Possible federal suit over FLDS

The Star-Telegram has an article titled “Polygamist sect to sue government officials over raid.” The article suggests that some members of the group may seek damages to pay for counseling for children or for property damage.

The article has some mention of strategy and sovereign immunity, but (at least through the filter of a newspaper article) it sounded like a federal civil-rights suit was in the works.

Abbott v. Abbott

The Houston Chronicle has noticed that the AG’s office represents state agencies who challenge open records determinations — which, by statute, are made by a different branch of the AG’s office.

A piece by Rick Casey focuses on a recent TCEQ suit arguing that it need not disclose certain information to a state legislator. The piece aims most of its fire at TCEQ’s position on open records than at the AG’s office for representing both sides, but there’s a little collateral damage.

There is a similar dual-representation situation in the pending petition Texas Comptroller of Public Accounts v. Attorney General of Texas, No. 08-0172. Both sides were dissatisfied with this court of appeals ruling and are seeking review. Responses to the two petitions have just been filed.

I’ve learned there is a new appellate blog in Texas, this one with a special focus a little to the east. The blog is Tyler Appeals written by Jeff Rambin, and its welcome page says that one “goal is to provide a summary of every case decided by the 12th Court of Appeals. So far, I’ve done that for 2008.” (I sure wish I could say the same about my Court.)

In addition, Jeff has written some in-depth articles about cases of particular interest. For example, a post from about a week ago titled “Constitutional Problem with Family Code § 263.405?” talks about a recent parental-rights termination case involving how a parent can get a free copy of the trial record to use on appeal. To do so, the parent must convince the Court not only of his or her indigence but also that the appellate points are non-frivolous. But to do the latter, the parent must often already have a copy of the record — a situation the court called a “conundrum.”

And there is, as Jeff notes in his posting, already a Texas Supreme Court connection. A similar issue is raised in the pending petitions In re F.C.G., No. 07-0882 (from the Eastland Court) and In re B.G., No. 07-0960 (an earlier decision from the Tyler Court), both of which have drawn enough interest from the Court to receive requests for full briefing on the merits. Those petitions were also mentioned very briefly in this earlier post on my blog.

It’s easy to find newspaper stories recapping the Court’s relatively brief opinions in the case. Here are some articles with a somewhat different analytical take:

• Volokh Conspiracy: Professor Eugene Volokh tries to put his finger on the disagreement between the majority and dissenting Justices and finds it in the notion of what makes a single “household.”

  Here’s how he sums up his argument:

  So this is why it seems to me that the heart of the partial dissenters’ argument must be that “the Ranch” is different from a normal neighborhood, presumably because it counts as a single “household” (something the dissenters don’t expressly say, but that they seem to point to by reference to behavior “on the Ranch” coupled with the mention of the “household” principle in note 2). And the majority’s disagreement, I expect, probably stems partly from the majority’s accepting the court of appeals’ contrary view that the Ranch consists of many separate households.

  Now I can’t speak with confidence about how dispositive the “single household” vs. “multiple households” distinctions ought to be, or how the lines ought to be drawn in close cases if the distinction is used. But my sense is that this issue — which more broadly relates to the degree of responsibility that can be ascribed to any particular child’s parents for the abusive or neglectful actions of other parents in their community — is what the dispute in this particular stage of litigation is really about.

  (If you’re looking for more analysis of the other issues lurking in the case, here is a collection of all the Volokh Conspiracy posts related to the case.)

• From a publication on the other side of the political spectrum — and by an author on other side of the academic/experience divide — is this piece by a self-described “former member of the FLDS … who was forced to marry at age fourteen” (Elissa Wall). She also just got a movie deal.

• The Wall Street Journal has an article today focusing on CPS’s reaction to the case. You might occasionally get the idea that the dissent had five votes, but that could just be how the reporter selected quotes and paraphrased sources.
  

• Dahlia Lithwick’s column, printed in the Dallas Morning News on Wednesday (and therefore only about the court of appeals’s decision), draws a loose parallel between the FLDS cases and the Guantanamo Bay cases — in terms of the best intentions of government actors getting tangled in the procedural requirements of the law.

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.

The “Airline Biz” blog of the Dallas Morning News has a long interview with Herb Keller of Southwest Airlines on the occasion of his retirement. Yesterday’s installment included his account of the litigation battles that Southwest Airlines had to win before it could take its first flight. (( Kelleher was a practicing lawyer right before co-founding the airline with one of his clients:

In 1967, [Rollin] King met with Herb Kelleher to discuss a new business venture. Kelleher was a young attorney, a transplanted Yankee who sank his roots into his wife’s hometown, San Antonio, and King was his client. [Handbook of Texas Online] ))

He describes it as a “four-year war” lasting from 1967 to 1971. “I think I had something like 31 judicial and administrative proceedings with the other carriers in four years.”

The Court with the last say before the airline’s first flight was, you may have guessed, the Texas Supreme Court:

[Herb:] If you remember, just to point up how fierce this battle was and how long it raged, I had to appear before the Texas Supreme Court to get them to issue a writ of mandamus forbidding a trial judge from enforcing his injunction which would have prevented our first flight flying on June 18.

DMN: This was a hearing on June 17, 1971?

Herb: This was a hearing on June 17, yes, exactly.

That case is Texas Aeronautics Commission v. Betts, 469 S.W.2d 394 (Tex. 1971). The Court was, in part, enforcing its prior judgment in Texas Aeronautics Commission v. Braniff Airways, Inc., 454 S.W.2d 199 (Tex. 1970), which had upheld the commission’s decision to issue a certificate to Southwest Airlines to operate. A longer account of the litigation appears in the Handbook of Texas Online.

There is an interesting guest post on the Texas Appellate Law Blog about a case out of the Texas Court of Criminal Appeals.

In Vasilas v. State, decided May 7th, the CCA held that a person could be criminally prosecuted for a false statement made in a civil filing regardless of how that same conduct would be treated under Rule 13 of the Texas Rules of Civil Procedure. The Court’s conclusion was that statutes always trump rules and, accordingly, there was no need to consider Rule 13.

I’ve already posted a comment about the case on the Texas Appellate Law Blog’s comment stream. Whatever one might think of the wisdom of its ultimate holding, the CCA’s opinion doesn’t mention or analyze the statute through which the Legislature vested rule-making power in the Supreme Court of Texas, which does set out a framework to analyze when the rules trump conflicting statutes.

The Houston Chronicle has an online article titled “Report says most Texas Supreme Court opinions anonymous”.

The “report” of the headline is from Texas Watch. The newspaper quotes the group:

“All too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters,” the group wrote in the report. “By relying too heavily on unsigned per curiam opinions, the court operates in the shadows, allowing little public scrutiny and failing to light the way for future jurists.”

Although it’s easy to see how signing an opinion would facilitate an attack ad, I’m puzzled about how signing an opinion would better “light the way for future jurists.”

When Texas Watch releases its report (the newspaper article is just a teaser), I’ll let you know if there is something interesting that isn’t already in this OCA activity report that counts the Court’s signed versus unsigned opinions for the term and also gives a breakdown by Justice (see page 4). (The real statistics are pretty interesting on their own, showing a concentration of per curiams in just a few chambers. I’m not sure how that would relate to the theme Texas Watch has chosen for this report. I’ll have to wait and see.)

Ted Cruz chooses his new law-firm home; another firm launches a “national appellate practice”

Morgan Lewis & Bockius (former holders of one of the early outstanding email-address domains) announced today that they just hired Ted Cruz to lead their new national appellate practice as a partner out of their Houston office.

This is a good thing for Ted. (I still owe him a lunch; I think it’s now official that he’s buying.)

I’m going to go out on a limb and say it’s also a good thing for appellate lawyers when another big firm recognizes this as a distinct specialty worthy of a distinct practice group. I’m finding that the biggest problem in marketing isn’t a glut of appellate lawyers but instead too little recognition of the value that an appellate specialist can bring.

Last Monday was Entergy day at the state capitol

The Texas Supreme Court has already granted rehearing, but last week the Texas Legislature held its own committee hearings with testimony from a number of witnesses about the Court’s decision in the case. (Those were a part of the interim charges given to the committees, as discussed in this earlier post.)

See: Houston Chronicle

Effect of tort reform on growth

Texans for Lawsuit Reform issued a report trying to put a more exact number on the economic benefits from lawsuit reform. The study was done by the Perryman Group.

The numbers in the study include benefits that go far beyond reduced judgment amounts:

“Business owners and taxpayers save millions of dollars by eliminating non-productive expenditures related to unnecessary litigation, including administrative costs, court costs and the waste of the time of executives and workers.”

In other words, if you’re reading this blog, you are a “cost” in this study. That was very expected. But you should be reassured that you’re only a small part of the economic picture. The study credits the vast bulk of the extra growth to its model’s prediction of all the “innovations” attributable to having a less litigious environment. (( Details about what that means, as well as some finer points about the study’s methodology, are in the full report (PDF). ))

The article “Lawsuit caps tied to Southeast Texas growth” in the Beaumont Enterprise discusses the study, gets some follow-up quotes from the Perryman Group, and also some reactions from local lawyer Walter Umphrey. (Keeping with one of today’s themes, Umphrey mentioned cited Entergy v. Summers as a particular concern.)

Other coverage: Austin Business Journal

Baylor Law lauds its Texas Supreme Court clerks

The press release “High bar passage caps week of success for Baylor Law” includes a mention of the four Baylor students who will be clerking for the Court this next term.