JULY 2008

            Every month we receive several calls from people who have been injured and want to collect damages from someone because they were injured.  There seems to be the notion that if a person is injured, that person has the right to collect money damages.

            Many times the callers are people who have fallen in a variety of different circumstances.  In any circumstance, whether a person may be entitled to compensation has to do with whether another party was negligent, that negligence was a cause of the accident or fall, and whether that accident or fall caused the person any damage, such as an injury or loss of property.

            The two states I practice law in, Wisconsin and Illinois, are both comparative negligence states.  That means that the injured person’s negligence is compared to the other person’s negligence.  If the injured person’s negligence is equal to, or less than, the other person’s negligence, and all of the above factors are present, an injured person may be able to collect money damages for their injuries and other damages, such as healthcare bills, lost income and property damage.  (There are other specific areas of damages as well that are not gone into in this article.)

            If you have been injured in an accident, it is always good to talk to a lawyer that is knowledgeable in this area of the law.  That lawyer can answer all of your questions.  You should talk to a lawyer before you talk to anyone else about this accident, especially a representative from an insurance company.  Know your rights and obligations before you talk to an insurance company, as you can be sure that the insurance company knows its rights.  If we can be of assistance to you, please call.  We will be happy to help you.

            Please remember, just because you fell or were injured in an accident, it does not mean you automatically have a right to collect money damages for your injuries and other damages.  These circumstances often involve complex legal issues and you should consult with a lawyer.

            If we can be of assistance to you, please contact us at info@whayeslaw.com or call us toll free at 866-504-7779.

  JUNE 2008

            We are very fortunate that we live in a country where our rights are guaranteed to us, and we have access to the court system to enforce our rights.  Without a strong legal system protecting our rights, I suspect that our rights would be quickly trampled upon without a remedy.

            The point I am trying to make is that all of us want our rights protected, and when our rights are violated, we want to be able to go to court and have those rights enforced.

            In order for courts to be able to decide matters, they must hear evidence and that means people must come to court to testify.  As citizens, we have the right to compel people to come to court and give their evidence under oath.  If a person does not want to come to court as a witness, a person, or government, can compel them to come to court and give their evidence by having a subpoena served on them.  A subpoena is effectively an order of the Court, compelling that person to come to court, and under oath give their evidence.

            I am always greatly disappointed when people who have been served with subpoenas tell me they are not showing up for court.  I think over the years I have heard most of the excuses: they don’t have time; they cannot get off work; they have plans; they have a sick relative in the hospital that they need to see; and in the end, after all of the excuses are dealt with, and it has been explained, usually several times, that the subpoena requires them to lay down all business and show up for court, and their employer must let them off work, the person then states, well if you make me come, you will not like what I have to say.  How outrageous!  In effect they are saying that they will come to court and lie.  Over the years I have had many witnesses under subpoena just not show up for court.  These people are from all walks of life, educated and uneducated.  There have been doctors, factory workers, professionals and laborers, even clergy and police officers.  Usually judges do very little to these people other than warn them.  These people shut down the entire legal system in regard to that case, use up valuable court time and cause great expense not only to the people involved in the case, but also to the taxpayers.  One can feel confident if the non-appearing witness’ interests or rights were at stake they would want no less than their witnesses to show up for court as required by their subpoenas.

            Recently, we were involved in a case where we subpoenaed a high school principal to come to court and give evidence, and bring with her one of her student’s records from that school.  This high school principal did not appear as required, and has given no reason for her absence.  What a civics lesson for all those high school students.   I wonder if she is one of those people who lament that the young people today just do not accept responsibility and do just whatever they want to do.  If she ever wonders why this may occur, she has only to look in the mirror to see the role model for social irresponsibility.

            If you are ever served a subpoena to come to court and give evidence, do so with a sense of pride, that your country provides a legal system where everyone from the powerful to the powerless can come to be heard, have their evidence heard, and have their rights and interests protected.

            - Your comments are most welcome.  Let us hear from you.  Contact us at info@whayeslaw.com.

I have not read the search warrant or the search warrant return, but from the reports, it does appear the police seized records and computers of their church, as well as 465 children.  Of course we now know that not only did the police not find the alleged 16 year old victim who was supposedly asking for help, but that the original call was all a hoax and the reason the police did not find her was that she never existed.

            This woman called shortly after the Court did not return the children to their parents, even the nursing babies, despite knowing that the original phone call to the police was not true, and the search warrant was obtained by the use of that hoax.  Our caller said she was a Christian who was not a polygamist but was very concerned that this could happen to her.  She asked me if this could happen to her; that someone lie about her, say to the police that something was happening at her home which the caller would have no actual knowledge and the police come and take her children?  She was very upset that an American court, once they knew this was all a hoax, would not return the children to their parents.

            Before this all happened in Texas, I would have told her that the scenario described would probably never happen to her, but if it did she could have confidence in the court system, once the facts were known, to return her children to her.  My opinion would have been that the children would have been returned to their mother in short order.  After this Texas fiasco, I can no longer tell her this.  Yes, I told her, it appears that in 21^st century America, this can happen to you.

            Before I say more, I am not privileged to know the facts first hand.  The “facts” as I know them are as reported on T.V., primarily from CNN, CBS News and the newspaper.  I did see several lawyers who are either involved in the case or attended the hearings talk, so I do put stock in what they reported.  The other news reports I have come to believe as well, but I do have less confidence in those reports.  If the facts turn out to be something other than what I now believe them to be, then my opinion may well change.

            How does something like this happen?  One must start with the background that it appears for years the authorities have wanted to get into that compound and were unable to.  I suspect they believed that the children were being sexually abused there, and they wanted to find out.  They wanted to look at this religious order’s records.  Experience tells me that when this atmosphere exists, an environment for overzealous police action may well be the outcome.  When the fictitious 16 year old calls and tells her lies, the police wanted to believe what she said as it conformed to an already formulated belief.  The police now had the key to enter the compound, and they knew if they obtained a search warrant, even if the warrant subsequently proved to be invalid, they would be able to keep any evidence they seized.  The United States Supreme Court several years ago in a case called Leon, carved out a good faith exception to the 4^th Amendment to the Constitution that protects us from unreasonable searches and seizures by the government.  The stage is now set.

            It is always a noble endeavor to want to protect children from abuse, especially sexual abuse.  Government, it seems to me, has a special duty to protect children.  The law, whether we agree with it or not (and I do strongly agree with it) says that adults cannot have sex with children.  In most states, if not all, children under the age of 16 years cannot consent to have sex.  A violation of these laws is a felony, a most severe offense.  Reports we now hear about is that there were several 15 year old and 16 year old girls who were pregnant.  If that is true, then sexual abuse has occurred.  With this said, we are a nation of laws.  Above all we have a right to expect our government to obey the law, this includes the police, not just to the letter, but also to the spirit of the law’s intent.  The government should not be able to violate law and then keep the evidence it seizes by such a violation.

            This case represents a collision between several basic concepts of law.  On the one hand, we have the government’s duty to protect children from abuse and to enforce our criminal laws.  On the other hand, we have the 4^th Amendment to the United States Constitution to be safe in our homes, papers and person from unreasonable searches and seizures and the 1^st Amendment to the Constitution that protects our right of religious freedom.  This right is applicable to the states, and their actions, through the 14^th Amendment to the U.S. Constitution.  Historically, Constitutional law violations have trumped other areas of the law, but that is not always the case.

            Was there a violation by the government of the 4^th Amendment to the United States Constitution?  On the surface, it does appear to me that there was a violation.  The warrant was based on an anonymous caller, whose whole story was a hoax.  While the police may not have actually known the caller’s story was a lie at the time the call was made, they knew they had never had contact with her before, so her reliability was not established.  (Yes, I know citizen informants have been held to be reliable)  In a case like this where the police are going to invade a religious compound, one would think they would err on the side of caution.  Clearly, they did not.  They did not verify the call or corroborate it.  We know that if they would have waited a short time, they would have discovered that the caller was not a 16 year old who had any knowledge of what occurred inside that compound but someone who may be suffering from mental illness and was an adult who did not even live in Texas but lived in Utah.  This suggests to me that the police had an agenda which this caller’s hoax played into, and they went off without doing good police work.  Is this search warrant valid?  We will have to wait and see how the courts rule, but historically, it is my opinion a warrant based on a lie is not a valid warrant.  Can the police keep this evidence, which appears to include the pregnant 15 and 16 year olds, if the warrant under which it was seized was not valid?  Prior to the Leon case, probably not.  After the Leon case, if the police in good faith relied upon the validity of the warrant, then even under these circumstances they will be able to keep their evidence.  I am sure the courts will address the good faith belief that the police might have had in this warrant.

            The 1^st Amendment protects our religious freedoms.  Religious freedom does not allow anyone to violate the criminal law.  While many of us do not ascribe to polygamy as a valid religious belief, and polygamy is against the law in Texas, I have heard no fact that causes me to form the opinion that the people in this compound violated Texas’ law against polygamy.  I am not aware that it is against the law in Texas to cohabitate, which I am led to believe is what happened.  While the majority of us may not accept what this church believes, the members’ right to practice their religious beliefs is constitutionally protected, as are their papers and computers.  Generalized searches by the police are not authorized by the Constitution.  Did the police have specific credible evidence that constituted probable cause that each of the papers and computers they seized contained evidence of a specific crime?  If they did, we in the general public have yet to hear it.  The actions by the police in this case, as far as the information we have, should cause all of us to have concern over our religious freedoms.

            Another troubling aspect is the Texas child services agency.  I am sure they must have rules and guidelines to follow when taking children from their parents, and when withholding the children from returning to their parents.  Did they follow those guidelines?  What evidence, facts, did they have to support their decision?  I do not know their rules or guidelines, but it does appear the evidence upon which they could rely could not possibly have supported the actions that they took.

            Possibly this case would not have such a chilling affect on many of us if the Court had ruled the children, who all have been interrogated if they were old enough to talk, and who had not been sexually abused were returned to their mothers.  Especially so for the babies who were nursing.  The Court’s decision to keep all 465 children from their parents regardless of circumstances seems like such a gross abuse of power by the Court.  One is reminded, of Lord Acton’s statement from long ago – power corrupts, absolute power corrupts absolutely.

            It is also hard for me to understand from a psychological point of view how the Court’s decision is in the children’s best interests.  I concede that in some cases it may have been, but in all 465?!  These are children who were raised in a different environment, whose religious upbringing will be different from any place the State of Texas will put them, who have lived their whole lives in that compound and have never been away from their parents.  Then, in one moment in time that all changed.  No time for them to prepare for this.  No acclimation period.  Boom – a 180 degree turn from one moment to the next.  I will be surprised if the effects of the State’s actions do not have long term, as well as short term negative effects on these children.  Does the majority in society have the right to tell the minority in society how to raise these children?  What their children should believe?  What values their children should have?  And on and on.  Let us hope not, but in this case in Texas it certainly seems that is the case.

            So yes caller this can also happen to you.  It can happen to any of us and we should all sleep a little less securely from this point in time.  What happened in Texas should scare every one of us.  I know it does me.  I know I do not want young girls abused, including sexual abuse, but if the only way that the State of Texas believes they can stop this is to violate long held principles of the law…Well I do not believe for one minute that the government needs to throw away the principles of law to protect any of us.  We are in fact protected by those principles of law.  We have always been a nation of laws.  Our freedoms depend on it.

– Dr. William J. Hayes

   The Law Offices of Dr. William J. Hayes, S.C.

Note:  Leon is a case decided by the U.S. Supreme Court which held that the police could keep the evidence they seized pursuant to an invalid warrant if they relied upon that warrant’s validity in good faith.

We invite your comments and questions.  Please submit them to info@whayeslaw.com.

Update:  May 23, 2008

            The New York Times and CNN have reported that a Texas court of appeals has reversed the trial court’s decision regarding approximately 38 children and ordered them to be returned to their parents.  I have not read this decision, but as reported, this decision may result in all of the children being returned to their parents.  From the information I have, the appeals court was very critical of not only the trial court judge but also the Texas child welfare agency involved.  For the children’s sake, let us all hope and pray that all involved truly look out for their best interests.

APRIL 2008

Frequently we receive calls from people who tell us that they want custody of their children, or they want to change custody of their children.  When we talk to them, what they really are talking about is placement, rather than custody.  So for this month's posting, we thought it might be helpful to define exactly what custody is, and exactly what placement is, and then inform you of the various options available.

CUSTODY:

            Custody concerns only who makes the major decisions for the child.  Major decisions would include where the child lives, goes to school, goes to church, who are the child’s healthcare providers, and who makes a decision in non-emergency situations, what healthcare a child needs.

            Custody does not determine (directly) where the child resides on any given night.

            Except in extraordinary circumstances, one or both of the child’s parents will be granted custody.  The granting of custody by the Court is usually joint custody, where both parents have custody of the child, or sole custody, where one parent has custody of the child.

            In many states, including Wisconsin, there is a presumption that both parents will be awarded custody, a joint custody order.  That means that both parents must communicate and cooperate with each other in the making of major decisions for the child. 

            The presumption that favors an award of joint custody can be overcome.  Each state’s laws will be slightly different, so if you believe your situation requires an award of sole custody, you should immediately contact a qualified family law lawyer in your area so that lawyer can provide you with the legal advice you need.  An award of sole custody means that the party with sole custody is empowered to make the major decisions for the child.  I recommend that even if you are granted sole custody, you should always keep the other parent timely informed about these major decisions and get the other parent’s input on these major decisions for the child.

            Keeping both parents involved and informed of all major decisions involving the child is usually in the child’s best interest.

PLACEMENT:

            Placement means how the child’s time is divided between parents.  (There are others who may also be awarded some placement time, such as grandparents, but I will leave this topic for future discussions.)  Years ago lay people commonly said the mom got custody and the dad got visitation.  The terms of art have changed, and there now is a long list of certain criteria that the Court must consider when awarding placement.

            In Wisconsin, our courts have said that it is in the child’s best interest to maximize the child’s time with each parent, but that does not mean equal placement.  Most states today have similar rulings from their courts.  If this is an issue for you, please consult a local attorney in your area who is well versed in family law to assist you.

            In the usual case, one parent is awarded primary physical placement, and the other parent is awarded periods of temporary physical placement (formerly called visitation).  This usually means that the majority of the child’s time is with the parent who has primary physical placement.

            My experience is that today more courts are entering shared placement orders, where neither parent is awarded primary physical placement.  As a general rule in shared placement, each parent has a substantially equal amount of placement with the child, although it does not have to be an exact 50/50 placement schedule.

            The parent who has placement of the child will make the non-major decisions for the child while in his/her care.

            I hope this information has been helpful to you.  If you are from Wisconsin or Illinois, the two states I practice in, please call our office if you have any questions.  If you live in another state and you have questions, I urge you to call an attorney in your local area who is knowledgeable in family law and practices in this area of the law.

–  Dr. William J. Hayes

    Law Office of Dr. William J. Hayes, S.C