asked the special fiduciary to prepare
a memorandum identifying issues the court needed to address
before appointing new trustees. 	Ultimately, the special
fiduciary expressed concern in a memorandum filed with the
district court that the Trust needed to be reformed if new
trustees were to be appointed.
¶8 	On December 13, 2005, the district court entered an
order that concluded the Trust could be reformed so that the
special fiduciary could administer the Trust to meet the “just
wants and needs” of the beneficiaries according to neutral,
nonreligious principles. 	The district court cited Utah Code
section 75-7-413 as its authority to use the doctrine of cy pres
to modify the Trust. 	Cy pres is a common-law doctrine, now

5 Utah Code Ann. § 75-7-413(1) (Supp. 2010); see also In re
Gerber, 652 P.2d 937, 939-40 & n.4 (Utah 1982) (explaining the
history of the common-law cy pres doctrine).
6 Gerber, 652 P.2d at 939 (quoting Late Corp. of the Church
of Jesus Christ of Latter-Day Saints v. United States, 136 U.S.
1, 56 (1890)).
7 Utah Code Ann. § 75-7-413(1)(c).
5 	No. 20090859
adopted by statute in Utah Code section 75-7-413, that courts may
apply when a charitable purpose of a trust “becomes unlawful,
impracticable, impossible to achieve, or wasteful.” 5 	Rather than
allowing the Trust to fail in these situations, under the common
law, courts would apply the trust “‘to other charitable objects
lawful in their character, but corresponding, as near as may be
to the original intention of the [settlor].’” 6 	The Utah Code’s
similar language allows a court faced with a trust whose purpose
has become “unlawful, impracticable, impossible to achieve, or
wasteful . . . to modify or terminate the trust by directing that
the trust property be applied or distributed . . . in a manner
consistent with the settlor’s charitable purposes.” 7
¶9 	The district court listed two reasons for using cy pres
to reform the Trust. 	First, the court found that the trustees
had breached their fiduciary duties of loyalty and prudent trust
administration. 	Second, it found several Trust provisions to be
“fundamentally flawed and unworkable.”
¶10 	The following three principles guided the district
court’s reformation of the Trust: 	First, the court would attempt
to preserve the Trust’s charitable intent. 	Second, the court
would only give effect to the Trust’s legitimate and legal
purposes. 	Finally, the court would employ “neutral principles of
law.”
¶11 	To meet its first goal of preserving the Trust’s
charitable intent, the district court had to first identify that
intent. 	It characterized the 1998 Restatement as having at least
two purposes: 	first, the Trust was to advance the religious
doctrines and goals of the FLDS Church; and second, the Trust was
to provide for the just wants and needs of the FLDS Church
members. 	The FLDS Association characterizes each of these goals
as religious because participation in the Trust was conditioned
upon living according to Church principles, with the president of
the FLDS Church being the ultimate arbiter of individual
righteousness.

No. 20090859 	6
¶12 	Using the second of its principles--to give effect only
to the Trust’s legitimate and legal purposes--the district court
held that it could reform the Trust by excising the purpose of
advancing the religious doctrines and goals of the FLDS Church to
the degree that any of these were illegal. 	As examples of
illegal doctrines it could not sanction, the district court
listed “polygamy, bigamy, [and] sexual activity between adults
and minors.” 	The court instead focused its reformation on
preserving the Trust’s goal of providing for the just wants and
needs of Trust participants, which it held was a “lawful
religious purpose[].”
¶13 	Despite finding a “lawful religious purpose,” the third
of the district court’s principles mandated that the court reform
the Trust using “neutral principles.” 	The court understood this
to mean that it could not resolve property disputes on the basis
of religious doctrine. 	The district court’s memorandum decision
states,
[C]ourts are prohibited by the First
Amendment from resolving “rights to the use
and control of church property on the basis
of a judicial determination that one group of
claimants has adhered faithfully to the
fundamental faiths, doctrines and practices
of the church . . . while the other group of
claimants has departed substantially
therefrom.” 	In short, courts must separate
that which is primarily ecclesiastical from
that which is primarily secular, and must
defer to ecclesiastical authority for
ecclesiastical determinations.
But the district court felt that if FLDS ecclesiastical leaders
were able to make ecclesiastical determinations about who
participated in the Trust, many former or disaffected members of
the FLDS Church who consecrated property to the Trust “could be
excluded from consideration notwithstanding their prior
consecrations to the Trust.” 	The district court found this
unacceptable. 	It resolved that the Trust needed to be modified
so that the role of ecclesiastical leaders would be to provide
“non-binding input” to future trustees. 	These trustees would
then use a neutral set of criteria and their own “good judgment”-
-informed but not bound by FLDS ecclesiastical advice--to
determine the “just wants and needs” of the beneficiaries.
¶14 	Ultimately, the district court concluded that
implementation of these principles would require modifying each

7 	No. 20090859
section of the Trust. 	These modifications included the
following: 	stating that Trust property would only be used in
furtherance of “legitimate Trust purposes” as identified by the
court; allowing FLDS leaders to offer their nonbinding input, but
granting the Board of Trustees the ultimate authority to
determine who would be allowed to live on Trust property and what
the Trust property residents’ just wants and needs were; limiting
the Board’s power to order relocation or property sharing among
Trust property residents to situations where the relocation
arrangement was “necessary for legitimate Trust administration
reasons”; and deleting or modifying the Trust’s requirement that
occupants of Trust land live according to Church doctrine. 	The
goal of the district court was unambiguous: 	“A clear division
must exist between the authority of the Board to act with respect
to the Trust, and the authority of the priesthood to act with
respect to the [FLDS Church] Plan.”
¶15 	The district court decided that the Trust’s third
section would also need to be modified to strip the FLDS Church
president of several powers under the Trust. 	First, the district
court would remove any requirement that the president of the FLDS
Church approve any Board action. 	Since the 1998 Restatement gave
the FLDS Church president power to appoint and remove trustees,
the district court invited interested parties to suggest Trust
modifications that would allow for a different method of
appointing and removing trustees. 	Second, the district court
modified the Trust to remove the president of the Church as
trustee and as president of the Board of Trustees. 	The court
felt this modification was necessary because it had just
suspended Warren Jeffs, the FLDS president, as a trustee and
because it wanted to keep the Church and the Church Plan separate
from the Trust. 	Finally, the district court found that a
reversionary clause that would cause the Trust to revert to the
FLDS president in the event of termination needed to be altered
because the court had just suspended the FLDS president’s
trusteeship for violation of his fiduciary duties to Trust
beneficiaries, and because, in the event of reversion, the Trust
assets might be used to further illegal FLDS practices.
¶16 	In its order, the district court invited suggestions
for reformation of the 1998 Restatement. 	It also formed an
advisory board to aid the special fiduciary in administration of
the Trust until trustees could be appointed. 	It was understood
that the court would consider the members of the advisory board
as candidates to become trustees. 	There were no active FLDS
members on the advisory board. 	On October 25, 2006, the court
entered an order reforming the Trust (the “2006 Reformed Trust”).
This order was not appealed.

No. 20090859 	8
¶17 	The 2006 Reformed Trust contains over 175 paragraphs
compared to seventeen in the 1998 Restatement. 	The FLDS
Association complains that those who had sued the UEP Trust took
the “laboring oar” in drafting the 2006 Reformed Trust, and that
their goal was to transform the FLDS culture and to liberate a
people they felt belonged to a dangerous cult. 	The FLDS
Association also complains that the religious mission and purpose
of the Trust have been removed--that what was “fundamentally a
religious institution guided by divine inspiration” is now its
“wholly secular mirror image.” 	The FLDS Association feels that
the 2006 Reformation suppresses the FLDS Church’s role “as the
spiritual and economic center of life in the communit[y].”
¶18 	The district court has retained jurisdiction over the
administration of the Trust. 	It has instituted a process that
allows Trust participants to petition to have the houses they
live in distributed to them. 	The district court has expressed in
a hearing that FLDS Church members are free to deed their houses
over to any religious leader of their choice following
distribution. 	Over the four-and-a-half years of the special
fiduciary’s administration, he has filed numerous reports with
the district court. 	Some of the challenges the special fiduciary
has faced in administering the Trust include the fact that Trust
property has not been subdivided and multiple residents often
live on one tax parcel. 	These conditions have complicated
liquidation and distribution of Trust property. 	For instance,
because the Trust’s real property consists of several large
parcels of land often containing several residences, if one of a
parcel’s residents fails to pay taxes, the parcel’s other
residents could face tax liens even if they have paid their fair
share. 	The special fiduciary also complains that the suspended
trustees’ failure to cooperate with him has caused the fiduciary
to expend significant time and effort to obtain information and
records about the Trust and its property and that he has incurred
significant costs and expense in discovering this information.
He further asserts that the suspended trustees have actively
interfered with his administration of the Trust.
¶19 	But the FLDS Association, in turn, alleges that the
district court and special fiduciary have engaged in religiously
discriminatory behavior. 	The FLDS Association alleges that the
special fiduciary has made numerous offensive and religiously
discriminatory remarks, including characterizing FLDS Church
leaders’ determination of “just wants and needs” pursuant to
scripture and revelation as the “whim of leadership,” and
“discriminating on the basis of religion”; referring to himself
as the “State-Ordained Bishop” or “SOB” as a way of mocking the

9 	No. 20090859
FLDS faith; and describing the process of Trust administration as
a “sociological and psychological war” with the FLDS Association.
The FLDS Association also alleges that, despite claims to the
contrary and due to a fear of creating a “UEP II,” the district
court and the special fiduciary plan to implement a religious
test to distribute Trust assets that would award outright deeds
to non-FLDS Trust participants, but would impose a spendthrift
trust on any Trust participant likely to donate Trust
distributions to the FLDS Church.
¶20 	On October 20, 2009, the FLDS Association brought these
allegations to this court in a petition for extraordinary writ,
filed under Utah Rule of Civil Procedure 65B. 	The petition asks
this court to do the following: 	find that the district court’s
actions have violated FLDS Church members’ First Amendment rights
and their rights under Utah’s constitution, declare that certain
sections of Utah’s Uniform Trust Code are unconstitutional as
applied to the FLDS Association, enjoin the district court from
taking further action in the underlying UEP Trust litigation,
declare the district court’s reformation of the Trust
unconstitutional, terminate the reformed Trust, overturn the
district court’s authorization to sell certain Trust property
deemed sacred by the FLDS Association, terminate the appointment
of the special fiduciary, and provide any other appropriate
relief. 	Willie Jessop, a representative of the FLDS Association
and a member of the FLDS Church, filed an affidavit with this
petition outlining FLDS religious beliefs and what are in his
view intrusions by the district court and the special fiduciary
into Mr. Jessop’s practice of these beliefs. 	The FLDS
Association has also filed a substantially similar lawsuit along
with a substantially similar affidavit by Willie Jessop in
federal district court.
¶21 	The original interested individuals who sued the Trust
in 2004 (the “Original Interested Individuals”), the Utah AG, the
Arizona Attorney General (the “Arizona AG”), and the UEP Trust
through the special fiduciary all filed oppositions to the FLDS
Association’s Petition for Extraordinary Writ. 	Among other
things, they have alleged that the FLDS Association lacks
standing, that it has other plain, speedy, and adequate remedies
available, and that laches bar the FLDS Association’s claims.
¶22 	The FLDS Association then filed a rule 8A petition with
this court for emergency relief. 	This petition centered around
three separate actions taken by the district court and the
special fiduciary. 	First, the district court had allowed the
special fiduciary to begin seeking buyers for certain Trust
property the FLDS Association claimed was sacred. 	Second, the

8 The FLDS Association’s petitions and the responses thereto
have spawned additional litigation. 	The Utah AG has moved to
strike the response of the Twin Cities, which we granted to the
degree that the Twin Cities brought new claims, and otherwise
deferred. 	The Utah AG also moved to strike a supplement that
added Lyle Jeffs and Willie Jessop as named petitioners in this
action. 	We have deferred this motion. 	The FLDS Association has
moved to strike exhibits and related arguments in the Utah AG’s
and special fiduciary’s responses. 	We have deferred this motion.
The Original Interested Individuals have moved to transmit the
record of proceedings below. 	The FLDS Association has opposed
this motion, and we have deferred it. 	Because of our resolution
in this case, we find it unnecessary to rule on any of these
deferred motions. 	Additionally, on August 19, 2010, the FLDS
Association filed a Petition for Emergency Relief asking this
court to enjoin the Third District Court from administering the
UEP Trust until we render our decision in this case. 	The Utah
AG, the Arizona AG, and the UEP Trust through the Special
Fiduciary opposed this petition. 	The issuance of this opinion
renders ruling on that petition unnecessary.
No. 20090859 	10
special fiduciary had sold some of the Trust’s dairy cows subject
to a right to repurchase that was set to expire. 	Third, the
district court had entered an order that asked the Utah AG and
the special fiduciary to submit suggestions under seal regarding
how the Trust could be administered in such a way that might
avoid the kind of extensive litigation that continued to ensue.
The FLDS Association’s petition asked us to stop the sale of the
Trust property they deemed sacred, extend the time for repurchase
of the dairy cows, and reverse the district court’s order that
sealed the submissions by the Utah AG and the special fiduciary.
The petition for emergency relief drew responses from the special
fiduciary on behalf of the UEP Trust, Harker Dairy (the purchaser
of the cows), the “Twin Cities” (Hilldale and Colorado City), and
the Arizona AG. 	We denied the FLDS Association’s Petition for
Emergency Relief. 8
¶23 	We now address the FLDS Association’s rule 65B Petition
for Extraordinary Writ. 	We have jurisdiction pursuant to Utah
Code section 78A-3-102(2) (Supp. 2010).
STANDARD OF REVIEW
¶24 	The FLDS Association bases its petition on rule 65B,
which states that, so long as “no other plain, speedy and
adequate remedy is available, . . . relief may be granted . . .
where an inferior court . . . has exceeded its jurisdiction or

9 Utah R. Civ. P. 65B(a), (d)(2) (emphasis added).
10 State v. Laycock, 2009 UT 53, ¶ 7, 214 P.3d 104 (quoting
State v. Barrett, 2005 UT 88, ¶ 23, 127 P.3d 682).
11 Id. ¶ 8.
12 Id. ¶ 9 (quoting Barrett, 2005 UT 88, ¶ 24).
13 Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 684
(Utah 1995).
11 	No. 20090859
abused its discretion.” 9 	Specifically, the FLDS Association
alleges that the district court “committed an unprecedented abuse
of discretion” when it reformed the UEP Trust. 	But parties who
file petitions for extraordinary writ under Utah Rule of Civil
Procedure 65B have “‘no right to receive a remedy that corrects a
lower court’s mishandling of a particular case.’” 10 	So even if
the FLDS Association shows that the district court abused its
discretion, extraordinary “[r]elief under rule 65B(d)(2) is
completely at the discretion of [this court].” 11 	Several factors
inform our discretion to grant extraordinary relief, including
the “‘egregiousness of the alleged error, the significance of the
legal issue presented by the petition, the severity of the
consequences occasioned by the alleged error,’ and any additional
factors that may be regarded as important to the case’s
outcome.” 12 	While “there is no fixed limitation period governing
the time for filing [extraordinary writs],” they “should be filed
within a reasonable time after the act complained of has been
done or refused,” and “the equitable doctrine of laches is
available to dismiss untimely writs.” 13
ANALYSIS
¶25 	The FLDS Association’s claims fall into two broad
categories: 	first, that the district court’s modification of the
UEP Trust violated Utah law and the FLDS Association’s members’
constitutional rights; and second, that during the district
court’s ongoing administration of the Trust, the district court
and the special fiduciary have engaged in conduct that also
violates the FLDS Association’s members’ constitutional rights.
In Part I, we hold that the FLDS Association’s claims regarding
the district court’s modification of the Trust are barred by the
equitable doctrine of laches. 	In Part II, we hold that all of
the FLDS Association’s remaining claims regarding the Trust’s
administration, except one, are also barred by laches. 	The claim
that is not barred by laches is not ripe for our consideration.

14 Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 684
(Utah 1995).
15 Id.
16 Angelos v. First Interstate Bank, 671 P.2d 772, 777 (Utah
1983) (quoting Papanikolas Bros. Enters. v. Sugarhouse Shopping
Ctr. Assocs., 535 P.2d 1256, 1260 (Utah 1975)).
17 Id.
No. 20090859 	12
I. 	THE FLDS ASSOCIATION’S CLAIMS REGARDING TRUST MODIFICATION
ARE BARRED BY LACHES BECAUSE OF THE FLDS ASSOCIATION’S DELAY IN
FILING THE CLAIMS AND THE PREJUDICE THAT HAS RESULTED
¶26 	Because the FLDS Association has waited nearly three
years from the date the district court modified the UEP Trust to
challenge its modification and, in the interim, transactions have
occurred and other parties have acted in reliance on the Trust’s
modification, the FLDS Association’s claims are barred by the
equitable doctrine of laches. 	The FLDS Association asserts that
the district court modified the Trust in violation of Utah law
and the federal and state constitutions, and that the continued
administration of the Trust violates their constitutional rights.
Despite the potential merit of these claims, the district court’s
order was never appealed, and the FLDS Association has waited
nearly three years from the date of the Trust’s modification to
bring its case to this court. 	During this time, countless
transactions have taken place in reliance on the Trust’s
modification. 	Accordingly, we dismiss these claims pursuant to
the doctrine of laches.
¶27 	There is no statute of limitations for bringing a rule
65B claim, but such claims “should be filed within a reasonable
time after the act complained of has been done or refused.” 14
And although laches is most often thought of as an affirmative
defense to untimely claims brought by a plaintiff, we have held
that “the equitable doctrine of laches is available to dismiss
untimely writs.” 15 	We have called laches “‘delay that works a
disadvantage to another.’” 16 	So, laches has two elements: 	(1) a
party’s lack of diligence and (2) an injury resulting from that
lack of diligence. 17
¶28 	The length of time that constitutes a lack of diligence
“depend[s] on the circumstances of each case,” because “the
propriety of refusing a claim is equally predicated upon the
gravity of the prejudice suffered . . . and the length of [the]

18 Papanikolas Bros., 535 P.2d at 1260.
19 See id.
20 Id.
21 Id. at 1261.
22 Id. at 1258, 1260.
23 Id. at 1260.
24 Id.
25 Id.
26 Id.
13 	No. 20090859
delay.” 18 	In determining whether to apply the doctrine of
laches, we consider the relative harm caused by the petitioner’s
delay, the relative harm to the petitioner, and whether or not
the respondent acted in good faith. 19 	Further, “reasonable delay
caused by an effort to settle a dispute does not invoke the
doctrine of laches.” 20
¶29 	In our 1975 case, Papanikolas Bros. Enterprises v.
Sugarhouse Shopping Center Associates, we thoroughly explored the
way Utah courts apply the doctrine of laches. 	There we held that
a district court did not abuse its discretion in finding that the
plaintiffs’ claims were not barred by laches. 21 	In that case,
the defendants built a structure that encroached on a parking
easement owned by the plaintiffs. 22 	When the plaintiffs noticed
the defendants building the structure, they promptly contacted
the defendants to object. 23 	The parties’ lawyers exchanged
letters, and significantly, over the next few months, the
defendants attempted to negotiate a purchase of the plaintiffs’
interest. 24 	Eighteen months after first noticing the building of
the structure, the plaintiffs sued to enforce the restrictive
covenant that created the easement. 25 	The defendants urged
laches as a bar to enforcement. 26 	We held that there was “not
the same imminent necessity for early enforcement of demands” as
might have existed before the conditions became fixed because the
defendants had “openly defie[d] [the plaintiffs’] known rights,”
without any indication of “assent or abandonment of intent to
oppose on the part of [the plaintiffs],” and because the

27 Id. at 1260-61 (internal quotation marks omitted).
28 The district court’s memorandum decision stated, “In
accord with the order and timetable discussed at the November 7th
hearing, all parties in interest are invited to provide the Court
with their specific suggestions for reforming the Trust within
the framework and principles provided by this Memorandum
Decision.”
No. 20090859 	14
plaintiffs’ delay caused “no substantial harm” to the
defendants. 27
¶30 	The facts of the case now before us could not be more
starkly different. 	The district court finalized its modification
of the UEP Trust in October 2006 after nearly a year of
discussion and an invitation to interested parties to make
suggestions for modification. 28 	The order reforming the Trust
was never appealed. 	The FLDS Association filed this petition
over four years after the Utah AG had intervened, over four years
after the special fiduciary had been appointed, and nearly three
years after the district court had modified the Trust. 	This
amounts to at least twice the length of time that the plaintiffs
in Papanikolas Bros. waited. 	The FLDS Association’s brief does
not explain why the Association waited so long to challenge the
Trust’s reformation. 	But the FLDS Association’s numerous
complaints about the special fiduciary’s administration of the
Trust make clear it was not because the Association was unaware
of the modification. 	Although the opposition briefs cite the
FLDS Association’s delay as a reason for this court to dismiss
the petition, the FLDS Association does not respond with
explanations as to why this delay is reasonable. 	Where in
Papanikolas Bros. it was clear that the plaintiffs’ negotiations
with the defendants might have given them reason to delay
litigation, here there were no discussions held with the district
court until November 2008--nearly two years after the Trust had
been modified and over three years after the litigation began--
despite assurances by the court that participation was welcome.
This delayed first contact with the district court spawned
negotiations between the interested parties, who agreed to stay
litigation in an effort to avoid the sale of certain Trust
property. 	But these negotiations do not make the case for
applying the doctrine of laches any less compelling. 	Unlike the
prompt negotiations in Papanikolas Bros., these discussions came
nearly two years after the act now complained of by the FLDS
Association--the district court’s reformation of the Trust.
Negotiations entered into nearly two years after events that
formed the basis of a complaint do not excuse a nearly three-year
delay in petitioning this court for extraordinary relief.

15 	No. 20090859
¶31 	Additionally, the FLDS Association’s silence during the
Trust reformation process and the Trust’s subsequent
administration gave the district court every reason to believe
that the reformation had occurred without opposition. 	Indeed,
while the FLDS Association disagrees with the district court’s
application of the law, the court’s motive appears to be
protection of the beneficiaries’ charitable interests, not
defiance of FLDS Association members’ rights under the Trust.
¶32 	Because of the three-year delay in the face of
invitations by the district court to participate, and because
this delay did not occur under circumstances that might excuse
it, such as prompt negotiations aimed at avoiding litigation, or
under circumstances that might make us otherwise hesitant to
apply the doctrine of laches, the FLDS Association has
demonstrated a lack of diligence in filing this petition.
¶33 	This lack of diligence has caused injury to those who
relied on the Trust’s modification during the FLDS Association’s
delay. 	The Utah AG aptly describes how the FLDS Association’s
delay has worked to the disadvantage of others:
In the meantime, the Special Fiduciary
reasonably relied on the presumptively valid
appointment and reformation orders. 	He has
made choices over the years, many expressly
approved by Judge Lindberg, that cannot be
undone. 	He has incurred irrevocable
obligations and expenses for the Trust during
the last four years. 	Other interested
persons, including Trust Participants who are
not members of the Petitioner association,
have also made irreversible decisions and
changed their positions based on these
unappealed and heretofore unchallenged final
orders.
¶34 	Further, the Original Interested Individuals, whose
looming default judgments led to the district court’s reformation
of the Trust, have expressed that their settlements with the
Trust were predicated upon the Trust’s reformation. 	That is,
“[h]ad it not been for the UEP Trust’s reformation, the Original
Interested Individuals would never have settled their lawsuits
against the Trust.” 	The FLDS Association’s delay in filing this
petition has injured the Original Interested Individuals because
it has caused the Individuals to change positions on their own
claims, and any relief we granted the FLDS Association would

29 534 F.3d 1245, 1250, 1269 (10th Cir. 2008).
No. 20090859 	16
operate against the interests of the Original Interested
Individuals.
¶35 	In sum, many individuals have relied upon the district
court’s final order from over three years ago, and the FLDS
Association has given no adequate explanation for its delay in
appealing or otherwise petitioning for relief. 	The FLDS
Association has shown a lack of diligence in challenging the
modification of the Trust, and this lack of diligence has
operated to the detriment of others. 	The FLDS Association offers
no adequate explanation for its delay and no other circumstances
exist that might make us otherwise hesitant to apply laches.
Accordingly, we dismiss the FLDS Association’s Trust modification
claims pursuant to the doctrine of laches.
II. 	THE FLDS ASSOCIATION’S TRUST ADMINISTRATION CLAIMS ARE ALSO
BARRED BY LACHES, EXCEPT ONE THAT IS NOT RIPE FOR OUR
CONSIDERATION
¶36 	The FLDS Association’s remaining claims, many of which
merely recharacterize its first claim, either suffer from the
same lack of diligence as its Trust modification claims and are
also barred by laches, except one claim that is barred because
it is not ripe for our consideration. 	The FLDS Association
claims that the continuing administration of the Trust violates
its members’ constitutional rights. 	The FLDS Association cites
Colorado Christian University v. Weaver--a case that held
unconstitutional publicly funded scholarships for students
attending public, private, and sectarian, but not pervasively
sectarian universities 29 --for the propositions that the
Establishment Clause forbids discrimination within and among
religions, intrusive inquiry into religious matters, and forcing
people to choose between their religious beliefs and government
benefits. 	The FLDS Association complains of five actions taken
by the district court--characterized as pertaining to the
administration of the Trust--that the Association feels are
constitutionally infirm.
¶37 	But the first four of these actions either occurred
before or as part of the district court’s modification of the
Trust and, just as the modification claims discussed in Part I,
could have been and should have been brought three years ago.
For instance, the FLDS Association first claims that the district
court did not properly consider the special fiduciary’s
background and qualifications before selecting him. 	But the
special fiduciary was selected before the Trust was modified.

17 	No. 20090859
The FLDS Association next claims that the court improperly
allowed FLDS detractors to take the “laboring oar” in drafting
the reformed Trust. 	But this claim is really a
recharacterization of the claim discussed in Part I, because it
goes to the Trust’s modification and not its subsequent
administration. 	The FLDS Association’s third claim--that the
Special Fiduciary and the individuals who sued the Trust openly
shared with the court that their purpose in reforming the Trust
was to transform FLDS culture and liberate the FLDS people--also
goes to the modification of the Trust rather than its
administration. 	The fourth claim complains that the advisory
board that the district court selected consisted of enemies of
the FLDS Church. 	But the advisory board was created by the
district court’s December 2005 order, issued ten months before
the Trust was modified.
¶38 	To the degree that any of these claims actually go to
Trust administration and are not merely recharacterizations of
the modification claims, any claims arising out of events that
occurred during or before Trust modification suffer from the same
defects as the FLDS Association’s first claims: 	a lack of
diligence and prejudice resulting from that lack of diligence.
Here again, the FLDS Association could have brought these claims
at least three years earlier. 	In the interim, parties have
changed their positions, Trust participants have made
irreversible decisions, and the special fiduciary has entered
into irrevocable transactions and obligations. 	For the same
reasons as discussed in Part I, these claims are barred by the
equitable doctrine of laches.
¶39 	Only the FLDS Association’s fifth claim arises from
facts that occurred after the Trust was modified. 	Here the FLDS
Association alleges that the district court endorsed a religious
test that would give former FLDS members outright deeds to Trust
property but would relegate current and practicing FLDS members
to receiving spendthrift trusts based on the concern that they
might deed their property back to FLDS Church leaders. 	It
alleges that taking FLDS members’ religion into consideration
when determining eligibility for transfers of property from the
Trust violates the members’ First Amendment rights by forcing
them to choose between their religion and a government benefit.
¶40 	But even on its face, the FLDS Association’s last claim
is not ripe. 	The ripeness doctrine “serves to prevent courts

30 State v. Ortiz, 1999 UT 84, ¶ 2, 987 P.2d 39; see also
Clegg v. Wasatch Cnty., 2010 UT 5, ¶ 26, 227 P.3d 1243.
31 Bodell Constr. Co. v. Robbins, 2009 UT 52, ¶ 29, 215 P.3d
933 (emphasis added) (internal quotation marks omitted); see also
Utah Safe to Learn-Safe to Worship Coal., Inc. v. State, 2004 UT
32, ¶ 20, 94 P.3d 217 (“[A]n issue is not ripe for review where
there is no actual or imminent clash between the parties.”
(internal quotation marks omitted)).
32 See Bd. of Trs. v. Keystone Conversions, LLC, 2004 UT 84,
¶ 32, 103 P.3d 686 (declining to reach the merits of the
appellant’s argument because the appellant’s claim of harm was
purely hypothetical and not yet realized).
No. 20090859 	18
from issuing advisory opinions” on issues that are not ripe for
adjudication. 30
A dispute is ripe when a conflict over the
application of a legal provision has
sharpened into an actual or imminent clash of
legal rights and obligations between the
parties thereto. 	An issue is not ripe for
appeal if there exists no more than a
difference of opinion regarding the
hypothetical application of a provision to a
situation in which the parties might, at some
future time, find themselves. 31
An issue is not ripe, for instance, in a situation where even if
we agree with the petitioner’s legal analysis of an issue, such
an analysis would have no application to the facts the petitioner
alleges. 32 	Even if we were to agree with the FLDS Association’s
assertion that district court relegation of FLDS Church members
to receiving spendthrift trusts on the basis of their religion
would violate the state and federal constitutions, that analysis
would not apply to the facts the FLDS Association has alleged.
¶41 	The FLDS Association does not allege that either the
district court or special fiduciary has actually used religion as
a factor in determining how to parse out property. 	It does not
cite any instance where an active FLDS member received a lesser
delegation of property because of his or her religious beliefs.
So, the FLDS Association does not assert an “actual” clash of
legal rights. 	And given the district court’s and the special
fiduciary’s assertions both in district court hearings and at
oral argument in this case that a religious test would not be
imposed--a position the FLDS Association acknowledges the special

19 	No. 20090859
fiduciary has taken--such a clash does not seem “imminent,” but
rather merely “hypothetical.” 	At most, the discussions the FLDS
Association cites evince a concern shared by the district court
and the special fiduciary that, without careful planning, Trust
distributions could lead to the creation of a new trust
containing many of the same attributes that have, on more than
one occasion, landed the UEP Trust in Utah courts. 	But this does
not mean that the district court “actually” has or “imminently”
will use religion to discriminate against FLDS members, so this
last claim is not ripe for our review.
¶42 	Because most of the FLDS Association’s Trust
administration claims suffer from the same lack of diligence and
resultant prejudice as its modification claims, those claims are
also barred by the equitable doctrine of laches. 	The FLDS
Association’s claim that the district court might use religion as
a basis for determining property distributions is not ripe
because the FLDS Association does not allege that such
discriminatory distributions have actually occurred or are
imminent.
CONCLUSION
¶43 	The FLDS Association was not diligent in challenging
the district court’s modification of the UEP Trust, and that lack
of diligence has resulted in prejudice to numerous parties.
Therefore, the FLDS Association’s Trust modification claims are
barred by the equitable doctrine of laches. 	The FLDS
Association’s remaining Trust administration claims suffer from
the same lack of diligence and resultant prejudice and are
similarly barred by laches, except for one claim that is barred
because it is unripe for adjudication. 	Accordingly, we decline
to reach the merits of these claims and dismiss the FLDS
Association’s Petition for Extraordinary Writ.
---
¶44 	Chief Justice Durham, Justice Parrish, Justice Nehring,
and Judge Thorne concur in Associate Chief Justice Durrant’s
opinion.
¶45 	Court of Appeals Judge William A. Thorne sat.