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Saturday, May 24, 2008

Beldar on Volokh on the Texas polygamy/child custody case

A few folks have asked me for my take on the Austin Court of Appeals' overturning this week of the state trial judge's interim child custody decision in the big Texas polygamy/child custody case. UCLA Law Prof. Eugene Volokh is one of the smartest law professors blogging today, and I agree with him probably 98% of the time. But in comments to this post of his (many of which he was kind enough to respond to in further comments), I disagree strongly with his conclusion that the appellate court was administering a "sharp rebuke." Perhaps you have to actively practice law regularly to have a clear sense when an appellate court is just saying "This side lost," and when it's saying, "Boy, howdy, this side needs a trip to the woodshed because it was way, way out of line, and let's include the trial judge in that whuppin' too." This was an example of the former in my judgment, whereas Prof. Volokh apparently reads it as an example of the latter.

Prof. Volokh and I also disagree very strongly on the significance of this ruling for the future. In both his original post and a subsequent one, Prof. Volokh suggests that the court of appeals has conclusively found a "violation" of the relevant law by the Texas Department of Family and Protective Services in seeking an order temporarily depriving the parents of custody. But to start with, the words "violate" and "violation" appear nowhere in the court of appeals' opinion. This appellate court mandamus proceeding determined whether the State is entitled to continue keeping the children, but that's decided on the basis of an entirely different subchapter of the Texas Family Code than would be at issue in deciding whether the State had an adequate basis to take them away in the first place. Those questions, and the legal standards for deciding them, are closely related. But they are not, as Prof. Volokh presumes, exactly identical.

Professor Volokh also ignores the fact that this was an interim appellate ruling on an interim trial court ruling. There is no conceivable way that this interim ruling could preordain the outcome of, for example, a separate damages lawsuit by the parents whose children have been temporarily separated from them. (At a minimum, for this ruling to be binding against the State in any separate lawsuit under the doctrine of "collateral estoppel" a/k/a "issue preclusion," it would have had to have come from a final judgment on the merits after all appeals have been exhausted.)

Ultimately I think the court of appeals reached the correct decision, given the state of the current record. There's just not the required "emergency" to justify taking those kids away from their parents on an across-the-board basis right now, without investigation and proof on a family-by-family, child-by-child basis. But that won't be nearly as important a factor in the ultimate decision in this case on the merits. I consider myself a civil libertarian. But I would have no trouble agreeing with the State here that it's contrary to the long-term best interests of the affected children to raise them in a tight, isolated culture whose entire premise is to evade state law, to secretly coerce pubescent minor girls into arranged marriages, and to indoctrinate both boys and girls into that culture. The State needs to prove that far more thoroughly, on a family by family and child by child basis. Ultimately the State's case is likely to rest on factual inferences drawn from circumstantial evidence — the patriarchs aren't ever going to admit to being serial sexual predators ruling over a fiefdom designed to ensure their continual supply of pubescent "wives" — so the State's eventual proof of those circumstances needs to be exhaustive.

Posted by Beldar at 03:31 AM in Current Affairs, Law (2008) | Permalink


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Tracked on May 29, 2008 7:04:10 PM


(1) Gregory Koster made the following comment | May 24, 2008 3:15:22 PM | Permalink

Dear Mr. Dyer: OK, Professor Volokh is wrong: an appellate "rebuke" would have released the children posthaste. That's not in the appellate opinion. But the notion that that Barbara Walther had a solid grasp of this case is grotesque. You can't argue that a) "appellate courts are not triers of fact, so generally must follow what the trial court found," and at the same time b) ignore the steady "shrinkage" of the case. The number of pregnant minors has dwindled. One "minor" was found to be 27. This doesn't inspire confidence in either Texas CPS---or Judge Walther. It should have been plain to Judge Walther that taking on this matter was going to be a big job logistically. If it wasn't plain to her, she has no business being a judge, though I understand there rubber stamps wielded by puppets are highly prized by an executive branch that is often under fire from the public for not "doing anything." I add at once that any judge who has to take on a big monster of a case like this one should be entitled to sympathetic consideration, particularly if it's the first time such a monster has crossed her desk. Yet the accounts I've read of the 16 April hearing are unsettling. "Chaotic" kept popping up in the accounts. This matter is far too serious for chaos. Liberty is involved, and liberty of humans who can't defend themselves well against false accusations by zealots with immunity. The appellate ruling may not be a "sharp rebuke," as you say. But it dam sure isn't a vote of confidence. It may be that all the villainy and bungling is the fault of Texas CPS. But what does it say about a trial judge who continues down the path when the government's abysmal performance does not improve? A choice of dupe, villain, or fool is a hell of an epitaph for anyone. Knowing far too little about Texas law, I will bet that as this case wends its way, Texas CPS and Judge Walther will look worse and worse, finally defending themselves with "You can't prove anything!" while cowering behind immunity. The only winners here will be the libertarians, who will get a swell recruiting tool, at a dam high price.

Sincerely yours,
Gregory Koster

(2) DRJ made the following comment | May 24, 2008 3:59:25 PM | Permalink

Dicky Grigg, an attorney for one of the FLDS children, acknowledged the State provided evidence that this is a dangerous place and an unsafe place for these children because underage girls are being sexually molested. In addition, Scott McCown noted the appeals court ignored that leaving some children behind means they could be whisked out of the state, which both puts them at risk potentially and impedes an investigation.

(3) vnjagvet made the following comment | May 24, 2008 10:50:33 PM | Permalink


I agree with you that the appellate court did not "rebuke" Judge Walther, Prof. Volokh posted.

I believe, though, that unless the Supreme Court modifies the standards of proof implied by the court of appeals, the State (and Judge Walther) have and uphill battle ahead.

Would you agree with that assessment?

(4) Beldar made the following comment | May 25, 2008 2:20:00 PM | Permalink


I don't think the Texas Supreme Court will reverse the Austin Court of Appeals. The main reason is the difference between what had to have been proved at this interim "adversary hearing" and what would still need to be proved at a final hearing.

What the Department had to show at this particular stage of proceedings was governed, as the court of appeals' opinion correctly noted, by Texas Family Code section 262.201. The key is proof of an imminent "danger to the physical health or safety of the child" that can't be abated by lesser means. At least with respect to any of the children of the set of parents who filed the mandamus petition, the Department wasn't able to present any direct evidence of such imminent physical danger. (Whether there was enough evidence presented with respect to some other particular children, the court of appeals' opinion doesn't answer, because that question wasn't properly before it.)

The ultimate decision, however, will be made based on chapter 161 of the Texas Family Code, which governs termination of the parent-child relationship. Texas Family Code section 161.001 doesn't necessarily require a threat to the "physical" health or safety, but rather, expressly authorizes the trial court to consider — among a vastly broader list of other criteria than were relevant to the adversary hearing on temporary custody — the "emotional well-being" of the child.

These broader criteria are what could justify, for example, the Department seeking relief on behalf of even male children who are not at direct risk of being forced into underage marriage or sex: Being raised in a system in which they're being programmed to eventually become a sexual predator themselves could well be a sufficient ground to permanently sever their parents' legal control over, and possession rights to, them.

This broader standard may permit the Department to paint with a broader brush in the final termination proceedings on the merits, regardless of who has had temporary custody of the children in the interim since the original raid. And that's where the Department's proof of the "pervasive belief system" that was insufficient to show a risk of imminent physical harm may nevertheless be extremely relevant and, perhaps, sufficient. The Department will undoubtedly need to show that the system isn't just pervasive, but genuinely coercive as well. And even after it proves up the "system," the Department is clearly still going to have to adequately link, by specific facts based on first-hand personal knowledge, each family and child to that "pervasive belief system" and its coercive elements.

The Department certainly has an "uphill battle ahead" in the sense that it has — and certainly ought to have — the burden of proof as to every individual child. The challenge is a vast multiple of that presented by a case involving a single family. But it's a considerably lesser challenge than would be, for example, proving up cases for 500+ completely unrelated children and families. And the law actually expands the number of grounds that are adequate, and likewise expands the fact-finding discretion given to the trial court (by letting it consider more subjective determinations like "emotional well-being"), in further proceedings.

This is another reason why it's vastly premature for anyone to start talking about damage lawsuits by these parents against the state. Some of these parents may well have won for now through this ruling on the subject of temporary custody, but they may ultimately lose on the subject of permanent custody and find their relations with their child permanently severed. Such a ruling would necessarily be based on a finding — binding upon them as a matter of collateral estoppel/issue preclusion — that their relationship to their children were not in the best interests of the children. It's difficult to imagine them overcoming such a binding finding in a damages lawsuit against the state, in which their claim would be reduced to "Hey, the State temporarily deprived me of the right to continue subjecting my kids to intolerable abuse, gimme some damages for that!"

(5) Beldar made the following comment | May 25, 2008 2:53:02 PM | Permalink

DRJ: I think your points are good ones. But notwithstanding the Austin Court of Appeals' mandamus ruling, there are still lots of options available to the Department and the trial court short of returning unencumbered custody of even the relators' children back to them. I think I've read (but can't immediately find a link to back up) that those particular children are being returned conditioned upon them not being returned to the compound, but instead with a requirement that the families reside under supervision in the San Antonio area. Depending on the degree of supervision, that might lessen the flight risk substantially.

Moreover, the Department may not, and ought not, treat the court of appeals' ruling as binding across the board to families who weren't relators. For those with pubescent female children, the Department might stand tough on the existing orders, and/or seek rehearing at the trial court level with more particularized evidence.

I read the court of appeals' decision as insisting, though, upon a showing of imminent physical harm in a case by case, family by family, and child by child basis. And I don't think the Department had put together that strong a case, nor, likely, could it have, even with more time and better efforts. Getting temporary custody changed for all of these children on a mass basis, in other words, may have been an overstretch. But that emphatically doesn't mean that the Department should simply drop all, or even most, of these cases (see my reply to vnjagvet's comment above).

(6) nk made the following comment | May 25, 2008 5:08:41 PM | Permalink

To be kind to Professor Volokh, he probably views mandamus as an avenue of appeal an extraordinary remedy and considers the mere granting of the writ a rebuke to the trial court. But I would not fault him for that. A lot of my practicing colleagues in Illinois believe the same.

(7) vnjagvet made the following comment | May 25, 2008 7:22:10 PM | Permalink

As a former Pennsylvanian, I am somewhat familiar with the tussle that the Commonwealth had with the Amish communities that were established since the mid-seventeenth century.

It is apparent that the FLDS have some tenets that are more than just unconventional.

But, should those that want to freely exercize their right to that "belief system" to the limits of their right to do so under the Constitution, forfeit their right to raise their children because of that desire?

(8) DRJ made the following comment | May 25, 2008 7:50:01 PM | Permalink


I'm leery of opinions that deal with the central issues of a case in the footnotes, and it's clear to me that the heart of this opinion is in footnote 10 (that the ranch does not constitute one household) and footnote 11 (that not all FLDS families are polygamous or allow underage minors to marry). It's always easier to decide a case if you assume facts that justify the desired opinion, and I think that's what the Austin appeals court did in footnotes 10 and 11.

I don't share your conviction that the Supreme Court will affirm this opinion but I agree that it might and that the CPS is worried it might. I think that's why the CPS recently returned those few children who resided in independent, two-parent homes - to make it clear that the children in custody are members of polygamous households where underage sex with older men had occurred and was occurring.

If you look at the Bishop's Record, I think it's clear that the children who were recently returned to their FLDS parents fit under footnote 11 because they lived in two-parent families where the parents were near in age and legally able to marry. Now it should be easier for the CPS to argue to the Supreme Court that the children currently in CPS custody live in a communal "one household" arrangement with a pervasive belief system characterized by polygamy and underage sex between young women and much older men. The issue for the Supreme Court will be whether that justified the CPS taking custody of these children.

(9) nk made the following comment | May 25, 2008 8:10:49 PM | Permalink

Hi, DRJ.

(10) hunter made the following comment | May 26, 2008 12:30:09 AM | Permalink

I find the fact that CPS has, only after the Appeals Court opinion, begun to separate the children to quite damning of CPS.
It is clear to many people that CPS and politicians close to the YFZ compound have engaged in a deliberate, cynical perjury-filed attempt to break this group. Is it for their land? Is it pure bigotry?
I don't really care.
If the Court of Appeals did as Beldar implies- simply gave a gentle shove towards the trial judge and CPS, instead of a cold hard slap, then they are not much better than the loca yokels.

And their arrest and imprisonment of adults is inexcusable.

(11) LazyMF made the following comment | May 26, 2008 11:14:29 AM | Permalink

A note about the children that were "returned" Friday by the CPS:

Attorneys for monogamous parents (with no underage spouse issues) in the case filed for writs of habeas corpus in San Antonio and Corpus Christi. Before Friday children of the same households were scattered to different shelters across the state. The attorneys for habeas parents and the CPS reached an agreement Friday to reuinite the children and parents to live together as family units at shelters.

That is all that happened, and it certainly wasn't a magnanimous act by CPS.

(12) DRJ made the following comment | May 26, 2008 1:53:38 PM | Permalink


The FLDS mothers hid the identities of their children - including sharing breast-feeding duties and switching children, clothes and the children's clothes - and refused to identify which children belong to which parents. Explain to me why this should be the CPS's fault.

(13) DRJ made the following comment | May 26, 2008 1:54:24 PM | Permalink

Hi, NK.

(14) DRJ made the following comment | May 26, 2008 1:56:52 PM | Permalink

LazyMF - Did you actually pick that name?

(15) hunter made the following comment | May 26, 2008 2:53:06 PM | Permalink

Great question. I see the FLDS people as resisting the state as much as possible. Their resistance has its own costs, but if the CPS was not relying on false claims, perjured testimony, and what appears to be bad faith, none of this would have happened.
FLDS did not invade a CPS office. CPS invaded them.
-I know, not the best answer, but I think if you had the extraordinary situation of >400 children carried off as a sort of group guilt and group punishment, I am not sure what any of us would do.

(16) Gritsforbreakfast made the following comment | May 26, 2008 3:37:13 PM | Permalink

I'd suggest that the reason Prof. Volokh characterized the decision as a "rebuke" is that the court ruled that Judge Walther "abused her discretion," which is a pretty sharp reprimand - a lot more than just saying one side "lost."

(17) DRJ made the following comment | May 26, 2008 3:55:15 PM | Permalink


'Abuse of discretion' is a legal term and it's not the equivalent of a rebuke.


CPS did not invade anyone. It had a legal right to be at the YFZ ranch even though the original call was a hoax. It's no different than any situation where the police encounter suspicious circumstances when responding to any call - prank or real.

Furthermore, citizens can refuse to answer questions from law enforcement authorities but if they lie or deceive the authorities, there will often be consequences. This is one of those consequences.

(18) Gritsforbreakfast made the following comment | May 26, 2008 5:36:48 PM | Permalink

"Rebukes" can't be cast in "legal terms"?

"Abuse of discretion" is a legal term that means just what it says, DRJ: The judge "abused" her legal authority by doing what she did. It's the most difficult standard under which they could have sought relief, and you're wrong to claim it's no big deal. (The rumor mill has it Walthers herself was furious, which adds further evidence it should be seen as a "rebuke.")

Also, I think you're ignoring how much evidence authorities had before the raid that the call was a hoax. They'd even spoken on the phone to Dale Barlow and knew he was in Arizona, not on the ranch (contrary to early public media statements). They also knew the calls to the shelter came from Colorado and didn't bother to follow up, despite obvious discrepancies (mispronouncing the name of the town, using Christian instead of FLDS lingo). Your assumption that authorities went into the ranch with entirely good faith is hardly an inarguable one, and if they ever try for criminal prosecutions I'd expect to see the original search warrant successfully challenged.

(19) Gregory Koster made the following comment | May 26, 2008 5:49:47 PM | Permalink

Dear DRJ: Responding first to your 1:53: No, it is not CPS's fault if their victims refuse to cooperate in being forcibly separated. Here's a chance for you to respond: in your professional opinion, has Texas CPS executed its duties in this case in such a way that will increase public confidence in their abilities? Not, "Have they executed their duties 'professionally'?" I have no doubt that you could pull out any definition of "professional" that you needed to win any internet argument out of your hat. Must be mighty crowded for all the rabbits in there. So, I repeat: has Texas CPS performed its duties in this case to increase public confidence in their abilities?

Next, the notion that "abuse of discretion" is not a rebuke., Okay, bring on the law dictionaries and case citations and prove it to us. Then, tell us what it is, if not a rebuke. A compliment? The legal equivalent of the Bronze Star? More likely a warning that, "You got caught dummies, and the suckers who are taxed to pay your salaries are going to get uppity, maybe insisting that lawyers and law enforcement start following their own rules the same way that they cram them down the suckers's throats. Watch it, bubele."

Next, give us a discourse on how CP "has a legal right" to be at the YFZ ranch even though the originating call, the "probable cause" that drove the raid, was a hoax. The economists have a phrase for this: "perverse incentives," which, translated into legalese is:

"Law? What do we care for law? Hain't we got the power? None of us are gonna go to jail if we screw up. At worst we'll be like that fool in Atlanta who confessed to helping frame that 92 year old lady who was shot to death by the cops and who dind't have no rights to defend herself against cops who framed her. [She shoulda let them arrest her and then prove herself innnocent and then sue the department (i.e. Atlanta's taxpayers)] The fool who confessed got a few years for lying to investigators, nothing for being part of a gang that killed a woman. That's the real crime, lying to law enforcement, not killing a 92 year old lady."

As you write, there will often be consequences to such pettifoggery and disingenuousness. Not distrust of law. Law is just words on paper, incapable of hurting anyone. No, it will breed distrust of those who administer law, insisting that hapless citizens follow it strictly while carefully exempting themselves from any mistakes, and playing definitional games whose end is "Gotcha!"

I better haul up here, as I am likely emitting more heat than light. But my God "DRJ," go and pray for a little humility. Law enforcement is a horrendously difficult task, which is not made any easier by considering the citizery just so many cattle to be herded, preferably with cattle prods.

Sincerely yours,
Gregory Koster
(not of CUNY)

(20) Beldar made the following comment | May 26, 2008 6:16:12 PM | Permalink

Grits: I appreciate your comment, because it shows how these terms might be misunderstood by those not familiar with legal terms of art.

But you're just going to have to take my, DRJ's, and other licensed lawyers' word for it: Given the procedural posture of the case right now, the most appropriate way that the parents could challenge the temporary custody order granted after the adversary hearing was through a mandamus proceeding. That's different than a regular appeal (in ways that this panel mostly ignored, but that's another story). Given that it was a mandamus proceeding, there quite literally was no way that the parents could have won with anything less than a finding by the court of appeals that the trial judge had "abused her discretion." In this particular context, where there's a statute that prescribes the trial court's power and the limits to that power, this was indeed simply the equivalent of the appellate judges saying "the trial judge was wrong." Nothing more.

Prof. Volokh, however, ought to be familiar with this term and this legal context, and he should know better than to describe this as a case where there was a "rebuke" issued. It just wasn't. The opinion is as dry and methodical as was conceivable while still reaching a result that overturned the trial judge.

Appellate judges do know how to scold. But they generally try to avoid doing that. They generally try just to call the balls and strikes, the runs and the outs, without dramatic gloss. The Houston Astros lost at home to Philly yesterday by 15 to 6, but the fans understand that that final score isn't fairly read as a suggestion by the umpire crew to Drayton McClain that he ought to fire the Astros' manager or to start hiring more big-dollar free agents. Maybe McClain should, or maybe he shouldn't, but it's just a fantasy to pretend that the umps were taking a position on those subjects when they announced yesterday's score.

Similarly, the Department lost this mandamus decision decisively, but there wasn't any extra measure of scolding or drama thrown in by the appellate court. Pundits and press and public may hunger for that sort of drama because the underlying case generates such strong feelings. But there's no basis in the text of this decision to project such feelings and opinions onto the appellate judges.

And everyone who's assuming the decision this week means that the Department is certain, or even likely, to lose all of the battles in this conflict is dreaming.

(21) DRJ made the following comment | May 26, 2008 8:11:05 PM | Permalink

Mr. Koster,

I can tell you are upset by this case but that's not my fault.

(22) DRJ made the following comment | May 26, 2008 8:16:31 PM | Permalink


I have no idea if the authorities went to the ranch in good faith but that doesn't mean they could ignore the possibility it was a legitimate call. Think about the times we've seen stories of 911 operators refusing to send help because a caller was inarticulate or sounded like a child playing a prank. Calls to a shelter alleging abuse are the equivalent to 911 calls, and I'd much rather have an emergency system that over-responds.

(23) Gerl made the following comment | May 26, 2008 10:37:24 PM | Permalink

[Comment deleted. Ron Paul supporters, don't cut and paste from your own websites to re-post long articles into my comments. First and only warning to you, "Gerl," before I ban your IP. — Beldar.]

(24) kbp made the following comment | May 27, 2008 1:23:07 AM | Permalink

"I have no idea if the authorities went to the ranch in good faith but that doesn't mean they could ignore the possibility it was a legitimate call."

>>> The first call telling of the life threatening beatings that had put the 16 YO in the hospital, that preganant mother of the alleged criminals child, came March 29th. The life saving crusade of 700+ men and 13 CPS workers came FIVE DAYS LATER, which was ONE DAY after the officer got around to interviewing the worker that took the calls from Sarah so he could fill out the affidavit to obtain an arrest warrant only mentioning a single SEX crime against a CHILD. This is all in the affidavit filed for the first search warrant (available to the public). I hope that gives you a better "idea".

"Think about the times we've seen stories of 911 operators refusing to send help because a caller was inarticulate or sounded like a child playing a prank. Calls to a shelter alleging abuse are the equivalent to 911 calls, and I'd much rather have an emergency system that over-responds."

>>>I included the rest of your post because it actually does relate to the YFZ case.

(25) Gregory Koster made the following comment | May 27, 2008 1:59:16 AM | Permalink

Dear DRJ: You are right, this case does arouse my ire, and it isn't your fault. What is your fault are statements like these:

"'Abuse of discretion' is a legal term and it's not the equivalent of a rebuke."

If this bare assertion is all you need to make a legal argument, anyone can be a lawyer, no license needed. Why not give us a case that does meet your standard of what a 'rebuke' is. Mr. Dyer is even worse, saying "But you're just going to have to take my, DRJ's, and other licensed lawyers' word for it:..." Surely there must be a case either of you could cite that would show the rest of us what a rebuke is.

Let me get away from this subject which is much too close to ad hominem. Why not respond to some of the points raised?

Mr. Dyer, being doomed, I will strap on the blindfold, light up my last cigarette (and cough like crazy because I've never smoked) and take on one of your statements, viz:

"And everyone who's assuming the decision this week means that the Department is certain, or even likely, to lose all of the battles in this conflict is dreaming.'

We agree on this, but I think for differing reasons. I think the Department will prevail in some of its battles because:

a) it is a large organization, with plenty of money, and lots of experience in the law.
b) It is facing numerous small adversaries, none of whom have any real knowledge of the law they are accused, and hence must rely on counsel to defend themselves.
c) No single counsel will have the resources CPS does.
d) Nor will defending counsel have the friends in high places that CPS does, as Gerl has pointed out, perhaps excessively.
e) by scattering the children to the far corners of the state, it makes coordinating a defense much more difficult. Given that the ranch was a collective, it seems likely to me that for many of the defendants to prevail, they will need testimony from others at the ranch.
f) because the appellate court did not order the return of the children to their parents, CPS can take the offensive in its public relations, saying, "If the ranch was innocent, the courts would have released all the kids."
g) the ranch is an extreme sect of a religion that, as Mitt Romney's run for the White House this year has shown, is viewed with suspicion by many. The appeal to prejudice by CPS is easy.
h) CPS, having flatly failed its first hurdle, now has an institutional incentive to prove itself right. Does this mean cutting corners? We may never know. But the temptation is there, and the death penalty, drug possession, and Duke University cases show that the odds of cut corners ever coming to light is heavily in favor of CPS.
i) oh yes---there may actually be crimes committed that CPS can prove, after all its running wild.

You may think this entirely too cynical, and I wouldn't blame you. I, a nonlawyer, do not see the day to day work of courts as you, a hardworking lawyer, do. Reading about the Duke, or the Atlanta cases, makes me prone to see the worst. The worst does happen. So does the best. But the balancing is not easy, because the failures of our judicial system are not, in theory, balanced by its undoubted successes.

I hope the heat/light ratio is higher in this post. Certainly the longwindedness is.

Sincerely yours,
Gregory Koster
(not of CUNY)

(26) nk made the following comment | May 27, 2008 9:01:16 AM | Permalink


If the petition for writ of mandamus was the only meaningful avenue of appeal then no, the court of appeals decision was not a rebuke. In a more leisurely case, where important individual rights were not immediately in jeopardy, the trial court could certify questions for interlocutory appeal or the parties could wait for final judgment. This is obviously not such a case. It seems to me that the trial court would be grateful for rather than resentful of the guidance.

Abuse of discretion is a standard of review which is binding on the appellate court. It's at the other end of the spectrum from review de novo. It looks at how the trial court applied the law to the evidence. Its intent is to prevent the appellate court from retrying the case, giving the trial judge every benefit of the doubt as to the facts.

However, and this is a big however, there is no such deference on questions of law. If it's clear on the record that the trial court did not follow or misinterpreted the law to the substantial prejudice of the appellant then it makes no difference what standard of review is used. The decision will reflect badly on the trial court only in those instances where the error was due to bad faith, unreasonableness and capriciousness on the part of the trial judge. Did the court of appeals say anything of that kind here?

I can tell you of situations where the only avenue of immediate appeal of a temporary restraining order or preliminary injunction is for the enjoined party to be held in contempt. If the contempt citation is affirmed, it is not a statement that the contemnor did not show sufficient respect to the court. Just that he was wrong about the law and court was right.

Hope this helps.

(27) LazyMF made the following comment | May 27, 2008 10:35:35 AM | Permalink


Yes, I picked that name.

I will let you know one reason some mothers are being cheeky about their identities. CPS came on to the ranch and scooped up everyone that looked like a minor. This included several young mothers who are as old as 25 years. Those young mothers that are over 18, but were swept up with their own infants, are allowed to live with their infants in shelters. However, when CPS finds out they are over 18 (as they have been doing over the last week or so in the 60 day hearings), they separate the young mothers from the infant.

What would you do if you were the mother - say nothing and stay with your newborn, or help the CPS?

The way the district courts and the CPS have handled this case is a constitutional abomination. You will eventually learn the facts.

(28) DRJ made the following comment | May 27, 2008 10:58:21 AM | Permalink


Every report has stated no children under 1 have been separated from their mothers.

Mr. Koster,

I don't talk to people who gratuitously insult me.

(29) DRJ made the following comment | May 27, 2008 11:04:24 AM | Permalink


The facts may be clear in hindsight but that doesn't mean they were clear at the time. It's my understanding the calls continued to come from "Sarah" even after the FLDS members were relocated to San Angelo and that she even claimed she was in San Angelo.

(30) LazyMF made the following comment | May 27, 2008 11:29:45 AM | Permalink


1. "Every report" is wrong.

2. The state admits the following about the outcry call:

"Sarah" was in Colorado Springs at the time she made the call to the San Angelo women's shelter. She had also made several calls to the same shelter over the 3 months period preceding the call that was the impetus for the raid.

"Sarah" has been convicted in 3 states for making false reports of sexual misconduct against her father, uncle, and other groups she has been associated with. She is a serial false complaint criminal (the State did not know of her history before the raid).

The man "Sarah" complained of lived in Arizona at the time of the complaint. He had not been to Texas for over 20 years and had never been to the YFZ Ranch. He had been convicted in Arizona for child abuse and was on probation, checking in regularly with his probation officers and not allowed to leave Arizona. The sheriff called the Arizona man on his cell phone they day before the raid and verified his identity and the fact he was in Arizona. The man gave the sheriff contact information for his probation officers. The day after the raid, the man met with his probation officers in Arizona.

(31) Gregory Koster made the following comment | May 27, 2008 1:00:50 PM | Permalink

Dear NK: Many thanks for your explanation, which did clear up some things for me.

Sincerely yours,
Gregory Koster

(32) DRJ made the following comment | May 27, 2008 4:24:13 PM | Permalink


I'm aware the calls were a hoax. My point was that the authorities couldn't be sure of that at the time.

(33) DRJ made the following comment | May 27, 2008 8:40:46 PM | Permalink

Here's a link to the Texas Department of Family and Protective Services Reply Brief filed today with the Texas Supreme Court.

(34) DRJ made the following comment | May 27, 2008 8:42:20 PM | Permalink

Correction: I'm sorry. I should have described the link as a Reply, not a Reply Brief.

(35) kbp made the following comment | May 27, 2008 9:05:17 PM | Permalink


The only "hindsight" here is the call was ignored UNTIL the authorities had their SEX / CHILD warrants and an army ready.

It was clear on April 29th that:

Sarah called the shelter;

Told of physical beatingS (plural);

She told she was 16 YO;

She had to go to the hospital;

She was pregnant.

The rest of what I commented on was the record of conduct by officers looking to "save Sarah".

Your comments on the 911 and emergency calls showed cleary they FAILED in this case.

It was a clear fact to all involved that the call to report life threatening physical beatings was left unattended FOREVER and that they did not go on to the ranch to "save Sarah" ever, but they did drop in FIVE DAYS.

(36) kbp made the following comment | May 27, 2008 9:09:23 PM | Permalink

and here's the Sur-Reply

The latest filed by TRLA, to identify the inaccuracies provided by the CPS law crew.

(37) hunter made the following comment | May 27, 2008 9:33:56 PM | Permalink

If the account given by LAzyMF is true, then DPS and CPS were cynically deliberately fabricating an excuse to raid the ranch.
They were not surprised by what they 'found' since they showed up with massive paramilitary force. They set out to steal the children. If LazyMF's account is correct, then every day that goes by with the children dispersed around the state of Texas is committing an historic act of state terror.

(38) nk made the following comment | May 27, 2008 9:36:52 PM | Permalink

This case is really weirding me out. I don't know how prepared my own State of Illinois would be to deal with perverts forcing their teenage daughters into harems. The last time it came up, about 160 years ago, the people simply lynched Joseph Smith.

(39) DRJ made the following comment | May 27, 2008 10:11:58 PM | Permalink

I have come to the conclusion that this thread is infested with conspiracy nuts.

(40) nk made the following comment | May 27, 2008 10:27:13 PM | Permalink

They are not to blame. That Chinese-made aluminum foil does not have the mind numbing ray blocking capability of good old Reynolds Aluminum Wrap.

(41) kbp made the following comment | May 28, 2008 12:27:04 AM | Permalink


I have not seen it reported that Swinter "...had also made several calls to the same shelter over the 3 months period preceding the call that was the impetus for the raid."


You are simply short on being aware of the facts in this case that are public knowledge. Every thing I posted are documented facts provided from public records produced by the authorities handling the case.

I'll email you so you can contact me to obtain any records need to vefify what i posted.

(42) kbp made the following comment | May 28, 2008 12:35:55 AM | Permalink

Sorry, should read:

"...any records needed to verify what I posted."

(43) DRJ made the following comment | May 28, 2008 10:56:51 AM | Permalink


I already agreed that I think Sarah's calls were a hoax but if you have information that shows the Texas Rangers and CPS knew they were false from the beginning, please post your links here.

(44) DRJ made the following comment | May 28, 2008 5:59:43 PM | Permalink

The Austin American-Statesman reports that the Texas Supreme Court has asked the attorneys for the FLDS parents to file a response brief by 9 AM Thursday morning addressing whether the Third Court of Appeals abused its discretion in overturning Judge Walther's removal order. The Statesman suggests this means the Court will rule Thursday or Friday.

I don't know when the Court will rule but this does suggest the Court is going to address more than procedural matters. It also means the FLDS attorneys will be up all night writing their response. No matter how the Court rules, it should be interesting.

(45) kbp made the following comment | May 29, 2008 1:07:30 AM | Permalink

"up all night"

Unless they had it ready & waiting for the court to ask for it, because I'm certain they knew the SCOT could not rule without their response.

On my offer to share any information I have collected, I assume you have no specific need for it. I am uncertain what parts, if any, of my comments you have seen the evidence that supports them.

I can not prove to you they knew Sarah's call was a hoax if you can't or won't point out where you feel I am inaccurate, need sources to share, or won't even provide alternate explanations for the actions in the records.

The most problematic factor is that Sarah called March 29th reporting life threatening abuse and the Sheriff responded April 3rd.

Hopefully you know there are 31 days in March, so you can determine without any help that April 3rd was 5 days later.

(46) LazyMF made the following comment | May 29, 2008 10:23:42 AM | Permalink

kbp, I refer you to the petition for writ of habeas corpus filed in Bexar County last week by the mothers immediately after the 3rd COA ruling. The Bexar County district court stayed the habeas proceeding pending the ruling by the TSC. The document is public record, and very interesting read regarding background facts. The media hasn't reported on it as far as I know, but it is public record.

(47) kbp made the following comment | May 29, 2008 2:21:43 PM | Permalink

I assume you're responding to my comment of:

"I have not seen it reported that Swinter "...had also made several calls to the same shelter over the 3 months period preceding the call that was the impetus for the raid.""

Whether you are or not, a link to the public record in Bexar County district court would be deeply appreciated, if available. :)

(48) DRJ made the following comment | May 29, 2008 2:52:26 PM | Permalink


I will be happy to read any links and information you want to share but I'm not going to discuss it with you via email. If you have something you want to share, share it here for everyone to read.

The sum total of your theory seems to be that the Texas authorities had 5 days to investigate Sarah's call, which is enough to learn it was fake. I think that's a simplistic view of how law enforcement works but you may be right. On the other hand, if you read what contemporaneous reports, it's believable that the authorities were trying to investigate the call and organize a legal response - with an emphasis on the latter. Law enforcement's job is to react to calls for help first and investigate/unravel what happened later.

In this case, it's my understanding that Sarah called several times beginning March 28 or 29 and her calls continued for many days. On March 31 or April 1, local authorities apparently called in the Texas Rangers who were given the responsibility of serving a search warrant on the YFZ Ranch. The Texas Ranger who was in charge of serving the search warrant issued because of Sarah's calls, Ranger Capt. Barry Caver, said in an interview on April 10, 2008, that he was given 2 days notice to prepare for and serve the search warrant on the FLDS members at the YFZ ranch. As noted in the linked article, Capt. Caver had previously been in regular contact with the FLDS members, presumably along with local Sheriff Doran, but Caver was concerned about this contact because "we weren't sure what kind of resistance to expect....we'd never had any problems in the past, but at this point in time, we'd never forced our way onto the property with a search warrant either."

Capt. Caver was a logical choice to implement the FLDS search warrant. Authorities no doubt remember what happened to the federal government in Waco in the David Koresh matter. Since Waco, Texas also had another "stand-off" - this time with a Republic of Texas group in far West Texas. Capt. Caver was the Texas Ranger in charge of the ROT case and, as detailed in this article from the Texas Ranger Dispatch Magazine, it was resolved in a much better manner than Waco.

Capt. Caver learned in the ROT stand-off to prepare for the worst and expect the best. I suspect that's why he had so many law enforcement personnel available and why he called on the Midland County Sheriff's armored personnel carrier - the same one he used in the ROT stand-off - just in case. As you can tell from the last link and the earlier link where Capt. Caver discussed his techniques, the armored personnel carrier served its purpose. It sent the message that the Rangers were serious about serving the search warrant but also that they were not there to harm anyone, which is probably why the FLDS boys were allowed to peek inside and were given a tour of the carrier.

kbp, it seems you've decided the Texas authorities are dishonest, evil scum. You are entitled to your opinion but I disagree. Let's leave it at that, okay?

(49) LazyMF made the following comment | May 29, 2008 3:14:11 PM | Permalink


Sheriff Doran is the Scleichter County Sheriff. Prior to executing the warrant he personally telephoned the alleged abuser and verified his identity and whereabouts in Arizona.

I'm not going to comment on jurisdictional and command control issues regarding the Texas Rangers b/c I am ignorant of same. I will say, however, that painting this with a broad brush of Waco/Koreash may not have been wise. I am unaware of any violent acts between FLDS adherents and law enforcement, even when the State of Arizona took similar action in 1953. There are also those that argue the overbearing law enforcement presence at Waco was a catalyst for the events there.

(50) DRJ made the following comment | May 29, 2008 3:22:12 PM | Permalink

By the way, kbp, I agree the FLDS attorneys had probably briefed the legal issues covered in the Response Brief they filed today but there's no evidence they intended to file a response - beyond the 2 they had already filed - let alone a brief.

The Texas Supreme Court could have ruled anytime this week but, instead, the Court requested a brief (which is different from and more complicated than a response) from the FLDS attorneys on the specific issue of whether the Third Court of Appeals' action was an abuse of discretion. To me, that suggests the Texas Supreme Court intends to address that issue in its ruling, although I don't think it signals which way the Court will rule.

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