H. RUSSEL HOLLAND, District Judge.
The constitutional right to free exercise of religion, on the one hand, and the statutory right to housing and constitutional policing, on the other hand, are vitally important to a viable, peaceful community. In Colorado City, Arizona, and the City of Hildale, Utah, those rights have come into conflict over access to residential housing and services. Denial of housing rights and lawful policing to some residents at the behest of the Fundamentalist Church of Jesus Christ of Latter Day Saints ("FLDS Church") has cost the cities dearly — millions of dollars — in the past.
When a disastrous flood hit the cities, the residents came together and successfully addressed their losses. It is now time for the citizens of Colorado City and City of Hildale to come together and accept the fact that communal ownership of residential property in the Defendant Cities is a thing of the past. All residents of the Defendant Cities must be afforded equal access to housing and residential services, to nondiscriminatory law enforcement, and to free exercise of their religious preferences that are not contrary to law. By this judgment and decree, the court hopes to assist the Defendant Cities and their residents in advancing the protection of civil rights to which they are entitled.
This case began with the filing of a complaint by the United States of America seeking enforcement of the Violent Crime Control and Law Enforcement Act of 1994 (the Policing Act), 42 U.S.C. § 14141 (plaintiff's first cause of action); the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601,
After extensive discovery and motion practice, the case went to trial on January 19, 2016. Plaintiff's Fair Housing claim was tried to a jury. Plaintiff's policing claim was tried to the same jury on an advisory basis. On March 7, 2016, the jury returned unanimous verdicts in favor of the United States and against Colorado City, City of Hildale, and Twin City Water Authority with respect to plaintiff's Fair Housing Act claim. As to each defendant, the jury determined that the respective defendants had "engaged in a pattern or practice of conduct that violated the federal Fair Housing Act by:"
Having determined liability against the defendants, the jury awarded "damages" for emotional distress, humiliation, and embarrassment in the total amount of $2,215,000 in favor of six identified victims of the defendants' Fair Housing Act violations. While the jury was deliberating as to the Fair Housing Act claim, plaintiff and defendants entered into an oral settlement by which the defendants agreed to pay plaintiff (and the victims) the total sum of $1,600,000 on account of Fair Housing Act violations by the defendants and in satisfaction of all monetary claims of plaintiff against the Defendant Cities. That settlement was reduced to writing
With respect to plaintiff's policing claim, 42 U.S.C. § 14141, the advisory jury found that the Colorado City Marshal's Office ("CCMO"), which serves both Colorado City and the City of Hildale, engaged in a pattern or practice of unconstitutional policing in violation of the Establishment Clause of the First Amendment of the United States Constitution;
By order of March 25, 2016,
(1) The Town of Colorado City is a municipal entity organized under the laws of the State of Arizona. Colorado City was incorporated in 1985. The City of Hildale was organized under the laws of the State of Utah. The Defendant Cities share a common boundary, which is also the boundary between the states of Arizona and Utah. The Defendant Cities have separate city councils, mayors, and managers.
(2) Defendant Twin City Water Authority was an entity operated by Colorado City for purposes of supplying potable water to residents of the Defendant Cities.
(3) The Defendant Cities jointly fund the Colorado City Marshal's Office which provides law enforcement for both Defendant Cities. The CCMO currently employs a chief marshal, a sergeant, and five deputy officers. The chief marshal of Colorado City is also the chief of police for Hildale. CCMO officers are employees of the Town of Colorado City. At the time of trial, the CCMO consisted of Chief Jerry Darger (brother of Colorado City town manager, David Darger), Sergeant Sam Johnson, and Deputies Chris Cooke, Hyrum Roundy, Jacob Barlow, Jr., Daniel Musser, Daniel Roy "DR" Barlow, and Shem Jessop. Colorado City operates a dispatch center that provides emergency services (police, fire, medical) for both Colorado City and the City of Hildale.
(4) The Colorado City town council has the authority to hire new police officers. The chief marshal has the authority to discipline or terminate police officers subject to applicable grievance procedures. CCMO officers are certified in both Utah and Arizona. The Arizona POST (Peace Officers Standards and Training) is a state agency that certifies police officers to work in Arizona. Utah POST is a state agency that certifies police officers who work in Utah. The CCMO officers are dually certified by the Arizona and Utah POSTs.
(5) Colorado City and the City of Hildale are sometimes collectively referred to as "Short Creek." The Short Creek community was established as a fundamentalist Mormon settlement in the late 1920s. The community is predominantly composed of fundamentalist Mormons, many of whom belong to the FLDS Church.
(6) The FLDS Church is led by a prophet. From 1986 until 2002, Rulon Jeffs was the prophet of the FLDS Church. Following his death in 2002, his son, Warren Jeffs, succeeded him as prophet. Warren Jeffs is in federal prison, from which he has continued to communicate with FLDS Church members in Short Creek. The FLDS Church in Short Creek also has a bishop. From1936 until 2003, Fred Jessop served as bishop of the community. William E. Jessop succeeded Fred Jessop, serving until 2007. Lyle Jeffs succeeded William E. Jessop as bishop, and appears to have served as bishop through the trial of this case. Lyle Jeffs is under indictment for food stamp fraud in Utah and has absconded from pretrial release.
(7) The early settlers of Short Creek decided for religious reasons to hold real property in common and, to accomplish this, created a religious land trust: the United Effort Plan Trust ("UEP Trust"). The UEP Trust was organized under the laws of the State of Utah. The UEP Trust was formed to hold, manage, and distribute real property and other religious consecrations. The UEP Trust made real property and other consecrated property available to members of the FLDS Church on a need basis. It was and is a principal tenet of the FLDS Church that all property of members be consecrated to the church.
(8) In 2005, at the request of the State of Utah, the Utah probate court took control of the UEP Trust away from the FLDS Church and appointed Bruce Wisan, an accountant from Salt Lake City, as the trustee or special fiduciary to oversee the UEP Trust property. The UEP Trust is required to operate as a religiously neutral entity. Mr. Wisan served as the special fiduciary for the UEP Trust until 2015, at which time he began to transition management and control to a board of trustees.
(9) The FLDS Church leadership and members have vigorously opposed Utah's assumption of control of the UEP Trust. Members were instructed not to respond and not to cooperate with anyone with respect to the neutral operation of the UEP Trust. Members were directed not to associate with Bruce Wisan. Members were directed to stop developing the community and to contribute their assets to a different project of the FLDS Church in Texas.
(10) FLDS Church opposition to the UEP Trust was formalized in November of 2008 in an effort to secure the removal of Bruce Wisan as the UEP Trust administrator. FLDS Church members signed a "Declaration of Beneficiaries" which stated in part:
(11) Beginning in 2008, under the direction of the Utah probate judge and Mr. Wisan, the UEP Trust began requiring occupants of Trust property to execute occupancy agreements in order to live in a home on Trust property. Occupancy agreement holders were to pay $100 a month, plus a share of real estate taxes assessed by the county, to live on a Trust property. At various times, FLDS Church members refused to sign occupancy agreements and/or refused to pay the $100-a-month occupancy fee. At other times, members of the FLDS Church signed occupancy agreements as a means of maintaining control of property. The FLDS Church has caused its members to move from one UEP Trust property to another UEP Trust property without involving the Trust or securing permission from the Trust as owner of the property.
(12) The UEP Trust's use of occupancy agreements and Mr. Wisan's efforts to enforce those occupancy agreements have led to much civil disobedience and unrest. There has been vandalism of property occupied by non-FLDS Church members. CCMO officers have been heavily involved in disagreements between FLDS Church members who have occupied Colorado City properties as to which others have occupancy agreements. Mr. Wisan's efforts to employ self-help in gaining control of UEP Trust property have sometimes gone awry because of spurious claims of FLDS Members and due to discriminatory policing by CCMO officers. Rather than endeavoring to keep the peace, officers have sometimes inappropriately taken sides in occupancy disputes, and have engaged in unreasonable arrests of non-FLDS Church members. In short, control of Colorado City property is at the heart of the problems which have arisen with respect to housing and policing in Colorado City.
(13) The ownership of land in Colorado City is a patchwork of properties, the majority of which is owned by the UEP Trust. There has not been a formal subdivision of Colorado City properties; however a de facto subdivision has developed over time. With the assistance of professional engineers employed by the UEP Trust and Colorado City, a proposed subdivision plat was developed. Had that process been completed, the Trust would be in a position to convey legal title to residential properties in place of the current occupancy permits. Just prior to a final meeting that was intended to finalize the proposed subdivision plat, representatives of the Trust and Colorado City (other than the engineers) became involved. As part of a pattern or practice of conduct that violated the Fair Housing Act by making housing unavailable or denying housing opportunities to individuals because of religion, Colorado City withdrew its support for developing a recordable subdivision plat for Colorado City properties.
(14) As prophet of the FLDS Church of Short Creek, Warren Jeffs assumed sweeping powers over the persons and properties of FLDS Church members. His directions as regards interaction of spouses, communal work projects, and consecration of property were enforced by threat of excommunication that would involve separation of spouses and their families, loss of employment, and banishment from the Short Creek community.
(15) In 2004, the FLDS Church organized a formal security force for purposes of providing protection to FLDS Church leaders and to keep the leadership informed as to events taking place in the community. A primary purpose of the FLDS Church security force was to afford leaders an opportunity and time to escape intervention from outside law enforcement. By 2007, the FLDS Church security had expanded to several hundred members, some of whom were CCMO officers, and organized into teams assigned to shifts and captains. City-owned cameras located on city property were connected to a control room at the FLDS Church "Meeting House." Church officials, with direct assistance from CCMO officers, were able to monitor attendance at meetings and monitor comings and goings within the community. Both CCMO officers and Church officials surveilled non-FLDS Church residents, UEP Trust representatives, and county law enforcement.
(16) Control of FLDS Church membership was further expanded beginning in 2010 through the creation of an elite sub-group of the FLDS Church known as the "United Order." Members entered into covenants precluding disclosure of their membership in the United Order or discussion of the doctrines of the United Order with anyone, including outside law enforcement officers. Members of the United Order were required to consecrate everything they owned (real estate and personal property) to the FLDS Church, where the property was inventoried and placed in the "Storehouse." Members were not supposed to obtain food or any other necessities other than from the Storehouse. A member who fell out of favor with the FLDS Church leadership could be excluded from the United Order, which appears to have been the functional equivalent of excommunication from the FLDS Church. Loss of United Order membership could lead to loss of family and loss of access to the Storehouse.
The Fair Housing Act, 42 U.S.C. § 3614(a), provides in pertinent part that:
Section 3614(d) of the Fair Housing Act further provides:
Based upon the court's instructions,
Plaintiff argues that the court should permanently enjoin the Defendant Cities from violating the Fair Housing Act, especially as regards non-FLDS individuals, in the provision of housing, utilities, and other municipal services. Plaintiff specifically urges the court to order: (1) that the Defendant Cities adopt new policies, procedures, and ordinances as regards municipal services, land use, and training, (2) that Colorado City approve the UEP Trust subdivision proposal, (3) that the Defendant Cities adopt new policies and procedures for handling building permits, and (4) that the Defendant Cities abandon discriminatory water policies and establish a new, nondiscriminatory, water policy. Plaintiff urges the court to appoint a monitor to oversee Fair Housing Act related injunctive relief.
The Defendant Cities argue that additional injunctive relief as regards the Fair Housing Act, beyond that imposed by Judge Teilborg in
Beyond a general prohibition of Fair Housing Act violations, resolution of the disagreement between Colorado City and the UEP Trust as regards the subdivision of Colorado City property is the most urgent problem. That disagreement substantially and adversely affects the occupancy and availability of residential properties (housing) for all residents of Colorado City.
Colorado City has adopted a subdivision ordinance, the legality of which is in litigation in Maricopa County Superior Court. The validity of the Colorado City subdivision ordinance is not a relevant issue in this Fair Housing Act case, nor is there any need for the court to resolve that matter for purposes of this case. Irrespective of whether the Colorado City subdivision ordinance is or is not valid, legally enforceable property descriptions are a necessary predicate to stabilizing residential property occupancy and availability in Colorado City, free of discrimination based on religious differences.
Without a resolution regarding the subdividing of Colorado City property, the use of UEP Trust occupancy agreements will continue. The FLDS Church's opposition to the UEP Trust is enabled by uncertainty as to the enforceability of occupancy agreements in Colorado City. Subdivision of Colorado City residential property will further validate the UEP Trust's ownership of property and diminish the FLDS Church's ability to disrupt or impede transfer of title to residential properties to residents of Colorado City.
The UEP Trust's engineer (Renstrom) believes that a subdivision plat is ready for recording. The court has not seen and doubts that there is in existence a Colorado City subdivision plat which Colorado City could be ordered to approve for recording. It will therefore be necessary for the UEP Trust and Colorado City to restart the process of finalizing a subdivision plat for Colorado City. Inasmuch as the UEP Trust is not a party to this case, the court is not in a position to order that it participate in the process of completing a subdivision plat. Nevertheless, the court believes that self-interest will dictate that the UEP Trust cooperate with plaintiff and Colorado City in producing a recordable subdivision plat.
The court rejects the Defendant Cities' contention that no injunctive relief is necessary as regards building permits. A requirement that the legal owner of property join in a building permit application will prevent the issuance of permits for the improvement of UEP Trust property by those who have no right to do so for lack of an occupancy permit. At present, building officials can turn a blind eye on applications to improve property by persons having no right to do so. A requirement that the legal owner sign a building permit application will impose no significant burden on either permit applicants or Colorado City.
As regards Colorado City water regulations, the initiation, termination, and/or transfer of domestic water service has been a source of Fair Housing Act violations. Plaintiff recognizes that defendant Colorado City has abandoned a former discriminatory water policy. Plaintiff argues, however, that the discriminatory ordinances remain on the books. They must be repealed. Under the court's general injunction against Fair Housing Act violations, the Defendant Cities must of course apply their existing water connection transfer policies in a nondiscriminatory fashion. Existing policies need to be reviewed and amended to assure the Defendant Cities' future compliance with the Fair Housing Act obligations.
As a consequence of the decision in
In light of the long history of antagonism between the FLDS Church and non-members, and in particular as a consequence of the entanglement of the FLDS Church and the Defendant Cities, and in light of the history of Fair Housing Act violations, a general review of the Defendant Cities' policies, procedures, and ordinances as regards non-discrimination in municipal services, land use, and training of city employees is in order. Engagement of an independent monitor by the Defendant Cities for purposes of assessing compliance with the court's injunction and the requirements of the Fair Housing Act is deemed both appropriate and necessary.
A.
Section 14141(b) authorizes civil actions by the Attorney General for violation of subsection (a), and provides that "the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice."
Based upon detailed instructions,
The court and plaintiff disagreed on one aspect of the Policing Act instructions employed by the court. The court specifically instructed the jury that:
Even if erroneous, the court's instruction does plaintiff no harm. The jury found that a pattern or practice of unlawful policing had been established as regards all three of plaintiff's constitutional claims. A finding by the advisory jury and/or court of a pattern or practice of violating any one of the three constitutional amendments in question would entitle plaintiff to relief; and knowing the jury's thinking about the separate constitutional claims has informed the court as to the jury's thinking as to each amendment, which in turn will help inform the court as regards the nature and extent of remedies to be imposed.
B.
(1) The CCMO and other city officials subscribed to the beliefs of and were subject to pressure from the FLDS Church.
(2) The CCMO officers and city officials personally opposed the non-FLDS administration of the UEP Trust.
(3) The FLDS Church selected and controlled the CCMO and city officials.
(4) City officials sought and received direction regarding their official duties from the FLDS Church.
(5) The CCMO is entangled with FLDS security.
(a) The CCMO and FLDS Church security worked together to guard FLDS leadership and monitor outside law enforcement in the cities.
(b) The CCMO improperly provided training and equipment to FLDS security.
(c) The CCMO illegally shared law enforcement information with FLDS Church security.
(d) The CCMO aided FLDS Church security's harassment of non-FLDS members.
(6) CCMO officers and other city officials communicated with and financially supported FLDS Church's Prophet Warren Jeffs while he was a federal fugitive.
(7) The Defendant Cities engaged in the religiously biased hiring of three CCMO officers in 2014.
(8) Based upon the foregoing findings, the Defendant Cities, through the CCMO, engaged in a pattern or practice of discriminatory policing in violation of the Establishment Clause of the First Amendment to the United States Constitution. That pattern or practice fostered excessive government entanglement with religion — a fusion of government and religion — that had the purpose or effect of endorsing, favoring, or promoting the FLDS Church at the expense of non-FLDS residents of the Defendant Cities.
(9) The foregoing findings as regards the Establishment Clause are relevant with respect to equal protection, for those findings reflect that FLDS Church leadership insisted upon city officials and CCMO officers advancing church and church members' interests in preference to the needs and interests of non-FLDS Church residents of the Defendant Cities.
(10) CCMO officers turned a blind eye to criminal activity involving FLDS Church leaders or members. The officers supported Warren Jeffs when he was a fugitive,
(11) CCMO officers stood by while FLDS Church security effected a burglary at R&W Excavation, which had the purpose of stealing evidence of criminal activity by FLDS Church leader Warren Jeffs that had been gathered by a former FLDS Church member and owner of the R&W business.
(12) CCMO policing — especially as to land access and use — was heavily slanted in favor of the FLDS Church and its members and against non-FLDS residents of the Defendant Cities. CCMO officers failed to provide effective police services to non-FLDS Church members and the UEP Trust and its representatives. In particular, officers arrested and harassed non-FLDS individuals for alleged trespassing on property, for which they had UEP Trust issued occupancy agreements, while accepting FLDS members' spurious occupancy claims, and otherwise assisting FLDS Church members in resisting the transfer of possession of UEP Trust property to non-FLDS members. Overall, there was a lack of training as regards investigation and handling of landlord/tenant/trespass incidents, and CCMO reporting and record-keeping procedures were sloppy. CCMO handling of civil disobedience by FLDS members, especially as regards the occupancy of property, was inept and violative of non-FLDS residents' equal protection rights. Reports were sometimes not timely completed. Other reports were modified without preservation of the originals.
(13) CCMO officers refused to provide police services to UEP Trust's agent Wyler, who was viewed as an apostate working for the non-FLDS Trust.
(14) CCMO officers harassed and arrested or threatened to arrest Bishop William E. Jessop, failed to provide services and arrested Richard Holm, and arrested Jerold N. Williams because of their status as excommunicated FLDS members.
(15) CCMO officers ordered Christopher Jessop off property he occupied under a UEP Trust occupancy agreement on the theory that it was "church property."
(16) CCMO officers discriminated against non-FLDS member Guy Timpson by unreasonably arresting him in 2014 for trespass on a UEP property for which he had obtained an occupancy agreement while Timpson was in the process of posting an eviction notice to remove the occupant of the property who was a brother of FLDS leaders.
(17) CCMO officers blocked non-FLDS member Patrick Pipkin from entering his home in 2005, even when he obtained a UEP occupancy agreement, because Church leaders had directed Pipkin to leave the home and community.
(18) CCMO officers unreasonably arrested non-FLDS members Patrick Pipkin and Andrew Chatwin twice for trespassing after they had completed a commercial eviction for the UEP property formerly used as a zoo.
(19) Based on the foregoing findings, the Defendant Cities' CCMO engaged in a pattern or practice of conduct that violated the Equal Protection Clause of the United States Constitution by selectively enforcing the law based upon religion.
(20) CCMO officers properly came into possession of a horse owned by Lydia Stubbs. The defendants wrongfully seized the horse by causing it to be euthanized, despite the fact that CCMO officers knew that Lydia Stubbs was owner of the horse.
(21) The advisory jury found that the CCMO violated the Fourth Amendment by the unauthorized seizure of a person. The court believes that this finding was based upon the brief detention of Steven Bateman. The advisory jury also found that plaintiff had not established any unreasonable investigatory stop. The court finds that the CCMO officers' contact with Mr. Bateman was an investigatory stop which was, under all of the circumstances, not unreasonable in nature or duration. It was not an unauthorized seizure of a person.
(22) The court concurs in the jury's advisory finding that the CCMO did not engage in the unreasonable search of property, unreasonable investigatory stops, or the use of excessive force in making a lawful arrest. The court further finds that the unlawful arrests effected by CCMO officers did not involve the use of excessive force.
(23) The arrest of Isaac Wyler in September of 2015, the arrest of Patrick Pipkin and Andrew Chatwin in October of 2015, the arrest of Richard Holm in July of 2015, the arrest of Guy Timpson in 2014, the arrest of Jerold N. Williams in 2012, and the arrest of William E. Jessop were all effected without probable cause.
(24) Based on the foregoing findings, Defendant Cities' CCMO engaged in a pattern or practice of conduct that violated the unreasonable seizure of property and arrest without probable cause aspects of the Fourth Amendment of the United States Constitution.
(25) Whether considered separately or in combination, the evidence produced at trial establishes by a preponderance of the evidence that Colorado City, the City of Hildale, and their CCMO engaged in a pattern or practice of violating the Establishment Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Fourth Amendment of the United States Constitution.
(26) The United States Department of Justice has investigated the operations of numerous, large police departments which were alleged to have engaged in discriminatory policing in violation of 42 U.S.C. § 14141. Despite allegations of extensive and extreme wrongdoing which has led to serious personal injury or death and rioting with extensive property damage, none of those investigations resulted in the disbandment of local police organizations.
(27) The Defendant Cities' CCMO has been deficient in many respects as discussed above. The CCMO has suffered an unusually high rate of decertification by the Arizona and/or Utah POST. CCMO policies and training of CCMO officers (especially in the handling of landlord/tenant/trespass matters and the enforcement of UEP occupancy permits) have been deficient. Report-writing and record preservation have been deficient. Oversight of the CCMO by officials of the Defendant Cities has been deficient.
(28) Despite the foregoing deficiencies, the court finds that the problems at the CCMO are not so grave that the court should deprive the citizens of the Defendant Cities of the opportunity to police themselves. The court deems disbandment of the CCMO as a last resort that should be employed only if less drastic remedies fail.
(29) Disbandment of the CCMO and substitution of Mohave County (Arizona) and Washington County (Utah) sheriffs' deputies would either be unreasonably expensive or would produce a lower level of police protection. Disbandment would approximately double the cost of law enforcement for the Short Creek community or would necessitate a reduction in police protection.
C.
(1) The CCMO of Colorado City and the City of Hildale violated 42 U.S.C. § 14141 by engaging in a pattern or practice of policing that violated the Establishment Clause of the First Amendment of the United States Constitution.
(2) The CCMO of Colorado City and the City of Hildale violated 42 U.S.C. § 14141 by engaging in a pattern or practice of policing that violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.
(3) The CCMO of Colorado City and the City of Hildale violated 42 U.S.C. § 14141 by engaging in a pattern or practice of policing that violated the Fourth Amendment of the United States Constitution in the following respects: unreasonable seizure of property and arrests without probable cause.
(4) Plaintiff and the Defendant Cities have come forward with separate, competing proposals for injunctive relief: disbandment versus reorganization. Disbandment would in this case be the ultimate sanction and would be disproportionate in light of the nature and seriousness of the Policing Act violations found by the advisory jury and the court. The relief plaintiff seeks is not reasonably tailored to address CCMO wrongdoing.
(5) At this time, the court is unwilling to give up on community policing for Short Creek by the Defendant Cities' CCMO. The court is unpersuaded by plaintiff's arguments that the CCMO should be disbanded. However, given the nature and extent of the violations of the Policing Act found in connection with the Defendant Cities' CCMO, simply enjoining future constitutional violations is insufficient. The CCMO's Chief Marshal and officers are plainly in need of training and supervision. The policies and procedures of the CCMO need to be reviewed and revised as detailed in Section V.B. Engagement of an outside Consultant and independent Mentor for the Chief Marshal by the Defendant Cities for purposes of assuring future compliance with the requirements of the Policing Act, facilitating reformation of the CCMO, and compliance with Section V.B is deemed both appropriate and necessary.
A.
In this case, irreparable harm is presumed because the Defendant Cities have violated civil rights statutes.
B.
(1) they shall not engage in any conduct that
(2) Within 15 days of the date upon which court approval of the selection of a Consultant is granted, Defendant Cities, at their expense, shall engage the services of a professional consultant in the field of policing and compliance with national guidelines for constitutional policing. The parties shall confer regarding the selection of a Consultant and provide the court with an agreed-upon selection within 30 days of the entry of this injunction. If the parties are unable to reach agreement on a Consultant within 30 days of the entry of this injunction, the parties shall, within 40 days of the entry of this injunction, each submit the name(s) of a potential consultant(s) to the court, and the court shall select one or more persons or entities to serve as the Consultant from among the candidates proposed by the parties.
(3) With the assistance of the Consultant, the Defendant Cities:
C.
(1) They shall not engage in any conduct that violates Section 3604(a), (b) or Section 3617 of the Fair Housing Act; in particular, the Defendant Cities are enjoined from:
(2) Plaintiff shall initiate renewed discussions between the UEP Trust representatives and Colorado City representatives as regards approval of a subdivision plat of Colorado City. Engineers for the Trust and for Colorado City shall be involved, and they (the engineers) shall identify any issues requiring resolution — and steps to be taken to resolve them — for purposes of creating a final, recordable subdivision plat of Colorado City.
(3) Within 30 days of the entry of this injunction, the Defendant Cities shall develop and submit to the United States for its approval: objective, uniform, non-discriminatory policies and procedures to govern the operation of the Defendant Cities' building department and the functions of the Defendant Cities' building official(s) ("Building Department Policies and Procedures") related to handling building permits and applications for associated licenses and certificates, including but not limited to building permit application requirements, the plan review process, building inspections, bases for permit application denials and permit revocations, and the assessment of fees.
(4) The Building Department Policies and Procedures shall specifically include the following:
(5) Within 30 days of the United States' approval of the Building Department Policies and Procedures, the Defendant Cities shall implement the Building Department Policies and Procedures and make them available upon request in any office where municipal business is conducted or where the Defendant Cities' employees or officials regularly interact with members of the public.
(6) Upon the United States' approval of Building Department Policies and Procedures, no building permit shall be issued on any application that does not include the signature of the property owner or the owner's agent or representative.
(7) The Building Department Policies and Procedures may be modified only if written notice is given to counsel for the United States and to the Monitor (see paragraph 29 below) 30 days before the proposed modifications are to take effect and the United States and the Monitor make no objection thereto. The notice referenced in this paragraph must specify the modification requested and any documentation supporting the modification.
(8) The Building Department Policies and Procedures may not be enforced in a manner that discriminates based upon religion.
(9) Within 30 days of the entry of this injunction, the Defendant Cities shall repeal outdated water service access regulations based on "new water" requirements and, within 60 days of the entry of this injunction, shall develop and submit to the United States for its approval proposed amendments to their Water Services Regulations to specify that, in order to transfer an existing water connection from the name of an existing customer to the name of a new customer where the existing customer has not applied to transfer service to the new customer's name, the new customer need only: (a) attest, under penalty of perjury, by signing and submitting the application for utility services, that the new customer owns the property for which he/she is seeking a utility connection or has the owner's permission to occupy or obtain utility services at the property, and (b) show proof of ownership of the property, permission to occupy, or obtain utility services at the property. Such documentation may take the form of a deed or an occupancy agreement, rental agreement, lease, or other document showing permission by the owner to occupy or seek utility services.
(10) Under the revised Water Services Regulations, in order to transfer service for water or any other utility service, the Defendant Cities shall not require new customers to: obtain the permission of the existing customer by using the Utility Services Disconnect or Termination Application form or by any other means; provide proof that the new customer has extinguished all other potential occupants' rights to the property at issue; or wait any period of time for utility service to be transferred so that the existing customer can be contacted if the new customer provides the attestation and proof of ownership or the right to occupy or obtain utility services described in the preceding paragraph.
(11) Within 30 days of the United States' approval of the revised Water Services Regulations, the Defendant Cities shall implement the revised Water Services Regulations and make them available upon request in any office where municipal business is conducted or where the Defendant Cities' employees or officials regularly interact with members of the public.
(12) The Water Services Regulations may be modified only if written notice is ore the proposed modifications are to take effect and the United States and the Monitor make no objection thereto. The notice referenced in this paragraph must specify the modification requested and any documentation supporting the modification.
(13) The Water Services Regulations may not be enforced in a manner that discriminates based upon religion.
(14) The court shall appoint, using the procedures set forth below, a licensed engineer or engineering firm ("Engineer") to perform a review of the Defendant Cities' culinary water impact fee.
(15) The parties shall confer regarding the selection of the Engineer and provide the court with an agreed-upon selection within 60 days of the entry of this injunction. If the parties are unable to reach agreement on an Engineer within 60 days of the entry of this injunction, the parties shall, within 70 days of the entry of this injunction, each submit the name(s) of a potential Engineer(s) to the court, and the court shall select one or more persons or entities to serve as the Engineer from among the candidates proposed by the parties.
(16) Within 90 days of the court's appointment of the Engineer, the Engineer shall perform a review of the Culinary Water Impact Fee Facilities Plan & Impact Fee Analysis for the Defendant Cities conducted by Sunrise Engineering and, after consultation with representatives of the UEP Trust, including the Trust's retained Engineer, the Defendant Cities, and any other person or entity the Engineer deems necessary, provide the parties and the court with an updated Culinary Water Impact Fee Facilities Plan and Impact Fee Analysis ("Updated Impact Fee Report").
(17) Should the Updated Impact Fee Report recommend a maximum eligible impact fee that is lower than the Defendant Cities' current impact fee, the Defendant Cities shall revise their existing impact fee accordingly within 35 days.
(18) The Engineer shall have timely, full, and direct access to any of the Defendant Cities' officials or employees, documents, data, or any other information in the Defendant Cities' possession, custody, or control that the Engineer deems necessary to produce the Updated Impact Fee Report.
(19) The Defendant Cities shall bear the cost of and cooperate freely and fully with all reasonable activities and requests of the Engineer.
(20) The Engineer shall not be considered an employee or represented party of the Defendant Cities for purposes of Arizona Rule of Professional Conduct 4.2.
(21) Except as indicated in paragraph 17, above, the amount of any impact fee for culinary water connections may only be modified if written notice is given to counsel for the United States and the Monitor 30 days before the proposed modification is to take effect and the United States and the Monitor make no objection thereto. The notice referenced in this paragraph must specify the new impact fee amount and must include any reports or analyses supporting the modification. The Culinary Water Impact Fee Plan shall be reviewed by a licensed engineer or engineering firm at no less than five-year intervals.
(22) Within 90 days of the entry of this injunction, the Defendant Cities shall develop publicly available internet websites for each municipality, if such websites do not already exist. The Defendant Cities shall maintain these websites with the information specified below for the duration of this injunction.
(23) The Defendant Cities shall prominently post on the "home page" for each website the following:
(24) Within 90 days of the entry of this injunction, and annually thereafter for the duration of this injunction, the Defendant Cities shall provide in-person training on the requirements of this injunction, the policies, procedures, and regulations, and ordinances adopted or amended pursuant to Section V.C of this injunction, the requirements of the First Amendment, the Fourth Amendment, and the Fourteenth Amendment to the United States Constitution, and the requirements of the Fair Housing Act to the following individuals: (1) all city council members; (2) all elected officials, including the mayors of the Defendant Cities; (3) all members of the Utility Board; (4) the city/town managers; (5) all employees or officials who have duties related to the planning, zoning, permitting, construction, or occupancy of residential housing; and (6) all employees or officials responsible for approving, initiating, or stopping the provision of water service, sewer service, waste-disposal service, or other similar, municipal services to real property. In addition to addressing the requirements identified above, the training shall specifically address the appropriate separation between municipal government, and the functions of municipal government and the FLDS Church, or any other religious entity.
(25) The training shall be conducted by a qualified third person or organization other than the Defendant Cities' counsel, and the qualified person or organization must be approved in advance by the United States. The training shall be video-recorded and will be of at least 3 hours' duration. The Defendant Cities shall bear all costs associated with the training.
(26) Within 60 days of the entry of this injunction, the Defendant Cities shall supply the name of the person(s) or organization(s) proposed to provide training pursuant to this section to counsel for the United States, together with copies of the professional qualifications of such person(s) or organization(s) and copies of all materials to be used in the training.
(27) Within 30 days of when an official or employee is hired in a position covered by paragraph 24 above, or undertakes new duties that would require him/her to attend training under the terms of this injunction, the Defendant Cities shall require such person to watch the training video and distribute to each such person copies of all written materials from the most recent training session.
(28) All persons required to attend training under the terms of this injunction shall verify, under penalty of perjury, that they attended each required training session. Verification of attendance shall be submitted to the United States, for the initial training, and to the Monitor, for all trainings thereafter.
(29) The court shall appoint, using the procedures set forth below, one or more monitors ("Monitor") who shall have the authorities and responsibilities set forth below.
(30) The parties shall confer regarding the selection of the Monitor and provide the court with an agreed-upon Monitor within 90 days of the entry of this injunction. If the parties are unable to reach agreement on a Monitor within 90 days of the entry of this injunction. the parties shall, within 100 days of the entry of this injunction, each submit the name(s) of potential Monitor(s) to the court, and the court shall select one or more persons or entities to serve as the Monitor from among the candidates proposed by the parties.
(31) The Monitor shall have the responsibility of reviewing municipal decisions by the Defendant Cities implicating the Fair Housing Act and overseeing implementation of all aspects and terms of this injunction. As part of his/her monitoring role, the Monitor shall:
(32) The Monitor shall not be considered an employee or represented party of the Defendant Cities for purposes of Arizona Rule of Professional Conduct 4.2, and counsel for the parties are not restricted in any way from communicating directly and
(33) The services, operations and facilities to be monitored include all the Defendant Cities' services, operations, and facilities provided in connection with a dwelling or associated with, affecting, or relating to housing or the ability to own or occupy a dwelling, including but not limited to culinary water (including service, supply, connections, fees, and development), building permits, subdivision approval, land use, planning and zoning, and the provision of police services affecting rights under the Fair Housing Act, irrespective of how the Defendant Cities have or shall have organized, structured, incorporated, or titled such services, operations, or facilities.
(34) The Monitor's obligations and authority shall include monitoring for compliance with this injunction by the Defendant Cities' councils, commissions, boards, committees, departments, elected and non-elected and appointed and non-appointed officials, officers, council or board members, personnel, employees, agents, servants, delegates, designees, bailees, business partners, and joint venturers.
(35) The Monitor's ongoing responsibility and authority under this injunction to conduct monitoring shall not be impacted by any modification by the Defendant Cities of who provides or manages any relevant services, operations, or facilities, or how any such services, operations, or facilities are provided or managed.
(36) The Monitor shall have timely, full, and direct access to any relevant individuals, documents, meetings, reviews, data, or trainings that are in the possession, custody, or control of the Cities and are necessary to evaluate compliance with this injunction.
(37) The Defendant Cities shall bear the cost of and cooperate freely and fully with all reasonable monitoring activities and requests of the Monitor. Such cooperation shall include, but is not limited to:
(38) Except as required or authorized by the terms of this injunction or the parties acting together, the Monitor shall not make any public or press statements (at a conference or otherwise) or issue findings with regard to any act or omission of the Defendant Cities or their agents, representatives or employees, or disclose information provided to the Monitor pursuant to this injunction. Absent a court order, the Monitor shall not testify in any other civil litigation or proceeding with regard to any act or omission of the Defendant Cities or any of their agents, representatives, or employees related to this injunction, nor testify in any other civil litigation or proceeding regarding any matter or subject that he or she may have learned as a result of his or her performance under this injunction, nor serve as a non-testifying expert in any other civil litigation or proceeding regarding any matter or subject that he or she may have learned as a result of his or her performance under this injunction. Unless such conflict is waived by all parties, the Monitor shall not accept employment or provide consulting services that would present a conflict of interest with the Monitor's responsibilities under this injunction, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant's or claimant's attorney, in connection with a claim or suit against the Defendant Cities or their departments, officers, agents, or employees. The Monitor is not a state/county or local agency or an agent thereof, and accordingly the records maintained by the Monitor shall not be deemed public records subject to public inspection. Neither the Monitor nor any person or entity hired or otherwise retained by the Monitor to assist in furthering any provision of this injunction shall be liable for any claim, lawsuit, or demand arising out of the Monitor's performance pursuant to this injunction. This provision does not apply to any proceeding before a court related to performance of contracts or subcontracts for monitoring this injunction. The Monitor shall be considered an agent of the court.
(39) The Monitor shall provide to the parties a written report every 90 days for the first 2 years following the appointment of the Monitor. After the first 2 years, the Monitor shall, in his or her discretion and with the approval of the United States, decrease the frequency of reporting to every 6 months. The Monitor will report to the court upon the court's request.
(40) The reports to the parties described in the previous paragraph shall set forth the complete efforts and findings of the Monitor over the reporting period regarding compliance by the Defendant Cities with the terms of the injunction. The reports will, at a minimum: (1) detail the Monitor's activities as described in Paragraph 31, above, and (2) identify any obstacles to the work of the Monitor and any resistance on the part of city officials to the implementation of this injunction or the work of the Monitor.
(41) Should the Monitor determine that any action or inaction by the Defendant Cities, including but not limited to actions taken in connection with any applications or requests regarding any utility services, building permits, zoning amendments or variances, or subdivision, or any modification to any ordinance, regulation, policy, or procedure, constitutes evidence of a violation of the terms of this injunction, or evidence of discrimination because of religion, or a violation of the Fair Housing Act, the Monitor shall report to the United States and the Defendant Cities in writing and demand immediate action by the Defendant Cities to correct such issues.
(1) The Defendant Cities shall be responsible for maintaining and preserving, or supervising the maintenance and preservation, of all records, including but not limited to electronic records and files, created in association with complying with this injunction.
(2) Upon request of the Monitor, the parties and their attorneys shall have full and direct access to all staff, employees, facilities, documents, records, files, and data related to this injunction. The United States shall also be permitted to accompany the Monitor on any inspections or tours. Upon reasonable notice to counsel for the Defendant Cities, representatives of the United States or the Monitor shall be permitted to inspect and copy all records associated with compliance with this injunction at any and all reasonable times or, upon request by the United States, the Defendant Cities shall provide copies of such documents. This right of access shall apply to all aspects of this injunction.
(3) The United States will work with the Defendant Cities and their attorneys to access involved personnel, documents, and facilities in a reasonable manner that is consistent with the United States' right to seek enforcement of this injunction and minimizes interruptions to daily operations.
(4) Any Monitor appointed in this case will, along with the United States, maintain all confidential or non-public information in a confidential manner.
(1) This court has jurisdiction of this case pursuant to 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. § 3614. The court shall retain jurisdiction over this case to enforce the terms of this judgment and injunction.
(2) The injunctive relief granted by this judgment and decree shall be in effect immediately upon entry. Except as expressly provided otherwise, the injunctive relief (Section V(B) and V(C)) shall remain in effect for ten years or until otherwise ordered by the court.
(3) Plaintiff may move the court to extend the duration of the injunction in the event of noncompliance, whether intentional or not, with any of its terms, or if it believes the interests of justice so require.
(4) Modification of this injunction, Sections V(B) and V(C), may be sought as follows:
(5) The parties shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this injunction prior to bringing such matters to the court for resolution. However, in the event the United States contends that there has been a failure by the Town of Colorado City or the City of Hildale, whether willful or otherwise, to perform in a timely manner any act required by this injunction or otherwise to act in conformance with any provision hereof, the United States may move this court to impose any remedy authorized by law or equity, including, but not limited to, an order requiring performance of such act or deeming such act to have been performed, and an award of any damages, costs, and reasonable attorney fees which may have been occasioned by the violation or failure to perform.
(6) The parties agree that, as of the date of entry of this injunction, litigation is not reasonably foreseeable concerning the matters described herein. To the extent that any party previously implemented a litigation hold to preserve documents, electronically stored information, or things related to the matters described in this injunction, the party is no longer required to maintain such a litigation hold.
(7) The preceding paragraph does not relieve the Defendant Cities of any record-keeping responsibilities imposed by the terms of this injunction.
(8) The United States shall submit its petition for costs within 90 days of the entry of this injunction. All parties shall be responsible for their own attorney fees.
(9) Communications in furtherance of the implementation, compliance, or enforcement of remedies shall be directed as follows:
