Update on Huntsman Lawsuit: Ninth Circuit Reverses Trial Court

[edvantageous]

3 hours ago, Analytics said:

On page 7 of that report, it shows their estimate of income and expenses. Including all donations and investment income, they estimate that in 2023 they had about $32.3 billion in income, of which about 77% ($24.5 billion) was used to grow the size of the investment portfolio.

Thanks for the reference. I suppose this is the real crux of this discussion: you seem to consider or define the church's donations received (from tithing), investment income, etc. all as tithing.

In the Widow's Mite report (from the link you provided) for 2023, they estimate tithing donations at around $6 billion for last year and surplus tithing saved for investing at $350-500 million. That's 8% max of tithing donations going to savings/investing. Based on this data (and just for 2023 estimates), I disagree with your earlier (and other) statements that "The biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

By definition we're not talking about the same thing and you're also employing much hyperbole. It's your right to make that meaning. For others who define tithing as that which a believer gives as an offering to God/the church, your statement is not factual.

 

[smac97]

2 minutes ago, Analytics said:

So you are suggesting that it does apply to purely secular disputes that aren’t properly pleaded?

It might.  We'd have to look at the particular case and legal claims in it.

2 minutes ago, Analytics said:

Quote

You are only proving my point here.  I have repeatedly acknowledged that the Church Autonomy Doctrine does not apply to properly pleaded, purely secular, disputes.

The issue is that you’ve refused to look at the reasoning for why this dispute is purely secular for the exact same reasons that Gaddy’s RICO claim was purely secular.

Poppycock.  I have extensively reviewed Judge Shelby's decisions in Gaddy and the MDL complaint and explained why and where I think the Doctrine applies (and where it might not apply).

2 minutes ago, Analytics said:

How many times have I said that I tend to agree with the Church on just about every issue they raise except their church autonomy doctrine claim?

Your position on this is nonsensical and not based on the law as it currently operates.

2 minutes ago, Analytics said:

Quote

Also, do the allegations, though couched as being a "secular" dispute, nevertheless implicate any religious dispute (such as the definition of "tithing," how Church funds should be spent, etc.)?

Gaddy says quite a bit more than that.

Many of the claims in Gaddy were dismissed precisely because they did encroach on the Church Autonomy Doctrine.  And this is after several do-overs by Kay Burningham.

But the one claim that didn’t encroach on the church autonomy doctrine is that one the MDL suit is about.

I think you are quite wrong here.

Take a look at the end of Judge Shelby's July 2021 ruling:

Quote

For the reasons explained above, the Church's Motion to Dismiss is GRANTED in part, and DENIED in part. The Motion is GRANTED as to Gaddy's claims for common law fraud, breach of the duty of full disclosure, fraud in the inducement to enter into an oral contract, fraudulent concealment, violations of the Utah Charitable Solicitations Act ( UCA §§ 13-22-1, et seq. ), her first and second alternative theories of civil RICO violations ( 18 U.S.C. § 1962(c) ), and intentional (reckless) infliction of emotional distress. The Motion is DENIED as to Gaddy's third alternative civil RICO theory of liability relating to alleged misrepresentations concerning the Church's use of tithing.

The only claim in Gaddy that survived dismissal in 2021 was the civil RICO claim.  The MDL plaintiffs have not included any such claim int heir lawsuit, so you cannot accurately state that civil RICO is the claim "the MDL suit is about."

The civil RICO claim was later dismissed in 2023 alongside all of Gaddy's other claims (though not based on the Ecclesiastical Abstention Doctrine).

2 minutes ago, Analytics said:

Like that point in Gaddy, the MDL suit "points to specific factual statements allegedly made by the Church through its representatives concerning the Church’s use of tithing funds and alleges those statements are false.

Fraud claims are not civil RICO claims.

Civil RICO claims are not fraud claims.

You are conflating the two.

2 minutes ago, Analytics said:

The inquiry required to adjudicate this claim does not implicate religious principles of the Church of the truth of the Church’s beliefs concerning the doctrine of tithing.

Hoo, boy.

Gaddy's lawyer also claimed that Gaddy's claims are purely secular and do not contravene the Church Autonomy Doctrine.  As I have noted several times now, a plaintiff's say-so as to such questions of law have no weight relative to the Court's adjudication.

Fraud claims may or may not be barred by the Church Autonomy Doctrine.  We must examine the specific claims in the specific lawsuit to make a reasoned evaluation of them.

In Gaddy, Judge Shelby dismissed the fraud claims, and did so by explicitly invoking the Church Autonomy Doctrine:

Quote

The court has twice considered and rejected Plaintiffs' arguments that fraud-based claims directed towards the Church's alleged misrepresentations and omissions concerning the First Vision, Church History, translations of the Books of Mormon and Abraham, and locations of events in the Book of Mormon are not subject to the church autonomy doctrine. The court also previously rejected Plaintiffs' theory that they can avoid the church autonomy doctrine by arguing the sincerity of the Church's beliefs or basing their claims on a theory of fraudulent omissions. In their Opposition, Plaintiffs point to no newly decided case law or changes in circumstance that would require the court to revisit these conclusions. Accordingly, to the extent the Second Amended Complaint and the parties' arguments concerning the sufficiency of that pleading overlap with factual allegations, arguments, and legal issues previously addressed, the court relies on and incorporates its prior Orders. As such, the court grants the Church's Motion to Dismiss each claim to the extent Plaintiffs' theories arise from the Church's teachings and representations concerning the First Vision, translations of the Books of Mormon and Abraham, and Church history.
...

The primary failing of the Second Amended Complaint—which was also the primary failing of the original Complaint and Amended Complaint—is that the majority of Plaintiffs' fraud-based claims would require the court, in adjudicating the falsity element, to enter impermissible First Amendment territory. As to the allegations based on tithing payments, the Second Amended Complaint's fraudulent inducement and civil RICO claims failed to allege with the necessary specificity the actions the Plaintiffs took in reliance on alleged Church statements. The fraudulent nondisclosure claim failed to plead a legally cognizable duty, and the fraudulent concealment claim failed for being duplicative of the fraudulent nondisclosure claim. The "constructive fraud based on a breach of promises of future performance" claim failed for not being a recognized cause of action under Utah law. And the UCSA claim failed for not providing a private right of action.

None of Plaintiffs' identified changes rectify the fatal flaws of prior complaints. The first set of identified changes add additional factual allegations to the complaint: a further basis for allegations made on information and belief, new allegations concerning affirmative misrepresentations on the 2012 tithing form, additional factual allegations that Church authorities do not believe what they teach, and allegations comparing the percent of annual tithing used for investments with the percent used for humanitarian aid. These additional allegations do not address the failures identified above—the failure to allege any specific instances in which Plaintiffs relied on a misrepresentation and took some kind of action or entered an oral contract on that basis.

Second, repleading "constructive fraud based on a breach of promises of future performance" as constructive fraud would also be futile. Because constructive fraud is a recognized standalone cause of action in Utah, unlike "constructive fraud based on a breach of promise of future performance," the court will briefly address why this proposed new cause of action would be subject to dismissal. Constructive fraud requires two elements: "(i) a confidential relationship between the parties; and (ii) a failure to disclose material facts." As to the first element, Plaintiffs allege a confidential relationship arose between the Church and its members based on the Church's repeated "promise[s] to never lead them astray." Plaintiffs include a table with several examples of Church leaders making this promise, nearly all in the context of religious proceedings such as the Church's annual general conference. The promise, as Plaintiffs plead it, was typically made as follows: "Brethren, keep your eye on the President of this Church ... the Lord will never let his mouthpiece lead this people astray." As to tithing, Plaintiffs allege the Church "breached that promise to never lead Plaintiffs astray with regard to its representations and less than full and fair disclosure of material facts about what it had done, was doing, and/or intended to do with respect to Plaintiffs' tithing."

The first element, as pleaded, would be subject to dismissal for running afoul of the church autonomy doctrine. To show a confidential relationship, a plaintiff must indicate "the circumstances are such that the defendant could exercise extraordinary influence over the plaintiff and the defendant was or should have been aware the plaintiff reposed trust and confidence in the defendant and reasonably relied on defendant's guidance." Thus, the court would have to determine that the Church "could exercise extraordinary influence" over its members, or that it should have been aware its members "reposed trust and confidence" in it, on the basis of its statements to members that "the Lord will never lead its mouthpiece astray." For the court to make that determination, it would necessarily have to consider matters of "church government as well as those of faith and doctrine," an inquiry forbidden by the Religion Clauses. Similarly, to determine whether Plaintiffs "reasonably relied on defendant's guidance," it would have to determine whether a reasonable person would rely on the statement "the Lord will never lead its mouthpiece astray," an inquiry that is also forbidden by the church autonomy doctrine because the court would have to consider the reasonableness of internal statements of religious doctrine.
...
For the reasons stated above, the Church's Motion to Dismiss Plaintiffs' Second Amended Complaint is GRANTED. Plaintiffs' Motion for Leave to File the Third Amended Complaint and Request for Oral Argument are DENIED. The Second Amended Complaint is DISMISSED WITH PREJUDICE.

You don't seem to be paying too much attention to this stuff.

2 minutes ago, Analytics said:

The point is that the alleged factual allegations are secular and nature and can be adjudicated without encroaching on the Church’s doctrine.

Except when they can't, such as what happened in Gaddy, and which I think will happen again in the MDL lawsuit.

2 minutes ago, Analytics said:

Quote

I'm not sure what the "statements by Church leadership about the specific ways tithing, once received, would in fact be spent" were, as I have not reviewed Gaddy's Amended Complaint in a while.  But it doesn't seem to matter.  At the time, Judge Shelby concluded that her civil RICO claim, as drafted, was a purely secular one that did not run afoul of the Church Autonomy Doctrine.

Exactly. And I think he will conclude that the MDL lawsuit, as drafted, is a purely secular one that does not run afoul of church autonomy.

Right.  I can see it now, the MDL plaintiffs explaining their position in an upcoming hearing:

"Hey, Judge Shelby, in your capacity as an Article III judge in the U.S. District Court for the District of Utah, please let us sue The Church of Jesus Christ of Latter-day Saints and let us ask a jury to decide whether the Church's use of funds in this or that transaction is "antithetical" to its religious missions.  This will, of course, mean that you will need to give the jury instructions on what the Church's religious missions are.  You, a federal judge, and not the Church, get to decide this.  And yes, you can do this stuff without running afoul of the Church Autonomy Doctrine.  After all, nothing says 'purely secular' like a federal judge dictating to a church what its religious missions are, and what it can and cannot do to fund those missions."

"Oh, one other thing, Judge Shelby.  Your jury instructions will also need to include a definition of the worth "tithes."  Again, you, a federal judge, and not the Church, get to decide this.  Also, the only way our claims work is if define "tithes" to mean both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations.  We will also need to you take this brand-new, judge-made definition and retroactively cram it down the throats and into the minds of the Church's leaders who have previously used this term (at least one of whom is now dead).  You doing this has nothing to do with a religious dispute, so you can totally do this stuff without violating the Church Autonomy Doctrine.  Nothing says 'purely secular' like a federal judge dictating to a church what the patently religious concept of 'tithes' means."

"So yeah, Judge Shelby.  If you could do these things that would be great."

2 minutes ago, Analytics said:

Of course. Which is why it’s weird that you think they didn’t successfully avoid the church autonomy doctrine issues, after Gaddy showed them how to do it.

Judge Shelby used the Church Autonomy Doctrine to bar fraud claims in Gaddy.  Gaddy only temporarily avoided the Church Autonomy Doctrine as to a single claim based on civil RICO, which failed for other reasons, and which claim the MDL plaintiffs have not presented to Judge Shelby.

2 minutes ago, Analytics said:

Quote

Perhaps one of the more obvious examples a religious-dispute-being-couched-in-supposedly-"secular"-terms is the stuff about tithing and City Creek.  The only way it works is for Judge Shelby to define "tithes" to mean both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations).  Such an exercise must, in my view, violate the First Amendment.  And this is so even though the MDL plaintiffs are calling this a purely "secular" question.

I know you like this argument, and you must have repeated it 750 times by now.

Well, I think it's pretty relevant.  It came up during yesterday's hearing in Gaddy, and I suspect it will come up in the MDL lawsuit.

2 minutes ago, Analytics said:

I know you think that the only way this works is if the judge redefines tithing. However, the plaintiffs' strategy is to point to specific factual statements allegedly made by the Church through its representatives concerning the Church’s use of tithing funds and alleges those statements are false.

Right.  And the only way they can allege falsity is by retroactively and radically re-defining "tithing."  I don't think Judge Shelby will do that.

2 minutes ago, Analytics said:

In Gaddy, the judge decided factual statements about the use of funds is a secular issue. 

The use of what funds?  Tithing, you mean?

What does "tithing" mean as used by the Church?  And is that definition "a secular issue"?

Each case has its own set of factual allegations, and whether the Church Autonomy Doctrine applies will be based on the particular allegations.

I think the Church has an expansive set of arguments for the dismissal of the MDL plaintiffs' lawsuit.  One of these arguments is the Church Autonomy Doctrine.  Will Judge Shelby use this doctrine as to all of the MDL claims?  Perhaps not.  But I think he will against most of them, and perhaps all of them.  We'll see.

2 minutes ago, Analytics said:

Quote

I also think the MDL plaintiffs stepped in it when, in paragraph 132 of their Complaint, they allege that the Church has used donations “in manners antithetical to the purported mission of” the Church. 

And I think your argument here is unserious because it is taking one phrase of one sentence out of context.

Quote

Hoo, boy. 

So they want Judge Shelby to adjudicate what "matters" of use of funds are and are not "antithetical" to the religious missions of the Church, and they want him to do this without violating the First Amendment?

No. Look. At. The. Context.

I have: "Plaintiffs did not believe and had no reason to ever suspect that LDS would take any portion of their donations and invest it into Ensign, where it would sit and accumulate interest in perpetuity and otherwise be used in manners antithetical to the purported mission of LDS and Ensign."

It will be difficult for the MDL plaintiffs to say "Yes, Judge Shelby, we specifically presented to you the notion that the Church is using money 'in manners anthithetical to the purported mission of' the Church, but we don't actually expect you to, you know, agree with us about that.  We invoked the 'mission' of the Church, but we don't expect to you evaluate what that mission is.  We accused the Church of behaving in ways 'antithetical' to its religious mission, but we don't want you to examine these supposed 'antithetical' behaviors and punish the Church for engaging in them.  Nope!  We're all about 'purely secular,' and what could be more 'purely secular' than asking a federal judge to examine a church's religious mission and decide whether otherwise completely legal financial expenditures are and are not congruent with that mission?"

I think it was David Jordan, the Church's attorney, who yesterday argued that Gaddy is asking the federal judiciary to conduct a heresy trial.  It was a potent point.  

2 minutes ago, Analytics said:

What they want is for Judge Shelby to evaluate their actual claim: that the Plaintiffs did not believe and had no reason to ever suspect that LDS would take any portion of their donations and invest it into Ensign, where it would sit and accumulate interest in perpetuity. 

This pertains to the "reliance" component of fraud claims, and whether their supposed reliance was reasonable.  The Utah Supreme Court addressed this more than six decades ago, as noted in the Church's Motion to Dismiss:

Quote

Some mistakenly believe “charitable” means only helping the poor and needy.7 But the “advancement of religion” is also charity. See Treas. Reg. § 1.501(c)(3)-1(d)(2). Donations spent on day-to-day Church operations, building and maintaining chapels and temples, funding missionary work and funding education, for example, are charity.8  And to support such activities, charities are unquestionably permitted to “accumulate” a reserve fund and manage those funds “as a prudent investor would in light of the purposes of the charity.” Restatement of the Law, Charitable Nonprofit Organizations § 2.04. Indeed, “[a] charity often holds substantial assets that are meant to be invested for the continuing operation of the charity to advance its purposes.” Id. comment a. The Uniform Prudent Management of Institutional Funds Act, adopted by every state except Pennsylvania, expressly authorizes charities to accumulate assets and invest. See Utah Code § 51-8-301(1)(a).

Plaintiffs nevertheless object to the Church investing in “noncharitable activities” and owning as investments “for-profit” businesses. Consol. Compl. ¶¶ 39, 155, 163, 172. But there is nothing improper about this. “Nonprofit does not mean that the organization itself cannot make a profit,” the “essence of the nonprofit test under § 501(c)(3)” is its “prohibition against private inurement.” 1 Religious Organizations and the Law § 8:26 n.4 (2d ed.). “[R]eligious organizations” can “own and operate taxable businesses, either for investment purposes or because the businesses are closely aligned with their religious missions” or both. Id. § 8.27.

Plaintiffs are not the first to object to Church investments. In Stone, a Church member objected to the Church’s investment in a Salt Lake City mall—City Creek’s predecessor—saying (much like Plaintiffs here) that “funds collected by the Church must be used for religious and charitable purposes,” not for investments in for-profit pursuits. Stone, 356 P.2d at 633. The Utah Supreme Court said of course donations must “ultimately be applied to the purposes for which the [Church] exists and for which the funds were donated,” but “it is obvious that all of the funds the Church collects would not be disbursed immediately and directly for such purposes.” Id. at 633-34. “It is but common sense and common knowledge,” the Utah Supreme Court continued, “that there is need for the exercise of management of such funds for the ultimate accomplishment of the purposes stated.” Id. at 634. “How this is to be done to best serve those objectives is for those in charge of the management of the church to decide” and may “entail the keeping of collected funds in savings accounts, bonds, real estate or any type of investment in which, in the judgment of those in charge, best suits that purpose.” Id. Moreover, a donor “has no right to retrieve, control, or direct the manner in which the money so given shall be used simply because he has made such contributions.” Id.9
...
7 The Church spent over $1 billion in both 2022 and 2023 caring for those in need. See Caring for Those in Need 2022 Annual Report at 4; Caring for Those in Need 2023 Annual Report at 14 (So that Plaintiffs’ allegations do not go completely unrefuted, the Church refers in Footnotes 7, 8 and 17 to matters outside the pleadings. The Court can, however, ignore those footnotes as it sees fit.)
8 The Church spends over $1 billion annually on its education system and just announced it would open a medical school at BYU to focus on the needs of Church members in developing countries as part of “the Church’s worldwide humanitarian efforts.” See First Presidency of The Church of Jesus Christ Announces New Medical School for Brigham Young University (July 29, 2024).
9 Utah law governs Plaintiffs’ claims, because Utah has the most significant relationship to the claims. See, e.g., Waddoups v. Amalgamated Sugar, 54 P.3d 1054, 1059 (Utah 2002); see also disc. infra at § IV.A. Plaintiffs appear to agree. See, e.g., Consol. Compl. ¶ 14 (claiming Plaintiffs “are entitled to money damages and injunctive relief under Utah law”).

Either you have not bothered to read the materials I have provided (contrary to your claim that you have), or you have read them and are ignoring the substantive law cited therein.  Either way, you keep veering into questions about what you think the law should be, rather than what the law is.

I anticipate that the MDL plaintiffs will respond in similarly irrelevant ways (though they will not be nearly as devoted to navel-gazing philosophizing as you are).  

The law says that religious groups can

• accumulate a reserve fund and manage those funds,
• make investments for the continuing operation of the charity to advance its purposes,
• hold and utilize/operate substantial assets, such as “taxable businesses, either for investment purposes or because the businesses are closely aligned with their religious missions” or both,
• hold or otherwise use donated funds and not immediately disburse them directly for charitable/religious purposes, and so on.

All of this is, under the law, "common sense and common knowledge."

You are not addressing any of this.  You are ignoring these principles of law, and endlessly regurgitating talking points from the MDL plaintiffs.  You are doing this to the exclusion of discussing the substantive law.

Judge Shelby is obligated to follow the laws of Utah in this matter.  I think it quite possible that he may find, as a matter of law, that the MDL plaintiffs have not sufficiently pleaded the "reasonable reliance" component of their fraud claims.  Or he may not reach this specific issue.  The Church has an embarrassment of riches in terms of legal arguments against the MDL lawsuit.

Thanks,

-Smac

[Calm]

38 minutes ago, edvantageous said:

Thanks for the reference. I suppose this is the real crux of this discussion: you seem to consider or define the church's donations received (from tithing), investment income, etc. all as tithing.

In the Widow's Mite report (from the link you provided) for 2023, they estimate tithing donations at around $6 billion for last year and surplus tithing saved for investing at $350-500 million. That's 8% max of tithing donations going to savings/investing. Based on this data (and just for 2023 estimates), I disagree with your earlier (and other) statements that "The biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

By definition we're not talking about the same thing and you're also employing much hyperbole. It's your right to make that meaning. For others who define tithing as that which a believer gives as an offering to God/the church, your statement is not factual.

 

Even if current wealth shows the largest amount of wealth is held in stocks and bonds, etc, that doesn’t mean the biggest use of tithing or even income over the years has been stocks and bonds, etc., even if we include investment income. The problem is the majority of tithing is not spent on things that add wealth to the Church, so won’t build in value over time.  Sometime in the past few decades the investment income did allegedly surpass the donation income but if one took the total over the past four decades, would that still be true?  We don’t have the data as far as I know, so can’t or at least shouldn’t say.  And this speculative report is based off of less than fully trustworthy info, imo.  So there should be a lot of reservations in making any global statements imo like ‘most income is spent on stocks, bonds, wealth building’.  I do think how that info is presented would make a difference too, where if one said investment income is put back into investments to continue to build and only excess tithing is added, with that excess being 8-10% of the total.

If they use much info from the Nielsens’ expose, I did not find it that credible given the references in footnotes for statements of facts were in fact to their own conclusions in many cases and treating speculation as fact, especially with numbers, did not create much trust for me…even the alleged church handouts with the commentary might not have contained full info for that time period given the Church’s compartmentalizing, might have covered just what expenditures they were dealing with in that particular meeting…what was on the agenda.  Plus they were already way out of date by the time he published them iirc, so the claim there have been no expenditures from the reserve besides City Creek or Beneficial Life is also way out of date as far as evidence and I am unaware of how else they would be able to track expenditures without leaks…from the 2021 graph, it said sources were various GA comments and whistleblower documents, so it doesn’t sound like they have up to date or very complete at all data.
 

 

I would be very surprised if the next few years don’t bring some expenditure from the reserve fund for the new BYU medical school and I would be shocked to hear it wasn’t touched during the Covid years (and very impressed that our members were able to keep humanitarian donations so high as tithing income would have dropped for most I am guessing).  Would not be upset, good and neutral things can be shocking as well.   

It is not the critics’ fault that they don’t have access to the accurate data, it is on the Church for limiting such information, but that doesn’t give anyone license to treat speculation as fact.

Edited September 24, 2024 by Calm

[Analytics]

18 minutes ago, edvantageous said:

Thanks for the reference. I suppose this is the real crux of this discussion: you seem to consider or define the church's donations received (from tithing), investment income, etc. all as tithing.

In the Widow's Mite report (from the link you provided) for 2023, they estimate tithing donations at around $6 billion for last year and surplus tithing saved for investing at $350-500 million. That's 8% max of tithing donations going to savings/investing. Based on this data (and just for 2023 estimates), I disagree with your earlier (and other) statements that "The biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

A rumor is developing that I have said on multiple occasions that "The biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

I’ve been searching for these references, and couldn’t find any. Not one. Here are the closest things I've found:

• On November 11, 2022, I said, "The big difference between the Harvard Trust and EPA is that Harvard uses most of its investment income to fund the university. In contrast, EPA uses all of its investment income to build up the size of EPA's asset portfolio."
   
• On January 10 of 2023, I said, "When you look at the Church's total income, in most years it uses most of its income to increase the size of its investment portfolio."
   
• On January 11, 2023, I said, "the Church can do whatever it wants with its money. But the fact that it uses most of its money to buy for-profit businesses so that it can have more profits and thereby buy more for-profit businesses is something that ought to be disclosed to members and investigators."
   
• On January 12, 2023, I said, "It uses most of its income to purchase income-producing assets."
   
• Earlier in this thread, I said, "There isn’t a cartoon depiction of a stock broker that says, “The biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

[smac97]

1 hour ago, Analytics said:

Quote

The MDL plaintiffs must likewise equivocate by claiming that the Church's statements about City Creek should be construed using an idiosyncratic and newly-minted-by-them-and-later-by-a-judge definition of "tithes," where the word means both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations).  

No, they musn’t ask a judge to redefine tithing.

Yes, they must.  Otherwise, the Church's no-tithing-will-be-used statements about City Creek do not support a fraud claim.

1 hour ago, Analytics said:

All they need to do is point "to specific factual statements allegedly made by the Church through its representatives concerning the Church's use of tithing funds and [allege] those statements are false.”

And the only way that can "alleget those statements {about tithes not being used to fund City Creek} are false" is to re-define "tithes" both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations.  Otherwise, the Church's no-tithing-will-be-used statements about City Creek do not support a fraud claim.

1 hour ago, Analytics said:

If they do that, all they need to do is remind the judge that he’s already decided that he’s already said “the inquiry required to adjudicate this claim does not implicate religious principles of the Church or the truth of the Church's beliefs concerning the doctrine of tithing. This claim further does not require the court to determine whether the Church or its members were acting in accord with what they perceived to be the commandments of their faith."

Here Judge Shelby was addressing a specific portion of Gaddy's Amended Complaint (paragraph 79), in which Gaddy incorporated several of the Church's statements about City Creek.  That is, this paragraph pertains only to the statements themselves, and not to their falsity (which Gaddy does not allege beyond a conclusory label of "2003-2012 Lies about Tithing Use."  This is apparently because Judge Gaddy was addressing Gaddy's civil RICO claim, not her fraud-based claims.  And note that Judge Shelby was speaking 'f "the Church's beliefs concerning the doctrine of tithing," that the factual falsity of their statements in paragraph 79.  

1 hour ago, Analytics said:

Like in Gaddy, all they need to do is "challenge secular representations concerning the use of money received by the Church."

No, they need to do more than that.  They need to allege that these "secular representations" were false.  And the only way they can do that is to re-define "tithing" to mean both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations, and to persuade Judge Shelby to go along with that.

Even if the plaintiffs manage to eke out an avoidance of dismissal under Rule 12, I don't think the claim can proceed to judgment.

1 hour ago, Analytics said:

Quote

And Judge Shelby is supposed to define "tithing" in this way without running afoul of the Church Autonomy Doctrine.  I don't see that happening.

I don’t either. What I see happening is that he is going to see that this is a secular dispute and that defining religious terms isn’t necessary.

A "secular dispute" about the completely lawful use of tithing.  We'll see.

Meanwhile, I note that you have not yet retracted your "biggest use of tithing" whopper. 

Thanks,

-Smac

[Stormin' Mormon]

2 hours ago, Analytics said:

The Church has been.

That is false. My actual words were:

There isn’t a cartoon depiction of a stock broker that says, “The biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

My actual statement is true, and I’ve been very candid about what I actually believe throughout this conversation, and have provided references and clarification when asked. If you think what I actually said is wrong and that I owe you an apology, show me the a cartoon depiction that says that, and I’ll acknowledge my wrongdoing.

 

The statement is only true because you are counting multiple years of investments and comparing it to a single year of the more "churchy" expenditures.  If you want to compare a portfolio of decades worth of investments, you'd have to compare the expenditures on temples and missionary work and publications across that same timeframe.  If the portfolio represents $100 billion over 50 years of investment, then your statement is only true if the average annual expenditure on churchy things is les than $2 billion.

This is like saying I care more about my retirement account than I do about feeding my kids because I have $1 million in retirement savings, but I only spent $10,000 on food last year.  

Edited September 24, 2024 by Stormin' Mormon

[smac97]

2 hours ago, Analytics said:

Quote

You have repeatedly claimed that "{t}he biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

That is false. My actual words were:

There isn’t a cartoon depiction of a stock broker that says, “The biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

You were claiming, as a factual matter, that "{the Church's} biggest use of tithing is to purchase stocks, bonds, and commercial real estate..."

This is a factually false statement.  And you, who regularly disparages the Church for its purported lack of candor and honesty, are standing by it.

Check.  Understood.  Message received.

2 hours ago, Analytics said:

My actual statement is true, 

How remarkably dissembling this is.  

So if I say "There isn't a cartoon depiction Roger bragging about how much he enjoys torturing puppies for fun and profit," and if you were to object to this calumny, all I need to do is say "Hey, my actual statement about the cartoon is true."  The falsity about the disparagement of your character, meanwhile and however, remains.

2 hours ago, Analytics said:

and I’ve been very candid about what I actually believe throughout this conversation, and have provided references and clarification when asked. If you think what I actually said is wrong and that I owe you an apology, show me the a cartoon depiction that says that, and I’ll acknowledge my wrongdoing.

How remarkably dissembling this is.

Again, I'll be sure to include a mental asterisk next to all of your various axiomatic pronouncements about how other people have a moral obligation to be honest in their statements.  We can all go around saying horrible and false things about Roger, as long as we say them in the context of a hypothetical cartoon.

I think hypocrisy, dishonesty, and flagrant double standards in communications are bad.

Thanks,

-Smac

[smac97]

19 minutes ago, Stormin' Mormon said:

Quote

The Church has been.

That is false. My actual words were:

There isn’t a cartoon depiction of a stock broker that says, “The biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

My actual statement is true, and I’ve been very candid about what I actually believe throughout this conversation, and have provided references and clarification when asked. If you think what I actually said is wrong and that I owe you an apology, show me the a cartoon depiction that says that, and I’ll acknowledge my wrongdoing.

The statement is only true because you are counting multiple years of investments and comparing it to a single year of the more "churchy" expenditures. 

I think he's being more sly than that.  His "statement is only true" because he couched the disparagement against the Church in the context of a hypothetical "cartoon depiction."  Since the cartoon is only hypothetical, not real, Roger can - apparently with a straight face - declare "My actual statement is true."

Thanks,

-Smac

[Analytics]

1 hour ago, smac97 said:

Fraud claims are not civil RICO claims.

Civil RICO claims are not fraud claims.

You are conflating the two.

No, I’m not.

The key issue isn’t whether a claim is a civil RICO claim or a a fraud claim. Rather, “the critical issue underpinning the church autonomy doctrine is whether the dispute is secular or religious.”

The Gaddy fraud claims (e.g. first vision accounts, the Book of Mormon, the sincerity of religious leaders) were patently religious and were appropriately dismissed under church autonomy. 

In contrast, the Gaddy civil RICO charges were “a secular dispute concerning statements by Church leadership about the specific ways tithing, once received, would in fact be spent."

Likewise, the MDL lawsuit is a secular dispute concerning statements by Church leadership about the specific ways tithing, once received, would in fact be spent. It’s about the same basic set of secular issues as the civil RICO case was, heard by the same judge! If those same specific issues were in fact secular then, I would expect the same judge to think they are still secular now.

1 hour ago, smac97 said:

As I have noted several times now, a plaintiff's say-so as to such questions of law have no weight relative to the Court's adjudication.

The plaintiffs’ say-so has no weight, but the judge’s sure does. I’m following Judge Shelby’s analysis of the exact same issues here. 

1 hour ago, smac97 said:

Right.  I can see it now, the MDL plaintiffs explaining their position in an upcoming hearing:

"Hey, Judge Shelby, in your capacity as an Article III judge in the U.S. District Court for the District of Utah, please let us sue The Church of Jesus Christ of Latter-day Saints and let us ask a jury to decide whether the Church's use of funds in this or that transaction is "antithetical" to its religious missions.  This will, of course, mean that you will need to give the jury instructions on what the Church's religious missions are.  You, a federal judge, and not the Church, get to decide this.  And yes, you can do this stuff without running afoul of the Church Autonomy Doctrine.  After all, nothing says 'purely secular' like a federal judge dictating to a church what its religious missions are, and what it can and cannot do to fund those missions."

"Oh, one other thing, Judge Shelby.  Your jury instructions will also need to include a definition of the worth "tithes."  Again, you, a federal judge, and not the Church, get to decide this.  Also, the only way our claims work is if define "tithes" to mean both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations.  We will also need to you take this brand-new, judge-made definition and retroactively cram it down the throats and into the minds of the Church's leaders who have previously used this term (at least one of whom is now dead).  You doing this has nothing to do with a religious dispute, so you can totally do this stuff without violating the Church Autonomy Doctrine.  Nothing says 'purely secular' like a federal judge dictating to a church what the patently religious concept of 'tithes' means."

"So yeah, Judge Shelby.  If you could do these things that would be great."

If the plaintiffs argue that, then this will be dismissed on the basis of Church autonomy.

The thing is, that isn’t the plaintiff’s argument.

In context, the actual point of the antithetical sentence is that “Plaintiffs did not believe and had no reason to ever suspect that LDS would take any portion of their donations and invest it into Ensign, where it would sit and accumulate interest in perpetuity.” That’s the main point.

I don’t know if that is relevant, can be proven, or is the basis for a valid fraud claim. But that is the actual argument.

And note that even if you insisted on giving undue weight to the prepositional phrase in the end of a subordinate clause at the end of the sentence, the claim isn’t about whether or not it spends money on things that are antithetical to the Church’s mission, but rather whether it spends money on things that are antithetical to its “purported” mission. I would think we could talk about the facts of what the church purports it is without discussing whether they are actually true or not. 

It’s telling that to make this weak argument stick, you don’t only have to ignore the first 2/3rds of the sentence and focus on a prepositional phrase in a subordinate clause, but you also have to misquote that subordinate clause by talking about real religious missions rather than mere purported ones.

1 hour ago, smac97 said:

Each case has its own set of factual allegations, and whether the Church Autonomy Doctrine applies will be based on the particular allegations.

Exactly. And the allegations in this suit have a ton of overlap with the allegations in Gaddy that were not dismissed based on church autonomy.

1 hour ago, smac97 said:

I think the Church has an expansive set of arguments for the dismissal of the MDL plaintiffs' lawsuit.

I've agreed with this from the beginning.

1 hour ago, smac97 said:

 One of these arguments is the Church Autonomy Doctrine. 

And the more I study it, the weaker this argument sounds.

1 hour ago, smac97 said:

It will be difficult for the MDL plaintiffs to say "Yes, Judge Shelby, we specifically presented to you the notion that the Church is using money 'in manners anthithetical to the purported mission of' the Church, but we don't actually expect you to, you know, agree with us about that.  We invoked the 'mission' of the Church, but we don't expect to you evaluate what that mission is.  We accused the Church of behaving in ways 'antithetical' to its religious mission, but we don't want you to examine these supposed 'antithetical' behaviors and punish the Church for engaging in them.  Nope!  We're all about 'purely secular,' and what could be more 'purely secular' than asking a federal judge to examine a church's religious mission and decide whether otherwise completely legal financial expenditures are and are not congruent with that mission?"

For example, does the Church purport that temple worship is an important part of the Church’s mission? Do you think a secular judge could decide whether or not it really purports this without intruding on the Church’s fundamental right to decide for itself, free form state interference, matters of church government as well as those of faith and doctrine? I think so. I think “the Church purports that temple worship is an important part of the Church’s mission” is an objective fact, and I could prove this fact objectively by quoting examples of the purporting. Note this has nothing to do with what the “true” doctrines are, whether believers are sincere, or anything else that isn’t secular. It’s merely an objectively true statement about what the Church purports about its belief.

In the context of this lawsuit, the only reason this matters is the main clause of the antithetical sentence: the plaintiffs allegedly had no reason to ever suspect that money was being allocated this way. That lack of transparency is the actual problem. The tension between the Church’s purported beliefs and how it actually allocates money is merely evidence that helps support why the plaintiffs had no reason to ever suspect the money was being allocated as it was. 

1 hour ago, smac97 said:

The law says that religious groups can

• accumulate a reserve fund and manage those funds,
• make investments for the continuing operation of the charity to advance its purposes,
• hold and utilize/operate substantial assets, such as “taxable businesses, either for investment purposes or because the businesses are closely aligned with their religious missions” or both,
• hold or otherwise use donated funds and not immediately disburse them directly for charitable/religious purposes, and so on.

All of this is, under the law, "common sense and common knowledge."

I'm not aware of anybody arguing that religious groups can’t do those things.

1 hour ago, smac97 said:

You are not addressing any of this.  You are ignoring these principles of law, and endlessly regurgitating talking points from the MDL plaintiffs.  You are doing this to the exclusion of discussing the substantive law.

The only reason I quote the MDL plaintiffs is so that we can see what their arguments actually are, so that we can evaluate their merits. I focus on that because you tend to argue against a straw man that was created by the defense. I quote Shelby much more frequently than I quote the MDL plaintiffs, and I’ve made good-faith attempts to apply his reasoning to this suit.

1 hour ago, smac97 said:

Judge Shelby is obligated to follow the laws of Utah in this matter.  I think it quite possible that he may find, as a matter of law, that the MDL plaintiffs have not sufficiently pleaded the "reasonable reliance" component of their fraud claims.  Or he may not reach this specific issue.  The Church has an embarrassment of riches in terms of legal arguments against the MDL lawsuit.

I've stated my general agreement with this since the beginning. I just think that given how Judge Shelby has analyzed church autonomy issues in the past, the church autonomy doctrine is the church’s weakest argument for dismissal. 

[edvantageous]

1 hour ago, Analytics said:

I’ve been searching for these references, and couldn’t find any. Not one. Here are the closest things I've found:

Thanks for looking into it and providing the references. I know I read something from you in an earlier post in this same thread and I think it was this one from Friday:

  

On 9/20/2024 at 5:53 AM, Analytics said:

In context, the real issue isn’t whether or not the Church was being true to the Church’s doctrine. Rather, it is about whether the Church gave the plaintiffs any reason to believe or even suspect that the Church was using most of its annual income to build up the size of its for-profit business empire. The Church has the right to do this, but it also has the legal and ethical obligation to be honest with donors and potential donors that this is what they are doing and planning to do with the donations they are soliciting.

I note that in this post you referred to "annual income" (and not "tithing") as the biggest use of funds annually, which changes the meaning significantly for me (and I don't disagree with it).

As a side note, I really appreciate and benefit from the discussion between you and Smac (and others, as well). I'm learning a lot about the issues and enjoy the different points of view. So, thanks to both of you for your (mostly) cordial exchanges and I hope you keep engaging even if the tone spikes in temperature from time to time.

[Analytics]

19 minutes ago, smac97 said:

You were claiming, as a factual matter, that "{the Church's} biggest use of tithing is to purchase stocks, bonds, and commercial real estate..."

This is a factually false statement.  And you, who regularly disparages the Church for its purported lack of candor and honesty, are standing by it.

In what way am I standing by it?

I explained my figures with this post:

Quote

 

My source is the report The Widow’s Mite: A Report on the State of Wealth in The Church of Jesus Christ of Latter-day Saints: 2023 Update.

On page 7 of that report, it shows their estimate of income and expenses. Including all donations and investment income, they estimate that in 2023 they had about $32.3 billion in income, of which about 77% ($24.5 billion) was used to grow the size of the investment portfolio.

 

And then explicitly said I agreed with your estimates of how much annual tithing is diverted to Ensign Peak Advisors. I’ve also explained how the idea that treating investment income and tithing income differently is an example of a cognitive bias known as “mental accounting” and even though the church treats income from each source differently, doing so isn’t rational.

19 minutes ago, smac97 said:

So if I say "There isn't a cartoon depiction Roger bragging about how much he enjoys torturing puppies for fun and profit," and if you were to object to this calumny...

There isn’t a cartoon depicting me bragging about enjoying torturing puppies. Why would I object to you saying something that is true?

19 minutes ago, smac97 said:

I think hypocrisy, dishonesty, and flagrant double standards in communications are bad.

Talk about an offender for a word. I’ve gone ahead and fixed the post with an apology added to the end.

Now it is your turn. You dishonestly said, "You have repeatedly claimed that "{t}he biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything.” 

The truth is I only said that once. Please fix your dishonest post and offer an apology. 

[Analytics]

8 minutes ago, edvantageous said:

Thanks for looking into it and providing the references. I know I read something from you in an earlier post in this same thread and I think it was this one from Friday:

  

I note that in this post you referred to "annual income" (and not "tithing") as the biggest use of funds annually, which changes the meaning significantly for me (and I don't disagree with it).

As a side note, I really appreciate and benefit from the discussion between you and Smac (and others, as well). I'm learning a lot about the issues and enjoy the different points of view. So, thanks to both of you for your (mostly) cordial exchanges and I hope you keep engaging even if the tone spikes in temperature from time to time.

Thanks. We’ve been going at it like this for something like 20 years now, so you don’t need to worry about us quitting any time soon.

 

 

[Analytics]

1 hour ago, smac97 said:

Yes, they must.  Otherwise, the Church's no-tithing-will-be-used statements about City Creek do not support a fraud claim.

And the only way that can "alleget those statements {about tithes not being used to fund City Creek} are false" is to re-define "tithes" both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations.  Otherwise, the Church's no-tithing-will-be-used statements about City Creek do not support a fraud claim.

In Gaddy, Judge Shelby said:

"The court concludes Gaddy's third alternative civil RICO theory is based on a secular dispute concerning statements by Church leadership about the specific ways tithing, once received, would in fact be spent."

Do you think he redefined tithing in order to make that conclusion? If so, then the courts have already defined tithing and there is no reason to do so again. If not, it proves that courts can rule that disputes concerning statements by Church leadership about the specific ways tithing is spent are secular disputes.

Edited September 24, 2024 by Analytics

[smac97]

3 hours ago, Analytics said:

Quote

Fraud claims are not civil RICO claims.

Civil RICO claims are not fraud claims.

You are conflating the two.

No, I’m not.

The key issue isn’t whether a claim is a civil RICO claim or a a fraud claim. Rather, “the critical issue underpinning the church autonomy doctrine is whether the dispute is secular or religious.”

That is a "key issue" as to the Church Autonomy Doctrine, yes.  Nobody is disputing that.

I think the dispute arises in that you seem to think the plaintiffs' say-so (that their claims are purely/exclusively secular) settles the matter, such at the Church Autonomy Doctrine does not apply.  My position is that the plaintiff's say-so is not definitive, and that Judge Shelby will look at the plaintiffs' complaint and decide for himself whether the claims are purely secular.  I think the claims pertaining to City Creek, resting as they do on allegations of the Church making factually false representations about the use of "tithing," will likely implicate the Church Autonomy Doctrine.  

The statements about City Creek are, I think, the best the MDL plaintiffs can do to come up with specific and "particular" statements of fact.  They cast about for other possibilities, such as LDS Philanthropies, which is odd because the plaintiffs do not claim to have made contributions to that entity.  Indeed, this entity seems to be the factual centerpiece of their claims, as the Complaint goes on and on about it.  They also go into some detail about the SEC issue, which is also odd because any "representations" would have been to the SEC, not to the members of the Church. 

Not until paragraph 108 (!) do they finally get around to citing a "representation" from the Church, namely, the October 8, 2003 statement from Bishop Burton regarding tithing not being spent on City Creek.  Then, in paragraph 110, they cite an October 5, 2012 statement from Keith McMullin (an official with Deseret Management Corp.) about tithing not being spent on City Creek.  In that same paragraph they claim that "Defendants had already made payments from tithing dollars toward building the mall."  For this they cite "Whistleblower report at 8 & n.h." which apparently a reference to this statement from Nielsen: "Checks from EPA's treasury containing only never-invested tithing had already been written by the time Mr. McMullin made this intentionally false statements."

This doesn't do much for me.  What checks?  From which account(s)?  Paid to whom?  For what?  When?  How does he know this money was "tithing"?  Where did he get his information?  These are the sorts of basic factual components that a fraud claim will typically require.

And did McMullin even say this?  The quote comes from an October 2012 Tribune article:

Quote

"The money may be perfectly administered, for all we know," said Ron Madson, 57, a lawyer and lifelong Mormon. "When we see these expenses for the City Creek mall, for the hunting preserves, these commercial enterprises ... we don't know where it's going."

McMullin said not one penny of tithing goes to the church's for-profit endeavors. Specifically, the church has said no tithing went toward City Creek Center.

So is this a paraphrase?  Or a gloss?  Did the Tribune put words into his mouth?

And in any event, what allegations do the MDL plaintiffs present that these statements are factually false?  The plaintiffs simply assert that "Defendants did use tithing funds to pay for the construction of City Creek Mall and to backstop Beneficial Life."  Really?  How do they know?  What documentation do they have establishing this?  What witnesses?  What admissions from the Church?  We can't answer any of these questions because the information is not in the MDL complaint. 

The plaintiffs' unadorned say-so is not sufficient to satisfy the heightened pleading requirements of Rule 9 of the Federal Rules of Civil Procedure.  “[A] complaint cannot survive dismissal by pleading mere conclusory allegations…unsupported by a recitation of relevant surrounding facts.” State v. Apotex Corp., 2012 UT 36, ¶ 21, 282 P.3d 66 (omission in original) (citation and internal quotation marks omitted). Instead, to satisfy this requirement, the claimant must “set forth in specific terms the time, place, content, and manner of [the] defendant’s alleged material misrepresentations or otherwise fraudulent conduct.” Cook v. Zions First Nat’l Bank, 645 F. Supp. 423, 425 (D. Utah 1986). These are what the Utah Court of Appeals has described as “the who, what, when, where, and how: the first paragraph of any newspaper story.” Coroles v. Sabey, 2003 UT App 339, ¶ 28 n.15, 79 P.3d 974 (citation and internal quotation marks omitted).

So the MDL plaintiffs fraud claims seem to rest entirely on the above statements from 2003 and 2012.  That's mighty weak tea.

3 hours ago, Analytics said:

The Gaddy fraud claims (e.g. first vision accounts, the Book of Mormon, the sincerity of religious leaders) were patently religious and were appropriately dismissed under church autonomy. 

The Gaddy fraud claims also included allegations about City Creek and tithing.

3 hours ago, Analytics said:

In contrast, the Gaddy civil RICO charges were “a secular dispute concerning statements by Church leadership about the specific ways tithing, once received, would in fact be spent."

Likewise, the MDL lawsuit is a secular dispute concerning statements by Church leadership about the specific ways tithing, once received, would in fact be spent.

Apparently the only "statements by Church leadership about the specific ways tithing, once received, would in fact be spent" referenced in the MDL lawsuit are the ones above from 2003 and 2012.  Those are not "specific" as to how tithing would be spent, but how it would not.  

And what is the "dispute," really?  That tithing was spent on City Creek?  The only way to get there is to re-define "tithing."

3 hours ago, Analytics said:

It’s about the same basic set of secular issues as the civil RICO case was, heard by the same judge! If those same specific issues were in fact secular then, I would expect the same judge to think they are still secular now.

I don't know how Gaddy frame her civil RICO claims, but I suspect it was not identical to the way the MDL plaintiffs have framed their fraud claims.  Meanwhile, Gaddy's fraud claims were dismissed based on, inter alia, the Church Autonomy Doctrine.

3 hours ago, Analytics said:

Quote

Right.  I can see it now, the MDL plaintiffs explaining their position in an upcoming hearing:

"Hey, Judge Shelby, in your capacity as an Article III judge in the U.S. District Court for the District of Utah, please let us sue The Church of Jesus Christ of Latter-day Saints and let us ask a jury to decide whether the Church's use of funds in this or that transaction is "antithetical" to its religious missions.  This will, of course, mean that you will need to give the jury instructions on what the Church's religious missions are.  You, a federal judge, and not the Church, get to decide this.  And yes, you can do this stuff without running afoul of the Church Autonomy Doctrine.  After all, nothing says 'purely secular' like a federal judge dictating to a church what its religious missions are, and what it can and cannot do to fund those missions."

"Oh, one other thing, Judge Shelby.  Your jury instructions will also need to include a definition of the worth "tithes."  Again, you, a federal judge, and not the Church, get to decide this.  Also, the only way our claims work is if define "tithes" to mean both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations.  We will also need to you take this brand-new, judge-made definition and retroactively cram it down the throats and into the minds of the Church's leaders who have previously used this term (at least one of whom is now dead).  You doing this has nothing to do with a religious dispute, so you can totally do this stuff without violating the Church Autonomy Doctrine.  Nothing says 'purely secular' like a federal judge dictating to a church what the patently religious concept of 'tithes' means."

"So yeah, Judge Shelby.  If you could do these things that would be great."

If the plaintiffs argue that, then this will be dismissed on the basis of Church autonomy.

Or if Judge Shelby construes their complaint as asking for these forms of relief, then this will be dismissed on the basis of Church autonomy.

3 hours ago, Analytics said:

The thing is, that isn’t the plaintiff’s argument.

Yes, I think it is.

3 hours ago, Analytics said:

In context, the actual point of the antithetical sentence is that “Plaintiffs did not believe and had no reason to ever suspect that LDS would take any portion of their donations and invest it into Ensign, where it would sit and accumulate interest in perpetuity.” That’s the main point.

Funny that you cut out the next part: “Plaintiffs did not believe and had no reason to ever suspect that LDS would take any portion of their donations and invest it into Ensign, where it would sit and accumulate interest in perpetuity and otherwise be used in manners antithetical to the purported mission of LDS and Ensign."

They are asking Judge Shelby to decide whether the Church's financial decisions are "antithetical" to the Church's religious mission.  That is not a "purely secular" dispute.

3 hours ago, Analytics said:

And note that even if you insisted on giving undue weight to the prepositional phrase in the end of a subordinate clause at the end of the sentence, the claim isn’t about whether or not it spends money on things that are antithetical to the Church’s mission,

Um, yes, that is part of the plaintiffs' claim.  It's right there, in the text of their complaint.  

3 hours ago, Analytics said:

but rather whether it spends money on things that are antithetical to its “purported” mission.

A distinction without a difference.  The mission of the Church, tithes paid to the Church, etc., cannot reasonably be described as "purely secular" or "exclusively secular."

3 hours ago, Analytics said:

It’s telling that to make this weak argument stick, you don’t only have to ignore the first 2/3rds of the sentence and focus on a prepositional phrase in a subordinate clause, but you also have to misquote that subordinate clause by talking about real religious missions rather than mere purported ones.

I think the attorneys who drafted the MDL complaint let the mask slip a bit.  This case really is a religious dispute dressed up as a secular one.  

I think the Church Autonomy Doctrine overall is a potent one.

3 hours ago, Analytics said:

For example, does the Church purport that temple worship is an important part of the Church’s mission?  Do you think a secular judge could decide whether or not it really purports this without intruding on the Church’s fundamental right to decide for itself, free form state interference, matters of church government as well as those of faith and doctrine? I think so. I think “the Church purports that temple worship is an important part of the Church’s mission” is an objective fact, and I could prove this fact objectively by quoting examples of the purporting. Note this has nothing to do with what the “true” doctrines are, whether believers are sincere, or anything else that isn’t secular. It’s merely an objectively true statement about what the Church purports about its belief.

I think Article III judges have a ten-foot pole handy to keep themselves away from disputes about a religious group's "mission" and whether this or that lawful expenditure of funds, or the retention of such funds, is activity that is "antithetical" to that "mission."

3 hours ago, Analytics said:

In the context of this lawsuit, the only reason this matters is the main clause of the antithetical sentence: the plaintiffs allegedly had no reason to ever suspect that money was being allocated this way. That lack of transparency is the actual problem.

Nope.  the plaintiffs' subjective and arbitrary expectations about "transparency" have very little to do with fraud and fraud-based claims.  Broadly speaking, the best fit might have been "fraudulent nondisclosure," but that claim is hobbled by the law not imposing a duty to disclose, and also by Judge Shelby having specifically rejected this claim as being barred by the Church Autonomy Doctrine ("The court concludes it cannot adjudicate the duty or materiality elements without running afoul of the church autonomy doctrine.").

3 hours ago, Analytics said:

The tension between the Church’s purported beliefs and how it actually allocates money is merely evidence that helps support why the plaintiffs had no reason to ever suspect the money was being allocated as it was. 

Supposed "tension" mitigates in the Church's favor, I think, as it centers - by even your reckoning - on "beliefs."  Secular courts are prohibited from embroiling themselves in disputes over matters of belief, governance, etc.  

3 hours ago, Analytics said:

Quote

The law says that religious groups can

• accumulate a reserve fund and manage those funds,
• make investments for the continuing operation of the charity to advance its purposes,
• hold and utilize/operate substantial assets, such as “taxable businesses, either for investment purposes or because the businesses are closely aligned with their religious missions” or both,
• hold or otherwise use donated funds and not immediately disburse them directly for charitable/religious purposes, and so on.

All of this is, under the law, "common sense and common knowledge."

I'm not aware of anybody arguing that religious groups can’t do those things.

The MDL lawsuit goes out of its way to complaint about the Church's dastardly deeds involving 

• accumulating a reserve fund
• making investments
• holding and utilizing/operating substantial assets, and
• holding, rather than immediately disbursing, donated funds.

Man, they go on and on and on.  A sampling:

• "Beginning in and about 1997 with its establishment of Ensign, the Corporation of the President of the Church of Jesus Christ of Latter-day Saints (“COP”) created a slush fund..."
• "Defendants have engaged in a multi-decade scheme to solicit donations byrepresenting that donated funds would be used to fund charitable work, while intentionally concealing from donors that they were actually secreting tens of billions in donated funds into an undisclosed slush fund held by Ensign."
• "COP (and, subsequently, LDS) deliberately hid that some, if not all, of these donations (including tithes, Fast Offerings, and donations made to an LDS philanthropy) are permanently invested in accounts..."
• "Despite LDS’s representations to the contrary, a substantial and significant amount of the donations it receives are not directed towards humanitarian aid, nor any other philanthropic or charitable purpose. Instead, they are transferred through a complex hub of entities to Ensign."
• "Once funds are transferred to Ensign, they are continually reinvested and never used to fund any Church organizations or efforts. They are, however, used to provide informal funding for unrelated business interests."
• "Ensign has never fulfilled its purported purpose for LDS nor functioned as a charitable entity. Instead, for more than two decades, it has done only one thing: it has collected donations collected by LDS, without ever disbursing these funds towards any charitable purpose."
• "LDS is taking advantage of Ensign’s non-profit status to receive billions of dollars in tax breaks on the interest its investments generate, even though Ensign does nothing demonstrably charitable, religious, or educational."
• "Despite the vast holdings stored within Ensign, Defendants have never directed any of those funds to be used for the solicited, charitable purposes."
• "Defendants did use tithing funds to pay for the construction of City Creek Mall and to backstop Beneficial Life."
• "Ensign channeled $1.4 billion to City Creek and $600 million to Beneficial Life indirectly, by routing funds through other entities affiliated with LDS."

All of this is entirely legal.  Unless, of course, the Church made false statements that no "tithing" was used to fund City Creek.  But that claim only works if Judge Shelby re-defines "tithing" to includes monies no informed Latter-day Saint would construe as a tithe.

3 hours ago, Analytics said:

The only reason I quote the MDL plaintiffs is so that we can see what their arguments actually are, so that we can evaluate their merits.

The reason I quote case law is because it is case law and statutory law, not the MDL plaintiffs' say-so and self-serving characterizations, that will determine the outcome of the lawsuit.

3 hours ago, Analytics said:

I focus on that because you tend to argue against a straw man that was created by the defense.

Well, no.  The Church's attorneys have done a very good job of martialing the applicable points of law.

3 hours ago, Analytics said:

I quote Shelby much more frequently than I quote the MDL plaintiffs, and I’ve made good-faith attempts to apply his reasoning to this suit.

You have persistently resorted to risible and offensive disparagements, loaded questions, non sequiturs, and even flagrant falsehood (the "biggest use of tithing" whopper, which you are apparently going to treat as a fair and reasonable statement about the Church).  Your invocation of the substantive law has been spotty, highly selective, and glosses over important points of law and fact.

3 hours ago, Analytics said:

Quote

Judge Shelby is obligated to follow the laws of Utah in this matter.  I think it quite possible that he may find, as a matter of law, that the MDL plaintiffs have not sufficiently pleaded the "reasonable reliance" component of their fraud claims.  Or he may not reach this specific issue.  The Church has an embarrassment of riches in terms of legal arguments against the MDL lawsuit.

I've stated my general agreement with this since the beginning. I just think that given how Judge Shelby has analyzed church autonomy issues in the past, the church autonomy doctrine is the church’s weakest argument for dismissal. 

We'll see, I suppose.

Thanks,

-Smac

Edited September 25, 2024 by smac97

[smac97]

1 hour ago, Analytics said:

Quote

Yes, they must.  Otherwise, the Church's no-tithing-will-be-used statements about City Creek do not support a fraud claim.

And the only way that can "alleget those statements {about tithes not being used to fund City Creek} are false" is to re-define "tithes" both "one tenth of one's increase annually" and also any revenue generated from the Church's investment of those donations.  Otherwise, the Church's no-tithing-will-be-used statements about City Creek do not support a fraud claim.

In Gaddy, Judge Shelby said:

"The court concludes Gaddy's third alternative civil RICO theory is based on a secular dispute concerning statements by Church leadership about the specific ways tithing, once received, would in fact be spent."

In the context of a civil RICO claim.  No such claim is pending in the MDL lawsuit.

1 hour ago, Analytics said:

Do you think he redefined tithing in order to make that conclusion?

No.  

1 hour ago, Analytics said:

If so, then the courts have already defined tithing and there is no reason to do so again.

No, they haven't.  And yes, there is or will be.  If the MDL lawsuit survives Rule 12, there is no way to adjudicate the truth or falsity of the Church's statements about City Creek without "tithing" being re-defined.

1 hour ago, Analytics said:

If not, it proves that courts can rule that disputes concerning statements by Church leadership about the specific ways tithing is spent are secular disputes.

Perhaps in a Rule 12 context in relation to decently-drafted and unrebutted-by-the-other-side civil RICO claims.  Otherwise, I don't think so.

Thanks,

-Smac

[smac97]

2 hours ago, Analytics said:

In what way am I standing by it?

Well, you haven't retracted it or apologized for it, and instead have defended and rationalized and excused it.

2 hours ago, Analytics said:

Now it is your turn. You dishonestly said, "You have repeatedly claimed that "{t}he biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything.” 

The truth is I only said that once. Please fix your dishonest post and offer an apology. 

That you said it "repeatedly"?  It looks like you did (see below).  But assuming I was in error, I retract that word and apologize.  

You:

Quote

There isn’t a cartoon depiction of a stock broker that says, “The biggest* a big use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

You:

Quote

* Note: When I originally posted this, I implied that “the biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything.”

You have not retracted the falsehood, nor apologized for it, and instead edited your post a bit.  I guess that's sufficient.

Thanks,

-Smac

[smac97]

6 hours ago, edvantageous said:

Quote

On page 7 of that report, it shows their estimate of income and expenses. Including all donations and investment income, they estimate that in 2023 they had about $32.3 billion in income, of which about 77% ($24.5 billion) was used to grow the size of the investment portfolio.

Thanks for the reference. I suppose this is the real crux of this discussion: you seem to consider or define the church's donations received (from tithing), investment income, etc. all as tithing.

Yes, well.  That's the gimmick that the anti-Mormon crowd tell each other.  Any income derived from invested tithes converts into tithes because of that derivation.  

Latter-day Saints, on the other hand, believe that "tithing" refers to an individual's unconditional donative gift, typically 1/10th of his income annually.  

If a Latter-day Saint donates $1,000 to the Church, and if the Church invests that $1,000 and realizes earnings of $200, the amount of tithing in view is . . . $1,000.  The amount of of the donation that the IRS recognizes for tax purposes is . . . $1,000.  The amount the individual identifies at the end of the year with his bishop is . . . $1,000.

At no point is the individual's donation construed by anyone as $1,200, save our current crop of ax-grinding anti-Mormons.

6 hours ago, edvantageous said:

In the Widow's Mite report (from the link you provided) for 2023, they estimate tithing donations at around $6 billion for last year and surplus tithing saved for investing at $350-500 million. That's 8% max of tithing donations going to savings/investing. Based on this data (and just for 2023 estimates), I disagree with your earlier (and other) statements that "The biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

Well, he has gone back and used strikeout text to remove "biggest," so that's something.

Meanwhile, I think the Church's use of the other 92% of tithed donations merits being characterized as "big use of tithing."

Thanks,

-Smac

Edited September 25, 2024 by smac97

[webbles]

21 minutes ago, smac97 said:

Not until paragraph 108 (!) do they finally get around to citing a "representation" from the Church, namely, the October 8, 2003 statement from Bishop Burton regarding tithing not being spent on City Creek.  Then, in paragraph 110, they cite an October 5, 2012 statement from Keith McMullin (an official with Deseret Management Corp.) about tithing not being spent on City Creek.  In that same paragraph they claim that "Defendants had already made payments from tithing dollars toward building the mall."  For this they cite "Whistleblower report at 8 & n.h." which apparently a reference to this statement from Nielsen: "Checks from EPA's treasury containing only never-invested tithing had already been written by the time Mr. McMullin made this intentionally false statements."

This doesn't do much for me.  What checks?  From which account(s)?  Paid to whom?  For what?  When?  How does he know this money was "tithing"?  Where did he get his information?  These are the sorts of basic factual components that a fraud claim will typically require.

And did McMullin even say this?  The quote comes from an October 2012 Tribune article:

So is this a paraphrase?  Or a gloss?  Did the Tribune put words into his mouth?

And in any event, what allegations do the MDL plaintiffs present that these statements are factually false?  The plaintiffs simply assert that "Defendants did use tithing funds to pay for the construction of City Creek Mall and to backstop Beneficial Life."  Really?  How do they know?  What documentation do they have establishing this?  What witnesses?  What admissions from the Church?  We can't answer any of these questions because the information is not in the MDL complaint. 

The plaintiffs' unadorned say-so is not sufficient to satisfy the heightened pleading requirements of Rule 9 of the Federal Rules of Civil Procedure.  “[A] complaint cannot survive dismissal by pleading mere conclusory allegations…unsupported by a recitation of relevant surrounding facts.” State v. Apotex Corp., 2012 UT 36, ¶ 21, 282 P.3d 66 (omission in original) (citation and internal quotation marks omitted). Instead, to satisfy this requirement, the claimant must “set forth in specific terms the time, place, content, and manner of [the] defendant’s alleged material misrepresentations or otherwise fraudulent conduct.” Cook v. Zions First Nat’l Bank, 645 F. Supp. 423, 425 (D. Utah 1986). These are what the Utah Court of Appeals has described as “the who, what, when, where, and how: the first paragraph of any newspaper story.” Coroles v. Sabey, 2003 UT App 339, ¶ 28 n.15, 79 P.3d 974 (citation and internal quotation marks omitted).

So the MDL plaintiffs fraud claims seem to rest entirely on the above statements from 2003 and 2012.  That's mighty weak tea.

Do the plaintiffs have to show that the statements are false right at the beginning or can they show that there is a possibility that the statements are false and then use discovery to prove (or not prove) that the statements are false?  The plaintiffs argue that the statements about tithing are false and currently don't have proof so they want to go into discovery to find that proof.  Is that allowed?  Because I see plaintiffs in other cases say things like "upon information and belief ..." and I thought that meant that the plaintiffs have some evidence but need to get into discovery to actually prove it.

[smac97]

18 minutes ago, webbles said:

Do the plaintiffs have to show that the statements are false right at the beginning

They have to plead the prima facie elements of each fraud-based claim with "particularity."  The who, what, when, where, etc.  They don't really do that.  They cite a few quotes from the Church, but then they do not explain how or why these statements are "false," how they relied on such statements, how that reliance was reasonable, etc.  They mostly just assert stuff in vague terms.

18 minutes ago, webbles said:

or can they show that there is a possibility that the statements are false and then use discovery to prove (or not prove) that the statements are false?  The plaintiffs argue that the statements about tithing are false and currently don't have proof so they want to go into discovery to find that proof.  Is that allowed? 

Short answer: No.

Actually, they only assert falsity, and they neither argue nor cite facts to demonstrate that falsity, let alone do so with "particularity."

“A complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.” Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 12, 314 P.3d 1079 (quoting Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972).  The MDL plaintiffs apparently want to use the federal courts to find a fraud claim rather than bring one through the front door.  That will not work.

18 minutes ago, webbles said:

Because I see plaintiffs in other cases say things like "upon information and belief ..." and I thought that meant that the plaintiffs have some evidence but need to get into discovery to actually prove it.

Fraud claims are held to markedly more difficult and specific pleading and evidentiary standards.  At present, we're only addressing the pleading defects in the MDL lawsuit, which are pretty extensive.

Thanks,

-Smac

Edited September 25, 2024 by smac97

[Analytics]

13 hours ago, smac97 said:

Yes, well.  That's the gimmick that the anti-Mormon crowd tell each other.  Any income derived from invested tithes converts into tithes because of that derivation.  

Latter-day Saints, on the other hand, believe that "tithing" refers to an individual's unconditional donative gift, typically 1/10th of his income annually.  

If a Latter-day Saint donates $1,000 to the Church, and if the Church invests that $1,000 and realizes earnings of $200, the amount of tithing in view is . . . $1,000.  The amount of of the donation that the IRS recognizes for tax purposes is . . . $1,000.  The amount the individual identifies at the end of the year with his bishop is . . . $1,000.

At no point is the individual's donation construed by anyone as $1,200, save our current crop of ax-grinding anti-Mormons.

But it’s important to remember that before the “current crop of ax-grinding anti-Mormons” were harvested, they were all faithful tithe-paying members, ripening on the vine. Back then, they interpreted the Church’s statements in exactly the same way most faithful members of the time did. Back then, it was the faithful Latter-day Saints who asked:

One frequently hears the statement that tithing funds were not used for such and such an investment. And while I like to think that is true, I have to pause and think...if not tithing then what funds were used? Surely not Fast Offerings, too many those are even more sacred as to their dedicated use, and surely not missionary funds. So, what are these mysterious "not tithing" funds?

Note that they weren’t talking about the definition of “tithing” as a noun, but rather “tithing” as an adjective used to modify the noun “fund." So what is a “tithing fund”?

Investment income on unspent tithing is an obvious thing that he didn’t even bother asking about. That makes it clear that he, as a faithful member, was talking about a “tithing fund”, which is a fund into which tithing is deposited, which can grow with interest. That point of view does make sense. If tithing is sacred and shouldn’t be directly used for certain things, why would it be okay to indirectly use tithing for those same things?

At the time, the majority of members believed that the money for City Creek came from the sale of pioneer-era companies the church owned, not from interest earned on tithing.

With 20/20 hindsight, the poster who most correctly understood the situation was a critic named Craig Paxton. He said members pay tithing, excess tithing is invested and generates interest, and that interest income was used to build the mall.

Most faithful members found this point of view very offensive (e.g. Scott Lloyd issued a big CFR in giant neon letters, which was seconded by Mola Rum Suma Rum, JAHS, etc.) Using interest on unspent tithing was a proposition that the self-righteous found offensive based on how they understood the Church’s pronouncements at the time.

Craig asked why everyone was so mad at him for believing that interest on unspent tithing was used to fund the mall, and a Saint explained to him:

The Church officers have publically stated that no tithing funds were used in the purchase of the mall. You are calling those Church officers liars. Provide proof of your claim or retract it.  

 

Edited September 25, 2024 by Analytics

[Analytics]

12 hours ago, smac97 said:

Well, you haven't retracted it or apologized for it, and instead have defended and rationalized and excused it...

You have not retracted the falsehood, nor apologized for it...

Please note my retraction and apology below:

On 9/24/2024 at 6:41 AM, Analytics said:

There isn’t a cartoon depiction of a stock broker that says, “The biggest* a big use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything."

...

_________________________________

* Note: When I originally posted this, I implied that “the biggest use of tithing is to purchase stocks, bonds, and commercial real estate in an unnecessarily gargantuan, exorbitant reserve fund that is never used for anything.” When I wrote this, I was thinking of the Church drawing from all sources of income in a proportional manner. While I believe that is the correct way of looking at it, I acknowledge that most people, especially in the church, succumb to the mental accounting fallacy and think income from investments and income from tithing are intrinsically different and should be treated as such. Consequently, my original words were sloppy and were a gratuitous hyperbole that should have been expected to be misunderstood. If my words caused you any pain or confusion, I offer my deepest apologies.    

 

Edited September 25, 2024 by Analytics

[Stargazer]

On 9/22/2024 at 9:51 PM, Analytics said:

They are merely expecting the Church to be honest with donors about how money will be used so that the donors can make informed decisions about whether or not to donate.

If I were not a believing member of the church, i.e. including being a non-member, and I were to consider donating to the church based on a desire to make a humanitarian/charitable contribution, the last thing I would donate to would be to the tithing category. This is because I would clearly understand that tithing is intended for the operations of the church, and not being a member, why would I want to do that? On the other hand, the church has other accounts one can donate to that are clearly humanitarian and charitable, and if those were clearly using donated funds for the stated purpose, then I would feel comfortable donating to them.

On the other hand, being a believing member of the church, and having a testimony of tithing as a commandment of God ("windows of heaven" thing), then whatever the Lord's anointed leaders choose to use it for is prima facie is what the Lord intended, or at least, permitted. And if they do misuse those funds, then I might be disappointed in them, but I nevertheless have a fiduciary responsibility to the Lord to pay that tithing. The point is, it isn't my money, it's the Lord's. I owe it to Him. And if His servants mismanage it, that's on them. I'm still going to pay it.

Hey, Analytics, I'm just curious to know what your profession is? Watching you and @smac97 have these discussions is like watching battles between two Titans. Are you an attorney as well?  

Edited September 25, 2024 by Stargazer

[Analytics]

40 minutes ago, Stargazer said:

If I were not a believing member of the church, i.e. including being a non-member, and I were to consider donating to the church based on a desire to make a humanitarian/charitable contribution, the last thing I would donate to would be to the tithing category. This is because I would clearly understand that tithing is intended for the operations of the church, and not being a member, why would I want to do that? On the other hand, the church has other accounts one can donate to that are clearly humanitarian and charitable, and if those were clearly using donated funds for the stated purpose, then I would feel comfortable donating to them.

On the other hand, being a believing member of the church, and having a testimony of tithing as a commandment of God ("windows of heaven" thing), then whatever the Lord's anointed leaders choose to use it for is prima facie is what the Lord intended, or at least, permitted. And if they do misuse those funds, then I might be disappointed in them, but I nevertheless have a fiduciary responsibility to the Lord to pay that tithing. The point is, it isn't my money, it's the Lord's. I owe it to Him. And if His servants mismanage it, that's on them. I'm still going to pay it.

Those are pretty mainstream sentiments. 

My perspective has always been that the Church has been regularly stashing away money into a rainy day fund, and that saving that money so that it grows with interest is the same thing as investing it in commercial things--that is why I always thought it was weird that the Saints needed assurance that tithing wasn’t being used to fund the mall, as if it is somehow okay to use tithing to buy stock in Apple, but not in the mall that houses the Apple store.

40 minutes ago, Stargazer said:

Hey, Analytics, I'm just curious to know what your profession is? Watching you and @smac97 have these discussions is like watching battles between two Titans. Are you an attorney as well?  

By profession, I am an actuary. My main professional responsibility is to evaluate an insurance company’s assets and liabilities and make sure that the company has enough money to pay its commitments (i.e. the reserves are sufficient), plus enough extra cushion just in case things go sideways (i.e. the level of surplus). From the perspective of an insurance company, we want to make sure there is enough money to pay claims, plus a very strong cushion. However, we also think about whether the cushion is too big--if an insurance company has too much surplus, it is an inefficient use of capital. That leads to premiums that are too high and unaffordable. 

I also moonlight as an expert witness on certain insurance matters. Smac’s questions always remind me of when I was being deposed and the attorney was asking me about insurance contracts and then asked a follow-up question, “is that your legal opinion?” I answered, “No, I don’t have legal opinions. That is my opinion as an insurance professional who has 25 years of experience in the industry. For a legal opinion, please talk to an attorney."

Edited September 25, 2024 by Analytics

[juliann]

I apologize if this has been answered but I don’t remember much about the whistleblower aside from how shocking it was at the time. 
 

Since the plaintiff seems to be relying on his statements, how much admissible evidence did he actually have? I was surprised to hear references to what he said rather than what he had when listening to the hearing. 

[smac97]

3 hours ago, Analytics said:

But it’s important to remember that before the “current crop of ax-grinding anti-Mormons” were harvested, they were all faithful tithe-paying members, ripening on the vine.

Yes, that is what of the more saddening aspects of anti-mormonism.  Most of the worst of them came out from us.  

Years ago I had lunch with a friend who is a divorce attorney in Utah County, a transplant from the San Francisco Bay area.  I asked him which area produced more acrimonious divorces, and he said something like this: "Oh, Utah.  By a mile.  In California, many or most of my divorce cases involved people who view marriage as being somewhat like a business relationship.  This means that they keep at it as long as doing so is in their best interests, but if the relationship sours, they can just divvy up the assets and go their separate ways.  This can get acrimonious, but the acrimony in Utah divorces is, overall, quite a bit worse.  Mormons take marriage seriously.  It's supposed to be an 'eternal' sort of thing.  So if the relationship goes sideways, the parties can't just part ways.  Blame has to be allocated.  Fault has to be found.  The other person's every error and transgression, then, is viewed in the worst possible light, and is magnified and concentrated and characterized so that the person is not merely a run-of-the-mill human with flaws and lapses, but is instead dark and twisted and terrible, even evil.  And then that other person responds in kind.  And so two generally good and decent people who previously loved and admired each other enough to enter into an eternal relationship end up thinking of each other as the devil incarnate.  And this mindset spills into the divorce proceedings.  It's not fun."

I think a somewhat similar dynamic can arise when a previously "faithful tithe-paying member" leaves the Church and then chooses to vilify it because blame must be placed, and fault must be found.  And all of this must be dialed up to 11.  The Church hasn't actually changed, but the individual's perspective on it has.  So the Church is no longer a wonderful institution which, however flawed its leaders and members are, nevertheless houses the saving doctrines and priesthood and ordinances of God.  Nor is the Church even a not-what-it-claims-to-be-but-still-fundamentally-well-intended good actor.  It becomes, in the eyes of the former Latter-day Saint, something that is positively and affirmatively bad and dark, even depraved. 

So the individual starts publicly castigating it at every turn and opportunity, freely doling out wildly over-the-top denigrations of its basic nature and character.  The Church "has a doctrine or polity to defraud members."  The Church's "primary objective is to accumulate money for the sole purpose of having it."  The Church only holds itself "not only to a really low standard ethically and morally, but also to a really low standard legally as well."  The Church "engage{s} in an 'orchestrated and illegal deception' against the members."  The Church "fraudulently mislead{s} {its} members about how {its} funds will be used."  The Church is totally okay with "{l}ying to the membership about how funds are spent is an internal matter that is religious in nature."  And all this is from one anti-Mormon in one thread on one board.

Fortunately, there are people who leave the Church and are able to "leave it alone."  The Church does not consume them, nor do they go out of their way to foment ill will against the Church, nor do they publicly insult and denigrate it.  They just move on with their lives.  Some of them, a decent number even, find their way back.  I am happy for them, and sad for those caught in the thrall of (or worse, regularly enjoying and advancing) malevolent faultfinding that is so often the sine qua non of anti-mormonism.

3 hours ago, Analytics said:

Back then, they interpreted the Church’s statements in exactly the same way most faithful members of the time did. Back then, it was the faithful Latter-day Saints who asked:

One frequently hears the statement that tithing funds were not used for such and such an investment. And while I like to think that is true, I have to pause and think...if not tithing then what funds were used? Surely not Fast Offerings, too many those are even more sacred as to their dedicated use, and surely not missionary funds. So, what are these mysterious "not tithing" funds?

First, it was one Latter-day Saint who asked that question.

Second, he asked a question which did not involve accusing the Church of lying.  That's the anti-Mormon gimmick.

Third, the answer to that question is not, cannot be, "Hey, everything is 'tithing.'"

Fourth, the answer to that question was, instead, answered in party by Pres. Hinckley and others in their remarks re: City Creek.  See, e.g., this 2021 Trib article:

Quote

Did LDS tithing go toward City Creek Center? Answer may depend on how you define tithing.

Church President Gordon B. Hinckley spoke in 2003 directly to Latter-day Saints who might have been uncomfortable with the faith using their donations to build a Salt Lake City mall and repeatedly assured them that “tithing funds have not and will not be used” to acquire and develop this property.

He said the money instead would come from “commercial entities owned” by The Church of Jesus Christ of Latter-day Saints” and “earnings of invested reserve funds.”

I acknowledge that some (likely few) Latter-day Saints may take a philosophical view that says that all of the Church's money is ultimately derived from tithing, and therefore is tithing.  However, neither the leaders of the Church nor the secular governments nor the law take this view.  While the Church views its stewardship of its funds as a sacred responsibility, it clearly does not treat all its income in the same way.  The Church's for-profit endeavors pay taxes on its revenue because that revenue was generated via commercial transactions and not by the free-will donation of one-tenth of an individual's increase annually.  

3 hours ago, Analytics said:

Investment income on unspent tithing is an obvious thing that he didn’t even bother asking about.  

I'm not sure what this means.  When tithing is invested, it is being "spent."  

3 hours ago, Analytics said:

That makes it clear that he, as a faithful member, was talking about a “tithing fund”, which is a fund into which tithing is deposited, which can grow with interest. 

That's far from "clear."  Perhaps he didn't ask about “earnings of invested reserve funds" (as Pres. Hinckley put it) because he did not know about it.

Moreover, money sitting in a bank account will "grow with interest," but not very much and not very fast.  No competent money manager does his job by just parking money in a bank account and saying "There!  I really look forward to seeing what the Church can do with that sweet sweet 0.13% interest amount it is accruing, particularly given that the average rate of inflation we've been enjoying since 2021 has been 4.85%!"

3 hours ago, Analytics said:

That point of view does make sense.

Too much mindreading going on.  

3 hours ago, Analytics said:

If tithing is sacred and shouldn’t be directly used for certain things, why would it be okay to indirectly use tithing for those same things?

This from the guy who persistently denies that re-defining tithing is a necessary component of the MDL and Huntsman lawsuits.

The "indirect use of tithing" is infinitely regressive.  By your reasoning, the most virulent anti-Mormons on the planet are, in some circumlocutory way, "tithepayers."  

• A Latter-day Saint pays a tithe to the Church.
• The Church uses a portion of its pooled tithing income to subsidize tuition at BYU.
• A BYU student, whose tuition was subsidized by the Church's tithing income, graduates and starts a business selling widgets on Amazon.
• An ardent anti-Mormon purchases three such widgets, allowing the BYU grad to realize a profit.
• That profit is, by your reasoning, "tithing."

Of course, nobody in the real world thinks or acts this way.  The only way these inane hypotheticals come about is when anti-Mormons become heck-bent on casting the Church of Jesus Christ in the worst possible light, so much so that they are willing to twist and contort and confabulate and come up with absurdities like "it's all tithing," or "it's all indirectly tithing."  

3 hours ago, Analytics said:

At the time, the majority of members believed that the money for City Creek came from the sale of pioneer-era companies the church owned, not from interest earned on tithing.

Poppycock.  

3 hours ago, Analytics said:

With 20/20 hindsight, the poster who most correctly understood the situation was a critic named Craig Paxton. He said members pay tithing, excess tithing is invested and generates interest, and that interest income was used to build the mall.

I think most Latter-day Saints on this board had this same understanding.

What they did not agree on, however, is Craig's inane suggestion that income generated from invested tithes is also tithing, and that it is "disingenuous" to say otherwise.

3 hours ago, Analytics said:

Most faithful members found this point of view very offensive (e.g. Scott Lloyd issued a big CFR in giant neon letters, which was seconded by Mola Rum Suma Rum, JAHS, etc.) Using interest on unspent tithing was a proposition that the self-righteous found offensive.

Meh.  Craig cast his comments in patently offensive/risible/provocative terms.  He called the Church's entirely lawful behavior "Classic Money Laundering."  He called the Church "disingenuous" in its statements about tithing.  I think he said this stuff for the same reasons so many anti-Mormons behave on this board: To provoke and offend members of a religious group they dislike.

3 hours ago, Analytics said:

Craig asked why everyone was so mad at him for believing that interest on unspent tithing was used to fund the mall, and a Saint explained to him:

The Church officers have publically stated that no tithing funds were used in the purchase of the mall. You are calling those Church officers liars. Provide proof of your claim or retract it.  

See?  He spoke to provoke an offense.  He succeeded at it, then feigned confusion as to why people were offended when Latter-day Saints took exception to him coming to this board and accusing them of being part of a religious organization that is "disingenuous" and is guilty of "Classic Money Laundering."

You've said similarly obnoxious and obviously-intended-to-provoke-and-offend things throughout this thread:

• On this specific point, they are essentially arguing that if a church has a doctrine or polity to defraud members, then the church autonomy doctrine grants it license to do so.
• In general, if an {the Church's} primary objective is to accumulate money for the sole purpose of having it, is it really a “church” in the legal sense?
• {The Church's attorneys are arguing that} since it is religious in nature, the Church ought to be held not only to a really low standard ethically and morally, but also to a really low standard legally as well.
• {Does the Church Autonomy Doctrine grant the Church} the right to engage in an “orchestrated and illegal deception” against the members...
• The Church has the right to {use most of its annual income to build up the size of its for-profit business empire}, but it also has the legal and ethical obligation to be honest with donors and potential donors that this is what they are doing and planning to do with the donations they are soliciting.
• But how does church autonomy give churches the right to fraudulently mislead members about how funds will be used?
• All of those are low standards of ethics, and now the plaintiffs are accusing it of “illegal deception.” And the Church’s response?  Lying to the membership about how funds are spent is an internal matter that is religious in nature, and thus is protected by the Church Autonomy Doctrine. 

And on and on and on.

Thanks,

-Smac

Edited September 25, 2024 by smac97