The Church’s Litigators

Jeff Breinholt Mormon 24 Comments

Remember Kenneth Starr? He was the former judge-turned-special-prosecutor who tried to drive Bill Clinton out of office with tawdry tales involving the President’s dalliance with White House intern Monica Lewinsky. The LDS Church hired Starr, now the dean at Pepperdine Law School, more recently to promote their equities in the California state skirmishes over same-sex marriage. The Church simultaneously relied on a less well-known Salt Lake City lawyer (and 1993 BYU Law grad) named Alexander Dushku, of the law firm of Kirton & McConkie [1]. KenStarr

This interesting anecdote raises the question: Who are the LDS Church’s chosen litigators?

The Starr experience seems to be part of a larger reality The Church tends to rely on Kirton & McConkie to protect its commercial interests, though it is not averse to going national to get the best (or more local) representation in certain matters. We know this by surveying written judicial opinions, which give the name of lawyers of record in the litigation.

Kirton & McConkie, the law firm formerly known as Kirton, McConkie, Boyer & Boyle, apparently became the Church’s chosen litigators in the early 1970s, at least judging by when its attorneys started being mentioned in Church-related cases. Before then, the Church’s litigation was handled by the law firm of Ray, Quinney and Nebeker. The names Paul Ray, Albert Bowen, Paul H. Rudd, S.J. Quinney, A.H. Nebeker, Marvin Bertoch, John Snow, and Jay Jensen come up in older cases. Bowen seemed to mainly handle medical malpractice actions against LDS Hospital [2]. The Salt Lake City law firm of Irvine, Skeen, Thurman & Miner also handled some Church work in the 1940s [4]. Cases outside of Utah were handled by the Idaho law firm of Merrill & Merrill [5].

The old mainstays at K & M – Raymond Gee, Douglas Mitchell, Joseph Rust, Oscar McConkie, Richard Boyle, Wilford Kirton, Dan Bushnell, Richard R. Neslen, David Ericksen, B. Lloyd Poelman, Karlynn Himman, Allen Swan, David P. Farnsworth, and Norman Younker – mainly handled corporate litigation and real estate matters [6].
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This group has given way in more recent years to a new group of younger litigators who have thrown themselves into social issues like discrimination and same-sex marriage as well has tort cases in which the LDS Church is increasingly sued.

The aforementioned Alexander Dushku shows up the most. In addition to the gay marriage controversy, Dushku has been involved in zoning, discrimination, property, First Amendment, water, intentional tort, sex abuse and clergy malpractice controversies.

After Dushku, the most active Church litigators are Von Keetch, Randy Austin, Matthew K. Richards, Eric Olson,Thomas Walk and Dan McConkie. Other modern K & M litigators who have made appearances on behalf of the LDS Church are Jason Beulter, R. Willis Orton, Merrill Nelson, David McConkie, Paul Matthews, David Walquist, Charles Dahlquist, Robert Wallace, and Christian Collins[7].

As noted, the Church often reaches out to local or national lawyers who are not employed by K & M, when it feels it is in its interest.

The late Rex Lee was a legendary advocate who was both President of BYU and U.S. Solicitor General, and he was never part of K & M He argued some of the most seminal matters involving the Mormon Church [8].

Rex Lee

Rex Lee

Though the Church was not a party to the defense of Utah restrictive abortion statute, it would be naïve to think they were not involved in choosing the litigators This time it would not be K & M but rather Paul Durham, Anthony B. Quinn, Mary Ann Wood, and Kathryn O. Balmforth [9]. Wood represented Deseret Book when it was sued for plagiarism [10].

When the Church needs litigators outside of Utah, they have some old stand-bys. Ralph Hunsaker of Phoenix is one [11]. Mark Costello, Mark Chopko and Jeffrey Hunter Moon of Washington D.C. have submitted amicus curae briefs on behalf of the LDS Church [12]. The big firms that have been associated with LDS Church legal affairs in, addition to or in lieu of K & M, are Gibson Dunn & Crutcher, Holland & Knight, Latham & Watkins, and Sidley Austin Brown & Wood [13].

For matters in Oregon, the Church has relied on Frankin Hunsaker, David Ernst and Steven English of Bullivant Houser Bailey and James Bean of Lindsay Hart Neil & Weigler LLP, Portland [14]. In Washington State, where the Church has been sued repeatedly for negligence in sexual abuse cases, it has relied on Thomas D. Frey and Marcus B. Nash (before he became a General Authority) of Seattle’s Stafford Frey Cooper [15]. Other Seattle lawyers who have gotten some LDS Church business (including sex abuse cases) are in the law firm of Gordon Thomas Honeywell Malanca Peterson & Daheim [16]. For Montana matters, the Church relies on Hash, O’Brien & Bartlett [17]. In Boise, it is Moffatt, Thomas, Barrett, Rock & Fields [18]. Personal injury lawsuits against the Church are generally defended by local counsel wherever the case is brought, rather than by Kirton & McConkie, and there are a number of local lawyers who have handled single pieces of Mormon litigation [19]. For these firms, the representation seems to be one-off arrangement.

The interesting thing about K & M involves the growing field of sexual abuse, which I have written about elsewhere, most of which are brought out of Utah. All but one of these cases are handled by someone other than K & M, though the Church’s Salt Lake City law firm is undoubtedly involved in key strategic decisions even if they are not on the pleadings.
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[1] In re Marriage Cases, 49 Cal.Rptr.3d 675 (Cal.App. 1 Dist. 2006); In re Marriage Cases, 43 Cal.4th 757, 183 P.3d 384 (Cal. 2008).

[2] Brigham Young University v. Lillywhite, 118 F.2d 836 (10th Cir. 1941); Church of Jesus Christ of Latter Day Saints v. Scarborough, 189 F.2d 800 (10th Cir. 1951); Joseph v. W.H. Groves Latter Day Saints Hospital, 7 Utah 2d 39, 318 P.2d 330 (Utah 1957); Joseph v. W.H. Groves Latter-Day Saints Hospital, 10 Utah 2d 94, 348 P.2d 935 (Utah 1960); Dibblee v. Dr. W.H. Groves Latter-Day Saints Hospital, 12 Utah 2d 241, 364 P.2d 1085 (Utah 1961); Talbot v. Dr. W. H. Groves’ Latter-Day Saints Hospital, Inc., 21 Utah 2d 73, 440 P.2d 872 (Utah 1968); Weeks v. Latter-Day Saints Hospital, 418 F.2d 1035 (10th Cir. 1969).

[4] Potter v. Dr. W.H. Groves Latter-Day Saints Hospital, 99 Utah 71, 103 P.2d 280 (Utah 1940).

[5] Wheat v. Idaho Falls Latter Day Saints Hospital, 78 Idaho 60, 297 P.2d 1041 (Idaho 1956); Schofield v. Idaho Falls Latter Day Saints Hospital, 90 Idaho 186, 409 P.2d 107 (Idaho 1965).

[6] Corporation of President of Church of Jesus Christ of Latter-Day Saints v. Jolley, 24 Utah 2d 187, 467 P.2d 984 (Utah 1970); Manning v. Sevier County, 30 Utah 2d 305, 517 P.2d 549 (Utah 1973); McKinnon v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 529 P.2d 434 (Utah 1974); Bank of Salt Lake v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 534 P.2d 887 (Utah 1975); Jensen v. Manila Corp. of the Church of Jesus Christ of Latter-Day Saints, 565 P.2d 63 (Utah 1977); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 830 F.2d 374 (D.C. Cir. 1987);Corporation of President of Church of Jesus Christ of Latter-Day Saints v. Wallace, 590 P.2d 343 (Utah 1979); Church of Jesus Christ of Latter-Day Saints v. Industrial Commission, 590 P.2d 328 (Utah, 1979); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 637 F.Supp. 1398 (D.D.C. 1986); Robinson v. Intermountain Health Care, Inc., 740 P.2d 262 (Utah App. 1987); Robinson v. Intermountain Health Care, Inc., 740 P.2d 262 (Utah App. 1987); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862 (1987); Chapman By and Through Chapman v. Primary Children’s Hosp., 784 P.2d 1181 (Utah 1989); Hornsby v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 758 P.2d 929 (Utah App. 1988).

[6] Franco v. The Church of Jesus Christ of Latter-day Saints, 21 P.3d 198 (Utah 2001); Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 534 U.S. 1111, 122 S.Ct. 915 (2002); Davis v. Studdert, Slip Copy, 2003 WL 464067 (10th Cir. 2003); Washington County Water Conservancy Dist. v. Morgan,
82 P.3d 1125 (Utah 2003); Westchester Day School v. Village of Mamaroneck, 386 F.3d 183 (2nd Cir. 2004); Doe v. Corp. of President of Church of Jesus Christ of Latter-day Saints, 98 P.3d 429 (Utah App. 2004); Utah Gospel Mission v. Salt Lake City Corp., 425 F.3d 1249 (10th Cir. 2005); Evans v. City of Berkeley, 38 Cal.4th 1, 129 P.3d 394 (Cal. 2006); 2151 Michelson v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 2006 WL 1359664 (Cal.App. 4 Dist. 2006); 2151 Michelson, L.P. v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 2008 WL 5196437 (Cal.App. 4 Dist. 2008).

[7] Hadnot v. Shaw, 826 P.2d 978 (Okl. 1992); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Ada County, 123 Idaho 410, 849 P.2d 83 (Idaho1993); Draper City v. Estate of Bernardo, 888 P.2d 1097 (Utah 1995);Safsten v. LDS Social Services, Inc., 942 P.2d 949 (Utah App. 1997); Nelson on Behalf of Hirschfeld v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 935 P.2d 512 (Utah 1997); Chittenden v. Waterbury Center Community Church, Inc.,168 Vt. 478, 726 A.2d 20 (Vt. 1998); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Queen Carpet, 5 F.Supp.2d 1246 (D. Utah 1998); Corporation of President of Church of Jesus Christ of Latter-Day Saints v. Farm Bureau, 15 Fed.Appx. 544 (9th Cir. 2001); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of West Lin, 192 Or.App. 567, 86 P.3d 1140 (Or.App. 2004); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of West Lin, 338 Or. 453, 111 P.3d 1123 (Or.,2005; Riordan v. Corporation of Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, 416 F.3d 825 (8th Cir. 2005); Smith v. Hales & Warner Const., Inc., 107 P.3d 701 (Utah App. 2005); Lowery v. Cook, 2007 WL 772782 (Utah App. 2007); Gulbraa v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints, 159 P.3d 392 (Utah App.,2007); MediaNews Group, Inc. v. McCarthey, 494 F.3d 1254 (10th Cir. 2007); Whited v. Corporatoin of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 2007 WL 1441203 (Utah App. 2007); Huyot-Renoir v. Corporation of President of Church of Jesus Christ of Latter-day Saints, 2007 WL 2058683 (Utah App. 2007); U.S. v. Great Salt Lake Council, Inc., 2007 WL 189470 ((D.Utah 2007); Buck v. Myers, 244 Fed.Appx. 193 (10th Cir. 2007).

[8] Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862 (1987); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Hodel, 830 F.2d 374 (D.C. Cir. 1987).

[9] Jane L. v. Bangerter, 794 F.Supp. 1537 (D.Utah 1992); Jane L. v. Bangerter, 828 F.Supp. 1544 (D.Utah,1993); Jane L. v. Bangerter, 61 F.3d 1505 (10th Cir. 1995).

[10] Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002)

[11] In re General Adjudication of All Rights to Use Water in Gila River System and Source, 198 Ariz. 330, 9 P.3d 1069 (Ariz. 2000); In re General Adjudication of All Rights to Use Water in Gila River System and Source, 198 Ariz. 330, 9 P.3d 1069 (Ariz. 2000.)

[12] Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997); Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2nd Cir. 1999); Rweyemamu v. Cote, 520 F.3d 198 (2nd Cir 2008).

[13] People ex rel. Dept. Pub. Wks. v. Corporation etc. of Latter-Day Saints, 13 Cal.App.3d 371, 91 Cal.Rptr. 532 (Cal.App.2.Dist. 1970); Silo v. CHW Medical Foundation, 27 Cal.4th 1097, 45 P.3d 1162 (Cal. 2002); Boyajian v. Gatzunis, 212 F.3d 1 (1st Cir. 2000); Martin v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 747 N.E.2d 131 (Mass. 2001); 2151 Michelson v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 2006 WL 1359664 (Cal.App. 4 Dist. 2006); 2151 Michelson, L.P. v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints, 2008 WL 5196437(Cal.App. 4 Dist. 2008).

[14] Jack Doe 1 v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 2008 WL 4549075 (D.Or. 2008); Doe v. Corporation of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, Slip Copy, 2009 WL 2132722 (D.Or. 2009); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of West Lin, 192 Or.App. 567, 86 P.3d 1140
Or.App. 2004); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of West Lin , 338 Or. 453, 111 P.3d 1123 (Or. 2005); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Dept of Revenue, 1975 WL 1126 (Or.Tax. 1975); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Dept of Revenue, 276 Or. 775, 556 P.2d 685 (Or.Tax 1976)

[15] Neilson v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints, 113 Wash.App. 1050, 2002 WL 31188444 (Wash.App. Div. 1 2002); Flanigan v. McCrea, 93 Wash.App. 1085, Not Reported in P.2d, 1999 WL 58767 (Wash.App. Div. 1,1999); “Jane Doe” v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, 122 Wash.App. 556, 90 P.3d 1147 (Wash.App. Div. 1 2004).

[16] R.K. v. Corporation of President of Church of Jesus Christ of Latter Day Saints, 2006 WL 2506413 (W.D.Wash. 2006); R.K. v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2006 WL 2661055 (W.D.Wash. 2006); R.K. v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2006 WL 2661059 (W.D.Wash. 2006).

[17] Davis v. Church of Jesus Christ of Latter Day Saints, 244 Mont. 61, 796 P.2d 181 (Mont. 1990); Davis v. Church of Jesus Christ of Latter Day Saints, 258 Mont. 286, 852 P.2d 640 (Mont. 1993).

[18] Aldrich v. Bowen, 130 F.3d 1364 (9th Cir. 1997); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Ada County, 123 Idaho 410, 849 P.2d 83
(Idaho 1993); Doe v. Corporation of The Ass’n of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints, Slip Copy, 2009 WL 2132722 (D.Or. 2009).

[19] McKinney v. Public Service Co. of Indiana, Inc., 597 N.E.2d 1001 (Ind.App. 1 Dist.,1992); Stotts v. Church of Jesus Christ of Latter Day Saints, 882 P.2d 1106 (Okl.App. 1994); Essick v. Barksdale, 882 F.Supp. 365 (D.Del. 1995); Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877 (Tex.App.-Dallas,2000); Sy v. Board of Trustees of California State University, 2005 WL 950006 (Cal.App. 2 Dist. 2005); Waite v. Church of Jesus Christ, Latter-Day Saints,, 2007 WL 951710 (E.D.Wash. 2007).

Comments

comments

Comments 24

  1. He was the former judge-turned-special-prosecutor who tried to drive Bill Clinton out of office with tawdry tales involving the President’s dalliance with White House intern Monica Lewinsky. He was the guy who tried to call it all off and go on to be dean of a law school and was pressured into sticking with the matter instead …

  2. Wait. Only one woman among the bunch (assuming this Karlynn Himman person is female)? Yowza. There’s something wrong about that in a HUGE way. I’ve heard recently that BYU is under some pressure from the ABA to increase the percentage of female faculty, but there just is very little mentoring and support within church-related structures to develop female attorneys/faculty. This post suggests one reason why. It’s a shame; my observation is that women bring a vital perspective to the practice of law. This practice of not fully utilizing resources seems doubly odd from my perspective because where I clerk, 75% of the judges on the bench are women.

  3. Coffinberry, you overlooked Mary Ann Wood, and Kathryn O. Balmforth. Also, most (if not all) of the firms listed are by last name of partners only and surely include female lawyers. For example, I looked quickly at Gibson, Dunn and Crutcher (the first multiple-name firm) – and two of the first five lawyers shown on their site are women.

  4. Interesting post but you didn’t provide any stats on the firms’ “success rate” in representing the Church. I would be more concerned with that number than the gender/minority participation of attorneys working at the firms.

  5. I thought the church was full of guys who could tell me how to get rich without having a real job,, how to avoid paying taxes, and how to invest my money in real estate deals that would pay me 30 percent interest for the rest of my life.

  6. Jeff–
    DO you have access to how many of these lawyers were later called to be General Authorities? Albert Bowen was a member of the Quorum of the 12, and Jay Jensen and Charles Dahlquist were in the presidnecy of the 70 and YM general president, respectively. Oscar McKonkie and Rex Lee were also prominent in the Church.

    I’ve heard a rumor that the two largest departments on the Church are Legal and Public Relations. If that’s true, it says alot about the age we’re living in.

  7. Jeff,
    Per Lexis, in the text accompanying footnote 12, it’s actually Michael Costello, not Mark Costello. It doesn’t really matter at all, except that a Mark Costello, who appears to have been an attorney, cowrote a book about rap with David Foster Wallace (Signifying Rappers), and, when I saw his name, I thought it would have been terminally cool if he had also represented the Church.

  8. “It’s a shame; my observation is that women bring a vital perspective to the practice of law.”

    Interesting. My observation is that lawyers are lawyers, and the only difference I see based on my admittedly unscientific and limited sample is that female lawyers are rather more comfortable berating the (largely female) support staff.

  9. #13 – This statement is monumentally unfair…to male attorneys. They deserve the same level of credit for their pomposity and condescension to their staff (and pretty much everyone else) that female attorneys receive. I think it’s important not to discriminate.

  10. I stand corrected on #12. Thanks for pointing that out.

    On #11, and even more interesting question is whether the Church rewards lawyers who are willing when few others are to handle particularly messy litigation, like that involving sexual abuse, by appointing them to leadership positions. I hear that Kirton & McConkie tends to wear its association with Church leadership on its sleeve (pictures of various temples on its walls?) and that it encourages its partners to become mission presidents. This is all rumor, since I would never be allowed in there….

  11. 15. Jeff
    Von Keetch handles those types of claims and was called as an Area Authority Seventy last year. He is potentially being groomed to be the next General Counsel for the Church when Elder Wickman is eventually released.

  12. Thanks. There does seem to be a correlation between being a prominent LDS litigator and getting appointed to a leadership position. How about bloggers who cover legal affairs? I can repent with the best of ’em ….

  13. Why do the Mormons from LDS in Utah Church persecute Zissa Ramani and child.  How un-humanitarian and piggish for you to attack Muslim families and persecute there children?

    Zissa Ramani a born Jewess from a holocaust mother was raped a conviction took place and she did come close to death by minutes had a STOMA to live and yet all you racist anti-Semitic bigots believe it is your God given right to treat minorities like lower forums of humans.

    Well this is going to hurt your chances of radical sex child abuse and women abuse in campaigns.

    Filthy degrading humans you all are.

    Thanks

    1. The LDS Church took no position on Ramani’s particular case but rather helped inform the Nevada Supreme Court about the First Amendment principles that limit lawsuits against religious organizations.  Many of those principles were unanimously affirmed by the U.S. Supreme Court in its 2012 Hosanna-Tabor decision.  The Nevada Supreme Court subsequently threw out Ms. Ramani’s case on technical grounds.

      1. That is why racist Mormon Romney was voted out….When you rape military families daughters they fight back it was all over military bases media…..Raping women putting them on life support 4 surgeries to live make the victim pay threw corrupted bigots as all of you….. That’s what you did upon helping the world vote against Israel…..Just proved a point to the world how wicked racist you people really are…..So who is the real looser? AIPAC ZIONIST—– + Israel……

  14. See how the persecutors can rape and women who come close to death on life support are treated by Nevada.  Now this case goes to the higher court.

    Suit against Vegas synagogues and rabbis rejected
    Las Vegas Sun – 11 hours ago
    The Supreme Court, in a unanimous decision written by Chief Justice Michael Douglas, said the synagogues and rabbis cannot be held liable “for Segelstein’s …

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