Carlie Christensen, Acting United States Attorney (#633)

Amy J . Oliver, Assistant U.S. Attorney (#8785)

District of Utah
185 South State Street, #300
Salt Lake City, Utah 84111-1506
(801) 325-3319
Email: amy.oliver@usdoj.gov
Associated Local Counsel

M. Patricia Smith, Solicitor of Labor
J ames E. Culp, Regional Solicitor
J ohn Rainwater, Associate Regional Solicitor
Karen E. Bobela, Trial Attorney, CO #37190 (Pro Hac Vice)
Alicia Truman, Trial Attorney, CO #42235 (Pro Hac Vice)
Lydia Tzagoloff, Senior Trial Attorney and
Special Assistant United States Attorney, NY #2631299 (Pro Hac Vice)
1244 Speer Boulevard, Suite 515
Denver, CO 80204
(303) 844-1745
Email: bobela.karen.e@dol.gov; tzagoloff.lydia@dol.gov; truman.alicia.a@dol.gov

Attorneys for Petitioner

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH CENTRAL DIVISION

THOMAS E. PEREZ, SECRETARY OF
LABOR, UNITED STATES
DEPARTMENT OF LABOR,

PETITIONER,
v.

PARAGON CONTRACTORS
CORPORATION; BRIAN J ESSOP;
DALE BARLOW; KEITH DUTSON;
VERGEL STEED; NEPHI J EFFS; LYLE
J EFFS and CORPORATION OF THE
PRESIDING BISHOP OF THE
FUNDAMENTALIST CHURCH OF
J ESUS CHRIST OF LATTER-DAY
SAINTS,

RESPONDENTS.

Case No. 2:13cv00281-DS



MOTION FOR RECONSIDERATION AND
REQUEST FOR FURTHER BRIEFING


The Honorable David Sam
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 1 of 18
2
Petitioner, THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor
(Petitioner), respectfully brings this Motion for Reconsideration and Request for Further
Briefing regarding the Courts Memorandum Decision and Order Addressing Vergel Steeds
Motion to Sustain Objections (Doc. 121) (Order) issued on September 11, 2014. As grounds
for this motion, Petitioner states as follows:
I. PROCEDURAL BACKGROUND
The Wage and Hour Division of the United States Department of Labor (Wage Hour)
is conducting a child labor investigation involving Paragon Contractors Corporation (Paragon)
and the Fundamentalist Church of J esus Christ of Latter Day Saints (FLDS Church),
1
who are
believed to be joint employers engaged in the unlawful employment of children at a pecan ranch
in Southern Utah in the fall of 2012. Wage Hour issued an administrative subpoena ad
testificandum to Respondent Vergel Steed (Steed) based upon information that he is employed
as a records custodian for the FLDS Church and is likely to have information relevant to Wage
Hours investigation. Steed objected to specific questions during sworn testimony pursuant to the
subpoena on grounds that the questions violate his First Amendment rights.
2

After briefing by the parties and an evidentiary hearing on Steeds alleged religious
beliefs, Magistrate J udge Evelyn Furse issued a Report and Recommendation (Doc. 115) to
enforce the subpoena against Steed. The District Court rejected the Magistrate J udges
recommendation after determining on its own accord that Steeds First Amendment objections

1
Wage Hours investigation also includes individuals who may be jointly and severally liable as
individual employers under 29 U.S.C. 203(d) for the alleged child labor activities.
2
Steeds objections were specifically based on the First Amendment. At no time during his
testimony or in any of the briefs that followed did Steed raise a defense under the Religious
Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq.
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 2 of 18
3
should be analyzed as a defense under the Religious Freedom Restoration Act of 1993
(RFRA), 42 U.S.C. 2000bb et seq. Petitioner respectfully seeks reconsideration of the
Courts Order on the basis that Steed waived his right to raise the applicability of RFRA by
failing to raise it with the Magistrate J udge; and if Steed did not waive his right, Petitioner
should at least have the opportunity to brief issues related to a RFRA defense in this case. If
permitted to brief Steeds claim under RFRA, Petitioner will show that (1) the Court mistakenly
equated a general interest in keeping certain Church matters private with a sincerely held
religious belief; alternatively, if such a general interest in privacy is deemed a sincerely held
religious belief, the Court should not have determined that the belief was sincerely held without a
credibility finding on this dispositive issue; (2) the Courts Order improperly limits Wage Hours
investigation of the FLDS Church as a joint employer under the Fair Labor Standards Act; (3)
the government has a compelling interest in this matter and questioning Steed under oath is the
least restrictive means to obtain the information sought; and (4) the Courts Order improperly
applies RFRA on a blanket basis to all of the questions objected to by Steed, which include child
labor and commercial activities that Steed concedes do not implicate his alleged beliefs.
II. ARGUMENT
A. Steed Waived His Right to Assert a Defense Under RFRA; Alternatively,
Petitioner Should Have An Opportunity to Brief Issues under the RFRA
Legal Framework Utilized By the Court.

In the Tenth Circuit, a party waives his right to pursue arguments not raised before the
magistrate judge. See, e.g., United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (In
this circuit, theories raised for the first time in objections to the magistrate judge's report are
deemed waived.); Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (Issues raised for
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 3 of 18
4
the first time in objections to the magistrate judges recommendation are deemed waived.).
Here, Steed pursued only a First Amendment freedom of religion claim when arguing before
Magistrate J udge Furse. A First Amendment freedom of religion claim is different from a RFRA
claim as the claims are evaluated using different legal standards. See, e.g., Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751, 2772 & 2761 n.3 (2014). Therefore, because Steed limited
his arguments before the Magistrate J udge to the First Amendment, and only mentioned RFRA
for the first time in his objections to the report and recommendationin order to strengthen his
First Amendment claim rather than pursue a RFRA claimSteed effectively waived any right to
argue that RFRA applies in this case.
3
If the Court finds that waiver does not apply, Petitioner
requests reconsideration on the basis that he did not have an opportunity to develop the record or
brief this matter under the RFRA legal framework used by the Court. See United States v.
Hardman, 297 F.3d 1116, 1124 (10th Cir. 2002) (considering RFRA sua sponte only because of
the unique posture of the case, including the fact that the en banc order requested briefing of the
RFRA issue); see id. at 1124 n.15 (RFRA does not automatically apply to all Free Exercise
claims).
As set forth below, Petitioner contends that Steeds objections cannot be sustained under
RFRA because Steeds beliefs are not religious in nature and are not sincerely held, and because

3
In his objections to the Magistrate J udges report (Doc. 116), Steed argued that the Magistrate
J udge incorrectly relied on Employment Division v. Smith, 494 U.S. 872 (1990), because it was
superseded by RFRA. He clarified that his arguments were framed under the First Amendment
and not RFRA, and he requested that the parties be given an opportunity to brief the application
of RFRA if that was the legal framework the Court intended to use. See Doc. 116 at p. 4.
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 4 of 18
5
Petitioner can establish a compelling government interest and that the subpoena of Steed is the
least restrictive means available to further that compelling interest.
4

B. Steeds Objections Cannot be Sustained Under RFRA
In order to state a RFRA claim, the moving party must establish, by a preponderance of
the evidence, three threshold requirements: the governmental action must (1) substantially
burden (2) a religious belief, rather than a philosophy or way of life, (3) which is sincerely held
by the plaintiff. Thiry v. Carlson, 78 F.3d 1491, 1494 (10th Cir. 1996).
i. Steed does not sincerely hold religious beliefs that preclude Petitioner
from investigating the FLDS Churchs involvement in child labor

a. Steeds beliefs are not religious in nature
A party asserting that a belief or practice is religious has the burden of producing
evidence to support that claim. In this case, the record does not support Steeds allegation that his
religious beliefs prohibit him from divulging all aspects of the internal affairs and organization of
the FLDS Church and its commercial activities. See PLANS Inc. v. Sacramento City Unified
School Dist., 476 Fed. Appx 684, 685 (9th Cir 2012); see also United States v. Zimmerman, 514
F.3d 851, 854 (9th Cir. 2007). Instead, the evidence reveals that Steeds decision not to testify
stems from a generalized preference to keep certain matters relating to his Church private
rather than from a belief rooted in religious principles. Thus, at the evidentiary hearing before
Magistrate J udge Furse, Steed characterized the identity of his religious leaders as sacred (and
thus entitled to protection under the First Amendment) because, in his words, at times I am
subject to ridicule and being mocked and derided by people who dont understand. So I would

4
Petitioner here is laying the foundation for the legal and factual arguments related to Steeds
objections under a RFRA analysis but requests an opportunity for further briefing on this issue.
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 5 of 18
6
prefer not to discuss those things with people who I dont feel would understand. Therefore, its
sacred to me. See Transcript of April 23, 2014 Evidentiary Hearing, attached hereto as Exhibit
A, at 9:3-9 (emphasis added). Steed also testified that the operations and particulars of church
function . . . are sacred to me for the same reasons, those who dont understand would mock or
ridicule [me]. Id. at 9:18-22. Not wanting to discuss certain things to avoid ridicule does not
make something religious in nature.
Notably, Steed could not identify a specific vow he took, a covenant in his religion, or
any religious writings or doctrines to support his contention that his belief in the privacy of
Church affairs is religious in nature. Id. at 13:19-14:22, 17:8-22, 18:3-15. He simply described
his alleged belief as something he was taught at [his] mothers knee. Id. at 16:4-10. Moreover,
Steed expressed concern that the FLDS Church would impose disciplinary action against him if
he were to discuss any aspect of the organization of the Church. Id. at 18:16-19:14. Fear of
reprisal from Church leaders does not support Steeds contention that his alleged belief in
secrecy or privacy is rooted in religion. To the contrary, Steeds testimony supports a finding that
his alleged beliefs more accurately espouse a philosophy and/or way of life rather than a
religion. United States v. Meyers, 95 F.3d 1475, 1484 (10th Cir. 1996) (citations omitted).
Evidence to support Steeds claim is necessary because a preference for secrecy or
privacy is not inherently religious in nature and RFRA requires the government to accommodate
only the exercise of actual religious convictions. Id. at 1482; see United States v. Jeffs, No.
CRIM05CR00503REB, 2006 WL 898112, *1-2 (D. Colo. Apr. 4, 2006) (the incantation that
[church] documents [are] sacred was insufficient to warrant a protective order without further
explanation). It is true, as the Tenth Circuit has recognized, that trying to separate the sacred
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 6 of 18
7
from the secular can be a tricky business. Yellowbear v. Lampert, 741 F.3d 48, 54 (10th Cir.
2014). However, although a court is prohibited from examining the centrality of a professed
religious belief to the particular religion, it is permitted to determine whether the professed belief
has a basis in the particular religion before affording it constitutional protection because the
very concept of ordered liberty precludes allowing any person a blanket privilege to make his
own standards on matters of conduct in which society as a whole has important interests.
Africa v. Comm. of Penn., 662 F.2d 1025, 1031 (3d Cir. 1981) (quoting Wisconsin v. Yoder, 406
U.S. 205, 215-16 (1972)).
In examining whether something was a religious exercise pursuant to the Religious
Land Use and Institutionalized Persons Act (RLUIPA),
5
the Tenth Circuit cited with approval
a decision from the D.C. Circuit, which concluded that in the First Amendment context a court is
not precluded from considering whether a litigants belief find[s] any support in the religion to
which they subscribe, or whether the litigants are merely relying on a self-serving view of
religious practice. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1314 (10th Cir. 2010) (quoting
Levitan v. Ashcroft, 281 F.3d 1313, 1321 (D.C. Cir. 2002)); see id. at 1314 n.6. In other words, it
is entirely permissible for a court to determine whether an individuals views have any basis
whatsoever in the creed or community on which they purport to rest their claim. Abdulhaseeb,
600 F.3d at 1314 (quoting Levitan, 281 F.3d at 1321).

5
The Tenth Circuit has recognized the relevance of RFRA and First Amendment case law when
interpreting RLUIPA. See, e.g., Abdulhaseeb v. Calbone, 600 F.3d 1301, 1313 n.5 (10th Cir.
2010); see also Hobby Lobby, 134 S. Ct. at 2781 (describing RLUIPA as RFRAs sister
statute).
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 7 of 18
8
Here, Steeds alleged belief in the principle that all Church matters must be kept private
is more appropriately characterized as a way of life rather than a belief that is truly religious in
nature. Steed could not identify any aspect of his religion that lends support to his alleged belief.
Indeed, he expressly described the belief as a preference, not a religious tenet which he
adhered to in order to avoid ridicule as well as discipline from his Church leaders. Steeds
testimony does not pass muster under even the most liberal test of whether the alleged belief is
religious in nature.
b. To determine whether Steeds purported religious beliefs are
sincerely held a credibility determination is necessary
While the question of sincerity in the religious exercise context is understood to be
exceedingly amorphous, . . . sincerity remains a discrete element in RFRA and Free Exercise
analyses. U.S. v. Manneh, 645 F.Supp.2d 98, 111 (E.D.N.Y. 2008) (citing Patrick v. LeFever,
745 F.2d 153, 157 (2d Cir. 1984)). Although the religious nature of a particular belief can be
difficult for a court to gauge without undue entanglement, the question of sincere belief is
relatively unintrusive in its application and not infrequently dispositive under the first prong of
a RFRA analysis. Yellowbear v. Lampert, 741 F.3d 48, 54 (10th Cir. 2014) (making this
observation in a RLUIPA context). Importantly, the Tenth Circuit has stated that an inquiry into
sincere religious belief is essential in ensuring that the law does not offer refuge to canny
operators who seek through subterfuge to avoid laws theyd prefer to ignore. Id. Thus, courts
are not only permitted but obligated to ask[] whether the claimant is (in essence) seeking to
perpetrate a fraud on the court whether he actually holds the beliefs he claims to hold. Id.
6


6
In Africa v. Commonwealth of Pennsylvania, the Third Circuit noted that the record did not
indicate whether a prisoner requesting accommodation of his asserted religious beliefs ha[d]
merely adopt(ed) religious nomenclature and cynically use(d) it as a shield to protect (himself)
when participating in antisocial conduct that otherwise stands condemned, or whether the group
he claimed to belong to was a masquerade designed to obtain First Amendment protections for
acts which otherwise would be unlawful. 662 F.2d 1025, 1031 n.10 (3d Cir. 1981) (citations and
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 8 of 18
9
Assessing sincerity requires a full exposition of facts and the opportunity for the
factfinder to observe the claimants demeanor during direct and cross-examination. See Manneh,
645 F.Supp.2d at 111; see also United States v. Zimmerman, 514 F.3d 851, 854 (9th Cir. 2007)
(remanding to district court to make specific findings on the sincerity of an individuals religious
beliefs, as his credibility and demeanor will bear heavily on that determination). Here, the
Court states in its Order that it would benefit from personally observing Steeds credibility
during an evidentiary hearing. See Order (Doc. 121) at p. 7. Nonetheless, the Court ruled for
Steed on this dispositive issue without making any credibility findings. Magistrate J udge Furse,
who personally observed Steed at the evidentiary hearing, was in a better position to make a
credibility finding based on her observations. Thus, Petitioner respectfully requests that, unless
the Court finds a waiver of Steed's right to raise a RFRA defense, the Court should remand this
case back to Magistrate J udge Furse for a credibility determination on the sincerely held
prong; alternatively Petitioner respectfully requests that this Court hold an additional evidentiary
hearing on this significant issue. See Quaintance, 608 F.3d at 721 (a district courts finding of
sincerely held religious beliefs must have factual support in the record). Ruling for Steed on this
highly contested and dispositive issue is inherently unfair and prejudicial to Petitioner. This is
particularly problematic because the sweeping belief in privacy and secrecy as a general matter,
unmoored to any particular religious belief or teaching, is being used to shield information
relating to child labor and commercial activities of the Church.

ii. The government has a compelling interest in investigating alleged child
labor violations and enforcing subpoenas in this case


internal quotation marks omitted). Moreover, in United States v. Quaintance, the Tenth Circuit
agreed with the district courts finding that the evidence strongly suggest[ed] that the
marijuana dealings at issue were motivated by commercial or secular motives rather than
sincere religious conviction, and thus concluded that the professed beliefs were not sincerely
held. 608 F.3d 717, 722 (10th Cir. 2010).
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 9 of 18
10
Petitioner has a compelling interest pursuant to a statutory mandate to enforce the
countrys child labor laws. This compelling interest encompasses investigating alleged child
labor violations as well as issuing and enforcing subpoenas when necessary to obtain information
relevant to its investigations. See Hardman, 297 F.3d at 1127 (protecting childrens welfare is
a compelling interest for RFRA purposes) (citing Prince v. Massachusetts, 321 U.S. 158, 166-67
(1944)). The child labor provisions of the Fair Labor Standards Act (FLSA) reach religious
organizations without exception. The Supreme Court and circuit courts alike have consistently
upheld application of the FLSA to church-affiliated commercial businesses and schools in the
face of First Amendment challenges. See, e.g., Tony & Susan Alamo Found. v. Secy of Labor,
471 U.S. 290, 303-06 (1985) (rejecting argument that Foundation's businesses differ from
ordinary commercial businesses because they are infused with a religious purpose); Dole v.
Shenandoah Baptist Church, 899 F.2d 1389, 1398-99 (4th Cir. 1990).
In Brock v. Wendells Woodwork, 867 F.2d 196, 198-99 (4th Cir. 1989), the Fourth
Circuit upheld the application of the FLSA's child labor provisions to a church-run vocational
program, noting the government's compelling interest in enforcing that law. Although it
recognized the sincerity of the church members' religious beliefs, the court concluded that they
could not immunize the employers from enforcement of the federal statutes. Id.; see Shiloh
True Light Church of Christ v. Brock, 670 F. Supp. 158, 162 (W.D.N.C. 1987) (The right to
practice religion freely does not include the right to jeopardize a child's health.); Prince, 321
U.S. at 168. In Shenandoah Baptist Church, for example, when holding that the FLSA withstood
the Church's free exercise challenge under the First Amendment, the Fourth Circuit observed that
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 10 of 18
11
Congress has here created a comprehensive statute, and a less restrictive means of attaining its
aims is not available. 899 F.2d at 1398.
Moreover, it is well settled that the FLSA extends broad authority to the Secretary of
Labor to issue administrative subpoenas in the course of an investigation conducted pursuant to
that statute. See Oklahoma Press Publg Co. v. Walling, 327 U.S. 186 (1946); CSG Workforce
Partners, LLC v. Watson, 512 Fed. Appx 830, 836-37 (10th Cir. 2013). It is also settled law that
the Secretarys subpoena authority can be exercised in the initial stages of an investigative
proceeding to procure evidence necessary to establish a violation of the FLSA; in Oklahoma
Press, for example, the Supreme Court specifically held that the FLSA provides the Secretary
authority to issue a subpoena prior to determining not only whether there are any violations of
the FLSA, but whether the entity is covered under the Act. 327 U.S. at 214. In other words,
[t]he very purpose of the subpoena . . . as of the authorized investigation, is to discover and
procure evidence, not to prove a pending charge or complaint, but upon which to make one if, in
the Administrator's judgment, the facts thus discovered should justify doing so. Id. at 201. The
subpoenas issued in this case, therefore, are well within the Secretarys investigative authority
and are necessary to determine coverage and uncover potential FLSA violations. Id. at 214.
7


7
The following two cases are instructive in this regard. In Donovan v. Central Baptist Church,
Victoria, 96 F.R.D. 4, 5 (S.D. Tex. 1982), for example, the Court denied a protective order to a
church where the Secretary of Labor sought information in the course of an FLSA investigation
to evaluate the validity of the churchs claim, as construed by the court, that all of its employees
are members of the Church who have received a divine call to Christian education and who all
believe that it is their right and duty to serve God by working for minimal compensation. And in
Marshall v. Stevens People and Friends for Freedom, 669 F.2d 171, 178-80 (4th Cir. 1981), the
Fourth Circuit concluded that the Department of Labors power to inform itself through
investigations outweighed the free association claim raised in that case, so that the
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 11 of 18
12
iii. The subpoena issued to Steed is the least restrictive means to obtain the
information sought

The Courts ruling in this case hinged on Petitioners alleged failure to show that forcing
Steed to answer questions pursuant to Wage Hours investigative and statutory subpoena
authority is, pursuant to RFRA, the least restrictive means to advance its compelling interest. See
Doc. 121 at p. 9. As an initial matter, any analysis of the least restrictive means prong must be
tied to Petitioners compelling interest. The court did not analyze the least restrictive means
prong through that prism. Moreover, Steed neither raised a defense under RFRA, nor challenged
the least restrictive means prong. Therefore, Petitioner did not respond to any such arguments in
his response brief and he has not been given any other opportunity to make the requisite showing
under the RFRA framework utilized by the Court. Petitioner can meet his burden and show that
the subpoena issued to Steed is the least restrictive means available for Wage Hour to obtain the
information sought.
RFRA states that the Government may substantially burden a persons exercise of
religion only if it demonstrates that application of the burden to the person . . . is the least
restrictive means of furthering [a] compelling governmental interest. 42 U.S.C. 2000bb1(b).
By its plain language, however, RFRA does not require the government to abandon its
compelling interests, but only to minimize the burden on religion by ensuring that it employs the
least restrictive means of furthering those interests. See 42 U.S.C. 2000bb-1(b). As explained
infra, the Petitioners questions to Steed were narrowly tailored to further Petitioners valid
exercise of its subpoena authority.

Departments subpoenas issued under its statutory authority were within certain constraints
constitutionally valid.
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 12 of 18
13
Wage Hour believes that Steed was employed by the Corporation of the Presiding Bishop
(Corporation) as an administrative assistant or in a similar capacity. See Doc. 75-1, Affidavit
of J oe Doolin attached to Petitioners Response to Steeds Motion to Sustain Objections. In this
capacity, it is likely that Steed has information regarding the voicemail that was sent from the
bishops office ordering children out of school to assist with the pecan harvest, including who
recorded and distributed the voicemail and to whom the voicemail was distributed. Id. Steed also
likely has information regarding the arrangements that were made by the Church to transport
children to and from the pecan harvest; where records are maintained at the Corporation related
to the Churchs activities at the pecan ranch; and the names of other individuals who have
information relevant to the pecan harvest and the child labor activities. Id.
8
This information is
relevant and material to Wage Hours investigation of the Church as a potential joint employer of
children in violation of the FLSAs child labor provisions and at this investigative stage there are
no other means known to Wage Hour to obtain this information. The information Petitioner
seeks is related to the FLDS Churchs commercial activities, which Steed has conceded are not
subject to his religious beliefs. See discussion infra at p. 16-17.
a. The Courts Order unreasonably limits Wage Hours investigation
of the FLDS Church as a joint employer under the FLSA

The Courts Order directs Petitioner to continue with efforts to obtain information from
Paragon Contractors Corporation (Paragon), Brian J essop, Dale Barlow, and others who
contracted to manage the pecan ranch. See Order at p. 9. It is not sufficient in the investigatory

8
Even if Steed has no firsthand knowledge of the 2012 pecan harvest (i.e. if he was not present
at the ranch), which he has already denied, he can still answer questions regarding these other
subject matters that are relevant to Wage Hours investigation.
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 13 of 18
14
context, however, to assume that the least restrictive means of acquiring information is to pursue
it through another source. See In re Grand Jury Empaneling of Special Grand Jury, 171 F.3d
826, 832 (3d Cir. 1999) (rejecting argument that the government could obtain similar evidence
from other sources); United States v. Institute for College Access & Success, -- F. Supp. 2d --,
2014 WL 1047669 at *4 n.4; see also Matter of Criminal Investigation, 7th Dist. Court No. CS-
1, 754 P.2d 633, 644 n.12 (Utah 1988) ([T]he reasonableness or relevance of a subpoena issued
in the context of an investigation is measured by less exacting standards than one issued during
the course of a trial . . . the investigator may run down every available clue and examine
witnesses in every proper way to discover whether the law has been violated. (citations and
internal quotation marks omitted)).
Here, the Court fails to take into account that Petitioner, through Wage Hour, is also
separately investigating the FLDS Church as a joint employer under the FLSA. As a joint
employer, the FLDS Church is potentially responsible for the child labor activities that occurred
at the pecan ranch. The Courts Order, by restricting Wage Hour from obtaining information
from Steed, a source that is directly tied to the FLDS Church, effectively prevents Wage Hour
from obtaining information that is critical and relevant to its investigation. Wage Hour is well
within the bounds of its investigative and subpoena authority to issue subpoenas to Steed and
other individuals who are believed to be employed by, or serve as administrators for, the Church
and who may have information relevant to its investigation. Prohibiting Wage Hour from
reaching individuals tied to the FLDS Church at the early stages of its investigation effectively
insulates the Church from potential liability under the FLSA.
b. The government cannot get the same information sought from
Steed from Paragon, Jessop, or Barlow
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 14 of 18
15

Contrary to findings made by the Court, Wage Hour cannot obtain the information it
needs from Paragon, J essop, or Barlow. In fact, Wage Hour has subpoenaed all three sources
identified by the Court and all three have either refused to answer questions, denied having any
personal knowledge of the Churchs involvement, provided information that is riddled with
inconsistencies and lacks credibility, refused to produce documents, or have raised First
Amendment claims similar to Steed (in addition to claims under the Fifth Amendment). This has
necessitated parallel subpoena enforcement actions.
9

Both the Magistrate J udge and J udge Shelby made adverse credibility findings against
J essop (Docs. 21, 36) and the Court subsequently granted Petitioners first set of petitions to
enforce subpoenas against J essop and Paragon, as well as Barlow. See Docs. 21, 23, and 36.
When J essop, Paragon, and Barlow refused to comply with the Courts orders enforcing the
subpoenas, Petitioner was forced to move the Court for contempt (as it relates to J essop and
Paragon) and move to enforce the subpoenas against Paragon, J essop, and Barlow a second time.
The Court granted the relief sought against Barlow on September 11, 2014 (Doc. 122); the
petition for adjudication of contempt and motion to enforce the subpoena against Paragon and
J essop is currently pending before the Court (Doc. 90, 106, 108). Petitioner cannot be forced to
limit its investigation of the FLDS Church as a joint employer under the FLSA by inquiring only
of Paragon, J essop, or Barlow under these circumstances. These sources are not the least

9
Petitioner asks the Court to take judicial notice of the two subpoena enforcement actions and
the petition for adjudication of contempt pending against Paragon and J essop (and all related
pleadings) (Docs. 2, 3, 16, 17, 21, 22, 28, 36, 90, 106, and 108); as well as the two subpoena
enforcement actions Petitioner has been forced to file against Barlow (Docs. 2, 3, 17, 19, 23, 46,
103, 107, 109, 117, 120, and 122), the latest of which the Court granted on the same day as the
decision at issue here (Doc. 122).
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 15 of 18
16
restrictive means of obtaining the information that Wage Hour needs to further the governments
compelling interest.
Even if Wage Hour prevails on all aspects of the contempt and subpoena enforcement
actions against Paragon, J essop, and Barlow, and is able to obtain some information from these
sources (despite prior denials and inconsistencies), it should not be prohibited from obtaining
additional information relevant to its investigation from Steed or any other individuals who are
directly tied to the FLDS Church, or information that could corroborate or contradict other
information gathered in the investigation. In fact, this is the only way for Wage Hour to conduct
an investigation and gather the information and evidence it needs to perform its statutory duty of
enforcing the provisions of the FLSA.
C. Steed is Not Entitled to a RFRA Defense on a Blanket Basis

By granting Steeds motion the Court essentially sustained his objections to all of the
questions asked during his testimony pursuant to Wage Hours subpoena. Many of these
questions include topics that Steed later conceded were not sacred to him and did not infringe on
his exercise of religion. For example, during his subpoena testimony, Petitioner inquired about
the Churchs involvement with the 2012 pecan harvest, including the commercial nature of the
harvest and related allegations of the FLDS Churchs use of child labor at the harvest, as well as
Steeds employment and position with the Church. See Doc. 73-1, Transcript of Vergel Steeds
subpoena testimony, at 10:2-14, 19:3-10, 21:4-9 & 16-24, 41:14-21, 41:24-42:2, 47:1-11, and
41:12-54:7. Petitioner also inquired about the organization of the harvest, including the
recruitment of labor, the transportation provided to and from the ranch, and the distribution of
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 16 of 18
17
proceeds that resulted from the harvest. Id. Steed objected to all questions related to these topics
and asserted the First Amendment. Id.
At the evidentiary hearing held before the Magistrate J udge on April 23, 2014 (Doc.
102), Steed testified that commercial activities and child labor activities within the FLDS Church
are not sacred and do not warrant First Amendment protection. See Exhibit A, at 14:23-25, 20:5-
7. He also testified that the collection of pecans at the Southern Utah Pecan Ranch and the
organization of any such event, including the means of transportation to get people to and from
the harvest is also not sacred and does not warrant First Amendment protection. Id. at 22:18-25
23:1-6, 23:7-9, and 25:14-18. Lastly, Steed testified that any position or employment he holds
within the Church may or may not be sacred and subject to First Amendment protection. Id. at
15:14-17. At a minimum, in light of Steeds concession that these particular subject areas do not
infringe on his exercise of religion, the Court should compel Steed to answer questions related to
them, as well as any necessary follow-up questions and any questions necessary to test the
credibility of his answers.
III. CONCLUSION
Based on the foregoing, Petitioner requests that the Court reconsider its Memorandum
Decision and Order Addressing Vergel Steeds Motion to Sustain Objections (Doc. 121), and
either reverse the outcome of its decision, or allow Petitioner to submit further briefing on the
issues identified herein. While Petitioner has outlined in this Motion the merits position he
believes to be correct, he is specifically requesting the opportunity to further brief those merits
if the Court does not reverse outright on reconsideration.
DATED this 30
th
day of September, 2014.
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 17 of 18
18
Respectfully submitted,

M. Patricia Smith, Solicitor of Labor
J ames E. Culp, Regional Solicitor
J ohn Rainwater, Associate Regional Solicitor
Lydia Tzagoloff, Trial Attorney and Special
Assistant United States Attorney
Alicia A.W. Truman, Trial Attorney

/s/ Karen E. Bobela
Karen E. Bobela, Trial Attorney
United States Department of Labor
Attorneys for Plaintiff

Carlie Christensen, Acting United States Attorney,
District of Utah
Amy J . Oliver, Assistant U.S. Attorney
Associated Local Counsel for Plaintiff
Case 2:13-cv-00281-DS Document 129 Filed 09/30/14 Page 18 of 18
1
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH CENTRAL DIVISION

THOMAS E. PEREZ, ACTING )
SECRETARY OF LABOR, UNITED )
STATES DEPARTMENT OF LABOR, )
Petitioner, )
vs. ) Case No. 2:13-CV-281-DS
PARAGON CONTRACTORS )
CORPORATION, et al., )
Respondents. )
____________________________)

BEFORE MAGISTRATE JUDGE EVELYN J. FURSE
----------------------------------------
April 23, 2014
Evidentiary Hearing






REPORTED BY: Patti Walker, CSR, RPR, CP
350 South Main Street, #146, Salt Lake City, Utah 84101
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A P P E A R A N C E S





For Petitioner: Karen E. Bobela
US DEPARTMENT OF LABOR
OFFICE OF THE SOLICITOR
1244 Speer Blvd., #511
Denver, Colorado 80204


Amy J. Oliver
US ATTORNEY'S OFFICE
185 South State Street, #300
Salt Lake City, Utah 84111


For Respondent Steed: Jason D. Haymore
HAYMORE LAW
11564 Gold Dust Drive
South Jordan, Utah 84095


























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I N D E X
Witness Examination By PAGE
Vergel Kay Steed Mr. Haymore (Direct) 6
Ms. Bobela (Cross) 13
Ms. Bobela (Further Cross) 22




















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SALT LAKE CITY, UTAH; WEDNESDAY, APRIL 23, 2014; 1:30 P.M.
PROCEEDINGS
THE COURT: Good afternoon. We are here in the
matter of the United States of America -- or, sorry, in the
matter of Thomas Perez vs. Paragon Contractors.
Would counsel please put their appearances on the
record.
MS. BOBELA: Karen Bobela with the Secretary.
With me is Amy Oliver from the U.S. Attorney's Office, and
Joseph Doolin, the district director of Wage and Hour
Division of the Department of Labor.
MR. HAYMORE: Jason Haymore for Vergel Steed.
THE COURT: Mr. Steed is here as well.
MR. HAYMORE: That's correct.
THE COURT: Thank you.
I appreciate you all being here. We are here for
an evidentiary hearing that I had set on the religious
beliefs that were mentioned in the motion to enforce the
First Amendment defense raised by Mr. Steed in his two
testimony in Wage and Hour's investigation.
So I think the way to proceed would be to have
you, Mr. Haymore, put Mr. Steed on the stand and ask him any
questions you would like, and then we can proceed from
there.
MR. HAYMORE: I think that would be great.
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Your Honor, with your permission, I would like to
just make a general objection on the record, just to begin
with. I feel it would be most appropriate at this time.
Mr. Steed's obligation concerning his First
Amendment objections is to make a prima facie showing of
First Amendment infringement, and he can do this by just
articulating an arguable First Amendment infringement. But
the First Amendment also provides an absolute protection
against forcing one to reveal their religious thoughts and
beliefs.
So as we proceed today, it's Mr. Steed's intention
to provide as much evidence as is necessary to meet his
burden, but he wants to make sure to reserve all of his
rights under the First Amendment, not to have to provide any
more information than is required to meet his burden in this
matter.
THE COURT: Perhaps to assist you with doing that,
I will tell you my particular concern in asking to have this
hearing, which is -- let me just pull this document up.
As part of Mr. Steed's affidavit, he states that
he would -- that if he were required by the Court to answer
questions regarding the internal affairs of the church,
quote, I would be directly violating my sincerely held
religious beliefs. So I'm trying to understand what the
sincerely held religious beliefs with respect to not
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answering the questions are -- what that belief is.
MR. HAYMORE: Absolutely.
THE COURT: Thank you.
MR. HAYMORE: I would call Vergel Steed.
VERGEL KAY STEED,
Having been duly sworn, was examined
and testified as follows:
DIRECT EXAMINATION
BY MR. HAYMORE:
Q Sir, can you please state your name for the record.
A My name is Vergel Steed.
Q Will you spell that for us, please.
A V-e-r-g-e-l. I have a middle name, Kay, K-a-y. Last
name, Steed, S-t-e-e-d.
Q Mr. Steed, what is your religious affiliation?
A FLDS.
Q Tell me what FLDS stands for.
A Fundamentalist Latter-day Saint.
Q Am I safe to assume today throughout the hearing that
when we say the FLDS Church, we're referring to the
Fundamentalist Church of Jesus Christ of Latter-day Saints?
A Yes, sir.
Q How long have you been a member of the FLDS Church?
A Always. All my life.
Q Mr. Steed, were you born a member of the FLDS Church?
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A Yes, I was.
Q Can you tell me the difference between things that are
considered secret to members of the FLDS Church and things
that are considered sacred?
A Secrets is rather --
Q It appears somebody may not want your testimony here
today.
A Something that's sacred to me is something that I would
not care to discuss or disclose to someone who I don't feel
would understand that idea or concept and possibly would
make fun of or deride that concept. If I hold it sacred, I
may not discuss it with you because I don't want to have --
Q Who designates to you, according to your belief
structure, what is sacred and what is not?
A Well, the beliefs that I have in my heavenly father and
the path that I must walk to please him.
Q I'm sorry. I can't hear him.
Could you please repeat your answer for me as best as
possible. Who dictates, under your belief structure, what
is sacred and what is not?
A I consider sacred the things regarding my path back to
the presence of my heavenly father. I avoid -- I don't care
to discuss things that pertain to my choices of what I
must --
THE COURT: We'll take a recess.
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(Recess)
THE COURT: Thank you all for your patience.
Hopefully we have the sound issues worked out.
Mr. Steed, if you would retake the stand, and I
will remind you that you are still under oath.
BY MR. HAYMORE:
Q Mr. Steed, before our recess, we were talking about the
difference between sacred and secrets things for the FLDS
people and for yourself in particular. Can we just back up
a second and have you remind us again what sacred things are
to the FLDS people or what it means for something to be
sacred.
A Sacred things are things -- to me, things between me
and my heavenly father. Secrets are kept between people.
Sacred things are much bigger than that.
Q So who designates whether something is sacred or not?
A Well, for me, the God that I believe in who I call
heavenly father, the things that pertain to him and his
directives to me, the path that I should take back into his
presence, these things are sacred.
Q Can you give me an example of something that you
consider sacred?
A I consider my religious leadership sacred, information
regarding that aspect of my life.
Q Do you mind helping us understand that just a little
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bit better? Why is it sacred -- a sacred matter being who
your religious leaders are?
A My religious leaders were set where they are not by men
but by my heavenly father, and that's not well understood or
accepted in the world we live in. And they and I suppose at
times I am subject to ridicule and being mocked and derided
by people who don't understand. So I would prefer to not
discuss those things with people who I don't feel would
understand. Therefore, it's sacred to me.
Q Mr. Steed, do you believe that the identity of the
leaders in the FLDS Church is a sacred matter?
A I do.
Q Do you believe that they were designated to be sacred
by a higher power than yourself?
A Yes.
Q Can you give me another example of something that would
be sacred to you?
A To me, the operations and particulars of church
function, how things are done in the church that I subscribe
to are sacred to me for the same reasons, those who don't
understand would mock or ridicule or deride my religion if I
were to discuss those things.
Q Do you believe that a higher power than you has
designated the church organization and operations as sacred?
A Yes, sir. Our church is organized by our heavenly
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father.
Q And you're referring to your heavenly father. Is he
the one who has designated these to you as sacred?
A Yes.
Q And he is, for lack of a better word, God or a deity of
the FLDS faith?
A Yes. He's called God, but I avoid frequent use of his
name.
Q Can you tell me what a covenant or a vow is?
A That would be a promise -- if I took a covenant or a
vow, it would be a promise between me and my heavenly father
and possibly other -- another person or people, that if I
perform certain duties or privileges, that I would earn
confidence or privileges from my heavenly father.
Q What happens if you were to break one of these
religious covenants or vows?
A Well, then I wouldn't be living my religion. I would
be choosing a different path than the religion that I've
chosen. I suppose I would be cutting myself off from the
church and forfeiting my relationship with my heavenly
father.
Q Have you taken religious covenants or vows?
A I have.
Q How were the covenants or vows that you had taken
implicated by the testimony you were asked to give on
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January 6th, this year, when you provided your testimony to
the Department of Labor?
A I was asked questions regarding my religion, my faith.
I was asked questions regarding leadership -- church
leadership and regarding some particulars of the operations
of the church that I don't feel that I can discuss.
Q Do you feel like you were asked about sacred things on
January 6th when you gave your testimony?
A Yes.
Q Can you tell me exactly what those sacred things were
that you were asked about?
A Again, church leadership questions, church operations
questions, and questions regarding myself and positions and
particulars that I don't discuss with people, some of those
things even with people inside my faith, let alone outside.
Q What would happen if you discuss sacred things like the
details of the leadership of the church or the church
operations openly?
A I don't know. I don't even want to go there.
Q Would your relationship with your deity be altered if
you were to do that?
A Absolutely.
Q How so?
A I would lose the confidence that I feel I have earned
between him and me. I don't think I could be a member of
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his church if I didn't live up to what he expects of me in
keeping these things sacred.
Q Would you be subject to any disciplinary action from
the FLDS Church for discussing those things openly?
A I would think so. I haven't tried that. I don't know,
but I would think so, yes.
Q Would other members of the church treat you differently
if you were to answer those types of questions in open court
or in any forum?
A Yes.
Q Can you explain how?
A Well, if I proved that those things were not sacred
enough to me to keep close and that I would discuss those
things, I wouldn't be invited to any further advancement or
any even activity.
Q Mr. Steed, how exactly would answering the Department's
question about the leadership of the church or the
operations of the church change your life?
A I don't know. That would be profoundly different. I
don't know. It would be a profound change to me,
fundamental.
Q In your mind would with change be for the better or the
worse?
A For the worse. I believe in my heavenly father and
have lived to the best of my ability the religion that I
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subscribe to. So to throw that away -- totally detrimental
to all that I've lived for.
Q Do you believe that answering the questions that you
were asked would be throwing it away, to use your words?
A Yes, I do, to discuss sacred things would be.
MR. HAYMORE: I have no further questions.
THE COURT: Thank you.
MS. BOBELA: I assume I have an opportunity to
cross?
THE COURT: Yes, absolutely. Sorry.
CROSS-EXAMINATION
BY MS. BOBELA:
Q Good afternoon, Mr. Steed.
A Good afternoon.
Q In your affidavit that you filed with the motion your
counsel filed -- do you recall signing an affidavit in this
matter? Let me start there.
A Yes, ma'am.
Q In that affidavit you state that you made religious
vows not to discuss matters related to the internal affairs
or organization of the FLDS Church. What vows specifically
did you make?
A I am not willing to discuss the specifics of the vows
that I've made.
Q Well, as far as the vow that you made -- I mean, you
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state in the affidavit, that's already been filed with the
court, that you made a vow not to discuss matters related to
the internal affairs or organization of the church. Is that
the vow that you took or is there more to that vow?
A That was necessarily a specific vow.
Q Is it a covenant?
A Not one specifically, no.
Q What is it, then? You described it as a religious vow
in your affidavit. I just want a better understanding of
what it is.
A Well, possibly that's part of many different vows.
Q Can you elaborate, please?
A No.
Q When did you make the alleged vow not to discuss
matters within the church?
A At many different times.
Q When's the first time you made that vow?
A I don't know.
Q Can you recall any times that you made a vow not to
discuss matters within the church?
A I can recall many times that I've made vows that
include not discussing sacred things.
Q Do you consider commercial activities of the church to
be sacred?
A No.
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Q Do you consider your employment relationship with the
church to be sacred?
MR. HAYMORE: Objection. He never testified that
he was employed by the church, even in the deposition or
today.
MS. BOBELA: Well, your Honor, the witness refused
to answer the question as to whether or not he was employed
by the church. So I guess I can phrase the question as if
you are employed by the church, would that be something that
you would consider sacred. That clears the objection.
THE WITNESS: There's not a fine line to me
between employment and position in the church.
BY MS. BOBELA:
Q On either end of the spectrum between employment and
position, are those matters that you would consider sacred?
A If I held a position in the church or did some work for
the church, it could be sacred, yes.
Q What would make it sacred?
A The fact that for me to discuss openly with a person
not of my faith would damage my relationship with my
heavenly father.
Q Were you told to make a vow of secrecy?
A I am not here talking about secrecy. I'm not
particularly keeping any secrets.
Q I can rephrase that question. Did somebody tell you
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that you needed to make a religious vow not to discuss
matters related to the internal affairs or organization of
the church?
A I was taught at my mother's knee that sacred things
aren't discussed openly.
Q Right. Did somebody tell you to make a religious vow
not to discuss matters related to the internal affairs or
organization of the church?
A I was taught at my mother's knee not to discuss sacred
matters openly.
Q Did you make your own determination that internal
affairs and the organization of the church is sacred?
A I don't understand the question.
Q Did you designate internal affairs or organization of
the church as something that is sacred or is that something
that is sacred to all FLDS members?
A It's sacred to everyone who's been taught the way I
have.
Q Is that something that is taught by the church or
something that was taught by your mother?
A To not discuss sacred things is a tenet of the church,
yes.
Q Who determines that internal affairs in the
organization of the church is sacred?
A I don't know. It has always been that way.
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Q Isn't it true that an order or instruction to keep
church matters private and to not discuss church matters
with people who are not members of the church is a recent
development in the FLDS Church?
A No.
Q That's not something that was created by Warren Jeffs?
A No.
Q How long has that instruction been around in the FLDS
Church?
A I read the teachings of Joseph Smith, Jr. in the 1820s,
of Brigham Young in the 1830s, '40s, '50s, and so on, that
teach me these things.
Q So there are written teachings about not discussing
matters related to the internal affairs and organization of
the church?
A Yes.
Q Did you bring any of those with you today?
A No. You wouldn't have let me in with them anyway.
Q Do those written teachings specifically state that
members of the church are not to discuss the internal
affairs or the organization of the church?
A Not particularly in those words, but yes.
Q What makes your vow not to discuss matters related to
the internal affairs or organization of the church religious
in nature?
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A How would affairs of the church be anything but
religious? It's a religious organization.
Q You would agree that the alleged belief in not
discussing matters related to the internal affairs or
organization of the church is not codified anywhere in the
FLDS body of teachings or instructions?
A As I stated before, if you read the teachings of
Joseph Smith, Jr., or Brigham Young, or other men who have
led the FLDS Church, you would find these things taught.
Q Do those teachings talk about not discussing voice
mails that are distributed to church members?
A I think that's a little ludicrous.
Q So it's how you've interpreted these teachings?
A I don't expect that Brigham Young would say anything
about voice mails in his teachings. Just time frame.
Q You talked a little bit about your fear of reprisal
from people within the church if you were to cooperate with
Wage Hour's investigation and answer the questions that were
posed, right?
A I don't remember discussing fear, no.
Q Your counsel asked you questions about whether other
members would treat you differently?
A Yes.
Q You had some concern that other members would treat you
differently if you were to cooperate with Wage Hour's
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investigation?
A Yes, ma'am, if I were to not keep sacred things sacred.
Q You fear disciplinary action from the FLDS Church?
A There may be disciplinary action from the FLDS Church
if I do not keep sacred things secret.
Q So these two fears that you've identified, the fear is
really coming from people within the church and how they
would react to you, right?
A Ms. Bobela, I didn't say anything about fears. You
did.
Q We can call them your concerns, however you want to
talk about them. I am referring to your concern of
disciplinary action from the church and your concern that
other members of the church would treat you differently.
A Those are beliefs that I have.
Q There are no concerns that people -- that the
government agencies would somehow retaliate against you,
right?
A No, there are not.
Q You're not worried about members of the public,
non-FLDS members?
A I don't know what they would do. I don't think they
would particularly care to get involved in that.
Q On direct when you were describing something as being
sacred, you said it's something that you do not care to
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discuss or disclose with someone who would not understand.
You are really describing your personal preference not to
discuss these things, aren't you?
A No, ma'am.
Q If there are child labor activities occurring within
the church, would those activities be sacred to you?
A No.
Q Is it your position that each and every question that
was asked of you on January 6th touched on something that
was sacred to you?
A No. I answered many questions.
Q But the questions you refused to answer were on the
basis that the questions imposed on something that you
considered to be sacred?
A The questions that I refused to answer, I refused to
answer based on my First Amendment right.
Q That's what we're trying to flush out here today. So
I'm trying to get a sense of the basis on which -- I can
only assume that you believe all the questions that were
asked of you discussed or got to something that you believe
is sacred. Is that your position?
A Yes, ma'am.
Q What discipline would you face from the FLDS Church if
you were to cooperate with Wage Hour's investigation and
answer the questions that were asked of you?
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A I don't know or want to know.
Q Are you aware of any examples of other people within
the FLDS Church who were disciplined?
A I'm aware of people who have not kept sacred things
secret, made choices that cut them off from the presence of
their heavenly father, and I don't want to go there.
MS. BOBELA: Your Honor, if I could just have one
moment?
THE COURT: Yes.
MS. BOBELA: I don't have any further questions,
Your Honor.
THE COURT: Anything else, Mr. Haymore, that you
would like to follow up with?
MR. HAYMORE: Yes, just real briefly.
REDIRECT EXAMINATION
BY MR. HAYMORE:
Q Mr. Steed, there's been a couple of matters that I just
want to make sure we're absolutely clear on. Who
designates, according to your belief structure, what's
sacred and what is not sacred? Is that something that is
determined by church leadership and by yourself or is that
done by deity?
A That's determined by my heavenly father and his
teachings.
Q And he has designated the church leadership and the
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operations of the church as sacred matters?
A Yes, sir.
MR. HAYMORE: No further questions.
MS. BOBELA: Just one quick follow-up question.
THE COURT: Okay.
FURTHER CROSS-EXAMINATION
BY MS. BOBELA:
Q Mr. Steed, how does the heavenly father designate
certain things as sacred and not sacred?
A Would you like to come to church?
Q Can you answer the question?
A No.
Q Is that something that's communicated to the entire
church at one time or something that was communicated to
you?
A These are things that I was taught at my mother's knee
and from then until now.
THE COURT: I have a couple of questions I would
like to ask. So I believe you did answer that you did not
believe that commercial activities of the church were
sacred. Would the collection of pecans at the southern Utah
pecan ranch, would that be considered a commercial activity,
in your view?
THE WITNESS: Your Honor, I have picked up pecans
at various places in southern Utah every December of my
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whole life, not as a religious activity, not as a commercial
activity, gathering food.
THE COURT: So you do not -- so if the -- so you
do not consider the collection of pecans at the southern
Utah pecan ranch as a religious activity?
THE WITNESS: No, I do not.
THE COURT: And do you consider how that event was
organized to be a religious activity?
THE WITNESS: No, not particularly.
THE COURT: So those are things that you would not
have a problem under the First Amendment testifying about?
THE WITNESS: About those things directly, I would
not. I believe I did answer those questions.
THE COURT: Okay. And then there was this issue
that we touched on a bit today about employment. And do you
consider who is employed, meaning -- and I'll use the term
broadly, to mean somebody who was paid by the FLDS Church or
the Corporation of the Presiding Bishop of the FLDS Church,
do you believe who is employed by the church to be a
religious issue?
THE WITNESS: Yes, I would think so.
THE COURT: Is there a particular portion of
either the church or the Corporation of the Presiding Bishop
that is sort of separately designed to deal with commercial
activities?
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THE WITNESS: I don't know.
THE COURT: We have talked here today in terms of
the FLDS Church. In your testimony there was some testimony
given about the FLDS Church and some given about the
Corporation of the Presiding Bishop of the FLDS Church. Is
there a distinction between those that you can explain to
me?
THE WITNESS: No. I don't know what the
distinction is.
THE COURT: So when you talk about the church,
you're meaning that to apply both to the corporation and to
the church?
THE WITNESS: Yes, ma'am.
THE COURT: Okay. Thank you.
Those are my questions. Are there any questions
either of you would like to ask based on those?
MR. HAYMORE: I have no further questions, Your
Honor.
MS. BOBELA: I guess I'll just ask a few follow-up
just to flesh this out a little further.
FURTHER RECROSS-EXAMINATION
BY MS. BOBELA:
Q Mr. Steed, so you just confirmed with the Judge that
how any pecan harvesting activities occur within the FLDS
community, you do not consider that to be a religious
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activity?
A Not particularly, no.
Q Does that also apply to voice mails that would have
been sent to round up individuals to participate with that
harvest?
A No.
Q Would the voice mail be considered a religious activity
for you or you would agree that that also is not a religious
activity?
A I believe that how church leadership communicates with
individuals in the church is sacred. That might be an
invitation to the Easter picnic or an announcement of a
meeting, or whatever.
Q How about transportation used to transport individuals
to and from the pecan harvest that would also go to how the
event is organized, is that something that you would
consider sacred or not sacred?
A Not particularly sacred.
Q How about records that are kept of any work performed
by FLDS members at the pecan harvest, would you consider
that to be sacred or not sacred?
A Sacred.
Q On what basis?
A I think all religious records are sacred.
Q These would be records pertaining to the pecan harvest
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at the southern Utah pecan ranch. You consider those to be
religious records?
A If you volunteered at your church and kept a record of
the time you spent or what you did, would that be sacred to
you? To me, it would. If I had gone to the pecan harvest
as a volunteer to help with that effort, I would not care to
disclose to you the record of that religious activity.
Q If you hold a position within the church as a record
keeper or a secretary of sorts and it's not paid, that is a
position held within the church, would you consider that to
be sacred or not sacred?
A Sacred.
Q Whether or not individuals are paid for their work at
the pecan harvest in any form or fashion by the church or
compensated in any way, would that information be sacred or
not sacred?
A I think you are trying to lead me into making a
statement as to whether people are paid. I am not
comfortable with answering that.
Q Is information about whether or not individuals who
work at the pecan harvest, information about whether or not
they were compensated in some way by the church, would that
information be sacred or not sacred?
A I would think that would be church records and should
be sacred.
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Q If there was an instruction or order given to certain
individuals to participate at the pecan ranch by the FLDS
Church, would that information be sacred or not sacred?
That would also go to how the pecan event is organized.
A Can you repeat the question?
Q If there was a direction given from someone within the
church to other church members to participate in the nut
harvest, would that information be sacred or not sacred?
A Communications between religious leadership and
individuals within the religion is sacred to me.
Q Lastly, information pertaining to what happens to the
pecans after they are harvested, would you consider that
information to be sacred or not sacred?
A I don't feel that I have enough particulars to answer
that question.
Q If Wage and Hour were going to inquire of you about
what happens to the pecans after they are harvested -- I
mean, it's a pretty general question. What happens to the
pecans? Are they sold? Are they given away? Are they kept
by the church? I mean, questions of that nature, would that
information about where the pecans go after they harvested
be sacred or non-sacred?
A I think that would depend on who you are asking.
Q If you were asked those questions, would you consider
the information responsive to those questions to be sacred
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or not sacred?
A I would just say I don't know, just like I did last
time you asked those questions.
MS. BOBELA: I don't have anything further. Thank
you.
THE COURT: Thank you.
Anything further, Mr. Haymore?
MR. HAYMORE: Nothing further from me.
THE COURT: And that's everything I have.
Thank you, Mr. Steed, for being here. I
appreciate your presence and your time.
Anything further I can address for the parties
today?
You can take a seat.
MS. BOBELA: I guess I would just be curious if
Your Honor would like additional briefing following this
hearing, or if you find it not necessary.
THE COURT: I think I will just go ahead with what
we have. I think both of you -- unless there is new law,
but I think you both have addressed the issue fairly, fully,
and it will just be a matter of me making a decision -- or,
rather, recommending a decision for Judge Sam on the point,
since it is a contempt proceeding.
Anything further on this -- so I don't think I
will need briefing, unless either of you feel strongly about
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that.
MR. HAYMORE: I don't. I'm very comfortable with
the evidence that's been submitted.
THE COURT: All right. Thank you very much.
We'll be in recess on this matter.
MS. BOBELA: Thank you, Your Honor.
(Whereupon, the proceeding was concluded.)
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C E R T I F I C A T E
I hereby certify that the foregoing matter is
transcribed from the stenographic notes taken by me and is a
true and accurate transcription of the same.
PATTI WALKER, CSR-RPR-CP DATED: 5-5-14
Official Court Reporter
350 South Main Street, #146
Salt Lake City, Utah 84101
801-364-5440
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