5/28 09 – TG: Lawyer expects activity in Alamo civil case
Texarkana Gazette
May 28, 2009
By: Lynn LaRowe
Lawyer expects activity in Alamo civil case
The attorney representing Tony Alamo Christian Ministries in a civil lawsuit against the Arkansas Department of Human Services expects a flurry of activity in the case over the next several days.
The suit, filed in April by Florida lawyer Phillip Kuhn on behalf of the church and two fathers whose children are in foster care, accuses DHS of violating the civil rights of parents and of using a child abuse investigation to disband the church. It asks the court over which U.S. District Judge Harry Barnes presides in the Western District of Arkansas’ Texarkana division to issue an injunction preventing the seizure of any more children of Alamo devotees by DHS without first conducting a hearing.
“They’re planning to file a motion to stay discovery and a motion to dismiss,” Kuhn said. “They don’t want to have to answer questions or provide documents until the matter of jurisdiction has been decided.”
In an answer to the complaint, DHS asserts the suit is an attempt to get a federal court to meddle in state custody proceedings.
Kuhn said DHS is unwilling to hand over evidence until Barnes decides whether the case should be heard in federal court.
“They were real cooperative until we started hitting them with all the records requests,” Kuhn said.“We’ll file responses to their motions Friday.”
Kuhn said he and DHS attorney James Brader of Little Rock had previously scheduled depositions of DHS staff to begin Tuesday. Kuhn said he hopes Barnes will rule before then.
A deposition is a formal questioning of a witness believed to have information important to a case.
Kuhn said he is surprised DHS filed an answer to the suit before filing a motion to dismiss. He said defendants usually file a motion to dismiss prior to an answer.
If a motion to dismiss is denied, then an answer is filed, Kuhn said. Until a defendant answers a suit, the discovery process, or exchange of evidence, doesn’t begin until an answer is on record.
“When they filed the answer, that triggered discovery,” Kuhn said.“They’ve kind of gone about this whole thing backwards.”
Kuhn also expressed suspicion that the documents DHS is reluctant to hand over may contain information helpful to his clients.
Tuesday, Barnes scheduled the case for a bench trial in May 2010.
Kuhn filed a motion the same day asking for a hearing to address his request for a temporary restraining order that would prohibit DHS from removing children on an emergency basis from church loyalists.
Kuhn said he wasn’t aware Barnes had set the case for trial when he asked for the hearing on a temporary restraining order.
Wednesday, Kuhn filed a motion objecting to the scheduling order if Barnes’ May 2010 trial date was meant to be the first time a court order barring the taking of more children might be considered.
“The complaint and the motion … allege taking into state custody newborn babies of members of the (ministry). One member is scheduled to give birth in the next four weeks. The scheduling order on the face denies her the protection of the injunction,” the motion said.“Other members will undoubtedly become pregnant within the time frame of the order and they too will be denied the court’s protection … The church is being damaged because no pregnant women will join the church if they think their newborns are in jeopardy from state action.”
In the answer filed earlier this month by Brader on behalf of DHS, the agency denies existence of a policy to remove babies at the moment of birth from an Alamo-following mother.