Topic: Law and Civil Liberties

Texas Supreme Court: Return the Children

Yesterday, the Supreme Court of Texas ruled that Child Protective Services (CPS) abused its discretion by seizing 468 children from the Fundamentalist Church of Latter Day Saints ranch in Eldorado. Eugene Volokh has a roundup of the legal analysis.

I wrote about this case a few days ago at NRO, but space limitations kept me from going into more detail about how the women and children were treated while in state custody. For those who have not followed this matter closely, the children were seized by CPS but the mothers were ”permitted” to remain with their children on the condition that they comply with all CPS rules and commands. 

CPS invited some mental health workers to the various shelters to help care for the hundreds of children. The mental health workers were disturbed by what they saw of CPS’s treatment of the women and children, and their written reports corroborate the bitter complaints of the FLDS mothers. I don’t think the news media has given this aspect of the story the attention it deserves — so here are some excerpts from the various reports that have been made public:

  • “Women were constantly lied to about where their children [were] and when they could see their lawyers and about when they would be reunited with their children.”
  • “Constant reminders that the adult women were only guests and that they were not in charge of the children and what CPS did to them. [The children] belonged to CPS now and they could talk, interrogate, separate and treat them any way [CPS] wanted. This included physical exams and x-rays without [parental] supervision.”
  • “I sat with Audrey while three of her children were removed for six hours of questioning.” 
  • “The children arrived healthy and happy and left sick and crying.”
  • “The door to the room was almost constantly open. Even when the women closed the door to reduce noise during naptime or to dress themselves or the children, it was almost immediately opened again [by a CPS worker].”

  • “The women were lied to and denied access to their attorneys.”
  • “At least 5 mothers reported that at night CPS [workers] circled their beds, held flashlight in their faces & then would sit inches away from them as they tried to sleep. Mothers reported that they were scared CPS would take their children during the night.”
  • “The CPS workers were openly rude to the mothers and the children, yelled at them for trying to wave to friends and family members in surrounding shelters, threatened them with arrest if they did not stop waving to others, continually reminded them that the women were guests only and could be made to leave if they did not cooperate, threatened the mothers with never seeing their children again if they did not cooperate, and ignored requests for anything.”
  • “The children were amazingly clean, happy, healthy, energetic, inquisitive, well behaved, and self-confident; while the mothers were consistently calm, patient, and loving with their children.”
  • “Living conditions in the coliseum were not conducive to good health for anyone, and the presence of hostile CPS workers who spied on them constantly, kept them awake at night by shining lights in their faces and talking and laughing created enormous stress for the mothers and children.  None of them slept well or enough.”
  • “Try to imagine all these children from age 1 to 12 years, left in that coliseum [separated from their mothers] with only CPS and [police officers] to care for them. The only others were mothers whom CPS decided were under 18 and kept in their custody along with their children. The floor was literally slick with tears in places. A baby was left in a stroller without food and water for 24 hours and ended up in the hospital. A 4 year old boy was so terrified that he snuck away and hid and was only found after the coliseum had been emptied the next day.”
  • “I witnessed a young mother named Rosinith be required by CPS to board the bus back to the ranch, though her young child was in the hospital with 104 degree fever and even though the child’s physician had personally requested the mother’s presence at the hospital. This event haunts me still, and I cannot imagine such a heartless act.”
  • “By the second day, I was ready to run in front of the CNN cameras to shout that there was a travesty happening inside those walls…. Of course I was cautioned not to interfere in a ‘crime scene investigation.’”
  • “I have always been proud to be an American and a Texan but this incident is not what America or Texas stands for and something must be done to undo the horrible injustice that has been done.”

CPS denies the allegations of mistreatment. But the excerpts above are eyewitness reports from objective/disinterested social workers that CPS invited into the shelters. 

Alaska Will Not Implement REAL ID

Passed into law Wednesday:

Section 1. AS 44.99 is amended by adding a new section to article 1 to read:

4 Sec. 44.99.040. Limitation on certain state expenditures. A state agency may not expend funds solely for the purpose of implementing or aiding in the implementation of the requirements of the federal Real ID Act of 2005 (P.L. 109-13, Division B).

“Dog Bites Man” Passes for Legal News These Days

“The Supreme Court this week made big news because it hardly changed the law at all,” reports The Washington Post. “The court broke no new ground in deciding that workers are protected from retaliation for complaining about discrimination, just as they are protected from discrimination itself.”  The story goes on to quote part of this press release that I wrote yesterday:

The Gómez-Pérez and Humphries rulings reinforce what should be readily apparent to objective Court-watchers: The Roberts Court is neither necessarily “pro-business” nor “conservative.” Instead, the Court evaluates the legal merits of each case and rules accordingly. Even where the Chief Justice disagreed with his colleagues (and notably with an opinion written by Justice Alito), in the Gómez-Pérez case, the disagreement was a technical one over statutory language and structure – and not anything that involves judicial philosophy or competing theories of constitutional interpretation. The most interesting thing to note from these cases is the difference in the justices’ views of stare decisis, the principle that the Court places heavy weight on its own precedent. Whereas Chief Justice Roberts and Justice Alito (and perhaps others) no doubt disagreed with the precedent upon which the Humphries decision relied, they went along with Justice Breyer’s reasoning that such disagreement over statutory interpretation does not justify overturning precedent. Justices Scalia and Thomas, on the other hand, consider that the risk to legal stability from overturning precedent to be less than the harm from perpetuating the earlier error. Whatever the significance of this difference of opinion, it is not an ideological dispute.

Perhaps more importantly, as I (and apparently others) said to this reporter over the phone, Roberts and Alito are likely to be more accommodating of incorrect but established precedent when they pertain to statutory interpretation rather than constitutional rights.  This is because Congress can always itself “overrule” an erroneous body of statutory construction by passing a new law – but of course the Court has the final word on constitutional issues (barring a constitutional amendment).

More generally, though, the above analysis, relating as it does to technical statutory construction that only reinforces existing law, would not normally be front-page (or, in this case, page A2) news.  The nature of the cases to which the Roberts Court grants review, however – more technical, business issues instead of red-meat “culture war” stuff – suggests that we could be in for more “dog bites man” stories in future.

The E-Verify Debate as it Stands in Kansas

Here’s a good article in the Wichita Eagle on the debate over E-Verify, with particular reference to the state of Kansas, where the legislature recently considered requiring employers to use this system for a federal background check on all new hires.

My paper, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration,” is here.

Government Pensions

The Washington Post reports that a local police officer has been convicted of shooting and killing an unarmed furniture deliveryman.  The judge handed down a sentence of 45 years imprisonment.  But get this:

His disability benefits and police pension are not affected by his convictions, county spokesman John Erzen said.

So taxpayers must keep paying this guy’s pension?  Good grief.  Are there any circumstances in which a government employee’s pension can be canceled?

Don’t Talk to the Police?

Professor James Duane has posted a terrific lecture about the Fifth Amendment’s safeguard concerning self-incrimination and the risk of “waiving” that right by speaking to the police.

If you want to divulge your Social Security number and other personal information to a stranger who telephones your home, that’s your choice.  You can choose to ignore common sense and risk identity theft.  Dealing with the police raises similar risks, as Prof. Duane shows.  It’s one thing for you to initiate the encounter, such as by calling the police about your stolen car.  But when the police initiate the encounter, it’s a minefield.   Watch out. 

The Supreme Court should make it as plain as possible that people have the right to remain silent.  Unfortunately, the Court is creating a situation where only lawyers will know when they must talk and when they can remain silent. 

For additional information, go here.

Abuse of Discretion in Texas

Yesterday a Texas appeals court finally put a stop to the high-handed seizure of 400+ children in Eldorado.  The Court said there was simply no evidence that the boys or the very young kids–infants and toddlers–were in such immediate danger so as to justify their transfer into foster care pending the outcome of on-going legal proceedings.

Eugene Volokh notes that criminal charges remain a possibility.  Yes, let the investigation continue.  But let’s keep the presumption of innocence intact and await some clear evidence.

Related podcast here.  Related article here.