5/30/09 – TG: Motions filed to deny Alamo lawyer access to DHS files and depositions
Texarkana Gazette
May 30, 2009
By: Lynn LaRowe
Motions filed to deny Alamo lawyer access to DHS files and depositions
The Arkansas Department of Human Services filed a bevy of motions Friday accusing the agency of harassment and civil rights violations in the removal of children from Tony Alamo Christian Ministries.
The five motions filed by DHS ask U.S. District Judge Harry Barnes of the Western District of Arkansas’ Texarkana division to issue an order that would prevent the church’s lawyer, Phillip Kuhn of Florida, from taking depositions and receiving other evidence until the court has ruled on the issue of jurisdiction.
DHS claims the suit is an attempt to get a federal suit to interfere in state custody proceedings.
“Since the beginning of this country’s history Congress has, subject to few exceptions, manifested a desire to permit state courts to try state cases free from interference by federal courts,” one of DHS motions said, quoting an accepted legal doctrine on the issue.
“If this court grants the relief sought by TACM, an improper interference with the state court proceedings is inevitable,” a DHS motion said.
DHS argues that the suit asks the federal court to overturn state court orders.
“For example, plaintiffs ask that the defendants be ordered not to require any member of the TACM to leave their present housing or employment; that issue, however, has already been decided by the state courts and the defendants cannot ignore the valid orders of the state courts,” a motion said.
DHS asserts that granting a temporary restraining order or permanent injunction preventing the removal of children without first conducting a hearing would mean Alamo devotees with children would be treated differently than other parents accused of abuse and neglect.
Thirty-six children associated with TACM have been taken into state custody since September. Identical removal orders issued in Miller and Sebastian counties list more than 125 children.
The church’s complaint laments that parents who once served the ministry as volunteers have gone into hiding with their children and that potential members with families are deterred from joining because they fear DHS will seize their children.
Kuhn said he has scheduled depositions of the DHS administrators named as defendants in the suit for next week. He has also served DHS with subpoenas for a variety of records as part of the discovery process.
DHS has indicated it doesn’t want to hand over anything until Barnes has decided whether the case can stay in federal court.
In a response Kuhn filed shortly after DHS filed its motions, DHS is accused of using the issue of federal versus state jurisdiction to, “…fight this constitutional battle with paper swords in dark rooms. Their fondest hope and, indeed the only hope that will save them, is to convince the court to wash its hands of the factual and evidentiary realities of the case by deciding … the narrow issue of … jurisdiction.”
“The complaint asserts that the church and its members have been the subject of a patently offensive unconstitutional policy of guilt by association in violation of the First Amendment rights to associational choice, privacy integrity and the free exercise of religious preference,” the church’s response said. “The plaintiffs assert that they have been demonized by the demagoguery of a state proceeding that attributed guilt and personal culpability to individuals purely on the basis of their association with the church of their choice.”
Kuhn said he plans to appear at DHS in Little Rock Tuesday to collect the items listed in the subpoena unless Barnes issues an order preventing him from doing so.
In the response, Kuhn accuses DHS of waiting until Friday afternoon to file the motions so that there would be little time to respond before the scheduled records collection and depositions.
Kuhn asks that all of DHS’ motions be denied and that the agency be required to proceed with discovery.
If Barnes wants to hear arguments from the opposing sides, Kuhn requests that a hearing be held before 5 p.m. Monday and that he be notified via telephone of any hearing being scheduled.