Update on Huntsman Lawsuit: Ninth Circuit Reverses Trial Court

[Analytics]

22 minutes ago, smac97 said:

Could you elaborate?  Where did Judge Wilson err in his assessment?

If you’d like to understand why he errored, read the vacated opinion of the circuit panel. In short, he was wrong about whether a reasonable jury could find the defendant made a misrepresentation. As the circuit court justices explained (and how an openminded review of the 2012/2015 threads demonstrate), a reasonable jury could conclude that the defendant made a misrepresentation.

Edited September 30, 2024 by Analytics

[smac97]

10 minutes ago, Analytics said:

This quote shows the disconnect.

I acknowledge that the way you look at it, “the funds for the mall did not come from tithing” is a true statement.

However, that way of looking at it takes the conversation out of context. The conversation was not about the difference between “interest” and “principal” and redefining “tithing” to also include interest. The conversation was about where the principal came from in the first place.

Specifically, the answer above was answering this question:

• When people accuse the Church of using sacred tithing money to fund things like the building of the City Creek mall, the obvious answer is of course that tithing money is not used; rather money from the for-profit arm of the church is used that was obtained through business investments...
  
  But then of course critics ask the next question; "Where do you think the church got the money to buy the businesses in the first place? And they conclude that It must have started with tithing money so in an indirect way the City Creek mall was made possible by sacred tithing money....How does one respond to this?"

In the context of that old thread, saying “the funds for the mall did not come from tithing” implies that while we all agree that the money to buy the mall came from Church-owned businesses, the money to buy the businesses in the first place did not come from tithing, so the critics are wrong, in an indirect way, the City Creek mall was not made possible by sacred tithing money."

Again. The conversation was about how to respond to critics that said money from the for-profit arm of the Church was used for the mall, and the money to create and grow the for-profit arm of the Church came from tithing. So in an indirect way, the money from the mall came from tithing.

Saying "the funds for the mall did not come from tithing” wasn’t meant to imply that the critics were right. In context, it was meant to imply that “the funds for the mall did not come from tithing, neither directly nor indirectly."

I'm not interested in mindreading and speculation about what a handfull of Latter-day Saints on this board said in 2012 and 2015, or in arguing with you about what they meant, what they understood, etc.

Judge Wilson seems to have gotten the law mostly right.  The Ninth Circuit gave some pretty strong indicators that they think the Church Autonomy Doctrine would have some prospective application of the lawsuit is allowed to proceed.

Thanks,

-Smac 

[smac97]

6 minutes ago, Analytics said:

Quote

Could you elaborate?  Where did Judge Wilson err in his assessment?

If you’d like to understand why he errored, read the vacated opinion of the circuit panel.

So rather than address the substance of Judge Wilson's decision, which is pending en banc review by the Ninth Circuit, and rather than evaluate the en banc hearing comments, you are focusing on the one piece of this which has been vacated and has no force or effect.  

Oh, well.

Thanks,

-Smac

[Analytics]

2 minutes ago, smac97 said:

I'm not interested in mindreading and speculation about what a handfull of Latter-day Saints on this board said in 2012 and 2015, or in arguing with you about what they meant, what they understood, etc.

Likewise, you don’t seem interested in why I think a reasonable juror could conclude that the defendant made a misrepresentation. 

[Analytics]

2 minutes ago, smac97 said:

So rather than address the substance of Judge Wilson's decision, which is pending en banc review by the Ninth Circuit, and rather than evaluate the en banc hearing comments, you are focusing on the one piece of this which has been vacated and has no force or effect.  

The opinion of the judges on the circuit court appeals panel has no force or effect. Just like your opinion.

[smac97]

3 hours ago, Analytics said:

Likewise, you don’t seem interested in why I think a reasonable juror could conclude that the defendant made a misrepresentation. 

I am interested in discussing the law and the Huntsman lawsuit.

Thanks,

-Smac

Edited October 1, 2024 by smac97

[smac97]

So @Analytics appears to think A) the trial court, Judge Wilson, was wrong in his "reasonable juror" analysis, B) the three-judge Ninth Circuit panel was correct in its "reasonable juror" analysis, and C) reviewing posts on this board from 2012 and 2015 would, somehow, illuminate how judges should approach a "reasonable juror" analysis.  I think this last point is not helpful, as it is just rank speculation about a question of law.  However, I'll take a stab at directly addressing Judge Wilson's analysis on this point relative to the appellate panel's.

Here is what Judge Wilson said re: the "reasonable juror" issue:

Judge Wilson's assessment was based on the evidence presented.  And the evidence presented showed that the Church "did exactly what {Pres.} Hinckley said" it "would do."

Moreover, his assessment was a conclusion of law, whereas Analytics seems to be treating the "reasonable juror" issue as a question of law.  That is incorrect.

Judge Wilson re-visits the "reasonable juror" later on:

I think Judge Wilson is correct here.  Pres. Hinckley differentiated between tithes and earnings on invested reserves.  The later statements would need to have been construed within the rubric of Pres. Hinckley's 2003 statement.

Judge Wilson also included a lot of substance in his footnotes:

Again, Judge Wilson looked at the evidence.

Here Judge Wilson declines to follow Huntsman's argument to where it necessarily leads: the First Amendment.

This is, to me, really interesting.  Judge Wilson found that "no reasonable juror" could conclude that Pres. Hinckley made a representation, but he also rejected the Church's argument that the "no reasonable juror" analysis extended to the other four statements and to Huntsman's credibility regarding his supposed reliance on those statements.

Here is the "reasonable juror" analysis from the now-vacated three-judge panel decision:

Quote

The panel held that there was a genuine dispute of material fact as to whether the Church fraudulently misrepresented the source of money used to finance the shopping mall development.  Based on the evidence in the record, including statements by church officials and in church publications, a reasonable juror could conclude that the Church knowingly misrepresented that no tithing funds were being or would be used to finance the shopping mall development and that Huntsman reasonably relied on the Church’s misrepresentations.   
...
There are two questions before us.  First, could a reasonable juror conclude that the Church fraudulently misrepresented that no tithing funds—neither tithing principal nor earnings on tithing principal—would be or were being used to finance the City Creek Mall project?  Second, could a reasonable juror conclude that Huntsman justifiably relied on the Church’s representations?  We answer them in turn. 

(1) Fraudulent Misrepresentation

The Church argued below, and the district court agreed, that there was no misrepresentation—fraudulent or otherwise—because President Hinckley stated truthfully in April 2003 that the City Creek Mall project would be financed with earnings on “reserve funds.”  Based on its conclusion that President Hinckley had made a true statement, the district court granted summary judgment to the Church.

This case cannot be so easily resolved.  The question before the district court, and before us, is whether a reasonable juror could conclude that the five statements by church officials and in church publications amounted to fraudulent misrepresentation by the Church.  See Small, 65 P.3d at 1258.  Huntsman contends that a reasonable juror could conclude from the five statements that the Church fraudulently misrepresented that neither tithing principal nor earnings on tithing principal were being or would be used to finance the City Creek Mall project.  We agree.

For the reasons that follow, we hold that a reasonable juror could conclude that the Church misrepresented the source of the funds used to finance the City Creek Mall project.  

First, church officials and church publications made four unqualified statements that no tithing funds were being or would be used to finance the City Creek Mall project.  None of the four statements distinguished between tithing principal and earnings on tithing principal.  None of them referred to a “reserve fund” or earnings on “reserve funds.”  

I don't see how these later statements could form the basis for a fraud claims.  These later statements did not contradict Pres. Hinckley's statement.

Quote

Second, President Hinckley denied that “tithing funds” would be used to finance the City Creek Mall project.  He stated in relevant part:

I wish to give the entire Church the assurance that tithing funds have not been used to acquire [the City Creek] property.  Nor will they be used in developing it for commercial purposes.
Funds for this have come and will come from those commercial entities owned by the Church.  These resources, together with the earnings of invested reserve funds, will accommodate this program.

(Emphasis added.)   

President Hinckley first stated that “tithing funds” had not been used to acquire, and would not be used to develop, the City Creek Mall.  He did not define “tithing funds.”  That is, he did not tell his listeners that, in denying that “tithing funds” would be used, he was denying only that tithing principal would be used.  President Hinckley then stated that earnings on invested “reserve funds” would be used to develop the project.  He did not define “reserve funds.” 

Boy, this is kind of . . . bad.  If federal judges are opening the court's doors to positive fraud claims based on representations that do not include explicit definitions, we are all in trouble.  I think the Ninth Circuit en banc judges may have the same concern.  From my notes:

Quote

7. A judge cuts him off: "Does it matter that the April 2003 speech came from President Hinckley in this religious context?  In other words, this wasn't just any old speech.  It was given in a broader sense of describing the Church's activities and religious mission.  Isn't there a concern that if you're asking courts to start parsing these speeches, whether it's going to chill something within religious doctrine or internal church governance.  That a church leader might have to run a speech by legal before he can deliver a sermon?"  This is a solid point.  @Analytics endlessly faults the Church for not being sufficiently "transparent."  Huntsman's lawsuit, though, would seem to justify the Church's reluctance to speak publicly about matters of church governance (because, as this judge is pointing out, doing so exposes the church to lawsuits in which secular judges are asked to "parse" what is said).

Yep.  The three-judge panel's approach is pretty risky.

Quote

President Hinckley could have explained that, as he was using the terms, “reserve funds” were “tithing funds.”  If he had said that, his audience would have understood that earnings on “tithing funds” would be used to develop the City Creek Mall project.  But President Hinckley did not say that.  Instead, having stated that “tithing funds” would not be used to develop the project, President Hinckely then used an entirely different and undefined term, saying that earnings on “reserve funds” would be used.   

This is, in my view, a serious error by the panel.  What they are describing here is not fraud, but fraudulent nondisclosure.  Huntsman did not assert that claim, and it is materially distinct from the fraud claim he did assert (just look at Gaddy, which held that the fraudulent nondisclosure claim is barred by the Church Autonomy Doctrine).

Later on in the decision:

Quote

Even if true, President Hinckley’s 2003 statement about “reserve funds” is not necessarily a defense to Huntsman’s fraud claim.  First, if President Hinckley had stated in English that “tithing funds” would not be used to finance the project, and had then added in a foreign language unknown to his audience that the financing came from earnings on tithing funds, the added statement would not defeat a fraud claim. 

This is a weird hypothetical.  

Quote

Nor would it defeat a fraud claim if President Hinckley spoke entirely in English, first saying in plain language that “tithing funds” would not be used, but then, using undefined or specialized terms that his audience would not understand, saying that some other money (“earnings on reserve funds”) would be used.  

So Pres. Hinckley used "undefined or specialized terms that his audience would not understand" and that turns into a false statement of material fact . . . how?

Quote

In either event, the audience would have heard, stated in plain English, that tithing funds would not be used to finance the project, and then would have heard, in opaque language, that earnings on some other kind of funds would be used.  

Okay.  How does that support a fraud claim.  The evidence established that "some other kind of funds" (other than tithing) were used.

Quote

Second, when he spoke in 2003, President Hinckley made no reference to his 1991 and 1995 statements.  Even if an astute listener could have understood the 1991 and 1995 statements as the Church would have us understand them, the listener would have to have had those statements in mind in order to understand the 2003 statement as the Church would have us understand it. 

Still not seeing this as giving rise to a positive fraud claim.  The panel is saying that the absence of information in Pres. Hinckley's statement (he "made no reference to his 1991 and 1995 statements") could form the basis for a finding of fraud.  But the absence of information is a fraudulent nondisclosure claim, which Huntsman did not assert.

Quote

Third, there is evidence in the record indicating that the term “tithing funds,” in common usage within the Church, refers both to tithing principal and to earnings on tithing principal.  As noted above, Nielsen stated in his declaration:   

During my employment at EPA [Ensign Peak Advisors], EPA’s senior leadership and other EPA employees referred to . . . all funds of EPA as “tithing” money, regardless of whether they were referring to principal or earnings on that principal.   

Given this common usage, a reasonable juror could conclude that President Hinckley intended his audience to understand, when he said that no “tithing funds” would be used to fund the City Creek Mall project, that neither tithing funds principal nor earnings on tithing principal would be used. 

Nielsen's affidavit is sufficient to establish "common usage" of "tithing funds" as meaning both "tithing principal" and "earnings on tithing principal"?  Because some people at EPA supposedly spoke of the funds under their control as being "tithing"?  

Quote

Fourth, and perhaps most tellingly, Nielsen recounted in his affidavit that he questioned Roger Clarke, President of Ensign Peak, about the use of Ensign Peak funds to finance the City Creek Mall project.  

How can a supposed private communication from Roger Clarke to Nielsen in 2015 or whenever form an evidentiary basis for Pres. Hinckley defrauding James Huntsman in 2003?

Quote

Referring to the transfer of funds from Ensign Peak to Property Reserve on or before January 1, 2004, for use on the City Creek Mall project, Clarke told Nielsen that the funds had been transferred to Property Reserve in order to conceal their source.  According to Nielsen, Clarke told him that the funds had been transferred in this manner so that “people would not know that [Ensign Peak] was the source of this funding to City Creek Mall.”  Clarke told Nielsen “that it was important that people should not know [Ensign Peak’s] role as the source of the funds.” 

What does this have to do with tithing v. other sources of income?  What does this have to do with Huntsman's fraud claim?

Quote

In sum, a reasonable juror could rely on the following evidence to conclude that the Church fraudulently misrepresented that neither tithing principal nor earnings on tithing principal would be or were being used to develop the City Creek Mall project: (1) the four unqualified statements by church officials and in church publications that tithing funds were not used to finance the City Creek Mall project; (2) the statement by President Hinckley, in which he denied that “tithing funds” would be used to develop the City Creek Mall project and in which he failed to tell his listeners that, as he was using the terms, “reserve funds” were “tithing funds”; (3) common usage in the Church under which the term “tithing funds” includes both tithing principal and earnings on tithing principal; and (4) Clarke’s statement that money was transferred from Ensign Peak to Property Reserve in order to conceal the source of the funds used to develop the City Creek Mall project.  

We therefore hold, contrary to the district court, that there is a genuine dispute of material fact as to whether the Church fraudulently misrepresented the source of the money used to finance the City Creek Mall project.  

Not very good analysis, this.  I'm not really surprised that the Ninth Circuit vacated this opinion.

According to this article: "Rehearings en banc are particularly rare in certain courts, such as the 2nd Circuit. But even circuits that rehear cases en banc more frequently grant only between 1 and 1.5 percent of the petitions for such rehearing, as was the case in the 9th Circuit."

En banc review by the Ninth Circuit is exceedingly rare, which to me indicates that when it is granted, there is a solid likelihood that the decision to be replaced by the en banc decision was likely pretty bad.

Thanks,

-Smac

Edited December 24, 2024 by smac97

[Analytics]

12 hours ago, smac97 said:

So @Analytics appears to think A) the trial court, Judge Wilson, was wrong in his "reasonable juror" analysis, B) the three-judge Ninth Circuit panel was correct in its "reasonable juror" analysis, and C) reviewing posts on this board from 2012 and 2015 would, somehow, illuminate how judges should approach a "reasonable juror" analysis.  I think this last point is not helpful, as it is just rank speculation about a question of law.

My last point isn’t speculation about question of law, and it isn’t about how a reasonable juror should approach an analysis. Rather, it is evidence of facts about how contemporaneous Latter-day Saints did in fact interpret Hinckley’s remarks. For a juror to determine whether Hinckley lied, we need to know both what he said and how a reasonable person would interpret him. Did they interpret him the way Judge Wilson did?

By looking at these old conversations we know the following:

• There was no ambiguity about what “tithing” means
• The underlying question was what it means to use tithing; is using tithing indirectly still using tithing? 
• Critics argued that tithing was used indirectly (i.e. Member Pays Tithing-->Tithing in Excess of Current Needs is Invested-->Investments Earn Return-->$$$ From This Return on Investments is Reinvested in the City Creek Mall)
• The majority of Latter-day Saints were bothered by this assertion because to them, assurance that tithing wouldn’t be used meant that it would be used neither directly nor indirectly

In terms of the case the Ninth Circuit is now considering, I assume these are facts not in evidence. But they are still real world facts. Judge Wilson thinks Hinckley unambiguously explained that "invested reserve tithing funds would be used” to build the mall. In the real world, the Saints didn’t get that message. Pretending that they did is gaslighting.

[JAHS]

50 minutes ago, Analytics said:

In the real world, the Saints didn’t get that message. Pretending that they did is gaslighting.

The critics of the church didn't get the message. Or they did but saw it as an opportunity to criticize the Church leaders. For me personally I never considered interest made on invested tithing was considered tithing. I did not donate the interest. 

[CV75]

1 hour ago, Analytics said:

My last point isn’t speculation about question of law, and it isn’t about how a reasonable juror should approach an analysis. Rather, it is evidence of facts about how contemporaneous Latter-day Saints did in fact interpret Hinckley’s remarks. For a juror to determine whether Hinckley lied, we need to know both what he said and how a reasonable person would interpret him. Did they interpret him the way Judge Wilson did?

By looking at these old conversations we know the following:

• There was no ambiguity about what “tithing” means
• The underlying question was what it means to use tithing; is using tithing indirectly still using tithing? 
• Critics argued that tithing was used indirectly (i.e. Member Pays Tithing-->Tithing in Excess of Current Needs is Invested-->Investments Earn Return-->$$$ From This Return on Investments is Reinvested in the City Creek Mall)
• The majority of Latter-day Saints were bothered by this assertion because to them, assurance that tithing wouldn’t be used meant that it would be used neither directly nor indirectly

In terms of the case the Ninth Circuit is now considering, I assume these are facts not in evidence. But they are still real world facts. Judge Wilson thinks Hinckley unambiguously explained that "invested reserve tithing funds would be used” to build the mall. In the real world, the Saints didn’t get that message. Pretending that they did is gaslighting.

Given the source of your opinion, "majority" and "reasonable" are not the same thing! Hence "beyond a reasonable doubt" is so helpful a legal standard of proof.

Do you have a more reliable survey than a few message board posts? Not every member can be characterized as an "apologist" or a "critic". How can you better secularize the terms of reasonableness as the judges do?

I would say excising from the narrative the perspectove of saints who did get the message is pretense, and more actively and intentionally represents gaslighting.

 

[Analytics]

59 minutes ago, JAHS said:

The critics of the church didn't get the message. Or they did but saw it as an opportunity to criticize the Church leaders. For me personally I never considered interest made on invested tithing was considered tithing. I did not donate the interest. 

Despite the Church’s arguments to the contrary, there is and never has been a dispute about what “tithing” means; the issue isn’t and never was whether “invested tithing” is or is not "considered tithing."

The real issue is whether indirectly using tithing should be considered using tithing. Back then, most Saints thought the Church didn’t indirectly use tithing because as they understood him, Hinckley said they didn’t use tithing, which implies they didn’t use it directly and didn’t use it indirectly.

[Analytics]

2 minutes ago, CV75 said:

Given the source of your opinion, "majority" and "reasonable" are not the same thing! Hence "beyond a reasonable doubt" is so helpful a legal standard of proof.

Do you have a more reliable survey than a few message board posts? Not every member can be characterized as an "apologist" or a "critic". How can you better secularize the terms of reasonableness as the judges do?

I would say excising from the narrative the perspectove of saints who did get the message is pretense, and more actively and intentionally represents gaslighting.

 

Were the Latter-day Saints who weighed in on those threads unreasonable? That is certainly an argument you could make, but personally, I think more highly of you guys than that.

[smac97]

2 hours ago, Analytics said:

Quote

So @Analytics appears to think A) the trial court, Judge Wilson, was wrong in his "reasonable juror" analysis, B) the three-judge Ninth Circuit panel was correct in its "reasonable juror" analysis, and C) reviewing posts on this board from 2012 and 2015 would, somehow, illuminate how judges should approach a "reasonable juror" analysis.  I think this last point is not helpful, as it is just rank speculation about a question of law.

My last point isn’t speculation about question of law,

Yes, it is.  When a judge makes a decision on summary judgment and determines that "no reasonable juror could find X," the judge is making a legal determination, not a factual one. He is asking, and answering, a question of law, not of fact. This standard is part of the judge's evaluation of whether there is a genuine issue of material fact that warrants a trial.

You, on the other hand, seem to be treating the "reasonable juror" analysis as a question of fact, as evidenced by you repeatedly attempting to invoke the opinions of some members of this board in 2012 and 2015.  This fails because A) you are substantially misrepresenting what the members of this board said in 2012 and 2015, and B) what the members of this board thought in 2012 and 2015 has zero relevance to Judge Wilson's "reasonable juror" analysis.

2 hours ago, Analytics said:

and it isn’t about how a reasonable juror should approach an analysis. 

You have been explicit and repetitive in bringing up the 2012/2015 posts when addressing the "reasonable juror" issue. 

See, e.g., here:

Quote

Quote

Bluntly but respectfully because I understand intelligent and reasonable people can see things very differently, I am having a hard time understanding why you are not seeing such a debate when it seems front and center to me. 

Please read my answer to Webbles above. The real argument isn’t about what “tithing” means. The real argument is what Hicnkley’s words meant in context using the common usage that exists in the Church. Just because we might argue about now typical members of the Church would interpret “the Church didn’t use tithing for project xyz” doesn’t mean there is a dispute about what “tithing” is.

For example, if you go back and look at those old threads I keep linking to, many Saints were very confident that Hinckley’s words should be taken broadly and that the funding originally came from the Church’s legacy for-profit businesses and not from tithing in any way. Others weren’t so sure and suspected that interest on unspent tithing was used. Just because there was disagreement among members of the Church about this exact same issue doesn’t mean that these same members of the Church disagreed on the definition of “tithing."

When discussing the "reasonable juror" issue, you say "For example..." and then cite to what some Latter-day Saints said on this board in 2012 and 2015.

And here:

Quote

So Here Is The Point

Many Saints, including Pahoran, Mola Ram Suda Ram, and Kim Pearson, were confident that the Church hadn’t used investment income on unspent tithing to fund the mall. The source of this confidence was the Church’s statements.

Why did they think this? Was it because Pahoran, Mola Ram Suda Ram, Kim Pearson, and all the rest thought that the definition of “tithing” was the voluntary donations by members of one tenth of their increase annually and also any post-donation income generated from invested reserves?

According to your world view, they must have thought the official definition of “tithing" was donations plus investment income, right? How else can you explain why they interpreted “no tithing will be used” to exclude investment income on unspent tithing from being used?

In my view, Pahoran and Kim Pearson know exactly what “tithing” means. They just thought that assurances that tithing wouldn’t be used means that it wouldn’t be used directly and wouldn’t be used indirectly. 

The real issue isn’t these persnickety definitions of “tithing.” The real issue is how a reasonable member would interpret the totality of what was said in context. You focus myopically on the word “tithing” and refuse to consider what the word “use” means in this context.

You try to bolster your "reasonable juror" argument by pointing to what "{m}any Saints, including Pahoran, Mola Ram Suda Ram, and Kim Pearson" said in 2012 and 2015.

And here:

Quote

In 2012, JAHS asked the following:

Quote

When people accuse the Church of using sacred tithing money to fund things like the building of the City Creek mall, the obvious answer is of course that tithing money is not used; rather money from the for-profit arm of the church is used that was obtained through business investments over the years.

But then of course critics ask the next question; "Where do you think the church got the money to buy the businesses in the first place?"

And they conclude that It must have started with tithing money...So in an indirect way the City Creek mall was made possible by sacred tithing money...; money that is supposed to be dedicated to building God's church and helping the poor; not for building shopping malls. How does one respond to this?

Exactly zero Latter-day Saints responded by saying, “no reasonable person could disagree with the critics on this issue; President Hinckley clearly explained that earnings from invested reserve tithing funds would be used to build the mall."

When discussing the "reasonable juror" issue, you specifically point to what some Latter-day Saints said (or did not say) on this board in 2012 and 2015.

And here:

Quote

I’m not answering any more of your questions until you address these questions of mine:

1. What is the correct answer to JAHS’s 2012 question, as it pertains to where the funds came from?
2. Give me one example of somebody who gave the correct answer to his question. Just one.
3. What is the correct answer to Stone holm’s question from five years later?
4. Give me one example of somebody who gave the correct answer to his question. Just one.
5. Was it hard to find examples of people who gave the correct answer to those questions? Why or why not?

It seems to me that if "most of the Latter-day Saints who were paying attention to this issue” knew then what we know now, nobody would have bothered starting these threads. If somebody did, people would have been racing to explain how no reasonable person doubts that “earnings on invested reserve tithing funds” were used to fund the mall, just as Hinckley cleary said.

When discussing the "reasonable juror" issue, you specifically frame it in relation to what some Latter-day Saints, which you explicitly cast as "reasonable person{s}," said (or did not say) on this board in 2012 and 2015.

2 hours ago, Analytics said:

Rather, it is evidence of facts about how contemporaneous Latter-day Saints did in fact interpret Hinckley’s remarks.

This has zero relevance to Judge Wilson's decision.  Which is what I said: "{Analytics is arguing that} reviewing posts on this board from 2012 and 2015 would, somehow, illuminate how judges should approach a 'reasonable juror' analysis.  I think this last point is not helpful, as it is just rank speculation about a question of law."

2 hours ago, Analytics said:

For a juror to determine whether Hinckley lied, we need to know both what he said and how a reasonable person would interpret him.

Again, you are treating the "reasonable juror" issue as a question of fact.  You are incorrect to do so, as it is a question of law.

2 hours ago, Analytics said:

Did they interpret him the way Judge Wilson did?

By looking at these old conversations we know the following:

• There was no ambiguity about what “tithing” means

I agree.  So it makes little sense for you to suggest that the Latter-day Saints on this board shared in Huntsman's supposed perception regarding "what 'tithing' means."  

As Judge Wilson held: "{Huntsman} effectively asks this Court to define the term 'tithing funds,' {but} the First Amendment bars Plaintiff’s argument. Specifically, determining whether the term "tithing funds" encompasses earnings on invested tithing funds would require an analysis of the Church doctrines and teachings.  Such an inquiry would entangle this Court or a jury in an interpretation of 'ecclesiastical rule, custom or law.' {} The First Amendment bars such an inquiry."

2 hours ago, Analytics said:

• The underlying question was what it means to use tithing; is using tithing indirectly still using tithing? 

Respectfully, you're just pulling this out of your ear.  AFAICS, neither the courts nor the litigants (including Huntsman) have advanced this idea.

I am happy to stand corrected, though.  CFR: Chapter and verse, please, for where any party to the litigation or any court has addressed this idea.

2 hours ago, Analytics said:

• Critics argued that tithing was used indirectly (i.e. Member Pays Tithing-->Tithing in Excess of Current Needs is Invested-->Investments Earn Return-->$$$ From This Return on Investments is Reinvested in the City Creek Mall)

This still amounts to a re-definition, since re-defining "tithing" is the only way to shoehorn this "indirectly" thing into Pres. Hinckley's statement for the purposes of evaluating whether it is a false statement.

2 hours ago, Analytics said:

• The majority of Latter-day Saints were bothered by this assertion because to them, assurance that tithing wouldn’t be used meant that it would be used neither directly nor indirectly

This is not an accurate characterization of what Latter-day Saints thought or think, let alone a "majority" of them.

2 hours ago, Analytics said:

In terms of the case the Ninth Circuit is now considering, I assume these are facts not in evidence. But they are still real world facts.

You keep proving my point.  You are treating the "reasonable juror" issue as a question of fact.  You are incorrect to do so, as it is a question of law.

What members of this board said in 2012 and 2015 has zero relevance to Judge Wilson's "reasonable juror" analysis.

Thanks,

-Smac

Edited October 1, 2024 by smac97

[smac97]

1 hour ago, CV75 said:

Given the source of your opinion, "majority" and "reasonable" are not the same thing! Hence "beyond a reasonable doubt" is so helpful a legal standard of proof.

Fraud claims are not reviewed under the "beyond reasonable doubt" standard of evidence, but rather under the "clear and convincing" standard.  Still a high and difficult standard, but not as high as "beyond reasonable doubt."

1 hour ago, CV75 said:

Do you have a more reliable survey than a few message board posts?

Which "few message board posts" are being rather substantially mischaracterized here.  Again, nearly a year ago I went through the 2012 posts about this topic and quoted the Latter-day Saints verbatim.  I summed them up as follows:

Quote

Oi.  That was a slog.  But perhaps it was useful.  To sum up what the Latter-day Saints were saying back in 2012 and 2015:

• "Tithing and other consecrated funds"
• "the funds for the mall did not come from tithing"
• "if they say tithing money is not used for the building of things like the mall I can believe them"
• "{tithing} slips have provided ways to distinguish between various types of offerings"
• "Our leaders have stated plainly that no tithing funds were used"
• "I will continue to give whatever excess funds I can, apart from tithing, for the fast offering, for the Church Humanitarian fund, for the Perpetual Education Fund..."
• "The Church has a statement saying the money did not come from tithing funds, and specifying where it did originate."
• "{'not tithing' funds are} income from church owned businesses and sometimes from direct donations from members for a specific purpose."
• "There a great many original non-tithing sources of funds..."
• "The Church has more than one bucket of investment funds.  It has a diversified portfolio of almost all investment opportunities - stocks, bonds, real estate, etc.  Church funds, tithing funds, are not commingled with investment funds."
• "When someone at Church HQ says that no tithing funds were used, it is very likely true."
• "If the Church leaders say that no tithing funds were used, I think we ought to give them the benefit of the doubt.  There are plenty of for-profit funds available..."
• "Thus the source of funds can be completely controlled, and the money for City Creek can be certified NOT to have come out of Tithing funds."
• "I do believe that no tithing money was used for CityCreek."
• "When they say 'non tithing funds' they mean that money that people paid as tithing was not used."
• "All donations made to the Church through the donation process of each ward and branch go to this non profit entity.  This includes tithing, fast offering, missionary, perpetual education fund and humanitarian fund."
• "If the statement was made that no tithing funds were used, I am confident that is the case."

That sure sounds like what Latter-day Saints are saying now, in 2023, in this thread.  If the Latter-day Saints believe that A) the Church stated that the funds for City Creek did not come from tithing, and also B) the Church actually used from for City Creek, then those funds, ipso facto, are not "tithing funds," and the Latter-day Saints are not treating "tithing" as being synonymous with all other sources of Church income.  So it won't do for you to cram into our mouths and minds the notion that "tithing" includes monies that are not tithes.  You are just making that up.

Observant and conversant Latter-day Saints understand what "tithing" is, and what it means, and what it is not and what it does not mean.  (For that matter, I think the overwhelming majority of all people familiar with a dictionary would not subscribe to your tortured re-definition of "tithing.")

Latter-day Saints understand that the Church receives "tithes" from members (a tenth of their income), but also has other sources of income.  Fast offerings.  Charitable donations (such as to LDS Philanthropies), earnings on investments, for-profit ventures, and so on.

Latter-day Saints do not, per your suggestion, conflate these various sources of income as all falling under the rubric of "tithing."  Tithing has an actual and fairly specific definition and meaning.

A tithe is a donation by a member of the Church amounting to a tenth of his income.

A fast offering is a numerically distinct and separate and additional donation by a member of the Church, generally equivalent to the money that would have been spent on two meals (some members give more, some give less).  A fast offering is money that belongs to the Church, but it is not a "tithe," and tithing is not a fast offering.  The two are not synonymous.

A profit generated by EPA investing money in stocks, bonds, etc. is money that belongs to the Church, but such earnings on EPA's investments is not a "tithe" and tithing is not money generated by the EPA's investment efforts.  The two are not synonymous.

And so on.

Though derived from different sources, all of the monies held by the Church are held in trust.  All of these monies belong to the Lord.  All of these monies are, therefore, "sacred funds."  But not all "sacred funds" are "tithing."  Latter-day Saints, as shown above, do not believe that.  Nor does the Church teach that.

These commenters were looking at Pres. Hinckley's 2003 statement and substantively agreeing with its differentiation between tithes and other monies held by the Church.  We know more now than we did in 2012 and 2015, but even so we were not conflating tithing with other sources of income.  It is this conflation that Huntsman must have in order for his fraud claim to proceed.  Judge Wilson did not allow that argument, as doing so would require the court to violate the First Amendment.  From Judge Wilson's decision:

Quote

{T}ithing funds and earnings on invested tithing funds are not two sides of the same coin because [President] Hinckley expressly distinguished between the two. Second, because Plaintiff’s argument effectively asks this Court to define the term “tithing funds,” the First Amendment bars Plaintiff’s argument.  Specifically, determining whether the term "tithing funds" encompasses earnings on invested tithing funds would require an analysis of the Church doctrines and teachings.  Such an inquiry would entangle this Court or a jury in an interpretation of "ecclesiastical rule, custom or law." {} The First Amendment bars such an inquiry.
...
Neilsen conflates tithing funds with earnings on invested funds. ... It is on this basis that he then asserts that EPA directed approximately $1.4 billion in tithing funds to pay for {City Creek}. However, Hinckley expressly stated that earnings on invested tithings would be used to pay for the City Creek Project - both the acquisition of property and the development of that property.  And, as discussed above, that is exactly what happened.  Accordingly ... the distinction in Hinckley's statement renders his statement true.
...
Plaintiff offers no evidence that creates a genuine issue of material fact.  Plaintiff does not argue that earnings on invested tithing funds were not actually used{.} ... Instead, Plaintiff simply argues that there is no distinction between tithing funds and earnings on invested tithing funds.  {} However, Hinckley's statement is what creates a distinction between the two.  Specifically, Hinckley distinguished between tithing funds and the earnings on invested reserve tithing funds.  Hinckley's statement forms the basis for the fraud claim, and on reasonable juror could ignore the distinction within this statement.

• "Neilsen conflates tithing funds with earnings on invested funds."
• "{Huntsman} simply argues that there is no distinction between tithing funds and earnings on invested tithing funds."
• "{T}ithing funds and earnings on invested tithing funds are not two sides of the same coin because [President] Hinckley expressly distinguished between the two."
• "Hinckley distinguished between tithing funds and the earnings on invested reserve tithing funds."
• "Hinckley expressly stated that earnings on invested tithings would be used to pay for the City Creek Project - both the acquisition of property and the development of that property.  And, as discussed above, that is exactly what happened.  Accordingly ... the distinction in Hinckley's statement renders his statement true."

The foregoing findings in 2023 substantially confirm and vindicate the cumulative remarks of the Latter-day Saints who commented on this in 2012:

• "Tithing and other consecrated funds"
• "the funds for the mall did not come from tithing"
• "Our leaders have stated plainly that no tithing funds were used"
• "The Church has a statement saying the money did not come from tithing funds, and specifying where it did originate."
• "{'not tithing' funds are} income from church owned businesses and sometimes from direct donations from members for a specific purpose."
• "There a great many original non-tithing sources of funds..."
• "The Church has more than one bucket of investment funds.  It has a diversified portfolio of almost all investment opportunities - stocks, bonds, real estate, etc.  Church funds, tithing funds, are not commingled with investment funds."
• "When someone at Church HQ says that no tithing funds were used, it is very likely true."
• "If the Church leaders say that no tithing funds were used, I think we ought to give them the benefit of the doubt.  There are plenty of for-profit funds available..."
• "Thus the source of funds can be completely controlled, and the money for City Creek can be certified NOT to have come out of Tithing funds."
• "I do believe that no tithing money was used for CityCreek."
• "When they say 'non tithing funds' they mean that money that people paid as tithing was not used."
• "All donations made to the Church through the donation process of each ward and branch go to this non profit entity.  This includes tithing, fast offering, missionary, perpetual education fund and humanitarian fund."
• "If the statement was made that no tithing funds were used, I am confident that is the case."

It is the Latter-day Saints, not their critics, who had a correct understanding of the funding of City Creek.

And by even Analytics' estimation, Huntsman's lawsuit isn't even about City Creek, and is instead about his other (and unstated) "real grievance{s}."  Which makes comments from Latter-day Saints in 2012 and 2015 even less relevant.

Thanks,

-Smac

Edited October 1, 2024 by smac97

[CV75]

11 minutes ago, Analytics said:

Were the Latter-day Saints who weighed in on those threads unreasonable? That is certainly an argument you could make, but personally, I think more highly of you guys than that.

They were not unreasonable, but given the role of "beyond reasonable doubt," your emphasis / assertion that they held the majority view (especially given your sampling source, method and size) hides the fact that other reasonable people viewed President Hinckley "correctly." It also ignores a more careful, retrospective, facts-based analysis of his statements, which is the most reasonable thing to do and accept, however reasonable prior misinterpretations may have seemed. The assertions and supressions smack of gaslighting.

[smac97]

44 minutes ago, Analytics said:

Quote

The critics of the church didn't get the message. Or they did but saw it as an opportunity to criticize the Church leaders. For me personally I never considered interest made on invested tithing was considered tithing. I did not donate the interest. 

Despite the Church’s arguments to the contrary, there is and never has been a dispute about what “tithing” means;

Yes, there has.  From Judge Wilson's decision:

Quote

{T}ithing funds and earnings on invested tithing funds are not two sides of the same coin because [President] Hinckley expressly distinguished between the two. Second, because Plaintiff’s argument effectively asks this Court to define the term “tithing funds,” the First Amendment bars Plaintiff’s argument.  Specifically, determining whether the term "tithing funds" encompasses earnings on invested tithing funds would require an analysis of the Church doctrines and teachings.  Such an inquiry would entangle this Court or a jury in an interpretation of "ecclesiastical rule, custom or law." {} The First Amendment bars such an inquiry.
...
Neilsen conflates tithing funds with earnings on invested funds. ... It is on this basis that he then asserts that EPA directed approximately $1.4 billion in tithing funds to pay for {City Creek}. However, Hinckley expressly stated that earnings on invested tithings would be used to pay for the City Creek Project - both the acquisition of property and the development of that property.  And, as discussed above, that is exactly what happened.  Accordingly ... the distinction in Hinckley's statement renders his statement true.
...
Plaintiff offers no evidence that creates a genuine issue of material fact.  Plaintiff does not argue that earnings on invested tithing funds were not actually used{.} ... Instead, Plaintiff simply argues that there is no distinction between tithing funds and earnings on invested tithing funds.  {} However, Hinckley's statement is what creates a distinction between the two.  Specifically, Hinckley distinguished between tithing funds and the earnings on invested reserve tithing funds.  Hinckley's statement forms the basis for the fraud claim, and on reasonable juror could ignore the distinction within this statement.
...
{Huntsman} argues that tithing funds and earnings on invested tithing funds are "two sides of the same financial coin."  {}  This argument is unavailing for two reasons.  First, for the purposes of this case, tithing funds and earnings on invested tithing funds are not two sides of the same coin because [President] Hinckley expressly distinguished between the two. Second, because Plaintiff’s argument effectively asks this Court to define the term “tithing funds,” the First Amendment bars Plaintiff’s argument. Specifically, determining whether the term "tithing funds" encompasses earnings on invested tithing funds would require an analysis of the Church doctrines and teachings.  Such an inquiry would entangle this Court or a jury in an interpretation of "ecclesiastical rule, custom or law." {} The First Amendment bars such an inquiry.

• "Neilsen conflates tithing funds with earnings on invested funds."
• "{Huntsman} simply argues that there is no distinction between tithing funds and earnings on invested tithing funds."
• "{T}ithing funds and earnings on invested tithing funds are not two sides of the same coin because [President] Hinckley expressly distinguished between the two."
• "Hinckley distinguished between tithing funds and the earnings on invested reserve tithing funds."
• "Hinckley expressly stated that earnings on invested tithings would be used to pay for the City Creek Project - both the acquisition of property and the development of that property.  And, as discussed above, that is exactly what happened.  Accordingly ... the distinction in Hinckley's statement renders his statement true."
• "{Huntsman} argues that tithing funds and earnings on invested tithing funds are 'two sides of the same financial coin.'"
• "{B}ecause Plaintiff’s argument effectively asks this Court to define the term 'tithing funds,' the First Amendment bars Plaintiff’s argument."
• "{D}etermining whether the term 'tithing funds' encompasses earnings on invested tithing funds would require an analysis of the Church doctrines and teachings. Such an inquiry would entangle this Court or a jury in an interpretation of 'ecclesiastical rule, custom or law.' {} The First Amendment bars such an inquiry."

Re-defining tithing was a central - perhaps the central - component of Huntsman's arguments against summary judgment.

44 minutes ago, Analytics said:

the issue isn’t and never was whether “invested tithing” is or is not "considered tithing."

Unless, of course, we read Judge Wilson's ruling, which extensively addressed the meaning of tithing.

44 minutes ago, Analytics said:

The real issue is whether indirectly using tithing should be considered using tithing.

You seem to be just making this up as you go along.  If this was the "real issue," then where and when did Huntsman advance it?  And where/when did the courts address it?

44 minutes ago, Analytics said:

Back then,

"Back then" being 2012 and 2015.

44 minutes ago, Analytics said:

most Saints

"{M}ost Saints = a handful of participants on this board, whose comments about the funding of City Creek you are persistently and substantially mischaracterizing, and whose opinions have no relevance to the Huntsman lawsuit in general or to the "reasonable juror" issue in particular.

44 minutes ago, Analytics said:

thought the Church didn’t indirectly use tithing because as they understood him, Hinckley said they didn’t use tithing, which implies they didn’t use it directly and didn’t use it indirectly.

As long as you persist as distorting and mischaracterizing what a few Latter-day Saints said in 2012 and 2015, I will continue to provide links to what they said and quote them verbatim:

Quote

Oi.  That was a slog.  But perhaps it was useful.  To sum up what the Latter-day Saints were saying back in 2012 and 2015:

• "Tithing and other consecrated funds"
• "the funds for the mall did not come from tithing"
• "if they say tithing money is not used for the building of things like the mall I can believe them"
• "{tithing} slips have provided ways to distinguish between various types of offerings"
• "Our leaders have stated plainly that no tithing funds were used"
• "I will continue to give whatever excess funds I can, apart from tithing, for the fast offering, for the Church Humanitarian fund, for the Perpetual Education Fund..."
• "The Church has a statement saying the money did not come from tithing funds, and specifying where it did originate."
• "{'not tithing' funds are} income from church owned businesses and sometimes from direct donations from members for a specific purpose."
• "There a great many original non-tithing sources of funds..."
• "The Church has more than one bucket of investment funds.  It has a diversified portfolio of almost all investment opportunities - stocks, bonds, real estate, etc.  Church funds, tithing funds, are not commingled with investment funds."
• "When someone at Church HQ says that no tithing funds were used, it is very likely true."
• "If the Church leaders say that no tithing funds were used, I think we ought to give them the benefit of the doubt.  There are plenty of for-profit funds available..."
• "Thus the source of funds can be completely controlled, and the money for City Creek can be certified NOT to have come out of Tithing funds."
• "I do believe that no tithing money was used for CityCreek."
• "When they say 'non tithing funds' they mean that money that people paid as tithing was not used."
• "All donations made to the Church through the donation process of each ward and branch go to this non profit entity.  This includes tithing, fast offering, missionary, perpetual education fund and humanitarian fund."
• "If the statement was made that no tithing funds were used, I am confident that is the case."

That sure sounds like what Latter-day Saints are saying now, in 2023, in this thread.  If the Latter-day Saints believe that A) the Church stated that the funds for City Creek did not come from tithing, and also B) the Church actually used from for City Creek, then those funds, ipso facto, are not "tithing funds," and the Latter-day Saints are not treating "tithing" as being synonymous with all other sources of Church income.  So it won't do for you to cram into our mouths and minds the notion that "tithing" includes monies that are not tithes.  You are just making that up.

Observant and conversant Latter-day Saints understand what "tithing" is, and what it means, and what it is not and what it does not mean.  (For that matter, I think the overwhelming majority of all people familiar with a dictionary would not subscribe to your tortured re-definition of "tithing.")

Latter-day Saints understand that the Church receives "tithes" from members (a tenth of their income), but also has other sources of income.  Fast offerings.  Charitable donations (such as to LDS Philanthropies), earnings on investments, for-profit ventures, and so on.

Latter-day Saints do not, per your suggestion, conflate these various sources of income as all falling under the rubric of "tithing."  Tithing has an actual and fairly specific definition and meaning.

A tithe is a donation by a member of the Church amounting to a tenth of his income.

A fast offering is a numerically distinct and separate and additional donation by a member of the Church, generally equivalent to the money that would have been spent on two meals (some members give more, some give less).  A fast offering is money that belongs to the Church, but it is not a "tithe," and tithing is not a fast offering.  The two are not synonymous.

A profit generated by EPA investing money in stocks, bonds, etc. is money that belongs to the Church, but such earnings on EPA's investments is not a "tithe" and tithing is not money generated by the EPA's investment efforts.  The two are not synonymous.

And so on.

Though derived from different sources, all of the monies held by the Church are held in trust.  All of these monies belong to the Lord.  All of these monies are, therefore, "sacred funds."  But not all "sacred funds" are "tithing."  Latter-day Saints, as shown above, do not believe that.  Nor does the Church teach that.

Thanks,

-Smac

Edited October 1, 2024 by smac97

[Analytics]

6 minutes ago, smac97 said:

Again, nearly a year ago I went through the 2012 posts about this topic and quoted the Latter-day Saints verbatim.  I summed them up as follows...

I've been quoting Latter-day Saints verbatim, too. The problem is in your analysis, you are analyzing the answer to the made-up issues that attorneys came up with in the last few years rather than the actual issues we were discussing then.

I replied to your analysis of those threads here:

 

6 minutes ago, smac97 said:

These commenters were looking at Pres. Hinckley's 2003 statement and substantively agreeing with its differentiation between tithes and other monies held by the Church. 

The issue isn’t and never was the differentiation between tithes and other monies held by the Church. 

The issue is whether Hinckley promised the Church wouldn't indirectly use tithing. Critics were accusing the Church of indirectly using tithing, and the apologists were generally saying no, the Church didn’t indirectly using tithing because Hinckley said it didn’t. 

That’s why you won’t answer these questions:

1. What is the correct answer to JAHS’s 2012 question, as it pertains to where the funds came from?
2. Give me one example of somebody who gave the correct answer to his question. Just one.

You won’t answer those questions because that would reveal that the best answer to his actual question was the answer Craig Paxton gave (Member Pays Tithing-->Tithing in Excess of Current Needs is Invested-->Investments Earn Return-->$$$ From This Return on Investments is Reinvested in the City Creek Mall), and it would show how few Latter-day Saints understood or believed that interested on tithing reserves were used.

 

[webbles]

Does anyone have the Huntsman affidavit?  The one from him that was submitted to the trial judge?

[CV75]

14 minutes ago, smac97 said:

Fraud claims are not reviewed under the "beyond reasonable doubt" standard, but rather under the "clear and convincing" standard.  Still a high and difficult standard, but not as high as "beyond reasonable doubt."

Which "few message board posts" are being rather substantially mischaracterized here.  Again, nearly a year ago I went through the 2012 posts about this topic and quoted the Latter-day Saints verbatim.  I summed them up as follows:

These commenters were looking at Pres. Hinckley's 2003 statement and substantively agreeing with its differentiation between tithes and other monies held by the Church.  We know more now than we did in 2012 and 2015, but even so we were not conflating tithing with other sources of income.  It is this conflation that Huntsman must have in order for his fraud claim to proceed.  Judge Wilson did not allow that argument, as doing so would require the court to violate the First Amendment.  From Judge Wilson's decision:

• "Neilsen conflates tithing funds with earnings on invested funds."
• "{Huntsman} simply argues that there is no distinction between tithing funds and earnings on invested tithing funds."
• "{T}ithing funds and earnings on invested tithing funds are not two sides of the same coin because [President] Hinckley expressly distinguished between the two."
• "Hinckley distinguished between tithing funds and the earnings on invested reserve tithing funds."
• "Hinckley expressly stated that earnings on invested tithings would be used to pay for the City Creek Project - both the acquisition of property and the development of that property.  And, as discussed above, that is exactly what happened.  Accordingly ... the distinction in Hinckley's statement renders his statement true."

The foregoing findings in 2023 substantially confirm and vindicate the cumulative remarks of the Latter-day Saints who commented on this in 2012:

• "Tithing and other consecrated funds"
• "the funds for the mall did not come from tithing"
• "Our leaders have stated plainly that no tithing funds were used"
• "The Church has a statement saying the money did not come from tithing funds, and specifying where it did originate."
• "{'not tithing' funds are} income from church owned businesses and sometimes from direct donations from members for a specific purpose."
• "There a great many original non-tithing sources of funds..."
• "The Church has more than one bucket of investment funds.  It has a diversified portfolio of almost all investment opportunities - stocks, bonds, real estate, etc.  Church funds, tithing funds, are not commingled with investment funds."
• "When someone at Church HQ says that no tithing funds were used, it is very likely true."
• "If the Church leaders say that no tithing funds were used, I think we ought to give them the benefit of the doubt.  There are plenty of for-profit funds available..."
• "Thus the source of funds can be completely controlled, and the money for City Creek can be certified NOT to have come out of Tithing funds."
• "I do believe that no tithing money was used for CityCreek."
• "When they say 'non tithing funds' they mean that money that people paid as tithing was not used."
• "All donations made to the Church through the donation process of each ward and branch go to this non profit entity.  This includes tithing, fast offering, missionary, perpetual education fund and humanitarian fund."
• "If the statement was made that no tithing funds were used, I am confident that is the case."

It is the Latter-day Saints, not their critics, who had a correct understanding of the funding of City Creek.

And by even Analytics' estimation, Huntsman's lawsuit isn't even about City Creek, and is instead about his other (and unstated) "real grievance{s}."  Which makes comments from Latter-day Saints in 2012 and 2015 even less relevant.

Thanks,

-Smac

Thank you for explaining the distinction between beyond reasonable doubt and clear and convincing. 

My remarks about majority have to do with Analytics representations of a majority of posters, saints, etc., not anyone else's culling of the posts.

I don't see the misinterpretation or misrepresentation of President Hinckley's explanation as a function of being a critic or an apologist since most saints are neither. Critics and apologists will tend to assert their views and biases in a contest-type context that regular people don't need to.

[smac97]

On 10/1/2024 at 9:29 AM, Analytics said:

Quote

These commenters were looking at Pres. Hinckley's 2003 statement and substantively agreeing with its differentiation between tithes and other monies held by the Church. 

The issue isn’t and never was the differentiation between tithes and other monies held by the Church. 

Yes, that is precisely the issue in the litigation.  Again, from Judge Wilson's decision:

• "Neilsen conflates tithing funds with earnings on invested funds."
• "{Huntsman} simply argues that there is no distinction between tithing funds and earnings on invested tithing funds."
• "{T}ithing funds and earnings on invested tithing funds are not two sides of the same coin because [President] Hinckley expressly distinguished between the two."
• "Hinckley distinguished between tithing funds and the earnings on invested reserve tithing funds."
• "Hinckley expressly stated that earnings on invested tithings would be used to pay for the City Creek Project - both the acquisition of property and the development of that property.  And, as discussed above, that is exactly what happened.  Accordingly ... the distinction in Hinckley's statement renders his statement true."
• "{Huntsman} argues that tithing funds and earnings on invested tithing funds are 'two sides of the same financial coin.'"
• "{B}ecause Plaintiff’s argument effectively asks this Court to define the term 'tithing funds,' the First Amendment bars Plaintiff’s argument."
• "{D}etermining whether the term 'tithing funds' encompasses earnings on invested tithing funds would require an analysis of the Church doctrines and teachings. Such an inquiry would entangle this Court or a jury in an interpretation of 'ecclesiastical rule, custom or law.' {} The First Amendment bars such an inquiry."

I get that you "strenuously disagree" with Judge Wilson.  I get it.  But your strenuous disagreement does not alter the text of Judge Wilson's decision, nor does it alter the content of last week's oral argument before the Ninth Circuit, during which several judges asked numerous pointed questions about the differentiation between tithes and other monies held by the Church.

On 10/1/2024 at 9:29 AM, Analytics said:

The issue is whether Hinckley promised the Church wouldn't indirectly use tithing.

Respectfully, you're just pulling this out of your ear.  You are making this up as you go along.  

Pres. Hinckley never used the word "indirectly" (nor did he use the word "directly").  Your proposal here is not a fraud claim, but a fraudulent nondisclosure claim.  But Huntsman did not advance such a claim, and such a claim would likely be barred by the Church Autonomy Doctrine as happened in Gaddy (which decision Judge Wilson expressly relied on when describing the ambit of the doctrine).

Your "direct v. indirect" argument is just a variation on Huntsman's "tithing funds and earnings on invested tithing funds are 'two sides of the same financial coin'" argument.  It doesn't work.

On 10/1/2024 at 9:29 AM, Analytics said:

Critics were accusing the Church of indirectly using tithing, and the apologists were generally saying no, the Church didn’t indirectly using tithing because Hinckley said it didn’t. 

Again, what critics and Latter-day Saints on this board said in 2012 and 2015 has no relevance to the Huntsman lawsuit.  You keep bringing this up in relation to the "reasonable juror" analysis in Huntsman, which is a question of law, not a question of fact.

On 10/1/2024 at 9:29 AM, Analytics said:

That’s why you won’t answer these questions:

1. What is the correct answer to JAHS’s 2012 question, as it pertains to where the funds came from?
2. Give me one example of somebody who gave the correct answer to his question. Just one.

You won’t answer those questions because that would reveal that the best answer to his actual question was the answer Craig Paxton gave (Member Pays Tithing-->Tithing in Excess of Current Needs is Invested-->Investments Earn Return-->$$$ From This Return on Investments is Reinvested in the City Creek Mall), and it would show how few Latter-day Saints understood or believed that interested on tithing reserves were used.

As long as you persist as distorting and mischaracterizing what a few Latter-day Saints said in 2012 and 2015, I will continue to provide links to what they said and quote them verbatim:

Quote

Oi.  That was a slog.  But perhaps it was useful.  To sum up what the Latter-day Saints were saying back in 2012 and 2015:

• "Tithing and other consecrated funds"
• "the funds for the mall did not come from tithing"
• "if they say tithing money is not used for the building of things like the mall I can believe them"
• "{tithing} slips have provided ways to distinguish between various types of offerings"
• "Our leaders have stated plainly that no tithing funds were used"
• "I will continue to give whatever excess funds I can, apart from tithing, for the fast offering, for the Church Humanitarian fund, for the Perpetual Education Fund..."
• "The Church has a statement saying the money did not come from tithing funds, and specifying where it did originate."
• "{'not tithing' funds are} income from church owned businesses and sometimes from direct donations from members for a specific purpose."
• "There a great many original non-tithing sources of funds..."
• "The Church has more than one bucket of investment funds.  It has a diversified portfolio of almost all investment opportunities - stocks, bonds, real estate, etc.  Church funds, tithing funds, are not commingled with investment funds."
• "When someone at Church HQ says that no tithing funds were used, it is very likely true."
• "If the Church leaders say that no tithing funds were used, I think we ought to give them the benefit of the doubt.  There are plenty of for-profit funds available..."
• "Thus the source of funds can be completely controlled, and the money for City Creek can be certified NOT to have come out of Tithing funds."
• "I do believe that no tithing money was used for CityCreek."
• "When they say 'non tithing funds' they mean that money that people paid as tithing was not used."
• "All donations made to the Church through the donation process of each ward and branch go to this non profit entity.  This includes tithing, fast offering, missionary, perpetual education fund and humanitarian fund."
• "If the statement was made that no tithing funds were used, I am confident that is the case."

That sure sounds like what Latter-day Saints are saying now, in 2023, in this thread.  If the Latter-day Saints believe that A) the Church stated that the funds for City Creek did not come from tithing, and also B) the Church actually used from for City Creek, then those funds, ipso facto, are not "tithing funds," and the Latter-day Saints are not treating "tithing" as being synonymous with all other sources of Church income.  So it won't do for you to cram into our mouths and minds the notion that "tithing" includes monies that are not tithes.  You are just making that up.

Observant and conversant Latter-day Saints understand what "tithing" is, and what it means, and what it is not and what it does not mean.  (For that matter, I think the overwhelming majority of all people familiar with a dictionary would not subscribe to your tortured re-definition of "tithing.")

Latter-day Saints understand that the Church receives "tithes" from members (a tenth of their income), but also has other sources of income.  Fast offerings.  Charitable donations (such as to LDS Philanthropies), earnings on investments, for-profit ventures, and so on.

Latter-day Saints do not, per your suggestion, conflate these various sources of income as all falling under the rubric of "tithing."  Tithing has an actual and fairly specific definition and meaning.

A tithe is a donation by a member of the Church amounting to a tenth of his income.

A fast offering is a numerically distinct and separate and additional donation by a member of the Church, generally equivalent to the money that would have been spent on two meals (some members give more, some give less).  A fast offering is money that belongs to the Church, but it is not a "tithe," and tithing is not a fast offering.  The two are not synonymous.

A profit generated by EPA investing money in stocks, bonds, etc. is money that belongs to the Church, but such earnings on EPA's investments is not a "tithe" and tithing is not money generated by the EPA's investment efforts.  The two are not synonymous.

And so on.

Though derived from different sources, all of the monies held by the Church are held in trust.  All of these monies belong to the Lord.  All of these monies are, therefore, "sacred funds."  But not all "sacred funds" are "tithing."  Latter-day Saints, as shown above, do not believe that.  Nor does the Church teach that.

Thanks,

-Smac

Edited December 24, 2024 by smac97

[CV75]

8 minutes ago, Analytics said:

I've been quoting Latter-day Saints verbatim, too. The problem is in your analysis, you are analyzing the answer to the made-up issues that attorneys came up with in the last few years rather than the actual issues we were discussing then.

I replied to your analysis of those threads here:

 

The issue isn’t and never was the differentiation between tithes and other monies held by the Church. 

The issue is whether Hinckley promised the Church wouldn't indirectly use tithing. Critics were accusing the Church of indirectly using tithing, and the apologists were generally saying no, the Church didn’t indirectly using tithing because Hinckley said it didn’t. 

That’s why you won’t answer these questions:

 

1. What is the correct answer to JAHS’s 2012 question, as it pertains to where the funds came from?
2. Give me one example of somebody who gave the correct answer to his question. Just one.

You won’t answer those questions because that would reveal that the best answer to his actual question was the answer Craig Paxton gave (Member Pays Tithing-->Tithing in Excess of Current Needs is Invested-->Investments Earn Return-->$$$ From This Return on Investments is Reinvested in the City Creek Mall), and it would show how few Latter-day Saints understood or believed that interested on tithing reserves were used.

 

Please describe how showing how few Latter-day Saints understood or believed that interest on tithing reserves were used facilitates the building of empathy by the majority who understood differently (and stayed in the Church, with or without corrected understanding) towards those who left the Church (who also understood differently).

[smac97]

18 minutes ago, webbles said:

Does anyone have the Huntsman affidavit?  The one from him that was submitted to the trial judge?

Here you go: Declaration of James Huntsman in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment

Notably absent from his Declaration is any claim regarding or referencing the "direct" or "indirect" use of tithing.

Thanks,

-Smac

[longview]

13 minutes ago, Analytics said:

Despite the Church’s arguments to the contrary, there is and never has been a dispute about what “tithing” means; the issue isn’t and never was whether “invested tithing” is or is not "considered tithing."

Your statement is confusing (see the bolded). I will break the bolded into two separate statements. Then please indicate if the two parts are both true or only one. Which way?

1. there is a dispute about . . .
2. there never has been a dispute about . . .

13 minutes ago, Analytics said:

The real issue is whether indirectly using tithing should be considered using tithing. Back then, most Saints thought the Church didn’t indirectly use tithing because as they understood him, Hinckley said they didn’t use tithing, which implies they didn’t use it directly and didn’t use it indirectly.

I would say the overwhelming majority of Church members were and still are comfortable with distinctions between tithing used for Church needs and surplus used to invest in secular companies. Shouldn't you and Huntsman be focusing on a deeper underlying issue? Is it appropriate for the Church to invest unused surplus to purchase shares of secular profit-making companies? The prevailing sentiment is yes. This is a very wise course for the Church to build reserves.

If there was substantial income being generated from secular companies to fund City Creek, then Pres. Hinckley was correct in his attempt to reassure the few that were nervous about commercial aspects. In other words, the usual dispositions of tithing was NOT impacted in any degree on the normal day to day operations of the Church. EPA had a range of options for further investments in additional shares of secular companies using income from secular companies (compound effect). The Church made a directive for channeling some of that secular income to City Creek. Which was a worthy project for which you kindly indicated appreciation.

Your next bolded statement is blatantly false. You pulled that out of thin air. As others have asked, you have no way of knowing the extent of member sentiments. @smac97 says you are mind-reading.

[Analytics]

31 minutes ago, smac97 said:

As long as you persist as distorting and mischaracterizing...

That isn’t what I’m doing. I’m asking you to look at what they said in context. Specifically, I asked you just two simple questions:

1. What is the correct answer to JAHS’s 2012 question, as it pertains to where the funds came from?
2. Give me one example of somebody who gave the correct answer to his question. Just one.

Why won’t you answer those questions? Is it because that would reveal that the best answer to his actual question was the answer Craig Paxton gave (Member Pays Tithing-->Tithing in Excess of Current Needs is Invested-->Investments Earn Return-->$$$ From This Return on Investments is Reinvested in the City Creek Mall), and answering that question would show how few Latter-day Saints understood or believed that interested on tithing reserves were used?

 

[smac97]

10 minutes ago, Analytics said:

Quote

As long as you persist as distorting and mischaracterizing...

That isn’t what I’m doing. I’m asking you to look at what they said in context. Specifically, I asked you just two simple questions:

1. What is the correct answer to JAHS’s 2012 question, as it pertains to where the funds came from?
2. Give me one example of somebody who gave the correct answer to his question. Just one.

Why won’t you answer those questions?

I did.

And yet what a handful of Latter-day Saints in 2012/2015 said on this board has no relevance to the Huntsman lawsuit.  I hope you can get past this.

10 minutes ago, Analytics said:

Is it because that would reveal that the best answer to his actual question was the answer Craig Paxton gave (Member Pays Tithing-->Tithing in Excess of Current Needs is Invested-->Investments Earn Return-->$$$ From This Return on Investments is Reinvested in the City Creek Mall), and answering that question would show how few Latter-day Saints understood or believed that interested on tithing reserves were used?

The Latter-day Saints on this board had, and have, a pretty solid understanding of the Church's various sources of income.  We differentiate between tithing and other sources of revenue.  Conflating tithes with earnings on invested reserves was an argument advanced by Huntsman during the summary judgment phase of the lawsuit.  It did not work for the reasons set forth in Judge Wilson's decision (including, notably, that such an argument would require Judge Wilson to violate the Church Autonomy Doctrine).

Thanks,

-Smac

Edited October 1, 2024 by smac97