Is the Scathing Lawsuit against the Mormon Church (Mormon Corporate Empire) the Moment of Truth for Ex-Mormons?September 10, 2019 - Hugh ParkerA backstory behind this lawsuit raises the human interest aspects of the story to the level of a world class David and Goliath confrontation over a key constitutional issue involving the First Amendment guarantee of religious liberty.
On Monday, August 5, 2019 a federal lawsuit
was filed against the (formerly Mormon) Corporation of the President of the Church of Jesus Christ of Latter-day Saints (COP) as a proposed class action to recover damages on behalf of Laura Gaddy and all others similarly situated for fraud, intentional infliction of emotional distress, and a number of other causes of action including RICO (Racketeering). For those in the know, in the “Ex-Mormon” Community, this is the long awaited “big one” feared by the leadership of the LDS Church since the public controversies that haunted the Mitt Romney campaign for the presidency in 2012
The 75-page complaint
, filed on behalf of Gaddy by Salt Lake City attorney, Kay Burningham
, is referred to as “a scathing lawsuit seeking punitive damages from the Mormon Church” by Court House News Service. Paragraph 2 of the complaint astutely defines the legal battle ground set at bar to steer clear of a challenge to the religious beliefs of Mormonism which, having already been widely discredited by scholarly works, are exempted from scrutiny under the first amendment to the constitution. Gaddy’s Complaint is tightly and strategically limited to the issues of intentional misrepresentation of historical facts made by the "Mormon Corporate Empire" as a willful and fraudulent inducement to faith. Quoting from Paragraph 2:
"This is not a claim for propagating false religious beliefs as part of the Mormon Church. Rather, it is a claim that the material facts upon which Mormonism is based have been manipulated through intentional concealment, misrepresentation, distortion and or obfuscation by the COP to contrive an inducement to faith in Mormonism’s core beliefs."
The significance of this language is profound. It was not crafted by a neophyte unaware that Dallin Oaks, of the First Presidency of the LDS Church
and a former Justice of the Utah Supreme Court has
dedicated a professional lifetime as a “champion” of the cause of “religious liberty”. As a recipient of the Canterbury Medal for Religious Freedom, from the Becket Fund
, Dallin Oaks has contributed to scholarly writing and amici briefs in legal battles over the constitutional limits of religious freedom under the First Amendment in defense of the Catholic Church controversies
and other alleged religious abuses of authority.
The backstory thickens. Dallin Oaks was the president of Brigham Young University while Kay Burningham attended her first semester at J. Rueben Clark College of Law
(at BYU) in 1979. Dallin Oaks left the presidency of BYU after being overruled in a controversy with the United States Treasury Department, Internal Revenue Service
. The IRS was seeking the names of alleged tax dodgers who had used an alleged fraudulent scheme involving donations to BYU in the form of mineral stocks, to evade taxes. Dallin Oaks refused to hand over the list of donors, until ordered to do so by a federal court ruling. After this controversial display of loyalty to the Mormon Church, Oaks was rewarded with an appointment to the Utah Supreme Court, with negligible if any trial experience.
After earning her law degree, Kay Burningham left Utah for a time to practice law in California. After years of accumulated trial experience she served for five years as a civil settlement officer in San Diego Superior Court presiding along with a full time judge over settlement conferences in various civil cases. Kay’s experience now spans over 35 years of litigation and includes the honor of prevailing on behalf of a client in a hotly contested medical mal-practice appeal to the Utah Supreme Court in Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66; 221 P.2d 256, 269 (Utah 2009)
, setting a precedent that now remains in the body of Utah law in the area of statute of limitations and gross negligence as a basis for punitive damages.
Fifteen years earlier, after a two-week 1994 trial in San Diego, while Kay was 9 ½ weeks pregnant, a jury returned for Kay’s client what was at that time, the largest verdict for a trip and fall injury in San Diego County. San Diego Superior Court Judge Runston G. Maino
, who presided at the two-week trial, said this about Ms. Burningham’s trial skills:
In the spring of 1994, attorney Kay Burningham was the lead counsel in the civil case of Combs v. Fedco. The case was a trip and fall accident with serious liability problems for the plaintiff, who was represented by Ms. Burningham. The case took two weeks from jury selection to jury verdict.
During these two weeks of trial, I had an opportunity to observe the courtroom demeanor, skill and character of Ms. Burningham. I have nothing but the highest regard for her. Ms. Burningham carefully crafted her case from the time of jury selection to closing argument. She cross-examined the defense liability and medical experts with consummate skill: she presented her facts to the jury with great effect; and, most importantly, she never even came close to using an inappropriate tactic or argument.
I think the jury verdict for her client of about $250,000.00 was a reflection of her legal ability. In the over 19 years that I have been a judge, this is the highest verdict for this type of injury I have seen.
-Judge Runston G. Maino, San Diego Superior Court – 1994
In 2013 Kay Burningham was a keynote dinner speaker presenting at that year’s Ex-Mormon Foundation’s
annual conference. Her topic title was: “Are the Mormon Leaders above the Law? Fraud in the Inducement and Mormonism.”
Now, in 2019, Kay Burningham faces off with the former president of her alma mater, Dallin Oaks, who is now first counselor in the presidency of the Church of Jesus Christ of Latter-day Saints, over fraudulent misrepresentation of material facts as an inducement to faith by the “Mormon Corporate Empire”. The underlying issue will be over the exemption from judicial scrutiny of the LDS Church’s fraudulent misrepresentations under the constitutional doctrines of “freedom of religion,”
“entanglement”, and “religious autonomy”.
Kay Burningham has been scrutinizing the case law relating to these doctrines for 15 years and is well prepared to argue that fraudulent misrepresentation of historical facts as an inducement to faith is beyond the protection of exempt "religious freedom". She will appear on behalf of Laura Gaddy and, potentially, all others similarly situated. Dallin Oaks, will not be appearing. The Church of Jesus Christ of Latter-day Saints is represented by David Jordan of Stoel Rives, LLP of Salt Lake City. David Jordan served as a mission president for the Church of Jesus Christ of Latter-day Saints in London, England.
The Church has filed a motion to dismiss, citing pages of “legal precedents” believed to support the Church’s argument that Gaddy’s “issues with the Church have no business in court”. Curiously, some of the case law cited by Attorney Jordan are more supportive of Gaddy’s complaint than not. One wonders if he actually studied it, or if it was just handed over by the Becket Group with Dallin Oaks drafting the motion. Moreover, Gaddy’s complaint is liberally misrepresented in the motion to dismiss, with false claims that the complaint calls upon the court to adjudicate the truthfulness of the Church and of the Book of Mormon. Gaddy’s complaint plainly does no such thing. Burningham's response on behalf of Gaddy is due by September, 28th, barring extensions.
The Complaint alleges that specific aspects of the LDS Church’s false historical narratives and continuing misrepresentations “caused immeasurable emotional harm in the form of existential crises, suicides, suicidal ideation, broken families, insomnia, anxiety, and depression, of which [LDS] and members of the Mormon hierarchy are acutely aware.” Proof of this awareness is cited in the Complaint though not attached as an exhibit. The actual “Faith Crisis Report”
referred to in the Complaint was presented to Church leadership in 2013. The above-referenced quote is an excerpt from that report. The report documents the human suffering as attributed specifically to those who come to learn of the disparity between the official narrative of LDS Church history and the actual facts.
The perplexing strategy of defense counsel’s misrepresentation of the substance of the Complaint to a federal judge who is obliged to read it for himself raises interesting questions. What audience did defense counsel’s response intend? Does he presume the court to be so corrupt that it will overlook its judicial duty to lay aside the local prejudices and read for itself? Or is he, according to a theory of Mormon Epistemology
, just blinded to the obvious incongruity of his motion with the substance of the Complaint by virtue of what the theory predicts for all who fall prey to a lifetime of suspending critical thinking in favor of the warm and fuzzy feeling of pleasing the prophets (Church leadership) with blind and unreasoned obedience?
The fears of those who believe that justice for the Mormon Corporate Empire is not likely to be found in a Utah kangaroo court are not well supported by the fact that the case has just been assigned to Judge Robert Shelby who struck down Utah’s constitutional provision that marriage be limited to one man and one woman
. Clearly, he is not a patron of traditional Mormon dogma, a hopeful sign for the Gaddy complaint.
The saga of Mormon Fraud
and the shameful tolerance of it
in American culture continues.
See also: Gaddy v COP (LDS) Case Background