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Update on Huntsman Lawsuit: Ninth Circuit Reverses Trial Court


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29 minutes ago, smac97 said:

I think you place way too much stock and confidence in your forays into court as an expert witness.  You lack the requisite training and experience to speak competently about what "a good attorney" would do. 

That's why I asked you for you to clarify your point--I'm trying to learn and understand how lawyers think.

Before you said my opinion should be rebutted. Now you are saying it is irrelevant. If the way members interpreted Hinckley's comments is irrelevant to the case, why would my opinion on the matter need to be rebutted? If how members interpreted Hinckley's comments is irrelevant, why bother arguing with me about it?

In any case, I'm going to push back with you on this. If the Church could prove that Hinckley's comments were ambiguous, wouldn't that help their case that he wasn't deliberately saying something that was demonstratably false and thus wasn't committing fraud? Based on how you have described the legal issues, whether or not his comments were demonstrably false seems relevant. 

Edited by Analytics
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4 hours ago, Analytics said:

Hi Smac,

In response to me saying, "I've said nothing about the law" you replied...

Now I am going to say something about the law, and I ask you to correct me if I'm wrong.

As I understand the law, expert witnesses are hired to provide honest, unbiased, expert testimony.

"Honest" and "expert," yes.  But what do you mean by "unbiased?"  An expert is hired (as in, he's paid money) to provide testimony which advances the factual/legal arguments of one side of a disputed issue.  Hence the well-known concept of "battle of the experts"

Quote

 

battle of the experts

A general term for a “battle” played out in front of a jury in which the prosecution and defence each have paid experts who may express different or, in some situations, diametrically opposite opinions about the facts of a case. The case may thus be decided not on their merits or the truth, but rather which expert presents the more compelling argument in front of the jury.

Segen's Medical Dictionary. © 2012 Farlex, Inc. All rights reserved.

To address these challenges and maintain the integrity of the legal process, courts often have rules and procedures in place to guide the use of expert witnesses. Attorneys may be required to disclose the compensation the expert has received for their testimony, as well as any potential conflicts of interest. Judges also play a role in ensuring that expert witnesses adhere to standards of impartiality (to a degree) and relevance.

4 hours ago, Analytics said:

They are explicitly required not to be advocates for one side or the other.

Have you ever observed a medical malpractice case?  A mass tort lawsuit?

Experts are expected to be "impartial" in terms of not being unduly swayed by the party that retained them, but this does not mean they can't have opinions or professional judgments. These opinions are supposed to be formed based on their expertise and the available evidence rather than being influenced by the desires of the party that hired them.

Reasonable minds can disagree about all sorts of things, including the minds of expert witnesses.  A litigant spends money, often quite a bit of it, to hire an expert who will, within the framework of the rules of evidence and such, advance the litigant's legal arguments and position.

Moreover, legal ideals notwithstanding, bias and partiality by expert witnesses is a well-recognized problem (see, e.g., here).

I think you would have a pretty hard time getting qualified as an expert witness in any suit involving the Church of Jesus Christ of Latter-day Saints. 

4 hours ago, Analytics said:

The weird things that have been said on this thread about the finer points of interest and principal prove that an expert witness could shed some valuable light on corporate finance on this issue.

Not really.  And certainly not you.

The issue in Huntsman's lawsuit is not "the finer points of interest and principal" as understood by a generic Latter-day Saint or group of Saints, but by James Huntsman.  Again, his lawsuit is not a class action.  He's suing on behalf him himself only, so what he thought is the only pertinent issue.

4 hours ago, Analytics said:

If I were an expert witness in this discussion, I would explicitly be instructed not to talk about the legal issues and the law, but rather limit my comments to my field of expertise.

You would also be disqualified as to bias, competency and relevance.

That you keep speculating about expert witness testimony in a lawsuit that does not, and likely never will involve, expert witness testimony, is further evidence of your lack of training and experience in the law.  I hope you can stop fixating on such conjecture, as it does little or nothing to advance the discussion of the topic at hand.

4 hours ago, Analytics said:

Am I wrong about that?

You are wrong about a number of things on a number of different levels.

4 hours ago, Analytics said:

Are expert witnesses supposed to talk about the law and the legal issues?

That would depend on the nature of the dispute.

What James Huntsman understood Pres. Hinckley to mean, for example, would not be an issue to be addressed via expert testimony.

Thanks,

-Smac

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12 minutes ago, smac97 said:

What James Huntsman understood Pres. Hinckley to mean, for example, would not be an issue to be addressed via expert testimony.

Is the reasonableness of James Huntsman's purported interpretation of Pres. Hinckley an issue? If it is, what's so intrinsically wrong with turning to an expert witness to address that?

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34 minutes ago, Analytics said:
Quote

What James Huntsman understood Pres. Hinckley to mean, for example, would not be an issue to be addressed via expert testimony.

Is the reasonableness of James Huntsman's purported interpretation of Pres. Hinckley an issue? If it is, what's so intrinsically wrong with turning to an expert witness to address that?

See here:

Quote

An expert witness is a person with specialized knowledge, skills, education, or experience in a particular field who is called upon to provide their expertise in legal proceedings to assist the court with understanding complex technical or scientific issues. 
...
A person who is designated as an expert witness must be qualified on the subject of their testimony. See Federal Rule of Evidence 702. The court serves as a “gatekeeper” to screen out experts who are unqualified, their expertise is irrelevant to the facts at issue, or their methods are unreliable.  Usually, the court will determine the admissibility of an expert witness’ testimony in a pre-trial hearing.

 

The U.S. Supreme Court established the standard for expert testimony admissibility in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In this case, the Court established guidelines for determining the admissibility of expert witness testimony. These factors to be considered are: 

  1. Whether the technique or theory in question can be and has been tested; 
  2. Whether it has been subjected to publication and peer review; 
  3. Its known or potential error rate; 
  4. The existence and maintenance of standards controlling its operation; and 
  5. Whether it has attracted widespread acceptance within a relevant scientific community.  

This is known as the Daubert Standard. Most state courts follow this gatekeeping standard. These criteria intend to prevent unreliable or otherwise “junk science” from being heard as evidence in an expert’s substantive testimony. The burden is on the proponent of the testimony to establish its admissibility by a preponderance of proof.

I really, really doubt that the reasonableness of James Huntsman's understanding of remarks by Pres. Hinckley fits within the rubric of "complex technical or scientific issues" for which testimony from "a person with specialized knowledge, skills, education, or experience in a particular field" would be required or allowed.

And, as noted previously, even if by some bizarre confluence of events expert testimony was presented in Huntsman's trial, I don't think you would be qualified.  Putting aside your animosity against a party to the litigation, you are, IIRC, someone with a background as an actuary.  Such a skill set would not be pertinent to the issues in the Huntsman lawsuit.

Thanks,

-Smac

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3 minutes ago, smac97 said:

See here:

I really, really doubt that the reasonableness of James Huntsman's understanding of remarks by Pres. Hinckley fits within the rubric of "complex technical or scientific issues" for which testimony from "a person with specialized knowledge, skills, education, or experience in a particular field" would be required or allowed.

And, as noted previously, even if by some bizarre confluence of events expert testimony was presented in Huntsman's trial, I don't think you would be qualified.  Putting aside your animosity against a party to the litigation, you are, IIRC, someone with a background as an actuary.  Such a skill set would not be pertinent to the issues in the Huntsman lawsuit.

Believe it or not, I'm not posting on this thread because I think it could parlay this into a lucrative expert consulting gig with Huntsman. Rather, I'm just explaining what my role in this conversation is and why I'm not talking about the law and instead am focused on the one specific issue that drew me into the conversation in the first place.

That being the case, your groundless and continual attacks on my character are both irrelevant and are really, really, getting old. 

Does this actual legal case require a literal expert witness? I wouldn't think so. But your dogmatic insistence that the phrase "tithing fund" must refer to tithing donations themselves and could not refer to a financial fund into which tithing donations are deposited makes me wonder if the concept of a fund really does need an expert to explain.

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13 minutes ago, Analytics said:

That's why I asked you for you to clarify your point--I'm trying to learn and understand how lawyers think.

Before you said my opinion should be rebutted.

On a message board, yes.  Not in a courtroom where you are imagining yourself as an expert witness testifying about what James Huntsman understood by Pres. Hinckley's references to "tithing."

13 minutes ago, Analytics said:

Now you are saying it is irrelevant.

Irrelevant in a legal context, yes. 

In the context of a message board, your opinion is open to critique and response.

13 minutes ago, Analytics said:

If the way members interpreted Hinckley's comments is irrelevant to the case, why would my opinion on the matter need to be rebutted?

Because you are misrepresenting members of the Church.

Falsehoods and mischaracterizations ought to be rebutted, particularly when such things are advanced to leverage Latter-day Saints against their own faith.

13 minutes ago, Analytics said:

If how members interpreted Hinckley's comments is irrelevant, why bother arguing with me about it?

Because we're on a message board.

Because you insist on cramming words into our mouths and thoughts into our minds that simply ain't so.

13 minutes ago, Analytics said:

In any case, I'm going to push back with you on this. If the Church could prove that Hinckley's comments were ambiguous, wouldn't that help their case that he wasn't deliberately saying something that was demonstratably false and thus wasn't committing fraud?

First, the Church would not resort to expert testimony - particularly the characterizations of an antagonist who would presume to speak on behalf of the Latter-day Saints to an impartial factfinder.

Second, Pres. Hinckley's remans were, I think, not ambiguous.  The only people who are saying otherwise are Huntsman and other people hostile to the Church and its interests.

Third, because of that lack of ambiguity, I doubt the Church would attempt to advance arguments that it did not find to be substantively correct.

Fourth, advancing an "ambiguity" theory would muddy the waters.  "Ambiguity" theory might, or might not, advance the interests of the Church.  

13 minutes ago, Analytics said:

Based on how you have described the legal issues, whether or not his comments were demonstrably false seems relevant. 

Certainly.  Falsity is a prima facie element of a fraud claim, as is scienter, and reasonable reliance.

From the 9th Circuit:

Quote

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?  

Thanks,

-Smac

 

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16 minutes ago, Analytics said:

Believe it or not, I'm not posting on this thread because I think it could parlay this into a lucrative expert consulting gig with Huntsman. Rather, I'm just explaining what my role in this conversation is and why I'm not talking about the law and instead am focused on the one specific issue that drew me into the conversation in the first place.

That being the case, your groundless and continual attacks on my character are both irrelevant and are really, really, getting old. 

I have been critiquing your arguments.  You injected yourself and your professional bona fides into the discussion, over and over again ("in the real world I am fully qualified to testify as an expert witness on such things").  

You also disparaged the integrity of a good man, who is now dead (e.g. "What I do know is that Hinckley was less than forthright and at least a little misleading about the Church's finances. ").  I suppose I let that get the better of me.  I shouldn't have done.

You've repeatedly accused me of "gaslighting," which I find to be a false and unfair accusation.  I ought not have responded intemperately, though.

I've been intemperate in some of my remarks.  I admit it.  I apologize for it.  I will work on it.

16 minutes ago, Analytics said:

Does this actual legal case require a literal expert witness? I wouldn't think so. But your dogmatic insistence that the phrase "tithing fund" must refer to tithing donations themselves and could not refer to a financial fund into which tithing donations are deposited makes me wonder if the concept of a fund really does need an expert to explain.

"Tithing" has a pretty clear meaning.  I find Huntsman's lawsuit about it to be a poor, even contemptible, use of the legal system.  I dislike such misuse, and I dislike the calumnies and disparagements which fill to overflowing his pleadings.  This lawsuit is not one brought in good faith.  It's not about justice or equity.  It's lawfare by a rich guy with money to burn, and is calculated to embarrass the Church and taint the reputation of a good man, now dead.

And FWIW, I don't think I've said anything about "tithing fund," let along said anything "dogmatic."

Thanks,

-Smac

 

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2 hours ago, Analytics said:
Quote

The legal issue at hand is not "what Mormons historically thought about these issues," but what James Huntsman thought.

Are you making this up as you go along?

No.  From the dissent:

Quote

The majority suggests that Hinckley used an “undefined or specialized terms that his audience would not understand.”  Maj. Op. at 25.  I agree in principle that adding a caveat in a foreign language or a specialized term that could not be understood would not defeat a fraud claim.  But in this case, there is no evidence that Hinckley’s statements would have been the equivalent of a foreign language to this specific plaintiff.  Indeed, this is not a class action; Hinckley’s audience for purposes of this action was Huntsman, a sophisticated individual who has been immersed in the Church for much of his life.   

Thanks,

-Smac

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1 hour ago, smac97 said:

I have been critiquing your arguments.  You injected yourself and your professional bona fides into the discussion, over and over again ("in the real world I am fully qualified to testify as an expert witness on such things").  

You also disparaged the integrity of a good man, who is now dead (e.g. "What I do know is that Hinckley was less than forthright and at least a little misleading about the Church's finances. ").  I suppose I let that get the better of me.  I shouldn't have done.

You've repeatedly accused me of "gaslighting," which I find to be a false and unfair accusation.  I ought not have responded intemperately, though.

I've been intemperate in some of my remarks.  I admit it.  I apologize for it.  I will work on it.

Thank you. No harm, no foul. My apologies back at you.

I'll make one last attempt to make my point, and then you can have the last word.

Edited by Analytics
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1 hour ago, smac97 said:

Pres. Hinckley's remans were, I think, not ambiguous. 

As I said, this will be my last post.

On June 13, 2015, @Stone holm created a new thread asking this question:

Another thread got locked before I could ask a question, so will ask it now. 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?

In the context of that thread, the most authoritative answer came on page 3 by a poster @kimpearson who claimed to be a CPA who had done work for the Church. The post received 18 up-votes. He said:

Quote

I am a CPA who has actually worked with the Church on money issues.  I haven't seen this discussed so I will try to add something to the conversation.

The Church of Jesus Christ of Latter Day Saint has two basic legal entities that it controls.

One is the non for profit entity we all identify as the Church.  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.  Members can and do make specific donations to the Church through gifts, wills and estates.  All of these funds by law must be kept in the non for profit legal entity.  Donations from these funds can be made to other non for profit entities such as the American Red Cross.  This non for profit entity does keep some reserve funds that are invested in very conservative investments but would only sustain the operations of the non for profit entity for a very short period of time.  The non for profit entity of the Church really does operate on the donations of members.  Primary uses are buildings, missionary, education including Church schools and seminaries and fast offerings.

The second entity controlled by the Church is a for profit entity that pays taxes like any other for profit business entity.  This entity I believe includes mainly land (ranches, farms and urban real estate), investments such as stock and bonds and now days a very limited number of businesses such as Deseret News and KSL radio.  The original source of funds for these businesses came primarily from the businesses that the Church established in the late 1800's and early 1900's including ZCMI, U&I Sugar, an Insurance company and a bank.  This entity also owned significant real estate that was sold.  Over the years the Church has actively managed these businesses.  Towards the end of the twentieth century, the Church sold its ownership in many of these businesses and kept only a few that aligned with the purpose of the Church.  As you can imagine, these sales generated significant cash.  These are the source of funds used to finance City Creek.  No donations from Church members were used to finance City Creek.  That would break laws and cause the Church to lose its tax exempt status.  The Church did not use funds from donations to start the original business either.  Most of the time money was borrowed to start these businesses and the Church was the only entity large enough to secure the loans.  I am sure that it is very possible that some donations were made back then that were used to pay some of the loans back but it would have been very limited.  Most of the tithing funds back then were in kind and there just wasn't that much hard cash.  Actually many of the early businesses were partially owned and operated by general authorities who eventually donated their ownership to the Church.  Its very difficult to determine exactly where funds came by in this time period as the records just aren't that good.

The one fund referred in numerous post above by Brother Burton would be only the fund of the non for profit entity.  All donations do go into this single bank account in the United States.  The banking in all foreign countries is handled based on the laws of that foreign country.

There is no cross mingling of funds between the two entities.  The closest thing is that the living allowances for general authorities comes from the for profit entity which is allowed by law to make contributions to a non for profit entity.

Both the for profit and non profit entities have been audited both by public accounting firms and government agencies.  Believe me, the Church has very sophisticated accounting systems and employees to make sure it complies with all laws.  If the statement was made that no tithing funds were used, I am confident that is the case.  Why would the Brethren make such a statement if it were false and could be proved false very easily by either the Federal or State government and would put the Church at a high risk of government penalties.

Just my two cents based on my understanding and what limited pieces of the Church finances I have seen.

Summarizing that long post, Kim claims that there are two major entities controlled by the Church. The first is a non-profit entity--the Church itself, which "does keep some reserve funds that are invested in very conservative investments but would only sustain the operations of the non for profit entity for a very short period of time," he goes on to say:

The second entity controlled by the Church is a for profit entity that pays taxes like any other for profit business entity.  This entity I believe includes mainly land (ranches, farms and urban real estate), investments such as stock and bonds and now days a very limited number of businesses such as Deseret News and KSL radio.  The original source of funds for these businesses came primarily from the businesses that the Church established in the late 1800's and early 1900's including ZCMI, U&I Sugar, an Insurance company and a bank.  This entity also owned significant real estate that was sold.  Over the years the Church has actively managed these businesses.  Towards the end of the twentieth century, the Church sold its ownership in many of these businesses and kept only a few that aligned with the purpose of the Church.  As you can imagine, these sales generated significant cash.  These are the source of funds used to finance City Creek.  

Presumably, Kim Pearson is "a sophisticated individual who has been immersed in the Church for much of his life," just like James Huntsman. Because this post was written before the the Ensign Peak Advisors whistleblow, it gives a glimpse of how at least one "sophisticated individual who has been immersed in the Church for much of his life" viewed the source of City Creek based on the information that was available at the time. 

You may judge his remarks for yourself, but the tithing principal/interest dichotomy that you claim is so clear never comes up. Rather, the dichotomy was between the non-profit organization and the for-profit organization. He is also confident that "the Church did not use funds from donations to start the original business either."

My point here is simple. If James Huntsman claims that he interpreted the Church's claims about it's money in a way that is similar to how Kim Pearson did, he is probably being sincere. That's my point.

Full stop.

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On 8/25/2023 at 1:08 PM, ksfisher said:

You've said several times that the money being discussed in the OP is fungible.  How does that concept play into the scenario I've described.

I have explained how it applies.  I gift you $100.  You put in int he bank, It earns $3 interest.  You now have $103.  You take $2 out.  Nobody can tell whether the $2 comes out of principal or the interest.  I suppose one can argue and say "Well I took it out of earnings" and be done with it. That is the premise of the disenting Judge Smac has quoted.  But really nobody know what pot it came out of.

On 8/25/2023 at 1:08 PM, ksfisher said:

 

I'm assuming you're not meaning this in a condescending manner.  I've been trying to put things in very simple terms in order to understand your thinking.

No and I apologize if it came across that way

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5 hours ago, Teancum said:

I have explained how it applies.  I gift you $100.  You put in int he bank, It earns $3 interest.  You now have $103.  You take $2 out.  Nobody can tell whether the $2 comes out of principal or the interest. 

Because of the way banks work, couldn't we say that the money you take out is never the money you put in, regardless?  I mean, banks use our money so if I put in $100, that money gets used by the bank and replaced with a different $100, right?

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7 minutes ago, bluebell said:

Because of the way banks work, couldn't we say that the money you take out is never the money you put in, regardless?  I mean, banks use our money so if I put in $100, that money gets used by the bank and replaced with a different $100, right?

Or with interest, or on a CD you get a return.

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25 minutes ago, Tacenda said:

Or with interest, or on a CD you get a return.

Exactly.  So this idea that you can't tell the difference between principle and interest seems like a moot point, since none of it is the original money anyway, right? 

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On 8/24/2023 at 1:27 PM, Teancum said:

Of fact.  As noted over and over money is fungible and unless somehow accounted for in separate accounts you cannot say nothing came from principle.  

Could you explain this to me please? 

This is how I understand it being in one account. I have budget software that is kind of like the envelope system.  Say I have one savings account and I put in $100 and also enter $100 in my "savings" budget (principal).  This year I get $10 in interest (🤣). I put $5 in the digital "groceries" envelope and $5 in the "rent" digital envelope.  All of this is still in my savings account.

So today I spent $5 on rent and removed it from the rent envelope and $5 on groceries and removed it from the groceries envelope, but I kept $100 in both the account and the savings envelope.

From what I understand from you, because all of my envelopes are connected to the same savings account you are saying I can't say that the $10 didn't come from principal.  Do I understand that right?  If I don't would you explain it in 5 year old terms please how it can come from principal?

If what I describes shows instead that you can tell principal wasn't touched then how does it differ with the church? 

 

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3 hours ago, Benjamin McGuire said:

Ok, so this is a simpler way to put it.

I get a paycheck direct deposited into the checking account shared with my spouse. She gets a paycheck direct deposited into the same account. She may spend some of 'her' money, and I may spend some of 'my' money, but those are artificial distinctions. Once it goes into the same account, it becomes 'our' money, and there really isn't a way to separate it out.

This is actually not quite the same as the idea of fungibility. Fungibility means that one set of assets is completely exchangeable for another. At an even lower level, a dollar bill is fungible with four quarters. They spend the same. But if I give you a dollar, and you turn it into quarters, those quarters are not technically the same dollar that I gave you. When something isn't fungibile, it is when they aren't equivalent. You don't borrow your neighbors car, and return a different vehicle. They aren't interchangeable in that way. (Although if it was an upgrade, they might not mind ...) Most of the time, just as with assets that we share with our spouses (for those of you that have them), we don't need a complex apparatus to track who should have control of what. In other cases, it is important to have a way of tracking it. Even though all funds in a local LDS congregations are passed through the same checking account (the checks that are written are all the same no matter who is being paid), it does matter which source of funding is used and identified. You can spend budgetary money for just about anything, but, you cannot spend welfare money (i.e. fast offering dollars) for normal budgetary expenditures. So we track them using computer software. This distinction creates problems when we try to analyze it in the ways that are being done here. The single account for a local congregation means that in the sense of spending dollars, the dollars are themselves fungible. They all come from the same pool, and it doesn't matter which dollar gets used from that pool. On the other hand, it matters a lot how you account for the dollars that you spend.

That being said, the idea of trying to distinguish between principle and interest, as described here, is something of a red herring. Why? Because it seems to me that some of the posters here are trying to inappropriately claims that one of these types of fungibility is equivalent to the other. And if there was no accounting apparatus (if it was just like the checking account used by my spouse and I), they would be right. But, this isn't the way that organizations work. The business that I work for is a public agency. We effectively have a single bank account in which we carry our cash balance. I can tell you exactly what it was at the end of June of this year (we just had our monthly board meeting at the end of last week). Inside of that single account are a number of additional sub-accounts that we manage (not the bank) that are spelled out in the paperwork. Some of those funds came from donations to the organization that came with spending restrictions. We cannot legally use those funds for things outside of the scope of the restriction. But, just because they have restrictions doesn't mean that the dollars in the larger cash account aren't fungible - it just means that I have to have an apparatus to show how those funds were spent and that those expenditures comply with the restrictions on those funds (and I have to do this for my annual financial audits). This is normally referred to as a COA - a chart of accounts. As a public agency in Michigan, not only do we have a COA, we have requirements provided to us by the State of Michigan as to how those accounts are to be organized and numbered. This is to provide uniformity and to allow for easier regulation and oversight.\

Teancum is wrong. Why? Because he is asserting that the one type of fungibility is the same as the other. If we were to take Teancum's argument to an extreme, once dollars are converted into an entry on a digital balance sheet maintained by the bank, then all money provided to the Church stops being tithing dollars the moment it is merged into that digital pool. And with that, the suggestion that the Church uses tithing dollars for anything loses any sense of meaning. But, historically, our systems of accounting (and the LDS Church uses such a system) allow us to make fungibile currency non-fungible with respect to the purposes for which it is spent.

Thanks. This is how I understand it. I just wondered where Teancum was understanding it differently.  

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  • 3 weeks later...
On 8/24/2023 at 7:33 PM, Calm said:

  I have been thinking of the argument the Church’s wealth comes primarily from tithing.

An argument made from poverty- these folks probably live month to month, and do not understand money management, or know how to MAKE/CREATE money from money.

Edited by mfbukowski
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7 minutes ago, mfbukowski said:

An argument made from poverty- these folks probably live month to month, and do not understand money management, or know how to MAKE/CREATE money from money.

I highly doubt that in many cases given several who approach the argument that way on this board have shared what they do for a living.  Plus Huntsman is one of those making that claim iirc.

Edited by Calm
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11 minutes ago, Calm said:

I highly doubt that in many cases given several who approach the argument that way on this board have shared what they do for a living.  Plus Huntsman is one of those making that claim iirc.

What "they do for a living" is irrelevant.

Here in LA we see industrious immigrants pushing hand carts through residential areas selling, for example, corn on the cob, amazingly spiced, or ice cream, whatever they can think would be a good business.

THAT is creating wealth.

I know one such person who did that sort of thing, until he had enough to buy a truck.  He made plywood "walls" to make the truck bed higher, so it could carry more stuff.  He now does construction demolition, house moving, or takes whatever you can imagine moving in a truck, wherever locally you want it taken.

Yes he has a recommend, so I presume he pays tithing.

But he is CREATING WEALTH through his industry.

The church may receive a farm as a donation, but that land doesn't just sit there, "holding the world together" ;)  (Real Estate joke about what good "worthless" property is for) 😜

50 years later, it might be a shopping mall, with people complaining that it was bought with "tithing money".

Those folks just don't understand that using what the Lord has given you (everything) is here for you to use to make your lives better.

"Yonder, there is matter unorganized; let us go down..."

Some get it, some just complain.

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I previously commented:

On 8/22/2023 at 10:29 AM, smac97 said:

I am curious A) whether the Church will seek a rehearing, and B) what the outcome of an en banc hearing would be.  The 9th Circuit decision was, essentially, 2-1.  And the dissent is very good.  Interestingly, the dissenting judge, Edward R. Korman, is not actually a judge appointed to the Ninth Circuit Court of Appeals, and is instead a U.S. District Court Judge from New York, "sitting by designation" (temporarily assigned to the Ninth Circuit) in this case.

Today, the Trib is reporting that the Church has now requested a rehearing, this time by the full 9th Circuit:

Quote

Lawyers for The Church of Jesus Christ of Latter-day Saints say judges violated the First Amendment’s protections of religion when they resurrected a lawsuit brought by James Huntsman accusing the faith’s top leaders of fraud.

In a petition filed late Wednesday seeking a rehearing by the full 9th U.S. Circuit Court of Appeals, church attorneys say the legal dispute over tithing and spending on the City Creek Center shopping mall in downtown Salt Lake City has “created a profound threat to religious liberty” — one potentially affecting all churches.

“Virtually any person who has fallen away from their faith may view their donations to the church during their faithful years as a waste,” they wrote, “but that cannot mean each of them has a fraud claim that allows them to try to convince a secular jury that they were swindled.”

Allowing the case to proceed to a jury trial, the attorneys contend, would violate long-standing church-autonomy doctrines enshrined by the U.S. Supreme Court, barring courts from intruding on internal religious affairs and matters of faith.

“The threat to churches and to the civil courts from such suits,” they say in their 24-page brief, “is obvious.”

The petition urges the full 9th Circuit to take up and reject the case in what as known as en banc review, in hopes of preventing it from going back to U.S. District Court for a jury trial.

It’s unclear when the full appeals court might decide.
...

In a short statement late Wednesday, Huntsman noted that all the judges who had reviewed the case thus far — both in U.S. District Court and the three-judge appellate panel — had rejected the idea that it was barred by religious protections.

“We feel very confident in our case, particularly around the First Amendment issue,” Huntsman said. “It’s the only point on which all four judges have so far agreed: that this is not a First Amendment issue.”

While the three-judge panel split on other aspects of reviving Huntsman’s case, it was unanimous that the First Amendment and its constitutional protections of religion did not preclude Huntsman’s case.

Those did not apply, the panel decided, “because the questions regarding the fraud claims were secular and did not implicate religious beliefs about tithing itself.” The lower court judge also ruled the case was secular and did not run afoul of the First Amendment.

But the lead church attorney on its latest petition — former U.S. Solicitor General Paul D. Clement, based in Alexandria, Va. — contends in Wednesday’s brief that Huntsman’s case is “all about a difference of opinion between a church and its former member about the definition of ‘tithing funds.’”

“Huntsman’s City Creek claim is premised on the theory that the church made ‘false’ statements by saying it would not use ‘tithing funds’ to finance the project, and then using earnings on invested tithing funds to finance that project,” it says. “That is not a dispute for secular courts but ‘precisely the type of ecclesiastical inquiry courts are forbidden to make.’”

Hmm.  I wonder if this is a winning argument, at least as it is couched as a "First Amendment" issue (as opposed to how it was framed by the trial court judge, which focused on the fraud theory).

I wonder if the petition includes argument that Huntsman is using a fraud claim as a pretext to circumvent the Ecclesiastical Abstention doctrine.  That is, his dispute with the Church is really an ideological/religious dispute (Huntsman is angry at the Church), but he and his lawyers know that there is no legal remedy except to couch his claim as one for "fraud," which in turn requires him to fabricate a idiosyncratic and ad hoc definition of "tithing" so that it includes (A) "tithes" (a voluntary donation to the Church) and also (B) income derived from investing tithes.

I think the trial judge had it right.  The Church's statements about the funding of City Creek clearly differentiated between (A) and (B).  Huntsman can only win be redefining the word.  And I don't think that will work in the end.  Meanwhile, however, the focus appears to be on the First Amendment.  

Thanks,

-Smac

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I'm impressed that Paul Clement is the lead attorney for the Church on this case.  The dude argued some of SCOTUS' biggest free exercise cases of the last generation: Windsor, Burwell, Little Sisters, Kennedy, etc.  Didn't always win (obviously), but I can't think of a bigger name in this particular arena.  The Church is bringing the Big Guns for this one.  

Edited by Stormin' Mormon
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