Third Court Cancels FLDS Oral Argument
By this order, the Third Court of Appeals has canceled the oral argument on the application for emergency stay in In re Sara Steed, et al. (No. 03-08-00235-CV) and has summarily denied the stay. The court also denied the stay sought in the companion case, In re Faithann Jessop, et al. (No. 03-08-00236-CV).
Before you rush to criticize this decision, consider the reason the court of appeals gave for it.
The court explained that the application for emergency relief complained about a two-page order signed on April 22 and alleged that this order failed to comply with Section 262.201 of the Family Code. Following its own investigation, however, the appellate court learned that the district court had, on April 21, signed an eight-page Temporary Order Following Adversary Hearing and Notice of Hearing, which the relators neither referenced in nor attached to their emergency motion. The April 21 order "makes explicit findings with respect to the requirements of section 262.201, temporary conservatorship of the children, possession of and access to the children, temporary child support, temporary medical support, access to medical records, the acquisition of information regarding alternate caregivers who are relatives of the children, and the best interest of the children."
The court of appeals concluded that the April 21 order, "on its face, addresses statutory requirements" and based its denial of temporary relief on that conclusion. Whether the order—which requires the children to remain in the possession of the Department of Family and Protective Services—"is supported by sufficient evidence, is the product of a sufficient "full adversary hearing" as required by section 262.201, or is an abuse of discretion are questions for determination on the merits of Relators' Petition for Writ of Mandamus."
Moral: When presenting a motion for temporary emergency relief to an appellate court, be sure and tell the whole story, not selected parts of it. I don't know if the relators intentionally omitted the April 21 order or just made a mistake—I'm hoping the latter—but an appellate court's discovery that you have omitted significant or potentially dispositive facts can only harm your client.
> I don't know if the relators intentionally
> omitted the April 21 order or just made a
> mistake—I'm hoping the latter
Would you believe that there is an even better explanation than that???
I just got off the phone with a reporter from the Salt Lake Tribune and we discussed this very issue.
The word on the street is that *every one* has been trying to get their hands on that 21 page order -- attorneys included. The 2 page order amending the prior (21 page) order was received by the clerk prior (allegedly) to the order iteslf.
If appellate counsel had raised that point, wouldn't they have shot themselves in the jurisdictional foot?
Are you saying that the district court didn't make the order available to the parties?
If you or anyone else has a copy of the April 21 order (which the appellate court's order says is 8 pages long), please e-mail it to me and I will update this post with a link to it.
> Are you saying that the district court didn't
> make the order available to the parties?
Yes, but the parties (Relators in Steed) say it better than I:
"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 signed orders that Relators have received since filing the original petition are signed April 23 and 24."
Regretfully, I cannot email a copy of "the" April 21 order because, in fact, (according to Relators in Steed) there are some 126 versions of it. This is news to me...
I'd like to seed a discussion on a topic related to this case that is, perhaps more interesting and less "family law-ish".
I'll start off with a rather pro se-ish claim:
"If I were an FLDS parent, I would sue the state."
...and just how would I pull that off?
I would start by reviewing all of the interesting posts from this mighty fine blog from about a year ago on the topic of "sovereign immunity". I would then take a peek at TSU v. State Street Bank. [212 S.W.3d 893]
The cause of action would be inverse condemnation. Mine would be a "taking" claim brought under Article 1, Section 17 of the Texas Constitution.
A valid claim as such would be one in which soverign immunity has been waived:
"[t]he Constitution itself is. . . a waiver of governmental immunity for the taking, damaging or destruction of property for public use." Steele v. City of Houston, 602 S.W.2d 786, 791 (Tex. 1980); see also Callaway, 971 S.W.2d at 149 (action for inverse condemnation is exception to doctrine of sovereign immunity).
My legal rights are my property. This property may be put into trusts, enumerated on bankruptcy schedules, etc. Perhaps the most valuable piece of property in my inventory is the legal right to "the companionship, care, custody, and management of [my] children" May v. Anderson, 345 U.S. 528.
The state may invoke parens patriae in certain circumstances, but arguably in this situation, the power was abused.
Even if the state is allowing extremely limited contact between parent and child, I believe that there is a case against "regulatory taking" in that the regulation of the property's use is so severe that it goes "too far," as Justice Holmes put it in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), and deprives the owner of the property's value, utility or marketability, denying him or her the benefits of property ownership thus accomplishing a constitutionally forbidden de facto taking without compensation. See also: alienation of affection.
Am I claiming that children are property??? NO!
The right to be a parent is property.
How then was my property taken for "public use"? The state rather quickly turns children into money via a number of perverse incentives such as those under 42 USC 670 et. seq. e.g. See: *THE SOCIAL SECURITY ACT*.
For all you retiring baby-boomers out there that are wondering why your benefit checks are the size they are -- you should be aware that stuff such as the Texas FLDS raid is taking a sizable chunk away from what you would ordinarily receive.
"Suing the State" is a rather unsavory proposition.
It is a lot like robbing Peter and Paul to pay Mary.
In any event, I think that there is some benefit in further hashing out the intricate details of the soverign immunity doctorine with respect to parental rights.
Justice Puryear says with respect to child custody:
"Considering the importance of and the risk to the rights at issue and the legislature's clear mandates that courts take measures to protect this most sacred of relationships, I believe we need to carefully re-examine the standards by which decisions that limit a parent's access to or possession of a child are made and reviewed."
Justice Puryear nailed it. We do need to carefully re-examine these standards. I believe now is the time. When Kristallnacht arrives, it will already be too late to complain.