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...