In re Tex. Dep’t of Family and Protective Servs., No. 08-0391 (orig. proceeding) (per curiam) -and-

In re Tex. Dep’t of Family and Protective Servs., No. 08-0403 (orig. proceeding) (per curiam)

Decided: May 29, 2008

Today, the Court denied the Department’s request for mandamus relief, issuing a per curiam decision. In addition, Justice O’Neill wrote an opinion concurring in part and dissenting in part, which was joined by Justices Johnson and Willett.

The Court did not walk through the nuances of the factual disputes, instead summarizing that “having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted.”

What the Court did do was emphasize that the district court still has other tools at its disposal to deal on a case-by-case basis with the sorts of concerns raised by the Department:

The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The court may make and modify temporary orders “for the safety and welfare of the child”, including an order “restraining a party from removing the child beyond a geographical area identified by the court”. The court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense.

While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief.

Justice O’Neill’s opinion would have instead split its result. As to the male children and “pre-pubescent” female children, the Justice O’Neill would have agreed with the Court that the evidence was lacking. But as to the “pubescent” female children, Justice O’Neill would have found that the evidence — coupled with the lack of cooperation during initial investigations by CPS — made CPS’s decision about how to proceed a reasonable one under the statute.

In re Tex. Dep’t of Fam. & Protective Health Servs., No. 08-0391 (orig. proceeding)

Response Requested: May 28, 2008

This afternoon, the Court requested that the mothers file a response to the State’s petition for mandamus — by tomorrow at 9:00am. That short timeline is not incredibly unusual in mandamus actions (for which speed is often critical) and it doesn’t necessarily tip the Court’s hand.

What the Court has done is to expand its range of options. Typically, the Court will not grant mandamus relief until after it has at least requested that the party opposed to relief file a response. See Tex. R. App. P. 52.4 (“The court must not grant relief — other than temporary relief — before a response has been filed or requested by the court.”). Having requested a response, the rules now give the Court more latitude to grant the requested mandamus relief for the State in full, rather than just a temporary stay.

So does that signal that the Court is leaning one way or the other? Perhaps not. Typically, the Court will request a response if even a single Justice votes to do so, and it is easy to imagine the Court wanting to see what the mothers have to say about the merits before deciding how to dispose of this case.

Update 5/29: Here’s a link to the response, just filed, on the Court’s website.

The Texas Supreme Court has requested full briefing for In re Medical Carbon Research Institute, No. 08-0298 (discussed in this post yesterday) and also for BNSF Railway Co. v. Gunderson, Inc., No. 07-0817.

In BNSF Railways, the Second Court of Appeals affirmed the trial court’s application of Texas’s law of repose. BNSF contends that another State’s law should apply and that it should have had more time to conduct discovery to determine precisely which State’s law that is.

In re Medical Carbon Research Institute, L.L.C., No. 08-0298

Stay Issued: May 27, 2008

This mandamus petition concerns a contractual choice-of-forum clause that (the relators contend) should be enforced under Texas’s “major transaction” statute. See Tex. Civ. Prac. & Rem. Code § 15.020. Like many commercial relationships, this one involved a number of contracts. The court of appeals denied mandamus relief, concluding that the contract containing the forum-selection clause could not have been implicated here because it was not even signed “until weeks after suit was filed.” In re Medical Carbon Research Institute, L.L.C., No. 14-08-00104-CV (Tex. App.—Houston [14th Dist.]) (orig. proceeding) (per curiam).

Today, the Texas Supreme Court issued a stay.

Update 5/28: The Court also requested full briefing on the merits.

Last week, I wrote about In re Loban, No. 08-0336 which was one of the few cases in which the Court had requested briefing in the past month.

This past week, the Court really made up for lost time, requesting full briefing in eighteen cases. I guess that makes Memorial Day Weekend a little happier for the petitioners (although maybe not for the associates on these cases.)

For the curious, or those who are wondering what issues the Court is considering seriously enough to take a second look, a list of the cases follows the jump.

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In re Tex. Dep’t of Fam. & Protective Health Servs., No. 08-0391 (orig. proceeding)

Filed: May 23, 2008

This afternoon, the Texas Department of Family & Protective Health Services sought mandamus relief from the Texas Supreme Court to overturn yesterday’s decision of the Austin Court. The State also sought an emergency stay.

The Austin paper has this brief post, as well as links to the Department’s petition for mandamus and its motion for emergency relief.

Update 5-24: Here is the response to the State’s motion. The Court’s docket sheet is now also online, as is a page with the electronic versions of the briefs (which should be updated if more briefs are filed).

On reading through the State’s papers, I was struck that they are sticking to their argument that — for most of these children — the FLDS belief system is sufficient evidence for the State to take custody. That seems like a dangerously thin argument, especially given the constitutional problem with relying on religious beliefs as the motivating basis for a government decision. As far as I can tell, “belief” is the booster that the State uses to turn pregnant teenagers into an assumption that each pregnancy resulted from child abuse (which is not the assumption the State makes about pregnant teenagers in Texas high schools; there is no mass movement to seize custody of them on some assumption that their parents’ peers rather than their own were the fathers). And “belief” is also the glue used to try to transform the evidence about those pregnant children into evidence of a risk to all other children — including those too young (or too male) to themselves become pregnant anytime soon.

If you piece together the State’s argument, it is: “Any reasonable person would be appalled at these beliefs and find them dangerous. The appellate court can’t second-guess that.”

I wouldn’t be terribly surprised if the Court granted emergency relief just to have a few days to process this request but then rather quickly denied review. The dilemma would be how long would be fair to consider the merits — the harm, after all, is the separation.

In re Citigroup Global Markets, No. 06-0886 (per curiam) (orig. proceeding)

Decided: May 16, 2008

The court of appeals held that Citigroup’s (successful) attempt to remove a case to federal court, its (successful) attempt to get an MDL transfer of that case, and then its (successful) request that the MDL court remand the case back to state court was enough to waive an arbitration clause. The Texas Supreme Court disagreed, granting mandamus relief in a per curiam opinion. The Court emphasized that Citigroup had not conducted any discovery or sought relief on the merits but had instead merely engaged in jurisdictional skirmishes.

You may also want to read the summary of this case on Disputing, a blog focusing on alternative dispute resolution.

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In re Steed, No. 03-08-00235-CV (Tex. App.—Austin) (orig. proceeding)

Mandamus Issued: May 22, 2008

It was a per curiam opinion of the Third Court in Austin. The opinion came out today at 11:30AM.

In a nutshell, the Court held that the State had failed to carry its burden that all of the children were in physical danger, placing stress on the word “physical.” The Court concluded that the State had tried to substitute evidence about the FLDS system of beliefs, but that the existence of those beliefs did not discharge the State’s heavy burden here:

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 Court issued mandamus relief to vacate the district court’s award of custody to the Department of Family and Protective Services.

Because the Court decided this question on statutory grounds of insufficiency of evidence, it did not need to reach the more sweeping constitutional questions that seem fairly implicated here.

The next step is up to the Department.