The threat is the latest turn of events involving an ongoing battle between state and federal courts regarding the management of a trust fund involving the polygamous Fundamentalist LDS Church.
Calling a recent ruling by US District Judge Dee Benson an "immediate crisis," 3rd District Judge Denise Lindberg, who has been overseeing the management of the $110 million trust fund, has turned to the 10th Circuit Court of Appeals for help.
Benson ordered Lindberg to appear in his federal courtroom for an order to show cause hearing on Friday. But when Lindberg's attorney informed Benson that the judge planned to attend the funeral of her uncle in Arizona on Friday and would not be available, the attorney said Benson suggested dispatching federal marshals to force the state judge's attendance.
"Judge Lindberg is leaving for Arizona this afternoon to attend a memorial service for her recently deceased uncle, scheduled for (Friday)," Lindberg's attorney, Brent Johnson, wrote in a motion filed Thursday. "When (Lindberg) informed Judge Dee Benson of this information, he suggested that it may be necessary to have the federal marshals bring Judge Lindberg before his court (Thursday) afternoon to answer as to her order. This has created a crisis necessitating an immediate decision."
Court officials confirmed late Thursday that Lindberg went to the funeral as planned, and Benson rescheduled the order to show cause hearing for Monday.
Lindberg is asking the 10th Circuit Court of Appeals to issue a stay of an injunction Benson issued last week. The injunction requires that the church's assets be returned to FLDS leadership and also prevents any further sale of assets within the United Effort Plan Trust.
The ongoing struggle over ownership of the trust, which was seized by the Utah state courts in 2005 amid allegations of mismanagement on the part of church leaders, escalated when Benson issued an order calling the state's actions taking control of the trust unconstitutional and a "virtual takeover."
Benson became involved with the UEP Trust in 2008 when a federal lawsuit was filed by FLDS members alleging violations of their U.S. constitutional rights.
Lindberg responded to Benson's injunction, and ordered the state-appointed special fiduciary, Bruce Wisan, who was appointed to oversee the assets of those within the FLDS sect, to maintain control over those assets.
Her mandate was in direct opposition to what Benson had ruled.
Wayne McCormick, a professor of law at the University of Utah, said such a struggle between a federal judge and a state judge is "a highly unusual situation."
"The general nature of life is that one court does not interfere in matters that are pending in another court," he said. "But that doesn't mean that a judge that has a matter in front of him or her can't order the parties to forego something in another court."
Wednesday, Lindberg filed an emergency motion to halt Benson's injunction from being placed into effect, appealing directly to the 10th Circuit Court of Appeals in Denver. In the motion, she said filing a similar motion to stay in Benson's court "futile."
"Only through this (10th Circuit) Court's immediate action can this extremely difficult and pressing situation between the courts of two sovereigns be de-escalated, and time given for appropriate review of the issues on appeal," Johnson wrote.
Among other things, Lindberg questioned why Benson in his federal role, did not take into account that she "has judicial immunity and her decisions are entitled to the deference that judicial immunity affords."
She pointed out that she has been overseeing all aspects of the trust since its inception.
"The federal court's actions are likely to cause irreparable harm to those who, directly or indirectly, have relied on the decisions of the state court over the nearly six years that Judge Lindberg has overseen the trust at issue," Johnson wrote.
She asked the 10th Circuit Court to issue a stay in the proceedings until the issue of judicial immunity can be addressed.
"Judge Lindberg's concern remains that if her fiduciary is required to cede control of the property before Judge Benson's order can be reviewed, trust assets will be irretrievably lost," Johnson wrote
She also noted that, at this point, the leadership of the church is in question, causing even further concern, saying "it is not clear to whom the fiduciary should turn over trust assets."
Lindberg is asking the appellate court to "outline how trust assets should be preserved in the interim."
A spokesman for the US District Court said Benson had no comment on the case. Johnson was out of town and did not respond to a request for comment.
The UEP was created by the FLDS Church in 1942 on the concept of a "united order," allowing followers to share in its assets. Members consider sharing its assets a religious principle and see state intervention in the trust as a violation of their religious rights.
The trust holds most of the property and homes in the twin FLDS communities located in the border towns of Hildale, Utah, and Colorado City, Arizona. It was taken over by the courts in 2005 over allegations it had been mismanaged by FLDS leaders.