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Texas Appellate Court Rules Against State's Seizure of the FLDS Children:

From the opinion, which is a sharp and detailed rebuke of the Texas Department of Family and Protective Services (emphasis and some paragraph breaks added):

Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children is an extreme measure. It is, unfortunately, sometimes necessary for the protection of the children involved. However, it is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary. [Tex. Fam. Code. Ann. § 262.201.]

The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty. Nor did the Department offer any evidence that any of Relators' pubescent female children were in physical danger other than that those children live at the ranch among a group of people who have a "pervasive system of belief” that condones polygamous marriage and underage females having children. [Footnote: The Department's witnesses conceded that there are differences of opinion among the FLDS community as to what is an appropriate age to marry, how many spouses to have, and when to start having children—much as there are differences of opinion regarding the details of religious doctrine among other religious groups.]

The existence of the FLDS belief system as described by the Department's witnesses, by itself, does not put children of FLDS parents in physical danger. It is the imposition of certain alleged tenets of that system on specific individuals that may put them in physical danger. The Department failed to offer any evidence that any of the pubescent female children of the Relators were in such physical danger. The record is silent as to whether the Relators or anyone in their households are likely to subject their pubescent female children to underage marriage or sex. The record is also silent as to how many of Relators' children are pubescent females and whether there is any risk to them other than that they live in a community where there is a "pervasive belief system" that condones marriage and child" rearing as soon as females reach puberty.

The Department also failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children. As previously noted, none of the identified minors who are or have been pregnant are children of Relators. There is no evidence that any of the five pregnant minors live in the same household as the Relators' children. [Footnote: The notion that the entire ranch community constitutes a "household" as contemplated by section 262.201 and justifies removing all children from the ranch community if there even is one incident of suspected child sexual abuse is contrary to the evidence. The Department's witnesses acknowledged that the ranch community was divided into separate family groups and separate households. While there was evidence that the living arrangements on the ranch are more communal than most typical neighborhoods, the evidence was not legally or factually sufficient to support a theory that the entire ranch community was a "household" under section 262.201.]

There is no evidence that Relators have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a "pervasive belief system" that condones underage marriage and underage pregnancy.

Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse as the Department contends, there is no evidence that this danger is "immediate" or "urgent" as contemplated by section 262.201 with respect to every child in the community. [Footnote, slightly moved: The simple fact, conceded by the Department, that not all FLDS families are polygamous or allow their female children to marry as minors demonstrates the danger of removing children from their homes based on the broad-brush ascription of every aspect of a belief system to every person living among followers of the belief system or professing to follow the belief system.] ... Evidence that children raised in this particular environment may someday have their physical health and safety threatened is no evidence that the danger is imminent enough to warrant invoking the extreme measure of immediate removal prior to full litigation of the issue as required by section 262.201.

Finally, there was no evidence that the Department made reasonable efforts to eliminate or prevent the removal of any of Relators' children [as required under §262.201]. The evidence is that the Department went to the Yearning For Zion ranch to investigate a distress call from a sixteen year-old girl. [Footnote: The authenticity of this call is in doubt. Department investigators did not locate the caller on the ranch.] After interviewing a number of children, they concluded that there were five minors who were or had been pregnant and that the belief system of the community allowed minor females to marry and bear children.

They then removed all of the children in the community (including infants) from their homes and ultimately separated the children from their parents. This record does not reflect any reasonable effort on the part of the Department to ascertain if some measure short of removal and/or separation from parents would have eliminated the risk the Department perceived with respect to any of the children of Relators....

Extraneus (mail):
It turns out that many of the underage mothers currently held in foster care were found to be legal-age women, and one was actually 27 years old. Here are the details.
5.22.2008 2:21pm
Frog Leg (mail):
This is strange. There is a set of released opinions at the 3rd COA's website, but the FLDS case is not listed.
5.22.2008 2:23pm
one of many:
It is, In re Sara Steed, et al.
5.22.2008 2:37pm
rex talionis (mail):
further weakening the states case, the youngest of the "pregnant teens" (a 14yo) is not pregnant (according to her attorney) obviously its possible that he is lying, but on something so easily verifiable i do not think he would take that chance
5.22.2008 2:37pm
jazzed (mail):
Without having read the opinion, I question what indicia of reliability the authorities found that informant gave to support an all-out raid on the compound. The whole situation has smelled fishy since the initial contact.
5.22.2008 2:40pm
Eugene Volokh (www):
Frog leg, one of many: The opinion got put up after my initial post; I've now revised the post to quote extensively from the opinion, and to link to the official version.
5.22.2008 2:46pm
Jim Rhoads (mail):
The opinion's recitation of the evidence, much of it undisputed, reveals the breathtaking leaps in logic made by the lower court and the Texas DCPS to remove over 400 children from their moms.

It appears mob psychology is not confined to the streets.

Thankfully, due process seems to have caught up with the mob today.
5.22.2008 2:49pm
one of many:
Sorry Frog Leg, should have put "now" in my post.

The court seems to following EV's (and my) original take on the case when first reported, no evidence of threat to most children involved, no justification for emergency removal.
5.22.2008 2:51pm
jazzed (mail):
Having read the opinion, I'm impressed. I generally have a somewhat skeptical opinion of the Texas judiciary, but the reviewing panel's opinion makes sense and reaches a reasonable conclusion. I wonder how quickly the children get returned? And liability? Do standard law-school liability rules apply, i.e., discretionary action on the part of a public official = no liability/non-discretionary action = liability? I might even believe that one or two of the parents would be inclined to file a legal action.
5.22.2008 2:57pm
john w. (mail):
Thankfully, due process seems to have caught up with the mob today...

Well, better late than never, but why the %$#@ couldn't they have taken this action six weeks ago (or whatever) before these poor children suffered the irreparable harm of being yanked out of their mothers' arms for no reason?
5.22.2008 3:00pm
jazzed (mail):
one of many: The court seems to following EV's (and my) original take on the case when first reported, no evidence of threat to most children involved, no justification for emergency removal.

It's probably going to be an overcrowded bandwagon very shortly, but these were my issues, too (along with the reliability of the informant's information).
5.22.2008 3:01pm
David M. Nieporent (www):
From the opinion, which is a sharp and detailed rebuke of the Texas Department of Family and Protective Services
It is that, but what it isn't -- and also should be -- is a sharp and detailed rebuke of the lower court, which rubber stamped the DFPS actions despite the severe flaws identified by the appellate court.
5.22.2008 3:10pm
EPluribusMoney (mail):
I agree that yanking young children from their mothers does irreparable harm to the children. Some of them were probably never out of their mothers' sight. The DFPS should be subject to both criminal and civil punishments.
5.22.2008 3:16pm
EPluribusMoney (mail):
I agree that yanking young children from their mothers does irreparable harm to the children. Some of them were probably never out of their mothers' sight. The DFPS should be subject to both criminal and civil punishments.
5.22.2008 3:16pm
Dave N (mail):
It will be interesting to see if the DFPS seeks a stay and appeals this decision to the Texas Supreme Court.

I am betting that it is so invested in the case that it does.
5.22.2008 3:18pm
Richard Aubrey (mail):
So, how do we get a do-over?

The Illinois DCFS put three thousand innocent names on their sexual offender list. Upon being notified of the accident, the agency said, in effect, what are you going to do about it?

Mess with them and they'll pretend they got some info requiring them to take your kids. Then you're in the position of someone who's suffered civil forfeiture. Spend the equivalent of what was taken proving a negative and then try to get the judgment in your favor actually settled.

Perhaps this will provide enough high-profile civil and criminal proceedings, with sufficient money to make them happen, that the results could be cited in other states.

Anyway, making the people whole is impossible, while making the perps less than whole is, unfortunately, illegal. Except financially, which, while nice, isn't as satisfying.

Weren't there some known perps who could have been but weren't picked up?
5.22.2008 3:38pm
Get Real:
Get real. It took hundreds of poeple from various agencies to prepare a raid. Just think of logistics of hiring buses alone. There is no way, they acted on that fake phone call.

Now, the crooks will hide behing immunity and point fingers at each other.

That is why we need an absolute immunity. So a few criminals in state employ can kidnap children and get away with it.
5.22.2008 3:38pm
Crafty Hunter (www):
This points out the urgent need for special police and judicial bodies whose sole power is to arrest, try and imprison arrogant public officials for overreaching actions that deprive citizens of life, liberty and property. Obviously, the existing police and judicial bodies aren't going to do the job.
5.22.2008 3:42pm
Bob Montgomery (mail):
This is just scary scary scary.
5.22.2008 3:47pm
TruePath (mail) (www):
Huh, how is there now way they acted as the result of the phone call? No doubt they recieved the call and then looked at other evidence they had about the group as is reasonable.

As far as holding the government liable I am skeptical the issue was clearly enough settled for there to be liability here but that's just a totally uninformed guess. I think it would be a good system if the government had to pay compensation anytime someone's rights were violated even if there wasn't yet a clear precedent on the issue but too many people would be outraged at bad guys getting payoffs to really pass such a system (the public would focus on the actual payoffs ignoring the fact that the real benefit is in terms of the intrusions that didn't happen).

----------

As far as the case goes I'm quite glad to see that mere objectionable belief is not enough grounds for the state to snatch away your children. While I do believe these children were being harmed by living in that compound (even more so than being put in foster care would) most of that harm was a direct result of being taught a particular belief system.
5.22.2008 4:00pm
Religious discrimination (mail):
...is what this looks like.
5.22.2008 4:03pm
Richard Aubrey (mail):
Now, as I have said before, had the same information been developed about one of the Muslim compounds in this country, the result would have been...?
5.22.2008 4:04pm
JMHawkins (mail):
So, who will fire the DFPS people responsible? Who's going to "fire" the lower court judge who made such a hash of it?

Well, nobody. Sigh. They probably deserve to be tarred and feathered. I'd settle for removing them from positions of authority, but that almost never happens.
5.22.2008 4:05pm
TruePath (mail) (www):
Interesting question:

Suppose someone raised their children with the belief that:

It's immoral to look both ways before crossing the street. You must trust that god will protect you until it's time for you to join him.


Now the parents of these children would be inflicting no direct harm on these children other than by encouraging them to believe this faith. However, as a result suppose these children die in car accidents at a stupendous rate. Would that create a valid grounds for the state to remove the children from these homes?

If so then consider instead the belief system:


If you are born without blue eyes it is a sign of god's favor and you must go to join him as soon as you are an adult (18) by committing suicide.


Could the state be justified in removing green/brown eyed children from parents of such a religious group? If so it's hard to see how there is any real guarantee of freedom of religion when it comes to parenting. After all if we can consider harms to the children resulting from their likely actions once they reach maturity where does it end?

If we answer no to these questions it seems we are essentially giving up the idea that the state should save children from cults. While I find the idea of children being brought up in these harmful cults sickening (much more so than raising them in mainstream religions) I am leaning toward that answer.
5.22.2008 4:10pm
Joe Bingham (mail):
This is what we've been waiting to see. I had wondered about the status of appeals, because I was sure they existed but they weren't being reported on.
5.22.2008 4:11pm
Garden:


"The writ will issue only if the district court fails to comply with this opinion."



Wow, they even anticipate that Texas [pointless vulgarity deleted -EV] named Walther refuses to compy. Is it any wonder that [pointless insult deleted -EV] Bush comes from the same state?

[Folks: Let's keep the conversation substantive. Criticize judges, Presidents, or whoever else all you like, but please avoid substance-free namecalling, especially vulgar namecalling. -EV]
5.22.2008 4:13pm
Jim Rhoads (mail):
While the appellate decision did not chastize the lower court judge, it made clear that she would have to eat her own words and terminate the DFPS custody quickly or mandamus would issue.

Mandamus is an extraordinary remedy, and it is issued only when officials clearly abuse their discretion. Believe me, to be "mandamused" is a big deal to any judge. It will likely assure that she will have significant opposition in her next election.
5.22.2008 4:14pm
Jim Rhoads (mail):
The same Texas that LBJ came from, Garden, as well as the appellate court that just rendered this decision.

Let's leave W out of this one.
5.22.2008 4:18pm
davod (mail):
WRT to when the children will be returned. Note the ruling does not cure the problem as it did not diret the children to be returned.

The other day I saw the lawyer of one of the families (three children, two were removed completely with the mother removed from the husband to stay with a baby under state supervison. The father comutes long distances between three locations so he can keep in contact with his family) who said that CPS i trying to getthe wife into vocational training so she can get a job? and that CPS siad it will be at least April 2009 before the kids will be returned.

I bet the CPS will procrastinate as long as possible.

Of course the parents now have the worst of all dangers to contend with. Empire building by the Texas Justice Department and CPS to retain the additional staff required to process these cases.
5.22.2008 4:25pm
Oren:
Thankfully, due process seems to have caught up with the mob today.
Except that the appellate court did not order the return of the children . . .
5.22.2008 4:26pm
Ryan Waxx (mail):

This points out the urgent need for special police and judicial bodies whose sole power is to arrest, try and imprison arrogant public officials for overreaching actions that deprive citizens of life, liberty and property. Obviously, the existing police and judicial bodies aren't going to do the job.


... but who will watch the watchers?
5.22.2008 4:29pm
TerrencePhilip:
Jim Rhoads wrote: While the appellate decision did not chastize the lower court judge, it made clear that she would have to eat her own words and terminate the DFPS custody quickly or mandamus would issue.

Mandamus is an extraordinary remedy, and it is issued only when officials clearly abuse their discretion. Believe me, to be "mandamused" is a big deal to any judge. It will likely assure that she will have significant opposition in her next election.


Are you a Texas lawyer? I am not, but I have not encountered any special impact on a judge's career in other states when an appellate court issues mandamus. Judges get reversed every day, often due to very clearly wrong decisions, and almost all of them keep their jobs.

I suppose it is possible that someone will challenge the judge, or that the public will question the soundness of her judgment. But if so it will be because of the perceived unsoundness of her decision, not on the technical legal point that mandamus was involved.

And this is just a guess but a lot of voters in that area might be unsympathetic to this religious cult.

Finally- though it does appear the judge flubbed this case- it would be impossible to sit through hearings involving these people's lifestyle and not become concerned that the children were being mistreated. She seems to have made a bad decision; but I'm not so sure it is self-evidently ridiculous as some people now assume.
5.22.2008 4:31pm
Garden:
Eugene, do you have a list what is allowed and what not in reference to corrput public officials in extreme abuse of power and outright criminal activity. Can Adolf Hitler be called "a whore" or "a moron"? Or, are you requiring to be polite to him as well? Hitler, after all, acted legaly (thanks to justice Freisler at al), and was not charged with any crime. Just like Texans Walther and Bush.
5.22.2008 4:34pm
Ryan Waxx (mail):
And just like you.
5.22.2008 4:37pm
billhilly:
Godwin strikes again
5.22.2008 4:49pm
Another Texas Lawyer (mail):
Texas Judges stand for re-election every four years in partisan judicial elections.

Mandamus can be a big deal (such as the one that was the breaking edge that switched Fort Worth from all Democrats to all Republicans), incremental, or a cause to change the law (which used to name the judges by name, and now refers to parties instead, for a specific judge whose name shows up a lot).

It should be interesting to see how this plays out in the next election in that district.
5.22.2008 4:53pm
buckeye (mail):
Garden, can we have a substantive discussion rather than a reductio ad absurdum linking of "who else lived in this state of millions of people that I don't like."?

I've read decisions out of california with which I disagree, but my immediate thought isn't "you know who else was from california like that judge?? Charles Manson!"

Anyway, reading a decision such as this tends to restore my faith in the rule of law. Bureaucratic creep is a dangerous thing.
5.22.2008 4:55pm
Eugene Volokh (www):
Garden: (1) Fortunately, I don't need a list -- I have, and I hope our commenters will have, good judgment about what's a nonsubstantive insult and what's a substantive argument. My sense is that discussions in the comments are much more likely to be useful and interesting to our readers if they are substantive rather than just fulminations.

(2) So a comment that simply called Hitler a whore or a moron -- with as little substance as your earlier comment had -- would indeed be improper on those grounds. It would also be improper on the grounds of inaccuracy: Hitler was, as best I can tell, a very smart man, and did what he wanted and not what others paid him to do (the usual figurative connotation of "whore"). He was also a monster (or perhaps calling him a monster is unfair to monsters), but that hardly makes him stupid or corrupt; in fact, his intelligence and his commitment to his cause made him vastly worse than he would have been had he been stupid or merely venal.

(3) If you want to explain why you think Judge Walther is "corrupt," is engaging in "outright criminal activity," or is engaged "in extreme abuse of power" (as opposed to having made a legal mistake, or even a serious legal mistake), please do so. But in my experience insults usually don't contribute to such substantive explanations, and if anything distract from them (as your earlier comment suggested).
5.22.2008 4:55pm
Jim Rhoads (mail):
Money quote from the opinion:


The Relators' Petition for Writ of Mandamus is conditionally
granted. The district court is directed to vacate its temporary orders granting sole managing
conservatorship of the children of the Relators to the Department. The writ will issue only if the
district court fails to comply with this opinion


What this basically means is the lower court will have to order the state custody terminated. It she doesn't, they will. I believe it gives the Parent's lawyers the ammo they need to get custody to the moms pretty quickly.
5.22.2008 5:01pm
griefer (mail):
hahaha
Dopes.
The Texas authorities knew this would be overturned, or the sketchy search and seizure would be eventually.
This happened basically so that the texas authorities could railroad the polygs out of texas. Welfare fraud is almost impossible to prosecute against polygs.
So the texicans are just trying to make Texas noncostviable for the polygs.
Do you know what the authorities got?
DNA from ALL the children and a good bunch of the adults.
The only way they could have gotten it.
At least some of the FLDS patriarchy daddies can be prosecuted. May they all wind up like ol' warren jeffs.
Hopefully the polygs will pack up and move....maybe to YOUR states welfare roll.
hahahahaha
5.22.2008 5:07pm
Joe Bingham (mail):
What this basically means is the lower court will have to order the state custody terminated. It she doesn't, they will. I believe it gives the Parent's lawyers the ammo they need to get custody to the moms pretty quickly.

I think it's a little more complex than that. I'm guessing the court has to reverse the order adjudicating the children dependent on the state, and will probably hold a proper adjudication hearing (which was never granted before). I'm not sure how it will work out, but I think this order may just lead to individualized hearings, which will of course be more favorable to most of the families.
5.22.2008 5:14pm
Crafty Hunter (www):
Garden, over and above the issue of not allowing the thread to devolve into unnecessarily potty-mouthed exchanges, I believe that Mr. Volokh is reluctant to allow in a thread that he originated and which he controls, any potential libel of sitting judges. He is a lawyer, and has to make a living as a lawyer. Sitting judges at any level have a great deal of power to make life miserable for lawyers, who are after all considered officers of the court, and I recall there is an old saying about not shitting where you eat, or something like that.

I hope that was not badly expressed. I am not a lawyer and only have a layman's awareness of the matter.
5.22.2008 5:16pm
bakum (mail):
So the Texas court is full of activist judges who are shoving pedophilia down our throats. What's next? New Jersey courts legalize theft? Nebraska courts require every house to contain a cat?

Judicial Activism, it's everywhere! GAAAAAH!!!!
5.22.2008 5:17pm
Sam Hall (mail):
I have family in San Angelo. They are Baptists who certainly don't agree with that religious group. However, they are upset by the removal of the children, especially the 50% under five and the ones nursing. That judge is going to have a tough reelection.
5.22.2008 5:19pm
gasman (mail):
Twenty teen pregnancies out of 400+ youths. Only difference between this group and my highschool class of '82 was the abortion rate. FLDS presumably tended to carry their pregnancies to term.
5.22.2008 5:20pm
Crafty Hunter (www):
In a broad answer to the gentleman who asked who would watch the watchers, I'll say only that a political system that allows the abrupt kidnapping of hundreds of children by state actors is a horribly broken system. It needs badly to be replaced wholesale with a far more rational system which severely limits the power of state actors to arbitrarily abridge the liberties of citizens.
5.22.2008 5:25pm
Eugene Volokh (www):
Crafty Hunter: I assure you that Judge Walther's status as a judge played absolutely no role in my decision. I should also note that calling someone a "whore" in this context isn't a libel, since in context it would be understood not as a factual allegation but rather just as an insult. I don't want such comments on the blog because they're pointless insults (and vulgar to boot), not because they are potential libels, of judges or others.

Bakum: Three Republican "activist judges" to boot.
5.22.2008 5:30pm
Joe Bingham (mail):
Actually, rereading the order, it does sound like these children might have to be returned pending individualized adjudicatory hearings...
5.22.2008 5:35pm
Oren:
So we've essentially come back to the question that we trolled about for a while when discussing the Yoo Memos -- how bad does a Judge/Lawyer's reasoning have to be in order to qualify as professional negligence? [Let's set aside for a moment the judicial elections in TX and consider only professionally responsibility.]

Eugene seems to imply that he thinks Walther made a "legal mistake" or even a "serious legal mistake" but that clearly doesn't qualify as negligent.

What sort of a standard are we talking about here anyway? Is it an objective standard based on the condition of the law or is it a subjective standard based on a judge making a ruling that she knew or should have known was materially incorrect? Quite frankly, I don't even know where to begin, other than stating the question.
5.22.2008 5:41pm
David Friedman (mail) (www):
I've been covering this dispute in my blog pretty much from the beginning. A day or two ago I submitted an op-ed on it to the WSJ, ending "And, so far as I can tell, they are going to get away with it." It now looks as though I was wrong.

One point Eugene did not mention is that, according to the court, there were five women who had been pregnant and who are now alleged to be minors. The CPS had claimed there were 31. That's not a small error. And, as is clear from the court's opinion, there was no evidence that any of them, or anyone else, had suffered any sort of abuse. Given the timing, the relevant marriage laws and the available evidence, every single pregnancy could have been a legal pregnancy of a married woman.

This raises an interesting legal question--just how solid is the protection provided to those responsible by immunity? Suppose we assume a worst case scenario from the standpoint of the CPS. Suppose it can be shown that they knew their statements were false and that their actual motive was to suppress a religion they disapproved of. Can state sovereign immunity cover the deliberate use of state power to violate the First Amendment?

Or, for a somewhat weaker case, how about deliberate defamation—publicly claiming that a 22 year old married woman was 17 and pregnant? Making claims about the FLDS that they knew were false? Is any of that actionable if done by a state agency?
5.22.2008 5:43pm
Ryan Waxx (mail):

I'll say only that a political system that allows the abrupt kidnapping of hundreds of children by state actors is a horribly broken system.



Agreed. But would the cure you propose be almost as bad... ?
5.22.2008 5:46pm
griefer (mail):
David Friedman
They got away with it.
The State of Texas got the DNA samples they were after.
5.22.2008 5:47pm
Bill Poser (mail) (www):

This points out the urgent need for special police and judicial bodies whose sole power is to arrest, try and imprison arrogant public officials for overreaching actions that deprive citizens of life, liberty and property.


In the Chinese system prior to 1911 this was the function of the officials known in English as Imperial Censors. Their job was to investigate official misconduct. They had the power to arrest anyone and reported directly to the Emperor so they were outside the bureaucracy. They were quite effective so long as the system as a whole was not ridden with corruption (as in the late Qing dynasty.)
5.22.2008 5:51pm
Crafty Hunter (www):
Ach, Mr. Volokh. I guess I attached too much significance to a perhaps overly vague understanding of the uneasy relationship between sitting judges and the lawyers who have appeared or may or will appear before them or their colleagues. I frankly find law in general to be baffling and way too complex, without even getting into the morass of the actual practice of law in the courts.

For what it's worth, my interest in law is far more than casual, but it's fairly obvious that it'll be necessary to make a great effort to get up to speed, once certain software tools are finally ready (realistically, in perhaps four to five years).

Ah, well. It seems as if everything, but everything becomes much more complex when examined closely.
5.22.2008 5:54pm
Andy C.:
I believe there was an article released today which stated that the state of Texas has (so far) spent about 7.5 million dollars on this case.

Oof.
5.22.2008 6:01pm
Oren:
Andy, that's not really a lot of money. A quick search indicates that there were dozens of local law enforcement drug probes that cost more than $20 million (although there is a chance for some civil forfeiture in those).
5.22.2008 6:09pm
griefer (mail):
I'll say only that a political system that allows the abrupt kidnapping of hundreds of children by state actors is a horribly broken system.

well...what about a system that allows for millions of dollars in welfare fraud every year?
Is the State not allowed to defend itself from parasites?
The actions of the state officials involved were legal at the time.
And open to being overturned by a higher court, like all judgements.
I honestly think the state of Texas is just trying to rid itself of 1000 polygs in the only way it can.
Before there are 5000 polygs or 10,000 polygs.
5.22.2008 6:13pm
Ryan Waxx (mail):

I honestly think the state of Texas is just trying to rid itself of 1000 polygs in the only way it can.


"Ridding" yourself of a religion you find troublesome, especially via removing an entire generation of its adherents, is perilously close to genocide.
5.22.2008 6:16pm
griefer (mail):
and your point about the 18 yrold and the 22 yearold...DNA testing can prove if they bore some of the children seized when they were underage themselves, depending on the age of the child.
so, they looked underage and couldn't or wouldn't provide a birth cert.
honest mistake. ;)
5.22.2008 6:17pm
Ryan Waxx (mail):

so, they looked underage and couldn't or wouldn't provide a birth cert.
honest mistake. ;)


Don't you mean... they provided a birth certificate but the officials ignored it? Please tell me you are aware of this problem.
5.22.2008 6:18pm
griefer (mail):
nah, Ryan, it isn't genocide.
Texas knows they will have to give back the kids eventually.
They just want to make Texas too hot for the polygs so they will move on.
to your state and your state's welfare rolls perhaps.
:)
5.22.2008 6:19pm
Eugene Volokh (www):
Crafty Hunter: I hope the considerations you describe will never affect my writing, and certainly not my decisions about which comments to edit. But I can confidently say that they haven't done so in the past, and certainly not on this post. I have never appeared before this Texas judge, or any Texas judge; I'm extraordinarily unlikely to appear before this Texas judge in the future; and I have no reason to think that other judges are particularly likely to hold against a blogger the comments posted by commenters about other judges.

Griefer: I've never heard of the term "polygs," but it sounds to me like something of a pejorative (though I'll be happy to be corrected if I'm a mistaken). "Polygamists" seems to be the better term. It's quite proper to make substantive criticisms of polygamy here (or of homosexuality or of heterosexuality or of promiscuity or whatever else); but those substantive criticisms are better made through substantive arguments, not through pejorative labels.
5.22.2008 6:20pm
griefer (mail):
haha, ryan, so sue them.
;)
there was a lot of chaos, prolly some documentation was mislaid or overlooked.
/winkwink
5.22.2008 6:21pm
Crafty Hunter (www):
Short of a more radical overhaul, it occurs that changing pay methods for public servants would help. For example, a yearly bonus for not incurring any lawsuits against the agency for having violated the civil rights of any citizen, with outright agency-wide penalties (up to half of base yearly pay) for being on the losing end of such lawsuits. As it is, very few public servants lose anything at all for abusively using taxpayer money to victimise those same taxpayers.
5.22.2008 6:21pm
griefer (mail):
sorry eugene, im very low verbal.
i often type xians for christian as an abbreviation also.
not habinar, but that my generation.
5.22.2008 6:23pm
Ryan Waxx (mail):

haha, ryan, so sue them.



Isn't the problem precisely that they cannot be held accountable in that fashion? Or any other?
5.22.2008 6:23pm
griefer (mail):
ok eugene, how about i refer them to the FLDS patriarchy daddies and their chattel? is that better?

Texas has tried to legally supress polygamy.
As to Texas law and what motivated it, for starters, how would making polygamy a felony jive with the establishment clause? In Texas it's a first-degree felony to marry under 16 and a second-degree felony to marry between 16 and 17. It's a class A misdemeanor to give consent for an underage marriage. It's a third-degree felony to conduct a marriage ceremony of a minor. And it's class A misdemeanor to providing false information about identity or age.

given that an FLDS male must have at least 3 wives to make it to heaven, these antipolygamy laws in texas seem perilously close to religious persecution to me.
it might even seem like those laws target the FLDS in particular.
;)
5.22.2008 6:31pm
griefer (mail):
But now, as you see, at least some of the felonies committed will be prosecutable.
Because of the DNA samples.
5.22.2008 6:33pm
griefer (mail):
and no Ryan.
Texas can state it operated in "sincere belief" because they did.
So the officials of the state are not liable.
But the childrapists and accomplices and enablers very well may be.
5.22.2008 6:36pm
Joe Bingham (mail):
griefer, please try to comment coherently, even if it requires you to contribute more words to the discussion (and requires us to bear more of them). Combining multiple comments into paragraph format would help. I'm 23 and hoping that you don't purport to represent my generation...
5.22.2008 6:41pm
john w. (mail):
Eugene seems to imply that he thinks Walther made a "legal mistake" or even a "serious legal mistake" but that clearly doesn't qualify as negligent.

Do judges *ever* routinely second-guess State agencies in cases like these, or aren't they usually pretty much rubber-stamps -- unless the citizen has money or a good lawyer or political connections (or all of the above)??

Or how about in the case of no-knock drug warrants? Do judges ever skeptically interrogate the police to find out if there is a genuine need for them, or don't they just blindly sign whatever gets shoved under their noses?
5.22.2008 6:42pm
griefer (mail):
tyvm for the advice joe, but im pretty much done here.
also polygs or polys are common terms out here in the West.
im in denver.
i suppose they are mildly perjorative.
not as radical as nigger, but not as complimentary as citizen either.
5.22.2008 6:53pm
MarkO:
A week ago, or so, I said here that I could not believe that a group of purported lawyers and academics could be so confused on this issue. I also said I wish I could take the case against the State. It's all still true. I would love to read responses from the enlightened who supported the State action. I would also like to know where they live so I can avoid those jurisdictions.
5.22.2008 6:55pm
Sam Hall (mail):
john w said "Do judges *ever* routinely second-guess State agencies in cases like these, or aren't they usually pretty much rubber-stamps -- unless the citizen has money or a good lawyer or political connections (or all of the above)??

Or how about in the case of no-knock drug warrants? Do judges ever skeptically interrogate the police to find out if there is a genuine need for them, or don't they just blindly sign whatever gets shoved under their noses?"

Why not? Nothing ever happens to them. Once in a while the police get charged, but never the judge.

We really need to fix this, but I don't know how.
5.22.2008 6:55pm
Joe Bingham (mail):
Why not? Nothing ever happens to them.

Sometimes they're not re-elected.
5.22.2008 6:57pm
john w. (mail):
Why not? Nothing ever happens to them. Once in a while the police get charged, but never the judge.

That's what I was afraid of, but I was hoping that somebody would prove me wrong. My impression is that this judge did nothing out of the ordinary, except for the magnitude of the case. If this had involved a hundred different families with 4 children each in a hundred different cities with a hundred different judges, spread over time, nobody would be batting an eyelash.
5.22.2008 7:10pm
Roger Schlafly (www):
The surprising part of this news is that the appeal court acted so quickly. If the Texas authorities really had strong evidence, then they could have filed criminal indictments for statutory rape or other serious crimes. It is hard to see how such a massive seizure of kids could be justified without at least enough evidence for a criminal indictment.
5.22.2008 7:36pm
Garden:


[EV: ]Fortunately, I don't need a list -- I have, and I hope our commenters will have, good judgment about what's a nonsubstantive insult and what's a substantive argument.



Clearly, we have opposite "good judgments" when it comes to criminals in public employ. Bush IS a war criminal, and the only reason he did not use custer bombs in texas (lower case), because he did not have them. But when he used them in Iraq, that's OK. It is OK when WE do it, but wrong when enemies of our Dear Leader do so.

Who knows what Walther would do if given access to that red button in the White House?



[EV:] "Hitler was, as best I can tell, a very smart man"



Posting that on the net should get you 5 years in one of the following leading Western "democracies": Austria, Germany, France. I wonder what would you call him, if he could not spell in is native language basic words, or even Abu Ghraib?



[EV:] "If you want to explain why you think Judge Walther is "corrupt," is engaging in "outright criminal activity," or is engaged "in extreme abuse of power" (as opposed to having made a legal mistake, or even a serious legal mistake), please do so."



A judge who does what crooked prosecutor says, while violating the LAW, IS corrupt (a whore in common English, where I live).

What she did whas rubber stamping clearly criminal act (kidnapping). Not to mention her owne extra creativity by sepataring children and placing them 1000 miles apart.
Unlike you, I am not a lawyer, and I do not risk disbarment for telling the truth. I see no difference between Walther and Feisler (except Walther being stupid).

Which brings me to wonder. Suppose we move back to 1942, Warsaw Ghetto. We were attacked by terrorists back in 1933. We had PATRIOT act rushed thru legislature right after. Now we need to protect Jewish children from those terrorists by taking them away for good. I use your blog to call then-judge Walther a whore for whoring herself to SS, and you do what? Censor me and call her crime "a serious legal mistake"?

Didn't we put those "mistaken" judges on trial at Nuremberg and hanged them for their "mistakes"?

There is one more comment I wish to make. Next ride around there will be Waco redux and no one among the public will cry after fallen "protectors".
5.22.2008 7:38pm
ReaderY:
Clearly the correct decision, and it's astonishing that it took six weeks to get a writ of mandamus
5.22.2008 7:51pm
Joe Bingham (mail):
Garden,

Your spelling joins your substance in leaving the impression of a breathless rant. You leave the impression that responding to you would constitute feeding the trolls, and that doesn't contribute to anyone's willingness to analyze your arguments.
5.22.2008 8:02pm
LM (mail):
Garden,

There's a comment policy below which constrains all of us, regardless of how certain we may be that somebody deserves worse than the policy allows. You don't have to like it, but those are the rules we agree to when we post our comments.
5.22.2008 8:09pm
RAH (mail):
About the legal liability of the judge, I do not think there may be a good case. She had an extraordinary situation and she as family court judge placed greater credibilty on the CPS opinion that children left in the control of the mothers and cult was a danger.

She may have difficulty getting re-elected however. Good riddance. As soon as I read testimony of that April hearing I thought CPS was abusing their authority and declared that lots of civil rights suits would ensue.

Oren, I have read that public officials under the color of law that deprive citizens of civil rights can be sued. This came up in the Philadelphia city gun law case. Perhaps CPS officials could be at risk under this idea?

She may have difficulty getting re-elected however. Good riddance. As soon as I read testimony
5.22.2008 8:09pm
Sam Hall (mail):
RAH said: "About the legal liability of the judge, I do not think there may be a good case. She had an extraordinary situation and she as family court judge placed greater credibilty on the CPS opinion that children left in the control of the mothers and cult was a danger."

The judge didn't follow the law in at least two respects. First, she treated the case as concerning one family. Second, there was no evidence that most of the children were in danger. As the appeal court said: "The Department did not present any evidence of danger to the physical health or safety of any male children or any female children who had not reached puberty."

I would like to see every state official involved in this pay a price, but I'm not going to hold my breath waiting.
5.22.2008 8:25pm
What I Think (mail):
Accepted procedure in cases such as this are to enlist federal assistance with manufactured warrants and helpful Army troops. The church should have been burned, any members out of camera view murdered, and all remaining evidence removed and destroyed.
5.22.2008 9:20pm
Bill Dyer (mail) (www):
I'm a lawyer in Texas with twenty-eight years' experience.

The concluding paragraph of this opinion was absolutely standard for every case in which mandamus relief is granted. Don't be fooled by the "conditional" language into thinking that it means anything but a complete and unequivocal loss for the TDFPS. The language is standard, and it's purely a courtesy, akin to that granted by a parent who says to his six-year-old, "I'm not going to have to spank you, I know, because now that I've caught you red-handed I know you're going to put that cookie back into the cookie jar instantly, aren't you?" No lower court judge ever defies the higher court's ruling and thereby compels the higher court to issue an unconditional order.

That said: I think Prof. Volokh's description of this ruling as a "sharp and detailed rebuke" of the TDFPS is a considerable overstatement. This opinion is -- deliberately, I'm sure -- dry and utterly workmanlike. There's no rhetoric to speak of -- nothing that can fairly be characterized as a "sharp" statement about anything. The opinion is indeed "detailed," but that is the detail of a court that is going through a statutory checklist to examine a specific evidentiary record. Every time the appellate court says, "There is no evidence that ..." it's simply ticking another point off the checklist -- not pillorying either the agency or the trial court. This was indeed a thorough-going loss by the agency, but it emphatically was not a judicial call for political reform of the agency, nor for some candidate to run against the trial judge in the next election.

One can read between the lines, if one insists on doing that, by noting the frequency with which the appellate court, without further characterization, emphasizes the phrase "persuasive belief system" while finding the agency's evidence inadequate to meet the statutory test. And one might reasonably infer that the appellate court disapproves of the guilt-by-association theory of agency. But if one does that, one is guessing, because this opinion was written without any of the rhetorical flourishes that trip so freely from the tongues of any libertarian. There's little discussion and no dicta -- and absolutely nothing from which one could even begin to hazard broad predictions about how this panel might rule on a later appeal after a trial on the merits.
5.22.2008 9:28pm
Malvolio:
Can state sovereign immunity cover the deliberate use of state power to violate the First Amendment?
IANAL, but it looks to me like "no". See Bivens and White.
I would like to see every state official involved in this pay a price, but I'm not going to hold my breath waiting.
Does the name "Nifong" ring a bell?
5.22.2008 9:37pm
Eugene Volokh (www):
RAH: Judges are immune from liability for their decisions, however wrong.

Bill Dyer: I appreciate your experience, and I don't want to overstate the sharpness of the rebuke. But I expect good judicial opinions to be light on the rhetorical flourishes, and heavy on the facts and the legal analysis. I saw the sharp and detailed rebuke in the way the facts were marshaled, to highlight (with none of the rhetorical softening that sometimes happens in such opinions) just how weak the state's evidence was, and how downright absent it was with regard to so many children.
5.22.2008 9:59pm
Extraneus (mail):
How does this ruling bear on the admissability of the DNA samples? If they were authorized and taken improperly, could they be squashed (e.g., ordered destroyed) before the state would have a chance to use them to vindicate itself?
5.22.2008 10:21pm
Oren:
Extraneus - nope. In the US, once they've got the samples they can use 'em as they see fit. Same for fingerprints.
5.22.2008 10:55pm
Bill Dyer (mail) (www):
Prof. V: To use even the word "rebuke" is overstatement.

It's possible to reverse a trial court without "rebuking" anyone. It's possible to find that there's an absence of required evidence for statutory relief without characterizing that absence as "deplorable" or "downright." That's exactly what did happen here.

The fact pattern is dramatic. The opinion isn't. Pundits, press, and observers have strong opinions about these subject matters. But if the judges on this panel do, they deliberately and very thoroughly concealed them.

Could the agency have won at this stage if it had done a better investigation or made a better showing in court? We'll never know. Can the agency win on these very same factual issues after a final trial on the merits? We'll presumably see in due course, but that's entirely possible.

But it's misleading, I respectfully submit, to impute righteous indignation to this appellate decision that its text doesn't demonstrate. It's misleading to suggest that this appellate court found anything other than an absence of proof on this particular (limited) record from an expedited, interim hearing.

It's likewise flat wrong, for example, to say that the court of appeals found any "violations" of the Texas Family Code by the agency. In fact, neither the word "violate" or "violation" ever appears in the decision. And this decision was not on whether the agency had good cause to act, or even whether it thought it did. It's a decision on whether the agency's lawyers meet the agency's statutory burden to prove certain facts for interim relief. The trial court found that they had, and granted relief; the court of appeals found that they hadn't, and ordered that that relief be vacated. That means the agency lost, not that it was wicked.

Moreover, the court of appeals didn't sanction anyone for presenting any arguments or seeking any relief; it didn't find any lack of good faith; it didn't ridicule anyone or anything. It stuck strictly to its statutory checklist of relevant issues for this stage of the case. It was careful to do nothing more.

I respectfully submit that we who are describing what the court of appeals did -- especially we lawyers -- ought to be equally careful.

Extraneus: This ruling means nothing at all, pro or con, with respect to the taking or ultimate use of DNA samples.
5.22.2008 11:06pm
Eugene Volokh (www):
Mr. Dyer: I'll try to comment tomorrow about the "rebuke" issue; but as to violation, it seems to me the court of appeals opinion did find it. The court said at the outset that, "Removing children from their homes and parents on an emergency basis before fully litigating the issue of whether the parents should continue to have custody of the children ... is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for
protection of the children is so urgent that immediate removal of the children from the home is necessary." Then it found that such circumstances did not indicate such a danger: "The Department ... failed to establish that the need for protection of the Relators' children was urgent and required immediate removal of the children." How is this anything but a conclusion that the Department violated the law on when children may be removed on an emergency basis?
5.22.2008 11:36pm
RealSuccesful:
Bill Poser:

In the Chinese system prior to 1911 this was the function of the officials known in English as Imperial Censors. Their job was to investigate official misconduct. They had the power to arrest anyone and reported directly to the Emperor so they were outside the bureaucracy. They were quite effective so long as the system as a whole was not ridden with corruption (as in the late Qing dynasty.)


Ah, so they were successful and effective, except when they weren't. Sounds good Bill!
5.22.2008 11:50pm
RealSuccesful:
Bill Poser:

In the Chinese system prior to 1911 this was the function of the officials known in English as Imperial Censors. Their job was to investigate official misconduct. They had the power to arrest anyone and reported directly to the Emperor so they were outside the bureaucracy. They were quite effective so long as the system as a whole was not ridden with corruption (as in the late Qing dynasty.)


Ah, so they were successful and effective, except when they weren't. Sounds good Bill!
5.22.2008 11:50pm
kbp (mail):
I registered simply because I appreciate Mr. Volokh's work on many cases I've followed and I was surprised by those that doubt the authorities involved in this case are a corrupt bunch.

This started soon after the FLDS bought the ranch, which was soon after SCOTUS told us what goes on behind closed door is okay.

Texas Rep. Harvey Hilderbran, in a 4/11/05 letter addressing a bill he introduced stated that "HB 3006 addresses concerns raised by a polygamist sect that fled Utah and Arizona to settle in Schleicher County last year."

There are many more letters and reports in which he tells us there was one reason he was pushing the bill he later tacked on to another that was passed, that sole reason was the FLDS in his backyard.

The wanna be "Sarah" made her first call to the New Bridge Family Shelter on March 29th. In that call she told of being physically abused often, to the point on Easter Day that she was treated in a hospital. She claimed to be a pregnant 16 YO girl that was facing this life threatening situation. Also that the father of her young child had raped her.

Reports like that must be passed on to the local law enforcement immediately. So I must assume it was.

It was not until April 2nd until Officer Long, who is the affiant for the original search and arrest warrants, met up to interview the shelter employee that took the call. That is only ONE DAY before the raid.

The arrest warrant for some reason did not include any charges for the physical abuse that allegedly had put poor Sarah in the hospital. All it mentioned was SEX and CHILD.

Ms. Allison Palmer, First ADA, has admitted to the press she assisted in obtaining the warrants. The CPS told of using sources familiar with the sect before the raid started, The State AG's office spokesperson has told the press they were involved from the "start".

The assembly of 700 warriors, 13 CPS workers, helicopters and an armored personnel carrier would take some time, as would getting all the head honchos together. Looks like a plan coming together, the one Sheriff Doran told all he has been working on FOUR YEARS.

Now they are all surrounding the YFZ Ranch to move in and attack. We find out later that the Sheriff had received a call from the alleged husband PRIOR to executing the warrants, a call he learned of a probation officer that could verify the abusive "husband" had not been to Texas when it was claimed he did all those bad acts.

We also know that though Sarah had told of life threatening problems she faced on 3/29, it was not until FIVE DAYS LATER that they were there to save Sarah!

No problems, lets storm in and save all the victims, haul them off and teach them how they were victims!

Anyone that believes there was "good faith" in any of this mess is fooling themselves in my opinion.

If I had time, I'd pick your brains on a couple things Judge Walthers has done nobody seems to care about, but that's for another day maybe.
5.23.2008 12:00am
Bill Dyer (mail) (www):
Prof. V, you're ignoring the procedural context. Under section 262.201(a) of the Texas Family Code, "a full adversary hearing shall be held not later than the 14th day after the date the child was taken into possession by the governmental entity." But the statute mandates (in section 262.201(b)) that unless the governmental entity proves a particular set of facts, "the court shall order the return of the child to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession."

The trial court found that at the hearing, the Texas Department of Family and Protective Services had met its required burden of proof, such that the children didn't have to be returned. The court of appeals granted mandamus because they found that ruling to be an abuse of the trial court's discretion. The abuse of discretion finding was, in turn, based on an absence of evidence for the statutory factors.

That is not a finding by the trial court about what justification the Department did or did not have in taking possession of the children originally.

To pick a particular factor: The Department failed to prove, according to the court of appeals, that there was a danger to the physical health or safety of the children. But that is emphatically not the same thing as an affirmative court finding, either at the trial or appellate court level, that there was evidence which established there is no danger to the physical health or safety of the children.

Absence of evidence is not evidence of absence. You know this, I'm quite sure.
5.23.2008 12:40am
Bill Dyer (mail) (www):
Sorry, third paragraph above should have read:

"That is not a finding by either the trial or appellate court about what justification the Department did or did not have in taking possession of the children originally."
5.23.2008 12:41am
Bill Dyer (mail) (www):
Are you aware that there is an entire different subchapter (beginning at section 262.101) on the related, but slightly different, standards and procedures that precede the adversary hearing? That's the law you're presuming -- wrongly, I believe -- the court of appeals somehow impliedly found to have been violated in the sentences you've plucked out of the different procedural context, Prof. V.

Can you suggest how the court of appeals made "findings" on the impropriety of the pre-adversarial hearing custody without bothering to cite or discuss those sections?
5.23.2008 12:50am
DeputyHeadmistress (mail) (www):
In a newstory about how Texas politicians are trying to figure out a way to make use of Ranch assets to pay for this raid and its aftermath,

"Albert Hawkins, the state's executive commissioner for health and human services, said it was unclear whether members of the sect have private insurance. He also said that officials have found no evidence that anyone from the sect is receiving any sort of public assistance."


Meanwhile, the state's number of disputed 'minors' dropped from 26 to 8- and those 8 just haven't had their hearings yet.
Another girl- the youngest on the list of 'pregnant or has given birth' minors, is 14 and she is not pregnant and has not given birth.
They don't appear to have any 13 or 14 year old mothers and I have my doubts about 15 year olds.
The only two pregnant minors they had were 18 and 22 years old
5.23.2008 3:52am
PersonFromPorlock:
Bill Dyer:

Absence of evidence is not evidence of absence.

Logically true, but the presumption of innocence means that 'absence of evidence' brings things to a screeching halt.
5.23.2008 7:38am
Richard Aubrey (mail):
Seems reasonable to infer that the conclusion--you don't have the evidence to do this stuff--combined with the fact that they did this stuff is a reproach.
5.23.2008 7:48am
kbp (mail):
Volokh
Did you notice Footnote 2?
"The temporary orders reviewed in this proceeding were issued following the hearing held April 17-18, 2008, and were SIGNED the week of April 21, 2008."

If you followed TRLA's activities with the 3rd from their initial Writ, which was denied, you'd know the Order For Placement and the Order For Temporary Custody may have been out of order in how they were signed.

The Order For Placement was definitely signed April 22nd.

Could the 3rd have been pointing this problem out to Walthers by including Footnote 2 in their Opinion?
5.23.2008 9:58am
Ben Franklin (mail):
I see this type of case as a consequence of thinking of people as members of groups rather than as individuals. The courts are trying to punish a group as if it is an individual. Indeed it is punishing the entire group as if they are all guilty of the worst actions of one of its members.

The flip side of this type of cloudy logic is affirmative action. Here membership in a group confers benefits at the expense of other groups. It doesn't matter if you were born in Nigeria and never suffered a day of discrimination in your life you will still receive the benefit of belonging to the favored group.

It would be interesting to see how many think the actions of the Texas authorities were outrageous but affirmative action is just fine. Can you really blame a judge for making the same fundamental error in logic (though antithetical to everything the constitution intends) when the supreme court of the land persists to this day in making the same error?
5.23.2008 10:07am
Eugene Volokh (www):
I'm not sure how the procedural posture keeps the court's decision from containing ample findings that the Department violated the law.

1. The court expressly says that "Removing children from their homes and parents on an emergency basis before fully
litigating the issue of whether the parents should continue to have custody of the children ... is a step that the legislature has provided may be taken only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary" (p. 2). The court cites 262.201, but you're right that the decision has to be understood in the broader context of the Texas Family Code, including 262.101 et seq. -- those sections make clear that generally speaking the government may not seize children without a court order except in an emergency (see, e.g., 262.104). In any event, one way or another, the court concludes that the Department may seize children without an order "only when the circumstances indicate a danger to the physical health and welfare of the children and the need for protection of the children is so urgent that immediate removal of the children from the home is necessary."

2. Then, the court says "The Department ... failed to establish the need for protection of the Relators' children was urgent and required immediate removal of the children" (p. 7). Sounds like a pretty clear conclusion that the Department lacked the evidence that was required for item 1.

3. Nor do I see how the statement that "Absence of evidence is not evidence of absence" is relevant here. When it comes to legal rules that bar the government from seizing people without adequate evidence, absence of evidence does indeed show a violation of the legal rule. "Absence of evidence is not evidence of absence" would be an argument if I were saying "the children weren't abused"; you could plausibly respond that perhaps they were abused but the evidence hasn't yet been uncovered. But under Texas law, if there is no evidence of imminent danger, that makes seizure of the children a violation.

4. Finally, as to the sharpness of the rebuke, I inferred it from the repeated statements of how "the Department did not present any evidence" of various things, coupled with the court's stress that those things were indeed required for the initial seizure or for the retention of the children. On pp. 6-8, I count at least eight, plus two "the record is silents," and a "failed to establish." And this one strikes me as especially sharp: "There is simply no evidence specific to Relators' children at all except that they exist, they were taken into custody at the Yearning For Zion ranch, and they are living with people who share a 'pervasive belief system' that condones underage
marriage and underage pregnancy." The "except that they exist" strikes me as a particularly telling attempt by the court to highlight what it sees as the weakness of the Department's case.
5.23.2008 2:14pm
Bill Dyer (mail) (www):
Let me put this as simply as I can:

You're conflating two different questions. The first is whether the State had the right to keep the children after the adversary hearing. Subchapter c tells us what has to be proved lest the children be automatically returned. The trial court said yes, there was adequate proof. The court of appeals said no, there wasn't.

The second question is whether the State had the right to take them in the first place. That's determined not by subchapter c, but subchapter b. Neither the trial court nor the appellate court cited any of the sections that together make up subchapter b. Yet you've jumped to the conclusion that the appellate decision contains "findings" -- presumably binding upon the state for collateral estoppel purposes? isn't that the gist of what you're saying -- that the State had no right to take the children in the first place.

That's wrong for other reasons, too, completely apart from the fact that different subchapters of the Texas Family Code are involved. For although this was an adversary hearing, it was still an expedited hearing about temporary custody -- not a final decision on the merits, which it would need to be to create any "findings" that could be given collateral estoppel effect in other proceedings. For another, appellate courts don't engage in factfinding, especially on mandamus proceedings.

Finally: by your definition of what consitutes a "sharp rebuke," every single reversal based on insufficient evidence amounts to a "sharp rebuke." I repeat, the court of appeals here very obviously and very deliberately avoided the kind of sensational characterizations that the news media has put on its decision, and that you, too -- who ought to know better -- have fallen into.
5.23.2008 2:52pm
kbp (mail):
After the problems noted about the UNSIGNED copy of the Order For Temporary Custody in the AMENDED PETITION FOR WRIT OF MANDAMUS in Footnote 1;

"At the time that Relators filed their initial petition for mandamus on April 23, they were not aware that any Temporary Orders had been entered by the trial court. The "April 21st order" referenced by this court in its per curiam order of April 25, 2008, does not have a cause number, parties, or signature of the trial court, and appears to be a form of the order that was submitted by one of the parties. The signed orders that Relators [their clients] have received since filing the original petition are signed April 23 and April 24."

could the details from the Opinion by the Appeals Court in Footnote 2;

"The temporary orders reviewed in this proceeding were issued following the hearing held April 17-18, 2008, and were SIGNED the week of April 21, 2008."

be telling us the court took notice of the possible dates out of sequence?
5.23.2008 6:15pm
Jim Rhoads (mail):
Bill:

I know nothing about the panel of the appelate court which decided this opinion. I read that the panel is Republican as is the trial judge. This would seem to reduce the possiblity of a political hit job.

It has been my experience that when an appellate court finds an abuse of discretion on every required statutory finding along with a completely clinical dissection and rejection of the evidence the trial court considered for each such finding, it is a pretty sound trashing(or thrashing) of the trial court's judgment and judicial performance.

Wouldn't you agree that the good Judge Walther will have an uphill battle putting a good face on her performance thus far in this case.

(vnjagvet)
5.23.2008 6:58pm
Michael Edward McNeil (mail) (www):
Congratulations to Dave N for his correct prediction that the department would have the hubris to take it to the Texas Supreme Court. Any predictions on how that's going to go? I'd venture a vote of something like 8-1 affirming the appeals court.
5.23.2008 9:42pm
Bill Dyer (mail) (www):
vnjagvet: The trial judge, erring on the side of intervention, engaged in an exercise of massive inference-drawing and application of those inferences to a large, unwieldy class of individual (but related, by kin and church) families. That's the same thing that's been done by what I would guestimate is a large majority of the public, too. I do not think she will suffer at the hands of the voters for this reversal.

I've seen, and represented parties in, decisions in which the appellate panel wanted to issue a "severe rebuke" to one side or the other, though. They include adjectives. They include intensifiers. Sometimes they get snarky. This just ain't one of those. Instead, this is just a Texas court of appeals going through the whole checklist, which they all always do. And maybe folks like Prof. V, who don't realize that they always do go through the whole checklist for every appeal, are misinterpreting the court of appeals' intent for that reason. I'm highly confident that if we could ask the individual panel members whether they intended to administer a rebuke, or to affect the trial judge's reelection odds, they'd be startled that anyone (other than, perhaps, a bunch of law professors) would even suggest such a thing.

Substantively, the weakest part of the court of appeals' opinion is its failure to give the traditional deference of appellate courts -- especially in mandamus proceedings! -- to trial courts' fact-finding responsibilities. Those responsibilities include, in appropriate cases, drawing reasonable inferences from circumstantial evidence. Without even the benefit of a wink and a nod at that traditional standard of very limited review, the court of appeals opinion ignores even the possibility that the circumstantial evidence could have supported inferences on any of the statutory factors. If the grant of mandamus is vulnerable on further review by the Texas Supreme Court, it would be on that basis.

Nevertheless, while I fault the court of appeals for dodging -- indeed, completely ignoring -- the topic of inference-drawing from circumstantial evidence, I would have come to the same conclusion it did. It's one thing to read between the lines of a well-developed record (say, two full days' testimony) about a single family and its minor children, and to draw inferences from the circumstances so proved. It's another, further reach to do so when that two days' testimony purports to cover many dozens of families and hundreds of children, the large majority of whom (as the appellate court appropriately recognized) were not just-turned-pubescent girls on the brink of unlawful coercion.

I still think the Department may win this case in further trial court proceedings on the merits. But it will only do so if it does a vastly better job of presenting individualized cases about each of the affected families. And that is going to require an investigation that's orders of magnitude more thorough. Relatedly, the key difference may be that in the ultimate decision on the merits, there's not the same requirement that the Department show an "emergency."
5.24.2008 4:06am
David Friedman (mail) (www):
"Twenty teen pregnancies out of 400+ youths."

Five.

According to the appeals court, fifteen of the twenty were adults who had been pregnant as minors, so that's out of the whole population, not just the 400+minors.

From another commenter:

"so, they looked underage and couldn't or wouldn't provide a birth cert. honest mistake."

There was a news story weeks ago according to which the CPS was openly refusing to accept birth certificates as proof of age. Given that, I see no reason to think the problem was with the refusal to provide the certificate. The 22 year old woman claims to have provided it early on. I have seen but not checked the assertion that the date of birth of the 18 year old woman was actually in documents provided by the authorities to the court in an early stage of the legal process, where they were listing women who had born children as minors.

A number of posters comment on the problem of controlling misdeeds by officials, with references to the Chinese censorate. H.L. Mencken discusses the problem in one of his essays. He explains that Prussia solved it by having special courts for trying officials accused of misconduct. It worked in Prussia, since Prussian judges took it for granted that anyone brought before them was guilty, but would never work in America, where the judge would probably be part of the same gang of scoundrels as the official.

Mencken accordingly proposed a suitably American solution to the problem. Anyone abused by an official was entitled to inflict the appropriate penalty himself. It would then be up to the official--or his heirs--to go to court to demonstrate that the penalty was undeserved or excessive.

This case also reminds me of a chapter by Judge Posner in which he goes into some detail on just how badly a judge can act without any risk of serious consequences.
5.24.2008 11:39am
Jim Rhoads (mail):
Bill:

Based on your analysis, I would rest much more comfortably were I a citizen of Texas. It appears that at least someone is minding the store.

The last time a cult farm in Texas was in the news with this much publicity was the Waco fiasco. There was considerably less due process then, and the results then were far more grave than the mere removal of children from a parent.

There is a lesson there, isn't there?
5.24.2008 11:40pm
Chairm (mail):
Jim Rhoads, what is the lesson?

* * *

I would have thought that it is beyond dispute that the "removal of children from a parent" is a grave act and should be recognized as such each and every time.

That means providing strong justification for taking that action BEFORE taking the action.

When it is done en masse there is even more at stake for the parents and children involved -- and also for the rest of society and the legitimacy of our system of justice.
5.26.2008 12:41am
rinkevichjm (mail):
Everyone seems to think that Judge Walthers has done her best with this case. However a FLDS Bishop's record was entered as evidence and showed that in March 2007, Pamela Nielson Jessop (aka Pamela Jeffs Jessop) was 17, and since the hearing was more than a year later, she had to be 18. Yet CPS worker Angie Voss testified she was a minor (under 18). Did Judge Walthers pay attention? No! Should the CPS/DFPS lawyers have noticed? Yes and they would deserve it, if the TXSC decided to remove them from the practice of law for it. Will this Judge have to explain to the TXSC why she did this? Probably not, but she now stands practically no chance of being promoted to the appeals court level or of becoming a federal judge.
5.27.2008 1:52am