Polygamist judge case comes to BYU
 
By Abbey Olsen, Associate Copy Chief
BYU NewsNet
 
The Utah Judicial Conduct Commission’s recommendation to remove from office a Hildale justice court judge who practices plural marriage will be reviewed by the Utah Supreme Court Nov. 2 at the BYU J. Reuben Clark Law School.

After an investigation and a hearing Jan. 20, the Judicial Conduct Commission concluded Justice Court Judge Walter K. Steed brought the judiciary into disrepute by willfully engaging in consensual bigamy with three adult women.

Bigamy is a third degree felony under Utah law. Although Steed has not been charged with or convicted of bigamy, the Commission found his actions violated judicial ethical conduct. The Commission issued Steed’s order of removal from office Feb. 8, although it cannot be implemented until reviewed by the Utah Supreme Court.

The Utah Constitution requires the Utah Supreme Court to review an order of removal and approve, modify or reject it. Steed’s lawyer will argue Nov. 2 before the Utah Supreme Court that Steed’s conduct is constitutionally protected and is not grounds for judicial discipline.

The case began in 2004 when Doug White, an attorney for the Tapestry Against Polygamy, raised a complaint against Steed. After an initial investigation and proceedings, the Commission determined Steed had engaged in bigamy and referred the case to law enforcement. The Utah Attorney General and Washington County law enforcement declined to prosecute the crime, and the Commission continued its proceedings to determine whether Steed’s actions justified removal from office.

Kirk Torgensen, chief deputy for the Utah Attorney General’s office, said, "We have taken a stance in the attorney general’s office ... that we’re not going to go and prosecute people based upon polygamy if it’s truly consensual adult action."

Torgensen said law enforcement instead focuses on prosecuting polygamist relationships where the wife is underage under Utah law.

"We’ve told them we’re going to prosecute that anywhere we can find it and anywhere we can build a case," he said.

Rodney Parker, Steed’s attorney, said the key issue is whether Steed has the constitutional right to practice polygamy.

"If he doesn’t have the constitutional right to do it, then there becomes a question whether it is an appropriate ground for disciplining a judge particularly when the crime is virtually never prosecuted," Parker said.

Utah bigamy law states a person commits criminal bigamy when "knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person."

Parker argued in a similar polygamy case, State of Utah v. Rodney Holm, that "purports to marry" should apply to marriage conducted in a civil ceremony and not a religious ceremony only. State v. Holm is pending before the Utah Supreme Court.

"There can be no purported ‘marriage’ where the parties know they are not ‘married’ in the eyes of the Utah marriage statutes," Parker argued in briefs filed before the Court on Steed’s behalf.

The definition for prejudicial conduct as grounds for disciplining a judge was outlined by the Utah Supreme Court in 1996 in In re Worthen, the first ever Utah case in which judges contested disciplinary actions for violating judicial ethical norms. In that case, the Court said a judge could be disciplined for failing to adequately carry out his or her judicial duties, which include observing high standards of conduct and showing respect for the law. A judge can also be disciplined for willful, or bad faith, misconduct outside a judicial capacity if that conduct lowers public esteem for the judiciary.

Steed’s argument states his conduct did not occur in a judicial capacity and asserts that Steed did not act in bad faith, but under a "firm religious conviction."

The Judicial Conduct Commission contends in court documents that bigamy has never been constitutionally protected, citing most recently State v. Green, a case involving a polygamist arguing in favor of his religious rights.

The Commission’s argument further states even if the Utah Supreme Court protected polygamy in the future, Steed cannot be protected retroactively.

The Commission argues that by engaging in bigamy, Steed breaches judicial code to observe high standards and comply with the law. Even though he was never prosecuted, the brief for the Commission states by engaging in bigamy, a criminal act, Steed qualified for removal under the bad faith requirement, bringing the judiciary into disrepute.
 
newsnet.byu.edu
Originally published November 2, 2005
 
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