Full opinion text
.MEMORANDUM DECISION AND ORDER WINDER, District Judge. This is an action under 42 U.S.C. § 1988 and the common law for damages arising from the death of John Singer, who was shot and killed by law enforcement officers attempting to arrest him. Pending before the court are some twenty-odd motions, including summary judgment motions covering all defendants. The motions have been exhaustively briefed by the parties through approximately 1,000 pages of memoranda. In addition, the court is aided in deciding these motions by thousands of pages of deposition testimony and nearly two full days of oral argument. In all, 72 persons have been deposed by the parties. After careful analysis of all of the foregoing, the court issues this memorandum decision and order. I. BACKGROUND FACTS While the court has some misgivings about attempting to abbreviate the myriad calamitous facts giving rise to this action to something less than a Tolstoyan epic, such an exercise is necessary to put the resolution of these motions in proper perspective. John Singer and his wife lived with their seven children on a two and one-half acre parcel of land near the small farm community of Marion, Summit County, Utah. The most important thing in the family’s life was their belief in and their reliance on God. The family followed the will of God, as set out in scripture and determined by revelation and answers to prayers, in all their actions. The Singers all affiliated with the Church of Jesus Christ of Latter-day Saints (the Mormon Church), the predominant church in their community until May 31, 1972, when John and Vickie were excommunicated by that organization. Their beliefs and actions were nevertheless governed by the Mormon scripture, including the Holy Bible, the Book of Mormon, the Doctrine and Covenants, and the Pearl of Great Price. They further placed great emphasis on the Mormon belief in personal revelation direct from God and prayed for and received guidance in all substantial undertakings. The Singer family’s reliance on God was so complete that for a period of years they would not utilize medical or dental aids but relied solely on the healing power of God, despite various afflictions. The saga begins on March 29, 1973, when Vickie and John Singer withdrew their children from the South Summit Elementary School at Kamas, Utah, objecting to the public school’s teachings and the environment to which their children were being exposed. The children were in some respects teased and made fun of. The Singers viewed the school environment as permitting of and containing behavior to which they were opposed: vulgarity, sex, and drug use. The Singers objected to the long hours and wasted time involved in standard classroom education. Additionally, they could not accept some of the teachings of secularistic education. The Singers contemplated removing their children from school for some time and prayed concerning the matter. The incident that triggered the March 29 withdrawal was a reader containing the pictures of George Washington and Martin Luther King “side by side as equals and great men.” Vickie Singer Journal at 240. John Singer viewed King as a traitor to the country and didn’t believe textbooks should promote integration and mixture of races. Vickie Singer Deposition at 169-170. Soon after the Singers removed their children from school, they were visited by defendant Edrington, the Superintendent of South Summit School District, and Mr. Boyd Lake, the Pupil Personnel Director. After an additional meeting with the Singers and the School Board, Edrington apparently wrote a letter to State School Superintendent Walter D. Talbot posing questions to Talbot concerning the state law on home education. Dr. Talbot responded in a letter dated May 9, 1973, in which he gave Edrington a general interpretation of the State Compulsory Attendance Law: 3. What special qualifications, if any, must the parent have to meet the requirements of the law in teaching the children at home? No special qualifications are made for the parent who teaches at home. The law does require persons who teach in the public schools to be properly certified, but no such requirement is imposed upon parents who teach at home. However, the board of education should be satisfied that such instruction meets a minimum quality. 4. What monitoring requirements relative to the instruction will be expected of the local school district? The local board of education must satisfy itself that the evidence of the existence for non-attendance is sufficient [sic] in accordance with the above criteria. If reason exists, the board may issue a certificate of exemption; if not the board must report the parents to the juvenile court and the officers of the court must proceed to investigate and take appropriate action. The parent who willfully fails to comply with the compulsory attendance law is guilty of a misdemeanor. Deposition of Walter D. Talbot at Exhibit 12. Under the direction of the School Board, Edrington wrote a letter to the Singers dated May 25, 1973, notifying them, in accordance with Talbot’s instructions, that they might teach their children at home “if they are taught in the branches prescribed by law for the same length of time as children are required by law to be taught in the district schools.” Id. See Vickie Singer Deposition at Exhibit 3. Edrington’s letter to the Singers stated that if the local Board were satisfied that the latter requirement was being met, it would “issue a certificate of exemption; if not, the Board must report the parents to the Juvenile Court.” The letter further conditioned the grant of a certificate on periodic evaluation of the program by the Superintendent and the Pupil Personnel Director. By letter dated June 16, 1973, John Singer responded and notified Edrington and the Board of his position: My God has let me know by his scriptures & by his Holy Spirit that I am not required according to his Laws, to bow under laws which trample upon my liberties of exercising rights & privileges, in which liberties my God has made me a free man. Also, knowing that my God is more powerful than you & your illegal laws & that only slaves will bow under those conditions; therefore, all I can say is go to Hell you & your kind for such unrighteous demands. Id. at Exhibit 5. Dr. Talbot wrote an additional letter to Edrington on July 11, 1973, in which he described a discussion he had with the Attorney General’s office concerning the possibility of filing an action against the “parents who held their children out of school last spring.” Talbot Deposition at Exhibit 13. Dr. Talbot stated that the opinion of the Attorney General’s office was that at that time nothing was actionable because the children were not presently out of a school being operated to which they should attend, and that if the parents refuse to send their children to school when it opened in the fall, action should be then taken. Dr. Talbot further wrote to Mr. Edrington on October 4, 1973, apparently in response to a call from Edrington. Id. at Exhibit 14. Talbot’s October 4 letter states that after consultation with the Attorney General’s office, he was “in accord that action should be initiated by your board of education in accordance with the law.” The letter goes on to describe the applicable provisions of the Utah Compulsory Attendance Law and states: “The District would not be discharging its responsibility if it did not do as the law requires and report this matter formally to the juvenile court in your area.” On October 18, 1973, the case was referred to the District Juvenile Court for Summit County and a complaint issued against the Singers for neglecting their three oldest children by withdrawing them from school and for failing to comply with the Utah Compulsory Attendance Law, Utah Code Ann. §§ 53-24-1 & 3 (1981). The Singers were served with a summons to appear in the juvenile court on December 10, 1973, but neither appeared. On December 11, Leon Wilde, from the Summit County sheriff’s department went to the Singer home with a warrant for John’s arrest. Vickie Singer Deposition at 196; Vickie Singer Journal at 245-46. John told Sheriff Wilde that he would not go in with him. The sheriff told John that if he didn’t go in with him that “the judge would probably send about ten guys after him and break the door down to get him.” Vickie Singer Journal at 245-46. John responded: “ ‘If that’s the case then there will be bloodshed.’” Id. On January 10, 1974, John Singer was arrested outside a home in Kamas where he was making a television repair call. Vickie Singer Deposition at 199; Sheriff Ron Robinson Deposition at 7-8. John spent a night in jail and was released the next day on his own recognizance. The juvenile court judge at that time, Judge Hermansen, appointed an attorney to represent the Singers, and on the advice of that attorney, the Singers prepared an outline of subjects that they were going to teach their children at home. The Singers’ attorney delivered to Mr. Edrington a copy of the Singers’ outline for educating their children at home, and on February 14, 1974, the South Summit School District Board of Education received a request from the Singers’ attorney that the Singers be excused from sending their children to public school. Affidavit of Val D. Edrington at 3-4. By letter dated March 22,1974, the local Board notified the Singers that their request for a certificate of exemption from the Compulsory Attendance Laws would be granted if an understanding could be reached in certain specified areas. Vickie Singer Deposition at Exhibit 7. The juvenile court action was continued from time to time and eventually dismissed without further developments. See Deposition of Judge L. Kent Bachman, Exhibit 2, at 61. One of the areas of concern to the Board of Education was that they be permitted to monitor and test the Singer children. See Affidavit of Val D. Edrington at 4; Vickie Singer Deposition at 208-09. Accordingly, the Singers allowed their children to be given the California Achievement Test and the Short Form Test of Academic Aptitude by Tony Powell, the school psychologist, in 1975. These tests were the same as those given to all the children in the South Summit School District during the 1975 school year. Tony Powell Deposition at 164-65. These tests are designed for use in evaluating how a school grade has affected a large group of children and not necessarily for making educational decisions about individuals. James Carroll Deposition at 36. The test results were analyzed by Val Edrington and Tony Powell on September 18, 1975. The Singer children’s scores were found to be lower than the group average of the children who would have been in the equivalent grade in public schools as the child tested. Whatever the validity and applicability of the tests given the Singer children, which are of course disputed by plaintiffs’ experts, the only decision made at that time that was based on these tests was to monitor and test the children for an additional school year. Plaintiffs’ expert apparently does not dispute the state’s right to test and monitor children taught at home. See id. at 11. The Singers, however, refused to allow their children to be tested during the 1975-1976 school year. Vickie Singer recorded in her journal a telephone conversation with Tony Powell on April 1, 1976, where he requested that he be allowed to test the children. Vickie Singer Depositen at 212-14 (quoting Journal at 303-304). Mrs. Singer denied the request, citing both indications from the Lord and the Singers’ personal responsibility for educating their children. Following the refusal to permit testing, on May 13, 1976, the South Summit School District Board decided to contact Superintendent Talbot for further legal advice. See Deposition of Val D. Edrington at Exhibit 6d. On June 15, 1976, Edrington met with Dr. Talbot in Talbot’s office where Talbot advised Edrington to [t]urn the complaint over to the county attorney and let him handle it.” See Deposition of Walter D. Talbot at 73 & Exhibit 2. The school board then met, on July 15, 1976, and resolved by motion to accept Superintendent Talbot’s recommendation and turn the Singer matter over to the courts. See Deposition of Val D. Edrington at Exhibit 4 (Board meeting minutes for July 15, 1976). At the August Board meeting, the Board decided to petition the court to appoint a public defender so that a meeting could be held with John Singer and his legal counsel to discuss whether to continue the exemption. See id. (minutes for August 12, 1976). Robert W. Adkins, the Summit County Attorney, filed a motion to appoint substitute counsel on August 31, 1976. See Deposition of Judge L. Kent Bachman at Exhibit 2, p. 60. The motion was heard before Judge Bradford of the juvenile court on September 30, 1976. Judge Bradford, on hearing the motion, determined that there was no action pending before the court and that he therefore had no jurisdiction to take any action in the case. See Deposition of Charles E. Bradford at 70-71; Deposition of Robert Adkins at 135. During the hearing on the motion, defendant Adkins explained to Judge Bradford the background concerning the Singer-School Board situation. The judge’s response was to the effect that “each parent should have substantial latitude in the education of his child.” Deposition of Robert Adkins at 137. Adkins took the judge’s statement to mean that he was adverse to taking any action regarding the matter. Id. at 137-38. Judge Bradford recalled that after the hearing, as he, his clerk, the court bailiff, and a probation officer, who he thinks was Theldon Myrup, were walking out of the building, he “made an offhand comment” that he “had some questions about the effect of the compulsory attendance statute.” Deposition of Charles E. Bradford at 110-11. He commented that he thought that “if parents were capable of teaching their children in the home, that the law ought to be such as to allow for that.” Id. at 111. He further recalls that he intended the remark as referring more to “what the law is and what [he] thought it ought to be,” and didn’t intend it to be construed as a comment that he wouldn’t enforce the law if it was other than he preferred. Id. The court can find no evidence in the record that these comments were ever communicated to the school board or Edrington. On October 4, 1976, Adkins wrote a letter to Edrington in which he described the hearing before Judge Bradford, concluding as follows: I don’t believe that we would receive too much help out of the juvenile court, if another crmminal [sic] action were filed against the Singers. Judge Bradford apparently takes the position that a parent should have substantial discretion in the type of education, or lack of it, which his child receives. Accordingly, I think it would be very difficult to bring any pressure to bear upon the Singers from the juvenile court for failure to enroll their children in a public school or the failure to educate those children at home. Deposition of Robert Adkins at Exhibit 6. After receiving the letter, Edrington reviewed with the school board the Singer situation, and that body resolved to reapprise Superintendent Talbot. A short time later Edrington met Talbot at a luncheon of the school superintendents of the state. As Edrington recalls the occasion, they “were sitting around with other superintendents eating lunch and he asked me something to the effect of, ‘Where are you on the Singer case?’ Or ‘How are you coming on the Singer case?’ ” Deposition of Val D. Edrington, vol. 1 at 85. Edrington, in response to Talbot’s question, informed him that the county attorney had indicated that Judge Bradford would be hesitant in pursuing a complaint if it was filed. Talbot responded that that didn’t seem to be appropriate action on the part of the judge. Id. Edrington also recalls Talbot as indicating to him that if he would write Talbot a letter he would appreciate that and be interested in that communication. Id. On November 29, 1976, Edrington wrote a letter to Dr. Talbot to bring him “up to date with the latest chapter in the intriguing saga of South Summit School District and Mr. and Mrs. John Singer who refuse to send their children to the district schools.” See Deposition of Walter D. Talbot at Exhibit 4. In this letter Edrington reviewed briefly the Singer situation and described Judge Bradford’s actions as he saw them. Edrington stated that the school board was putting pressure on him “to see where it will finally come to rest.” In seeking Talbot’s “formal, legal interpretation and direction” in solving the matter, Edrington stated in the letter: “I certainly don’t want to put you in the position of taking on the juvenile court system in their failures to enforce the state statutes. Therefore, I guess the end result could be that the juvenile court is failing to act.” Id. Along with this November 29, letter, Edrington enclosed the October 4 letter which he received from Adkins. Talbot responded to Edrington’s letter on December 22, 1976, as follows: This will acknowledge your November 29 letter concerning the “latest chapter in the intriguing saga” of John Singer. I will follow up on this matter but keep it low key. When I have something I believe to be important or helpful, I’ll get back to you. Deposition of Walter D. Talbot at Exhibit 4. Towards the end of 1976 and early in 1977, several other incidents occurred on which plaintiffs rely heavily. A summary account of these events is found in a sheet from the agenda to the Summit County School Board meeting of February 1977. Deposition of Val D. Edrington, vol. 2 at Exhibit 6c. As background to a proposed discussion of the Singer situation, the February agenda states: Early this fall we received indication [sic] that the Juvenile Court Judge for our school district would not look favorable [sic] on a complaint compelling parents in our school district to send their children to school. The Board directed the superintendent to take the case to Superintendent Talbot. Until recently no action was forth coming [sic]. However, since the last Board meeting Superintendent Talbot has directed me to go ahead with the complaint. He has the assurance of Judge Bradford that he will carry out the compulsory attendance law even though it is contrary to his personal beliefs. It seems that Superintendent Talbot contacted the Attorney General’s office about “What do we have to do to get Juvenile Court judges to carry out the law?” The Attorney General’s office apparently called in Judge Bradford and put the pressure on him. He then called Superintendent Talbot and informed him of his intent to carry out the law. The events which Edrington described in the agenda began apparently on December 6, 1976, when Mr. Theldon Myrup, a probation officer with the juvenile court, dropped in to see Edrington. They discussed the background of the Singer situation and Myrup indicated he was going to discuss it with Judge Bradford and “get back” to Edrington. Id., vol. 2 at 129-31. Edrington, however, does not remember Myrup ever “getting back” to him. Id. at 132. Judge Bradford recalls speaking with Theldon Myrup during this same time period. Judge Bradford described a telephone conversation as follows: Mr. Myrup just simply called and said, “I heard on the grapevine that Mr. Talbot has written a letter to the governor complaining that you will not hear cases relating to the compulsory attendance statute, and I thought you ought to know about that.” And that was the sum and substance of that conversation____ And I don’t know that there was even the name of a case mentioned. Deposition of Charles E. Bradford at 98. Judge Bradford recalled in his deposition that following this discussion he placed a telephone call to Dr. Talbot, in which he stated: ‘“[I]ts been reported to me that you wrote a letter to the governor stating that I would not hear cases relating to the compulsory attendance statute.’ ” Id. at 99. He recalled that Talbot responded: “ ‘No, I haven’t written a letter to the governor, but I have received a letter from the school district concerning this matter.’ ” Judge Bradford then stated to Dr. Talbot some of his concerns about the compulsory attendance statute and some of the reasons why he thought there might be merit in amending the statutes to obviate some of the problems he had observed in the courts resulting from people “being forced to go to school when they didn’t want to be in school.” Id. at 99-100. He recalled Dr. Talbot expressing some degree of agreement with the view that there might be some merit in looking into amendments to the statutes relating to secondary schools. Dr. Talbot recalled having a telephone conversation with Judge Bradford but was unsure as to the exact time of the conversation. He recalled that Judge Bradford called him prior to the time that Bradford would be up for reappointment as a juvenile judge. See Deposition of Walter D. Talbot at 30-31. He remembered the nature of the conversation to be the compulsory attendance laws, not as they applied to the Singers specifically, but just in general. Id. at 31. Talbot recalled in his deposition that the judge at one time had said that he did not believe in the compulsory attendance law, but that in their conversation he stated that “even though that it [sic] may be against his own philosophy, that as a judge he was willing to enforce the law as he knew it.” Id. at 32. Talbot’s own position had been all along that the compulsory education law should be enforced. Id. at 35. As background to this communication between Talbot and Bradford, it must be pointed out that Dr. Talbot, as the State School Superintendent, sat on a panel during this time period which screened and recommended candidates for appointment to the juvenile court bench. This committee would recommend three applicants to the governor who then would make the appointment from one of those three persons. Judge Bradford testified in his deposition that he knew Talbot was a member of the committee and that he realized that his appointment as a judge was to be reviewed in the summer of 1977. Dr. Talbot statéd that in screening applicants for juvenile court judge appointments, the committee would interview the applicants and question them as to their philosophy relating to enforcement of the school laws, including the compulsory attendance law. Dr. Talbot felt that the compulsory attendance law was a serious matter and that his opinion on the committee could be influenced by whether or not judges intended to enforce it. Id. at 47. Some time later, in the summer of 1977, Judge Bradford went through that committee’s screening process. Bradford later received a telephone call from then Utah Attorney General Robert B. Hansen in July of 1977 in which Hansen alerted him to the fact that his name was not one of the three recommended to the governor by the Juvenile Court Commission. See Deposition of Charles E. Bradford at 33. When Bradford heard this, he contacted some people and learned that Clyde Patterson, then President of the Utah State Bar and a member of the Juvenile Court Commission, had not abstained from voting on the applicants despite the fact that his law partner was one of the applicants for the position. Id. at 49. When making these contacts, Bradford went to see Dr. Talbot and told him that it was his understanding that his name had not been recommended. Talbot responded that that was correct and commented that “some of the others had indicated that they didn’t want [Bradford] on the list, so he thought since they had more to do with [Bradford] than he did, that he should go along with them and vote in that regard.” Id. at 49-50. Bradford told Talbot that he felt that Mr. Patterson had a conflict of interest, since his partner was an applicant, and that he should have abstained from voting. Judge Bradford recalled in his deposition that Dr. Talbot responded: “ ‘I’m sorry that it went the way it did____ I will personally request that the commission reconvene, and that we further consider this matter.’ ” Id. at 50. The Commission did reconvene and Judge Bradford’s name was added to the list that was submitted to the governor; however, Governor Matheson decided to appoint someone else. Id. With this backdrop, the communication between Talbot and Bradford perhaps takes on a different significance. In addition to referring to Judge Bradford’s “assurance” to Dr. Talbot that he would carry out the compulsory attendance law, Edrington’s agenda for the February school board meeting made reference to a contact between Talbot and the Attorney General’s office. Dr. Talbot, at the time of his deposition, assumed that he met with someone from the Attorney General’s office because of the reference that Edrington made in the agenda. He did not, however, have any specific recollection of such a meeting. See Deposition of Walter D. Talbot at 50-51, 146. Talbot noted that as State School Superintendent his contacts with the Attorney General’s office were frequent. Id. at 54. While Dr. Talbot had no specific recollection of the meeting, he could not categorically deny that he requested a member of the Attorney General’s office to contact Judge Bradford. Id. at 56-57. Talbot also stated in his deposition, however, in referring to enforcement matters: “I don’t believe that my style of working with the Attorney General’s office would have me ask the attorney general to contact anybody. I think that that would be his business. I would simply initiate the discussion and ask if anything could be done.” Id. at 123. An additional incident referred to in Edrington’s agenda, was thafthe attorney general’s office “apparently called in Judge Bradford and put the pressure on him.” Judge Bradford, in his deposition, could not recall being contacted by anyone from the attorney general’s office. He stated: ... I have no recollection whatever of being contacted by anybody from the Utah Attorney General’s Office concerning this matter to discuss the case or to put pressure on me to hear it or to rule on it in any certain way or anything else. I do not have at this time any recollection. I think that I would have recalled that had it happened. Deposition of Charles E. Bradford at 112. From the school board’s February agenda it would appear that all these incidents occurred before some type of contact between Edrington and Talbot in January of 1977. Both Edrington and Talbot are unclear as to a meeting between them at that time. Talbot does not recall meeting with Edrington in January of 1977. See Deposition of Walter D. Talbot at 49. Edrington in his deposition, was not sure when this meeting was or when he talked to Superintendent Talbot about these events. See Deposition of Val D. Edrington, vol. 2 at 83. From the statement in the agenda, Edrington assumed that he talked to Talbot between the January 1977 board meeting and the February board meeting. Id. at 90, 98. Edrington’s impression at the time of his deposition was that the information contained in the agenda was received by him from Dr. Talbot, id. at 98, 109, & 119-21, although he did not specifically recall the conversation with Dr. Talbot in which the information in the February agenda was received. At any rate, Edrington submitted this information to the local school board in their February 10, 1977 meeting, and the school board determined to invite the Singers to their March board meeting to give reasons why their exemption from the mandatory attendance laws should not be withdrawn. John Singer attended the school board meeting on March 9, 1977, without his spouse. In response to questions from the school board, Singer stated that his family was holding school 180 days a year, for the same amount of time as required in the public schools, and in the same subjects as the public schools. See Deposition of Val D. Edrington, vol. 2 at Exhibit 4 (board meeting minutes for March 9, 1977). John told the school board, however, that he would not allow the district to monitor his children’s school work or to test the children. He also stated that he would not keep an attendance record. Id. See also Deposition of Vickie Singer at 216-17. Following the school board’s discussion with John Singer, the board voted to refer the situation to the juvenile court. Accordingly, on March 11, 1977, the school board notified the Singers by letter that they were withdrawing the certificate of exemption allowing them to teach their children at home. See Deposition of Val D. Edrington, vol. 2 at Exhibit 8. The reasons stated in the letter for the board’s decision were the Singers’ refusal to allow monitoring and testing by district personnel and their refusal to maintain an attendance roll. The letter further notified the Singers that unless they reinstated their children into the district school by March 18, 1977, their case would be reported to the juvenile court. The Singers having taken no action, complaints were filed on May 3, 1977, charging John and Vickie Singer with the crimes of contributing to the delinquency and neglect of Heidi Singer, Suzanne Singer, Charlotte Singer, Joseph Singer, and Timothy Singer, by failing to send those children to school and failing to comply with the requirements of Utah Code Ann. §§ 53-24-1 & -3. See Deposition of Judge L. Kent Bachman, Exhibit 2 at 1-4 & 28. The complaints and a summons for the Singers to appear in court on June 7, 1977, were served on the Singers on May 5th. At the June 7 preliminary hearing, the Singers were given the option of pleading guilty, pleading innocent or remaining silent in response to the charges of the complaint. The Singers chose to remain silent. They were also given the option of hiring their own lawyer, having a state- appointed lawyer, or waiving the right to a lawyer; they chose the latter. See Vickie Singer Deposition at 227-28. Vickie Singer also remembers talking to a “personal manner” with Judge Bradford and discussing the Singers’ belief that “these things are unconstitutional.” Id. at 228. Vickie recalled at her deposition: “He actually agreed with us, actually told us he had tried prior to this trouble to somehow fight against this. I’m putting this in my own words as I remember, and that he believed that we were standing on our constitutional rights.” Id. At that time John Singer also requested that the members of the school board and Superintendent Edrington be subpoenaed for the trial. Id. at 228. On August 3, 1977, Judge Bradford appointed Robert Orton as guardian ad litem of the Singer children. See Deposition of L. Kent Bachman at Exhibit 2, p. 6. Judge Bradford noted that he appointed attorney Orton as guardian ad litem rather than as attorney for the children “because the quirk in the law made it so that if I appointed him as guardian ad litem he could be paid, and if I appointed him as attorney there might be a question as to whether he could be compensated for his services.” See Deposition of Charles E. Bradford at 62. John Singer responded to the order appointing a guardian ad litem for his children by letter to Judge Bradford, dated August 7, 1977, as follows: Dear Mr. Bradford! I have received your orders by which you appointed Robert F. Orton as guardian of my children. My reply! 1. You, Mr. Bradford, by making a court order of this nature are, according to the laws of the land, a lawbreaker & to pursue this matter further against me & my family makes you also the lawbreaker in the eyes of Allmighty [sic] God. I have lost all confidence in you as an officer of Justice & as a man of God. God’s remedy of restoring confidence, is, that the transgressor repents. 2. I have never yet turned a person away from my home, if they acted halfway decent. This will apply to Mr. Orton also. But if he comes here as the guardian of my children I, personally, will throw him out. 3. Concerning the explanatory note in your correspondence, specifically Chapter two is nothing but a smoke screen to hide the true issues which, if exposed to fresher air, will disburse this smoke screen to the four winds. Conclusion: You, Mr. Bradford, have placed me in a very peculiar situation, namely, either to transgress the laws of my God & obey men’s corrupt laws, or obey my God’s laws & defy men’s corrupt laws. I, fearing God more than inen, have chosen the latter. Now, in order to be justified before my Maker because of pending troubles, I now lift the first standard of peace unto you people according to the laws of God, (D & C 98:32-38) hoping you can see my side & we can come to an agreement in truth & righteousness, which is my desire, greatly. May I expect a reply to this letter not later than Aug. 22, 1977. Sincerely, John Singer Ps.: [sic] Since you will be out of this office you hold by Jan. 1978, why all this? Deposition of Vickie Singer at Exhibit 11. On August 10, 1977, additional petitions were filed by the school district, charging that the Singer children were neglected and habitually truant from school under the provisions of Utah Code Ann. § 55-10-1 et seq. See Deposition of L. Kent Bachman, Exhibit 2 at 10-13. The matter was set for hearing on August 23, 1977, before Judge Bachman, who had replaced Judge Bradford on August 15. The Singers appeared at the August 23 hearing in their own behalf, Robert Orton represented the children, and defendant Terry Christiansen represented the State. Testimony was offered regarding the number of hours the Singer children were being taught in their home, the textbooks which were being used, the school and teaching facilities that existed, and the subjects taught by the parents to the children. Vickie Singer Journal, vol. 2 at 435. John Singer was permitted to produce and examine witnesses, and he made the following opening statement: This issue here is a religious issue and only a religious issue. I am going to stay on that and I believe one thing that this people that I live amongst, by those individuals I have been harassed through the years and I can give proof to these statements because we have kept an active journal of these things and every action that we have taken in behalf of our children was because of our religious beliefs. It is for that reason that we have made these decisions and our religious beliefs are that we live amongst a people that are “losers” or as the Lord puts it “they’re going to be destroyed one day.” I believe that is not in the too far future and this is my religious belief and we could go into detail on this if you would prefer it. But this is just my opening statement. Transcript of Hearings (August 23, 1977) at 4. See also Vickie Singer Journal at 432-38. The prosecutor provided testimony from Rex Walker, who was the principal of the elementary school, Val Edrington, and Tony Powell, all of whom were cross-examined by John Singer. For his defense, John Singer placed his brother, Harald, on the stand briefly and testified himself. John testified that God had given him the responsibility to rear his children and that he had the right to do so according to his beliefs. See Transcript of Hearings (August 23, 1977) at 54. He testified that he was a responsible parent and that he was not “negligent” of the things for which he was charged. Id. at 56. He stated that “as far as my children go, ... I don’t have to send them to school because this is my religious belief as far as God and me is concerned.” Id. at 57. John further testified that teaching the children for five and one-half hours a day was an impossibility and that the two and one-half hours a day that the Singers were teaching their children was equivalent to the education in school, due to the “goof off” period of time in between lessons in the public schools. Id. at 60. The prosecutor interposed several objections to John Singer’s testimony as being argument rather than testimony. At one point in response to an argument John stated: “Its none of your business if my kids learn!” Id. at 61; Vickie Singer Journal at 435-36. Under cross-examination, John stated: “So let’s get down to the basics, have you got even the right to force my children under any form of education. This is the thing.” Transcript of Hearings (August 23, 1977) at 62. John further stated that he believed it to be very important that his children learn to read, write, learn mathematics, and know about science and social studies. He stated that he had taught all of these subjects in the home, “more or less.” Id. at 65. He stated that he did not want to regiment his children in education because of the experiences that he personally had gone through in the Hitler Youth. Id. See also Vickie Singer Journal at 436-37. At the conclusion of the testimony, Mr. Orton stated that he thought there were “some real conflicts which have got to be resolved” and that he didn’t think he was prepared to make any recommendations to the court. Transcript of Hearings (August 23, 1977) at 68. Orton did recommend that the court order the children to be examined by Dr. Victor Cline, a psychologist at the University of Utah. Id. at 70. Legal arguments were also made regarding the Singers’ claim that because of his religious beliefs he did not have to subject himself or his children to the laws of the State of Utah. Lengthy references were made to the cases of Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), In re State v. Black, 3 Utah 2d 315, 283 P.2d 887 (1955), and In re McMillan, 30 N.C. App. 235, 226 S.E.2d 693 (1976). See Transcript of Hearings (August 23, 1977) at 73-77. Following these arguments, and in response to a request from the court to state his views on whether an evaluation from Dr. Cline should be made, John Singer stated: “I think I have a simpler solution to the whole thing. Couldn’t Your Honor just rule this law unconstitutional which creates this compulsory action?” Id. at 80. John referred the court to a statement in the Yoder case by Chief Justice Burger that that case involved the fundamental interests of parents as contrasted with that of the state. Singer stated that all he asked was that he be allowed the primary role in the upbringing of his children. Judge Bachman, in making his decision, stated that he viewed the court’s responsibility with a great deal of concern, but that he did not regard the decision as difficult to make in light of the technical aspects of the law regarding compulsory attendance. He found that there had been a “neglectful situation” — not in terms of raising the children to believe in God or in terms of feeding, clothing, nurturing, or teaching the children the basics of existence, but in failing to abide by the commitment made to the school board to teach the children the basics of education. Id. at 82. The court ordered that the children be evaluated, that the Singers cooperate with the evaluations, and that the Singers themselves submit to an examination by Dr. Cline. He further ordered that the Singers be committed to the county jail for a period of sixty days and pay a fine of $299.00, the same to be suspended upon compliance with the court’s orders. Id. at 85. The court reserved the right to amend its order as it received new information concerning the evaluation by Dr. Cline. On August 29, 1977, the Singers filed a notice of appeal from the August 23 judgment, but the appeal was dismissed for lack of prosecution by the Utah Supreme Court on December 7, 1977. Deposition of Judge L. Kent Bachman, Exhibit 2 at 39 & 48; Vickie Singer Journal at 440. The day after the Singers filed their appeal, Dr. Victor Cline called the Singers to make an appointment to meet with them. Id. The Singers explained their feelings to him and apparently declined to allow him to meet with them. On September 6, the Singers went to the Coalville Courthouse and allowed Mr. Orton to interview them and their children. They reiterated to Orton their views and beliefs, and notified him that they would not allow Dr. Cline to evaluate them. Id. at 438, 443. The Singers appeared at a hearing before Judge Bachman on September 13, which had been set up because they had failed to comply with the court order. See Deposition of L. Kent Bachman at 8. While at the courthouse, the Singers were introduced to an attorney who offered to defend them if necessary, but the Singers declined. Vickie Singer Journal at 444. After discussing the situation with Judge Bachman in his chambers, the Singers consented to permit Dr. Cline to evaluate them and their children. See id. at 445-46. Accordingly, Dr. Cline met with and evaluated the children on September 15, 1977, at the University of Utah, and on September 27, at the Singer home in Marion. See Deposition of Victor B. Cline at 56. Following the evaluation of the children, John and Vickie Singer were to be evaluated within the next couple of weeks, but they decided not to “follow through with this.” See Vickie Singer Journal at 447. At about this time, the Singers began looking into the possibility of incorporating a private school, which they hoped would remove them from the jurisdiction of the school board and free them from the court troubles. Id. at 447-48. The Singers had been in touch with Tom and Mary Bergman of Porterville, Utah, who taught their children at home apparently without governmental interference because they had incorporated a private school. The Bergmans apparently gave the Singers a copy of a letter they received from Dr. Talbot in which Talbot stated that private schools are not subject to regulation by the state. See id. at 472. John’s brother, Harald, assisted them in preparing the papers, and in October, of 1977, the Singers filed articles of incorporation for a private school called “High Uintahs Academy, Inc.” See id. at 448, 472. See also Deposition of Vickie Singer at 407-11 & Exhibit 18. The Singers next met with the court on November 1, 1977, where they again waived their right to counsel, and Orton represented the children. See Deposition of L. Kent Bachman, Exhibit 2 at 18-19. The Singers notified the court that they had incorporated a private school. See Vickie Singer Deposition at 473; Deposition of L. Kent Bachman at 55. Finding that the Singers had failed to submit to testing and evaluation by Dr. Cline, the court again ordered the Singers to pay fines of $299.00 and sentenced each to sixty days in the Summit County jail. Id. The court stayed the imposition of sentence for thirty days to give the Singers time to appeal from the order. Mr. and Mrs. Singer, after praying about the matter, decided to allow Dr. Cline to test them. See Vickie Singer Journal at 477-78. Accordingly, the Singers were tested by Dr. Cline at the University of Utah on November 3, 1977, and Dr. Cline submitted a report filed in the juvenile court, on November 8. Dr. Cline’s five-page report to the court sets out background information, his evaluation strategy, the key issues investigated, and a summary and recommendation. His conclusions and recommendations are set out in the margin. The next court appearance was on November 15, which was scheduled to be the trial on the neglect petition. As the Singers had complied with the court's testing order, it was felt that, with Dr. Cline’s report, the case could be settled rather than tried on the neglect charges. The November 15 hearing was therefore treated as a pretrial conference. See Deposition of Terry Christiansen at 22; Vickie Singer Journal at 478. The Singers met in chambers with Judge Bachman, defendant Christiansen, and Mr. Orton, where Dr. Cline’s report was reviewed and various solutions to the problem were discussed for approximately two and one-half hours. The judge told the Singers that if they wouldn’t “bend” and if he upheld their right to continue to teach their children, that he would run the risk of losing his job. See Vickie Singer Journal at 480. Mr. Singer told the court that he had given up his job repairing televisions to teach full time in the private school and told the court that if that “doesn’t mean anything to you, then you’ll have to make your orders against me, because I won’t make any committments [sic] because I’ve made these things a matter of prayer.” Id. at 481. On the record in open court, the judge, on motion by County Attorney Christian-sen, vacated the jail sentences and fines previously imposed on the Singers. See Transcript of Hearings (November 15, 1977) at 122. Judge Bachman continued the matter until December 16 so that he might consider the information contained in Dr. Cline’s report. Judge Bachman also ordered the Singers to exhaust all of their abilities with regard to making a recommendation to the court concerning the education of their children. Id. He finally admonished the Singers to obtain legal counsel for any future hearings. Id. at 124. Between the November 15 and December 16 hearings, several other events transpired. By this time, the Singer situation was receiving extensive media exposure. At the South Summit School District Board of Education meeting of November 17, 1977, the Board watched a local television station’s news report of the Singers’ education problems. See Deposition of Val D. Edrington, at Exhibit 4 (Minutes for November 17, 1977). The Board directed Superintendent Edrington, along with the district’s attorney, to “handle the John Singer case in regards to the news media.” Id. On December 4, 1977, John Singer wrote a letter to Judge Bachman, defendant Christiansen and Robert Orton, on stationery of the High Uintah Academy, Inc. See Deposition of L. Kent Bachman at Exhibit 1. In his letter, which he considered to be his second “standard of peace” to the court, Mr. Singer reviewed the events that had occurred to that date and cited to three judicial decisions. Following a discussion of religious bases for his position, Singer concluded: “Reviewing again the actions taken against me and the alternatives or compromises given to me, I know I will not make any committments [sic] to this court, nor any other peoples; as pertaining to my children, they are enrolled in my private school and so it will stand.” Id., Exhibit 1 at 9. John further stated in his letter that he would deal with “you people” according to the laws of God and quoted several paragraphs from Section 98 of the Doctrine & Covenants. John concluded his letter as follows: I will lay full claim to these promises since my family and myself have been smitten more than three times since these troubles have begun; and we have not reviled against you people, nor did we seek revenge, but we were always in hopes that you people’s hearts would be softened and show fairness to our beliefs and freedoms. But now, since this has not been the case, and the threat that my children would be taken out of our homes still exists, I now warn you in the name of Jesus Christ, my Lord, to cease your mischief against my family and myself This letter is also my second Standard of Peace that I raise to this court, and all others . concerned. Hoping you people will repent, Is my deepest desire. Id., Exhibit 1 at 10. On December 9, 1977, Superintendent Talbot sent a memorandum to all school district superintendents concerning an opinion prepared by the Attorney General’s office on November 23, 1977. See Deposition of Walter D. Talbot at Exhibit 1. The five-page opinion addressed the question of “what is a regularly established private school ... for purposes of the compulsory attendance requirements.” The opinion stated: “Since the legislature has not deemed it necessary to find precisely what a regularly established private school is, the local boards of education, under the general control and supervision of the State Board (Utah Code Ann. § 53-2-12) have the responsibility of determining whether or not any school is a ‘regularly established private school.’ ” The opinion defined a private school as “a school operated by private interests as a substitute for, and giving the equivalent of, instruction required in public schools.” It noted that Utah law specifically allows for home instruction and “therefore distinguishes home instruction from private school instruction.” The opinion further advised that while “public school teachers must be certified by the state, ... no such requirement appears to be imposed on private school teachers.” The school board could, the opinion decided, “require the private school to demonstrate that its teachers are capable of educating their students on a qualitative par with the public schools.” On December 11, 1977, the Singers washed their feet to be clean of the “court business,” Vickie Singer Journal at 719, and on December 15, the Singers sent another letter to the court in which they respectfully declined to appear at the trial scheduled for the next day. See Deposition of L. Kent Bachman, Exhibit 2 at 38. The Singers stated in the letter that they felt their constitutional rights were being “trampled upon.” The letter stated: “According to the Supreme Law of the Land and of God, the jurisdiction over my children is strictly vouched safe in my hands. Also, we are incorporated legally, by the State of Utah, as a private home school.” Id. John and Vickie Singer then failed to appear for the December 16 hearing, a bench warrant for John’s arrest issued, and the trial was continued until January 3, 1978. See Deposition of L. Kent Bachman at 9, Exhibit 2 at 27. The following day, John Singer sent an additional letter to Judge Bachman. See id. Exhibit 2 at 37. The letter stated, in part: I have tried to raise the standard of peace twice before. Your decision to have me arrested is an indication that you have ignored my attempts to live at peace in this community. Therefore, in accordance with the law of God (D & C 98:20ff) I am raising the third standard of peace and implore you in the name of the living God, the God of Abraham, of Isaac and of Jacob to dismiss all charges against me and my family. On December 22, Superintendent Edrington, responding to the school board’s directive of November 17, issued a press release “[bjecause of the publicity surrounding the case ... and because some of the publicity [was] based on false assumptions and some important facts [were] not being presented.” See Plaintiffs’ Memorandum in Opposition to Motions for Summary Judgment of defendants South Summit School District and Edrington, at Exhibit G. The press release discussed the school district’s position in relation to the Singers’ withdrawing their children from school, set out a history of the situation, described the status of the juvenile court case at that time, described the school district’s interest in the case, set out the legal duties of the school board, and described the school board’s present position relating to the education of the Singer children. At about this same time, towards the end of December, Sheriff Ron Robinson called and talked to John Singer. He asked John what his position was and whether he would consent to be arrested, to which John responded “no”. See Vickie Singer Journal at 720-21. John told the Sheriff that he couldn’t consent to arrest and that he would “have to resist arrest” should it be attempted. Id. Sheriff Robinson said that he did not want to trespass on the Singer property against their wishes, and John responded that he could “barricade” the farm and attempt to arrest him that way rather than attempting a forced arrest on the Singer property. Id. at 721-22. Also prior to the January 3 hearing, John’s brother, Harald, wrote a letter to Judge Bachman in his brother’s behalf. See id. at 757. Harald Singer stated in the letter that the issue between his brother and the Summit County School Board was a “religious” issue and that the private, school established by the Singers was a religious school. Accordingly, Harald stated, it was not subject to state supervision or control under the Utah Constitution, Art. X, § 2. Harald quoted the establishment clause of the First Amendment, and the provisions of Article VI of the Constitution, and stated: “If then, the state through its judicial system is trying to enforce such an illegal law, the charges against the officers of this judicial system would be one of harrassment and that of denial of one’s constitutional rights____” He also quoted 18 U.S.C. §§ 241 & 242, which are the criminal civil rights provisions, and stated that “all parties to this travesty of justice have subjected themselves to [this] punishment.” Harald implored Judge Bachman to dismiss the case against John at the hearing to be held on January 3rd. He concluded by requesting that Judge Bachman make the January 3 decision a matter of fasting and prayer and promised that the Lord would give him a proper answer. The Singers did not appear for the January 3, 1978, trial despite pleas from friends and offers of free legal representation. See id. at 722. The trial revolved around the petitions alleging neglect of the Singer children, and prosecuting Attorney Terry Christiansen called Rex Walker, Val Edrington, Tony Powell, and Dr. Cline as witnesses. See Transcript of Hearings (January 3, 1978). The testimony of Walker, Edrington, and Powell was basically the same as that which they gave at the trial of August 23, 1977. Dr. Cline testified that he had seen the Singers on four occasions. He further testified that the children had been deprived in the sense of intellectual stimulation and training, and that the test differentials between the parents and the children were “shocking.” Id. at 166. He further testified that even though Vickie Singer was a “marvelous mother and woman as far as the emotional life of the children” was concerned, she was “in no way competent or prepared, really, to teach these children.” Id. at 167. He testified that the Singer children tested in the bottom eight percent of their peers while the Singer parents tested in the top twenty percent as compared to their peers. Id. at 168. Dr. Cline recommended in his testimony to the court that the Singers and the school district “negotiate” to accommodate the personal and private values of the family, while affording the children a “remedial educational experience.” Id. at 169. He stated that this could be accomplished by having properly trained remedial teachers come into the home or by permitting the children to attend a public or private school. Id. at 169-70. Dr. Cline further testified that he recommended very strongly to John Singer that if this were not to occur, his children would suffer some “very negative, very very major adjustment problems, both vocationally as well as socially, in their later adolescent and adult lives.” Id. at 170. At the same time, Dr. Cline felt that the interests of the children would not be served by “yanking” them away from their parents and putting them in another environment. Id. at 171. In a legal argument to the court at the hearing, defendant Christiansen cited the applicable Utah statutes to the court and the McMillan, Yoder, and Black cases which he had previously cited at the trial on August 23, 1977. Mr. Orton, representing the children, outlined to the court the alternative remedies that the court could apply after making a finding of neglect. He stated that he felt some of the remedies were overly harsh. See id. at 191. Mr. Orton recommended that the school district present a program for the education of the children in the home by February 1, 1978, and that the court, or someone at the court’s direction present that program directly to the Singers. Id. at 193. Mr. Christiansen concurred in Mr. Orton’s recommendations. Id. at 195. Judge Bachman’s written order was signed on January 18, 1978. See Deposition of L. Kent Bachman, Exhibit 2 at 24-26. The court ordered the Singer children to submit to daily tutoring under the direction of the South Summit School District. The school district was ordered to provide the daily tutoring, at its own expense, subject to several requirements set out in the court order: “That the teaching be in subjects widely taught in the schools of Utah;” that the “interests, feelings, and beliefs of John and Vickie Singer ... be taken into consideration in the type of materials used so that they are not personally offensive;” that the tutoring be performed “pursuant to an educational plan to be proposed by the South Summit School District on or before February 1, 1978;” that the plan allow the parents to assist in “the explanation of the subjects taught;” that the plan be presented to the Singers and they be given five days to respond; that if difficulty arises at the time the plan is presented to the Singers that the matter be brought “forthwith before this court;” that the tutoring of the Singer children be monitored through testing by Dr. Cline and Mr. Powell every two months; that Dr. Cline and Mr. Powell work with the parents and children “to bring the children to a level where they will not fall within the status of being intellectually deprived;” that the tutoring continue until August 1, 1978, “at which time a hearing shall be held to examine the progress of the children and determine whether the children are prepared to return to private or public school.” The court also ordered John and Vickie Singer to “permit and allow Dr. Victor Cline, Tony Powell, and school personnel into their home to teach and test their children and to cooperate fully with said persons.” If the Singers were to refuse to comply with the court’s order, they were to be cited and held in contempt of court pursuant to Utah Code Ann. § 78-3a-52. The court also continued its previous order that the Singer children be in the custody of the State Division of Family Services, with the children being allowed to remain in their parents’ home until further order of the court. On February 2, 1978, the school district submitted a “Daily Home Tutoring Educational Plan” to the juvenile court. The board had apparently met with school district personnel to discuss the formulation of the plan on January 23, 1978, and mailed a registered letter to the Singers on that date requesting their help. See Vickie Singer Journal at 684. On the 24th, a meeting was held involving school principals, Superintendent Edrington, a school counselor, and the school psychologist, who each submitted their recommendations for the tutoring plan. The following day, the plan was submitted to district personnel and state education specialists for their recommendations and approval. On January 30, 1978, the final approved plans were mailed to the Singers by registered mail. On February 7, 1978, defendant Terry Christiansen, the prosecutor in the Singer case, wrote a letter to the editor of the Park Record newspaper regarding the Singer matter. See Plaintiffs’ Responsive Memorandum to Motion for Summary Judgment of Defendant Terry Christiansen at Exhibit B. Christiansen’s letter reviewed the history of the Singer-school board dispute and responded to a previous letter to the editor criticizing the “ ‘unjust intrusion of “big brother” into [the Singers'] commendable family affairs.’ ” During this same period of time, defendant Edrington made public comments which created some controversy. As described by Nadalee Noble in an affidavit, Edrington met on February 21, 1978, with the Citizen’s Group, a group formed to provide community input to the school district. See Plaintiffs’ Response to Motion for Summary Judgment of Defendants Edrington and School District at Exhibit B (Affidavit of Nadalee Noble). Most of the February 21 meeting was spent discussing the Singer case with Mr. Edrington. Nadalee Noble in her affidavit reported part of the discussion as follows: A member of the group stated to Mr. Edrington that he felt the Singer issue should not b