Issues Raised by the Nomination of David Ogden Nuffer for United States District Court Judge for the

District of Utah

In the Matter of the Adoption of W.A.T., 808 P.2d 1083 (Utah 1991)
Judge Nuffer included this case in the questionnaire provided to the Committee in the ten most significant litigated matters which he personally handled. Further questioning of the nominee is warranted to clarify his judicial attitudes about protecting the civil rights of children raised in polygamous cultures opposed to the civil rights of acknowledged practitioners of polygamy. One of the repercussions of the outcome of this case was visited upon an innocent 12-year-old girl who was given by her father to be a child bride at the age of twelve to the leader of his polygamous sect, Warren Steed Jeffs. 1 The father of the 12-year-old child bride was one of the children at issue In the Matter of the Adoption of W.A.T.(Utah 1991) who was subsequently raised along with his siblings in a polygamous culture. While in private practice at Snow Nuffer, a firm he co-founded with Steven E. Snow, David O. Nuffer and his partner represented the acknowledged practitioners of polygamy in their eventually successful effort to adopt the minor children of a plural wife who died from cancer. A contemporary comment from Judge Nuffer's co-counsel and partner after the district court granted the intervenors' (two sisters to the deceased natural mother) motion to dismiss: ''There hasn't been an active prosecution of polygamy [in Utah] in more than 35 years,'' said the Fischers' lawyer, Steven E. Snow, who can trace his roots to four polygamous great-great-grandfathers. ''That says something about how accepting we are.''
New York Times, June 12, 1989 http://www.nytimes.com/1989/06/12/us/custody-battle-in-utah-s-top-court-shines-rare-spotlight-on-polygamy.html

The deceased parent had been directed into her first polygamous marriage at the age of 17 to a man who was also her stepfather, who became the biological father of the children who were the subject of the adoption petition. The district court granted a motion to dismiss the original adoption petition filed by intervenors. The intervenors believed the best interests of the children were for the children to be raised outside of a polygamous culture. The district court dismissal of the petition was appealed by the original petitioners with Steven E. Snow and David O. Nuffer as counsel to the Utah Supreme Court which reversed the lower court in a 1991 3-2 decision. The original petition for adoption was eventually granted to the practitioners of polygamy and the children were raised in polygamy, contrary to what the extended family of the two aunts considered to be in the interests of the children. Fast forward to August 2011 when evidence introduced in the Texas trial of Warren Steed Jeffs revealed a number of illegal and abusive underage marriages among the practitioners of polygamy known as the Fundamentalist Church of Latter-Day Saints (FLDS). FLDS members reside at the YFZ Ranch near Eldorado, Texas and historically in Washington County, Utah and Mohave County, Arizona in the twin towns of Hildale, Utah and Colorado City, Arizona. The evidence was discovered under state and federal search warrants issued in Texas and Nevada in 2008 and 2006. One of the illegal polygamous marriages revealed in the evidence involved a then 12-year-old daughter of Wayne Alan Fischer aka Wayne Alan Thornton, one of the children at issue In the Matter of the Adoption of W.A.T., 808 P.2d 1083 (Utah 1991).
1. Jeffs is serving a life sentence in Texas upon conviction of the sexual assault of a different 12-year-old child bride and a 15-year-old child bride. Jeffs is the acknowledged religious leader of the polygamous sect (the Fundamentalist Church of Latter-Day Saints aka FLDS) to which the polygamous petitioners represented by Judge Nuffer belonged at the time of representation.

Relying on information contained in the Priesthood Records of Warren Steed Jeffs, Wayne Alan Fischer handed over his pre-teen daughter to his religious leader to become a plural wife: I [Warren Jeffs] informed him [Wayne Alan Fischer] that the Lord had told me that his [12-year-old] daughter should be sealed [in marriage] to me for time and all eternity....Wayne's eyes got teary eyed with rejoicing, and he expressed great gratitude that this was being done....I asked him to inform her and to come at 9:00 p.m. that night to take care of the marriage.
Record of Warren Jeffs, Monday, April 18, 2005 p. 177 http://phrecords.files.wordpress.com/2010/07/mar-24-2005.pdf

According to the Record of Warren Jeffs, his polygamous marriage to the child bride took place as scheduled. Returning to the case In the Matter of the Adoption of W.A.T.(Utah 1991), Counselor Nuffer was referenced in a New York Times article of March 29, 1991 following the Utah Supreme Court decision: "It's a decision that speaks of freedom," he said. "It means people who practice plural marriage still have civil rights."
New York Times, March 29, 1991 http://www.childbrides.org/politics_NYT_Vaughn_Fischer_allowed_to_adopt_Brenda_Thorntons_children.html

At some point, the responsibility to protect the rights and interests of children outweighs the civil rights of people who practice plural marriage. Arguing for the Fischers, Nuffer said the six children had been raised in a polygamist situation. Their natural parents approved of polygamy. "For two years the children have been thriving (in the Fischer home) and they want to remain." He contended that the children were being well cared for in a religious home where charity, virtue - all positive aspects of Christian living - are taught.
Deseret News, June 12 1989 http://www.deseretnews.com/article/50588/UTAH-JUSTICES-HEAR-DEBATE-ON-POLYGAMY-AND-ADOPTION.html

The 3-2 decision was further evidence of increasingly tolerant judicial attitudes toward fundamentalist Mormons who continue to practice religiously motivated polygamy.
Ken Driggs, Sunstone Magazine, Issue No. 83, September 1991 http://www.childbrides.org/politics_sunstone_UT_Supreme_Court_decides_polyg_adoption_case.html

Inexplicably, Judge Nuffer included the following about the adoption case in his inclusion in the questionnaire: ...but the natural mother's sisters were hearing impaired and strangers to the fully hearing children. Further questioning by the committee could illuminate the Judge's reasoning on why that information would be relevant to the committee regarding an adoption case.

Clarification of past client relationships with the municipalities of Colorado City, Arizona and Hildale, Utah
The record is not clear or certain as to whether David O. Nuffer could potentially come into any conflicts of interests with regards to the municipalities of Colorado City, Arizona and/or Hildale, Utah due to any past representation.

Governmental agencies in both communities have been subject of recent law enforcement investigations: Trish Carter, public information specialist for Mohave County Sheriff's Office, said the warrants were issued because investigators were obtaining evidence in an investigation on misuse of public funds as well as fraudulent schemes in connection with the Colorado City government and the fire departments.
St. George Spectrum, April 7, 2010 http://www.childbrides.org/taxes_spec_investigators_seize_records_in_Hildale-CC.html

The public interest would be served by specificity from the nominee as to any potential conflicts of interest involving the municipalities and an array of other related potential past clients.

Failure of the Utah Judicial Conduct Commissions under David O. Nuffer's tenures as Chair and Vice-Chair (1998-2000) to sanction Hildale, Utah Judge Walter K. Steed for his open practice of polygamy in violation of Utah statute and constitution
Judge Nuffer reported to the committee in his questionnaire his membership on the Utah Judical Conduct Commission and his tenures as Chair and Vice-Chair. In 2005, the Utah Judicial Conduct Commission, responding to a formal complaint by a group opposed to the practice of polygamy, recommended that the Utah Supreme Court remove Hildale [Utah] Justice Court Judge Walter K. Steed from the bench due to his flagrant violation of state statute and state constitution. Steed was removed by the Utah Supreme Court in 2006.
http://jcc.utah.gov/discipline/documents/SteedWalter-2006Removal.pdf

Was David O. Nuffer aware of Steed's open violations of the law, both during and prior to the nominee's tenures with the Judicial Conduct Committee? If so, why was the removal of Walter K. Steed not sought by the Commission prior to 2005?

Importance of the role of the federal judiciary in upholding the laws of the United States and the rights of the individuals who have been subject to abuses in polygamous cultures
Additional evidence uncovered in Texas has resulted in the examination of FLDS communities in Canada and the United States involvement in trafficking of underage girls between both countries as child brides. Canadian officials have opened an investigation involving their citizens:
http://www.cbc.ca/news/canada/british-columbia/story/2011/02/25/bc-polygamy-trial.html

Specifically, the Priesthood Records of Warren Jeffs include information that could potentially be used to prosecute violations of the Mann Act and possibly other federal crimes, with one of the jurisdictions being the District of Utah. Also entered into the jurisdiction of the federal court in the District of Utah are the ongoing disputes involving the United Effort Plan Trust (UEPT). The tangled legal disputes have spread to issues between a state district court judge and a federal district court judge: The 10th U.S. Circuit Court of Appeals in Denver issued a temporary stay of U.S. District Judge Dee Benson's orders after an emergency appeal was filed by an attorney representing 3rd District Court Judge Denise Lindberg. The state court judge had claimed Benson threatened to have U.S. Marshals bring her to his courtroom by force to explain herself. The two judges have been feuding in court orders over control of the Fundamentalist Church of Jesus Christ of Latter Day Saints' real-estate holdings arm, the United Effort Plan Trust. Benson ruled the state's takeover of the UEP in 2005 was unconstitutional and a violation of FLDS members' freedom of religion rights.
Ben Winslow, FOX 13 News, KSTU-TV, Salt Lake City, Utah http://www.childbrides.org/UEP_Fox13_Federal_appeals_court_intervenes_in_judge_vs_judge_fight.html