SAN FRANCISCO (CN) – A Ninth Circuit panel appeared swayed by arguments Thursday that a federal judge incorrectly instructed the jury in a religious discrimination trial brought by the Justice Department against two towns on the Arizona-Utah border dominated by members of a fundamentalist Mormon sect.
The Department of Justice sued Colorado City, Arizona, and Hildale, Utah in 2012, claiming the towns routinely denied water service, housing and police protection to residents who were not members of the Fundamentalist Church of Jesus-Christ of Latter-Day Saints.
After a six-week trial in 2016, a jury returned an advisory verdict in favor of the federal government and awarded $2.2 million in damages to six of the residents. A $1.6 million settlement between the towns and the Justice Department during the trial superseded the jury award.
Jeff Matura, an attorney for Colorado City, argued Thursday before the Ninth Circuit that the jury was incorrectly instructed by U.S. District Judge H. Russel Holland to apply a vicarious liability standard in its deliberations.
“Our argument is that he started from the wrong spot,” Matura told the three-judge panel.
Matura said Holland used the wrong standard after attorneys from the Justice Department argued for an instruction based on whether any “pattern or practice” of misconduct by law enforcement was shown.
“Your position is not that the evidence does not substantiate Judge Holland’s conclusion,” said U.S. District Judge Barbara Lynn, a Bill Clinton appointee sitting by designation from the Northern District of Texas. “It’s that he didn’t apply the Monell standard.”
The U.S. Supreme Court found in Monell v. Department of Social Services that a local government is can be sued for civil rights violations, but the claims must stem from the municipality’s policy or custom.
The towns had asked Holland for an instruction based on Monell.
“We don’t know what Judge Holland would have concluded … if he had started from the position that we had,” Matura replied.
Christine Monta, an attorney for the Justice Department, argued the Monell standard is not a default for municipal liability.
“In a general sense we are talking about imposing liability,” U.S. Circuit Judge Michael Hawkins, also a Bill Clinton appointee, said. “Doesn’t a Monell standard or some variant of it make sense?
Monta said it does not, and that Matura’s argument was “precisely backward.”
Both Monta and Matura conceded to the panel that there is not much case law on the matter, however.
“With your opposition, we are at a tabula rasa,” said U.S. Circuit Judge Milan Smith, a George W. Bush appointee. “We are basically looking out in the audience and finding our friends.”
Holland issued an order in April 2017 that allowed the towns to keep their law enforcement agency.
Matura said the towns, with the assistance of a monitor and police consultant, have complied with the order.
“I’m not here to comment on whether that is good, bad,” Matura said.
The panel did not indicate when it would rule.