CESNUR - Centro Studi sulle Nuove Religioni diretto da Massimo Introvigne

www.cesnur.org

State-Sanctioned Raids and Goverment Violations of Religious Freedom:
Revealing Similarities of Constitutional Errors in Both the 1984 Island Pond Raid and the 2008 FLDS Raid

by Jean Swankto Wiseman (Attorney, Chattanooga, Tennessee)
A paper presented at The 2009 CESNUR Conference, Salt Lake City, Utah, June 11-13, 2009

TABLE OF CONTENTS

Introduction.................................................................................................................................. 1-2      

1)    The State Creates An Appearance Of Emergency Caused By A Manufactured Immediate Risk Of Harm To Children Of The Group.         2-3

2)    Both Search Warrants Were Obtained On The Basis Of Generalities Without Meeting Legal Standards For Reliability Of Evidence  4-5

3)    A “Pervasive System Of Beliefs” Was Used To Try To Create The Risk Of Harm And To Satisfy The Requirement Of Immediate Danger, But Beliefs Are Protected And Do Not Qualify   5-9

4)    State Social Workers Tried To Convince The Court That All Members Of The Group Comprised One Household Whose Environment Was Dangerous   9-11

5)    The Motive Of The State Action Must Be Discerned Because It Is Incongruous To Believe That The Real Motive Was To Protect Children When State Law, Procedure And Protocol Were Blatantly Not Followed By The Very Practitioners Who Use Them Every Day  11-15

6)    The Result Of The State Not Following The Intent Of Its Legislature Was An Effort To Get The Children From Their Religion Rather Than To Protect Them From Immediate Risk Of Harm, As Mandated          15-17

7)    In Both Cases The Judiciary Was The Gatekeeper To See That The Rule Of Law Kept The Executive (Social Services And Law Enforcement) In Check  17-20

8)    Social Services Actions Against Religious Minorities Are Being Used As A Means Of Social Control, Often Ignoring The Judiciary and The Limits Of The Law (Nationally And Internationally)      20-23

Conclusion.......................................................................................................................... 23-25

Endnotes............................................................................................................................. 26-30

APPENDIX    Outline of Galen Kelly Proposal


 “… the purpose of discouraging systemic, official misconduct must be central to this particular case. [1984 Island Pond Raid] Given the fundamental liberty interests involved, the social welfare agencies and the police must not be allowed to perceive that they are being given a blank check with regard to juvenile proceedings….Here, the search was hardly routine. The searches were intensely personal in nature and clearly aimed, among other things, at the discovery of evidence of crime. The massive invasion of privacy was, of course, extreme.”   -J. Frank Mahady, In Re: C.C.[i]

            Over the past decade I have written several papers explaining the causes and effects of the 1984 Raid on the Church Community in Island Pond, Vermont where 112 children from a common religion were seized by the state for alleged child abuse.[ii] We now know that the State of Vermont fell in line with a written plan devised by renowned anti-cultist Galen Kelly for Priscilla Coates, the former director of the Cult Awareness Network.[iii] Critical to Kelly’s thesis is that cults are a social menace and deserve to be destroyed and his plan provides the steps just how to do it.[iv] With the groundwork laid by anti-cult operatives,[v] the linchpin of the whole plan was to get the authority of the state behind it in order to be able to actually execute the raid.[vi] The plan, written in 1983 and not discovered until 1999, devised coordination between state agencies, law enforcement and the media who coordinated to execute a “grossly unlawful scheme”[vii] with the explicit purpose of “destroying the group” and serving as a prototype for use with other minority religious groups in the future.[viii]       

            Twenty-five years later an even more egregious incursion occurred on April 3, 2008 at the Fundamentalist Church of Latter Day Saints (FLDS) Yearning For Zion Ranch (YFZ), in Eldorado, Texas. 439 children of the same faith were seized on a general warrant and their custody was granted to the State of Texas in the first instance.[ix] The similarities between the two raids compel a comparison in order to reveal that the anti-cult movement is still being used and their tactics implemented by state governments to effectively exercise social control over a group with the stated purpose of destroying non-mainstream religious movements.[x]

            The position of the states is continually not grounded in law and it is not unusual for their legal claims to not even be ‘colorable.’[xi] Even the basic requirements of the law, the Constitution and state procedures are not followed and there is no doubt that the legitimacy of the states’ actions cannot be upheld[xii]. Whether or not the state action is legal and sustained, the net effect of demonizing the group and creating “moral panic”[xiii] gets accomplished. The anti-cult motive to dissolve and diminish non-mainstream religions, perceived as a threat to mainstream religions, is nevertheless satisfied.[xiv] Let us look at the commonalities between the two raids.[xv]

1)    The State Creates An Appearance Of Emergency Caused By A Manufactured Immediate Risk Of Harm To Children Of The Group.[xvi]

…it is the burden and heavy responsibility of the State to demonstrate by sufficient evidence, not generalized assumption, that it is necessary to separate each of these 112 children from his or her parents.”[xvii]

“For these reasons this Court refused the State's rather incredible request that the Court issue a blanket detention order for 112 children, ex parte, and without even holding hearings. The same reasons compelled denial of that request after holding the adversary hearings.” Id., D

 “… authority was granted to search 20 buildings, mostly residences, for "all children under the age of 18", rods or paddles, medical supplies, "any and all photographs" and "any and all letters, tapes, writings or records." The above dramatically illustrates the obvious: the State was engaged in a massive, albeit arguably well-motivated, fishing expedition which involved the intensive search of many private residences.” Id. B [All in reference to Island Pond] J. Frank Mahady

            State juvenile laws allow removal of children from parents only in extreme circumstances where there is a danger to the physical health or safety of the child, where reasonable efforts were made to prevent the removal and where every reasonable effort has been made to enable the child to return home.[xviii] In both Vermont and Texas, despite the fact that there was no immediate danger to any child in residence and despite the fact that social workers, law enforcement and lawyers are well aware of the limits of the law, children by the dozens were forcibly removed from their homes by the exercise of dramatic police power. In Vermont, after an immediate hearing before a different judge than the one who signed the search warrant, the children were returned home the same day. In Texas all the seized children were put in state custody for weeks without any specific evidence of harm to all but one of the 439 children seized.[xix]

            In Vermont, months before the raid, state investigators traveled to seven states to interview former members of the group to “unearth” colorable claims of child abuse.[xx]

The list of defectors was provided to the Attorney General’s office in August 1983 by anti-cultists Galen Kelly and Priscilla Coates. As a result, the investigators produced a 32-page affidavit (known as the Moran affidavit, the name of the officer who compiled the data) of stale claims, hearsay stories and information largely irrelevant to the seized children, but focused on the community as a whole, as designed by Kelly.[xxi]

            In Texas, the alleged danger was created by the claim of Sarah Jessop, a fictitious juvenile who claimed to be at risk and in danger inside the compound. She was not, nor was her alleged perpetrator who apparently had not been in Texas since 1977. Later it was discovered that the call was made by Rozita Swinton, a 33 year-old unstable woman from Colorado, so the complaint was a hoax.[xxii] But it served the anti-cult purpose, i.e., to trigger the invasion, in the hope of obtaining damning evidence against the FLDS.

            In both cases the obvious reality was that these two raids were massive and had been planned for months, well before any presenting emergency. Basically the claimed emergencies were a ruse (a clever trick or plot used to deceive others) for a long-anticipated action to search for evidence inside these communities. [xxiii]

2)    Both Search Warrants Were Obtained On The Basis Of Generalities Without Meeting Legal Standards For Reliability Of Evidence.

These four separate aspects (20 buildings, "all children", "all photographs", and "any and all letters, tapes, writings or records"), taken together, created a warrant more general in scope than any which this Court can find, after careful research in the recorded literature. It may, indeed, set a modern world record for generality; certainly, no competitor for that dubious title has made itself known.” [Island Pond]

 “The history of western civilization provides a foundation for analysis. It reveals an ancient and profound respect for the dwelling of an individual. It also illustrates the antiquity and importance of the requirement that the authorities must have cause to invade such dwellings and may do so only with specific and particularized authority. Biblical literature provides many illustrations of this respect for a person's home which was not subject to arbitrary visitation, even on the part of official authority.” [xxiv]

            In the 1984 Vermont raid, Judge Joseph Wolchik who signed the search warrant eventually realized that he had been “pressured by bad information” and that he had made “a terrible mistake.”[xxv] So whom was he pressured by? He was pressured by the local state’s attorney, Philip H. White, who was deputized as an assistant attorney general for the occasion and who was a prime mover in the state’s adherence to the Galen Kelly plan to destroy the group. Before a search warrant can issue, a judge must be satisfied that the information is reliable and credible. This is a critical step in adhering to the rule of law so that citizens are protected from unconstitutional intrusions. To fail to perform this function is to leave parents subject to the lies of malefactors and those with bad intentions. Newspapers are not required to meet the same standard. Unsworn, out-of-court statements, often the fodder of the media, amount to inadmissable hearsay that cannot be relied upon in a court of law.  The reliability and credibility of the informant is to be checked before a warrant issues, not after. That is the safeguard. If there is not adequate information that meets the legal standard, a search warrant should not issue.

            When social workers have no legal grounds for entry and cannot meet the necessary standard, pressure, direct or indirect, can be applied to judges to issue a warrant anyway in the hopes of finding the necessary or desired evidence once inside.[xxvi] Such an approach is illegal. Seizing people or evidence on this basis is called “investigative detention” and it is unlawful in this country under the 4th Amendment of the U.S. Constitution, as well as the state constitutions of Vermont and Texas. Judge Mahady noted in regard to Island Pond that

“a broader warrant can scarcely be imagined. It is for 20 separate buildings, most of which are residences. The authorization to seize "any and all children under the age of 18 years old" is broader in scope (though admittedly less Draconian in purpose) than that of Herod the Great.”

- In Re: C.C. supra fn 1, search warrant decision

            In Texas, there were two warrants executed. The first was presented several hours after the authorities had surrounded the YFZ Ranch and after three requests to see it. The warrant allowed officials to search for Sarah Jessop and Dale Barlow based upon the alleged complaint, even though it had not been substantiated. Nevertheless the authorities impermissibly took the children on the authority of the first warrant despite the fact that it gave them no authority to do so. A second warrant issued on April 6 seeking records about under-aged children[xxvii], revealing that the state was not looking for specific at-risk children, but was seeking to take children based upon the religious beliefs of their parents, just as it happened in Island Pond.[xxviii] In neither case were the state actors following the requirements of the law and procedures that they practiced nearly every day.

3)    A “Pervasive System Of Beliefs” Was Used To Try To Create The Risk Of Harm And To Satisfy The Requirement Of Immediate Danger, But Beliefs Are Protected And Do Not Qualify.

“Religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection.”

-quoting Engel v. Vitale 370 U.S. 421, 431 (1962) from J. Mahady In Re: C.C. supra fn 1

the State admits that there is not a single piece of evidence in the material submitted that documents a single act of abuse or neglect with regard to any of the 112 children.” Id., J. Mahady, Detention Order Decision

“There is no evidence that the mothers have allowed or are going to allow any of their minor female children to be subjected to any sexual or physical abuse. There is simply no evidence specific to the children at all except that they exist, they were taken into custody at the Yearning for Zion Ranch, and they are living with people who share a ‘pervasive belief system’ that condones underage marriage and underage pregnancy.” In re: Sara Steed, et al, supra

            Both cases were premised upon the argument that a particular religious belief is bad for children[xxix], but it is a right of parents, protected by the Constitution, to make that call.[xxx] . The state does not have the right to ‘protect’ children from exposure to religious beliefs that are objectionable to neighbors or local officials.”[xxxi]  But the anti-cult agenda is actually based upon the opposite and illegal premise: that a parent’s subjective belief system can be branded as that of a “destructive cult.” And therefore legitimize the taking of children, en masse, and aim for the destruction of the group in the process. Thus, while the state legal action does not prevail in court, the goal of the anti-cult agenda as outlined in the Kelly plan is nevertheless accomplished.

            Without evidence of harm and left only with unsubstantiated allegations of defectors or suspicions, the state agents had only one chance to prevail in both cases, that is to claim that the FLDS or Island Pond belief system is dangerous to children. Both states made just that claim. In Island Pond, Assistant Attorney General Philip H. White when asked by the court as the last child came before Judge Mahady on June 22, 1984, “Just what exactly is the harm that is endangering this child?” responded

“It is as if the child is living amongst bacteria and the bacteria in this case that jeopardizes this child’s heath is the teachings and doctrines of the church.[xxxii]

            At the evidentiary hearing on April 17-18, 2008 in front of Judge Walthers, Texas presented no evidence of actual harm to the FLDS children, but “testimony as to the alleged beliefs of the community as a whole.”[xxxiii] DFPS asked the court to

 “infer from these alleged beliefs…that mere exposure to this religion amounts to a danger to the physical health and safety the children.”[xxxiv]

            In Texas the DFPS called its own employees and solicited “expert” testimony from them about the Community’s religious beliefs.[xxxv] Those witnesses warned against returning the children to their parents, explaining that

when [the children] return…to their families and…that environment, it reinforces their belief that they hold about the community and God and so forth.” 5RR 131:1-7(citations to the Reporter’s Record preceded by the volume of the court record, Cause No. 00235-CV, Marie Steed Brief at p. 5)

            Regardless of whether the first judge to see the children had individual or en masse hearings, the state’s case was the same: it had no evidence to justify separating parent and child.[xxxvi] In Vermont, Judge Mahady held some 40 individual detention hearings[xxxvii] on the very day of the seizure and in Texas Judge Walther eventually held an en masse hearing where individual parents and children had no meaningful participation but were nevertheless separated anyway. Both the parents and children of the FLDS were denied due process of law, at great expense to them and the State of Texas, not to mention the actual harm to the innocent children as a result of the seizure.

            Despite their duty to uphold citizens’ freedoms and Constitutional rights, state officials in both Vermont and Texas decided to the contrary when it came to the rights of members of a religious minority and they acted on that decision. The actions that they took, in the name of public service, were to execute the steps of Galen Kelly’s plan for the very destruction of the group.

            Texas Governor Rick Perry apparently had no hesitation to comment all the way in LaValle France, in reference to FLDS members, that “maybe Texas is not a place you want to call home.”  Legislator Harvey Hilldebran[xxxviii] and Sheriff David Doran expressed similar sentiments such as “by the time we’re done, you [FLDS] won’t want to live here.” Clearly, this is an abuse of state power. Similarly, the Attorney General of Vermont in 1984, John Easton continues to state that “he would do the same thing again today” in regard to the Island Pond Raid, despite the fact that he was the highest law enforcement officer in the state and the raid was “grossly illegal”. Just as Philip White was deputized as an Assistant Attorney General to aid executing the Vermont raid, Shannon Price, a known FLDS- hater was authorized to act as a deputy sheriff in Texas and thereby gain access to the YFZ Ranch.

            It is also no accident that in Island Pond the focus of the inflammatory media coverage was on child abuse. In Vermont there were no claims of sexual abuse or underage marriage. Galen Kelly had directed that the focus was to target child abuse. That is what the State of Vermont did. The group’s belief in reasonable and lawful corporal punishment was converted by the execution of Kelly’s plan into the basis for executing the 1984 Raid, falsely claiming that church doctrine demanded severe beating of children. Pursuing defectors, inflaming the media and inciting state officials all combined to result in “moral panic”[xxxix] about the beliefs of the Church Community in Island Pond.[xl]

            Similarly in Texas, while the ruckus was focused on FLDS underage marriage and pregnancy, some 439 children were seized and kept, but when legal standards were brought to bear, to date one child remains in state care, the legitimacy of which is still to be determined. In Vermont, it is noteworthy that “not a single piece of evidence” was found to justify the state action; in Texas while the seizure of children was found invalid, the suppression of evidence issue is still in the Texas courts, awaiting decision.

            The motive of the state was blatantly exposed by the testimony of DFPS Investigation Supervisor Angie Voss who attempted to establish that there was an immediate need for removal and that need was based upon

“the religion’s common mindset that even young girls could marry and that having children at a young age is the ‘highest blessing.” 4 RR238: 9-18, 241:18-21 (citations to the Reporter’s Record preceded by the volume of the court record, Cause No. 00235-CV, Marie Steed Brief at p.12)

            In both Vermont and Texas somehow freedom of belief escaped the notice of all the state agents and their lawyers. It either escaped their notice or something else was more important: destroying the group by seizing its children and exposing them to a belief system more tolerable to the state workers. Much of what the state actors believed to be harmful had its roots in the exaggerated claims and media coverage orchestrated by Galen Kelly’s plan “to bring scrutiny to bear” on a group labeled a “destructive cult,”[xli] rather than on evidence and on objective scholarly research about the group’s beliefs.

4) State Social Workers Tried To Convince The Court That All Members Of The Group Comprised One Household Whose Environment Was Dangerous.[xlii]

“Here, [Vermont] the State admits that it had no specific evidence of abuse, truancy or illegal medical practices on the part of any of the individuals whose residences were searched. It relies, instead, upon the mere assumed association of these residences with some other people for whom there was some reason to suspect such activities at some time in the past. This theory stretches probable cause to dwellings on the basis of the "mere propinquity" of the structures to others…. the State's "environment theory" is, in truth, an "association theory" violative of the Due Process clause of the Fifth Amendment and the Association Clause of the First Amendment.”[xliii]

“No person who cares the least about individual dignity would claim that such evidence would allow the State to round up all such children to be inspected for evidence of abuse. To select an unpopular neighborhood labeled a "cult" compounds the threat. If the Court were to allow the State action here, a Pandora's Box would be opened which would prove difficult, if not impossible, ever to close again.”  J. Mahady, In Re: C.C., fn 1,search warrant opinion at 26

            In social work practice, a worker can gain greater access to more children if they are “in the same household.” This is the practical motive for making this assertion to a court. An argument can be made that “all are at risk” who live in a household where there is an established danger. When the state failed to produce adequate evidence to keep any of the children in both cases, the “one household” theory quickly became the default theory to justify keeping the children.

            In Vermont three days before the June 22, 1984 Raid in Island Pond conducted by 90 state troopers in bullet-proof vests and 50 social workers, seven community leaders were summoned into juvenile court to “provide the names of all the children in your household” or to “show cause” why they could not.[xliv] The fathers declined, saying that they had authority over only their own family and had no freedom to divulge the names of other peoples’ children.[xlv] They were jailed for contempt, but only for a few hours when the judge realized he had no basis to hold them. Judge F. Ray Keyser let the state know that “they had no basis to go forward”

unless they had specific evidence on individual children and their names.[xlvi] The state had no lawful basis to proceed. Summoning the men into court under threat of contempt was another ruse by the state to try and ascertain evidence that they did not have and that they needed: the names of specific children.

            Three weeks after the Island Pond Raid at a July 12, 1984 hearing, the State of Vermont moved to an “environment” theory to justify jurisdiction over the children since they had no specific evidence. There was a simple assault case pending against one leader for spanking a child not his own. The state reasoned that all the children in the community were “at risk” because they lived in the same community as the man charged with the misdemeanor.[xlvii] The argument did not succeed, but the state made a valiant effort. The State of Texas made the exact same argument regarding Dale Barlow, who had not even been in Texas since 1977.

            At the Texas Court of Appeals, Third District, the court found that the evidence did not support this DFPS argument [of one household] since the FLDS families lived in separate buildings and apartments. This “household” approach was another concoction of the anti-cult methodology to allow the state to control the fate of the children of these two groups. It is a common tactic of the anti-cult movement to attribute the alleged “bad act” of one member to all members and to claim that any illegality or questionable action is a tenet of faith condoned by the group, rather than just the action of that individual. This theory is called “guilt by association.” It is illegal in this country under the protection of the First Amendment.

 “Adlai Stephenson once said that ‘guilt is personal and, I might add, not communal.’ Our Court has held many times that mere presence at a particular place is not sufficient to establish participation in a particular act….There was no probable cause for the Petition as applied to the facts of the cases dismissed. They were therefore properly dismissed.” [xlviii]      

5)        The Motive Of The State Action Must Be Discerned Because It Is Incongruous To Believe That The Real Motive Was To Protect Children When State Law, Procedure And Protocol Were Blatantly Not Followed By The Very Practitioners Who Use Them Every Day.

“In the context of our Western civilization, the sense that the State conduct involved here [Island Pond] seems to touch a raw antecedal nerve becomes more understandable.”… “Against this history stands the State's argument that the search warrant here involved was valid, that the State's conduct was "reasonable" and that the State, in any event, acted upon an "objectively reasonable, good faith belief" in the warrant's validity. To ignore history is, indeed, to repeat its mistakes.” Id.

            In both the Eldorado and Island Pond cases it is difficult to conceive how the experts in the field of child protection (case workers, social service supervisors, prosecutors, juvenile judges and lawyers) trained in this discipline could fashion a state action so contrary to the laws, policies, procedures and purpose designed to be in the best interest of the children. (Wessinger 2006) Public officials of the highest rank, charged to maintain the public good and promote the public welfare, - governor, attorney general, lawmakers, sheriffs and state police-were motivated by something other than the rule of law. What was it that caused these state officials to run roughshod over basic human rights and unite with armed force to attack members of a small religious group in the guise of protecting the children?

            These people were not ignorant of the requirements: specific evidence of individual harm and removal of a child only as a last resort. Not just the lawyers, but the public servants as well, were not unaware of these mandates. Yet they chose police action anyway. It is a foregone conclusion that both raids could not succeed if legal standards were followed.

            Appointed as an Assistant Attorney General for the Vermont event, Philip H. White commented “If I had known that Judge Mahady was on the bench, I would have called off the Raid."[xlix] That is tantamount to saying, "If I knew we were going to be judged by the Constitution, I wouldn't have risked it." This is an admission that he somehow believed that the state actors were not going to have to obey the law when it came to Island Pond Community Church members.

            In Judge Walther’s court in Texas, apparently that was the case: DFPS was not held to the rigors of child protection standards and protocol at the April 17-18, 2008 hearing when she ordered all the seized children to remain in state custody, even though there was no evidence of harm. Why did the state agents believe that they could bypass basic legal standards? Not only did they believe it, but it worked! - for a time. The question has to be asked “How can these unlawful state actions proceed to execution without being stopped?”

            At the Branch Davidian compound in Waco Texas in April 1993, the children that the state said it went in to protect were burned alive before they could be seized and before any kind of judicial review. How the fire started is not really the issue here. But it cannot honestly be seen that the goal was to save the children.[l] In the Department of Justice Report on the Waco Tragedy, Dr. Nancy Ammerman criticized authorities for consulting anti-cultist Rick Ross instead of recognized scholars familiar with the actual beliefs and practices of the group.[li]

            Anti-cult activist Rick Ross was no stranger to Flora Jessop, the FLDS defector who told complaining witness Rozita Swinton whom to call.[lii] When people like Kelly and Rick Ross are used as consultants influential in planning a state raid, the connections need to be investigated and the allegations substantiated before police action is taken, as the consequences can be devastating.[liii] It sheds light on why state agents bypass mandatory procedures and laws when one remembers that Galen Kelly’s goal in Island Pond was “to destroy the group and to use his plan as a prototype for future groups.”[liv] To follow the plan is to have the goal of dissolving the group. Island Pond in 1984, Waco in 1993, Eldorado in 2008- and many other government-sanctioned raids in between. We have to face the fact that minority religions are diminished without consequence to the state actors who foment these illegal intrusions.

            It must also be remembered that the spoken agenda of state officials was to make the FLDS “unwelcome in Texas.”[lv] Indeed. And whose goal is that? State officials made it clear that they did not want the FLDS in their state since 2004 when the FLDS purchased the YFZ property. The anti-cultists promoted falsified and exaggerated claims of how these people live based on “what they believe.”[lvi] In the court of public opinion, the state agents may have accomplished their goal, despite losing their court battle. It is easy for citizens to perceive that  “the state did the right thing” both in Vermont and Texas because

“A lie gets half way around the world before the truth gets its boots on,”

to quote Mark Twain.

            Governments need to be accountable for their actions, but in both cases there were alternatives much less drastic than removal of the children from their homes that were required by law and that the state declined to do, without having to answer for it. During the summer of 1984 John Easton was running for governor of Vermont. As part of his campaign he was traveling around the state “to spend a day at a time working with Vermonters.” I personally thought it would be a great thing for him to spend a day with Island Pond church members to ease the escalating tensions about the church group in the press and with the public. He could come to understand them better, as I had done when assigned to represent a church member as a public defender. I sent him a letter inviting him to “come spend a day working with church members at the community in Island Pond.” This was immediately before the raid, when massive preparations had to be in the works. He never responded.

            In somewhat of a parallel move in Texas, the men at the YFZ Ranch at the time when law enforcement was about to take the children, offered for all the men to leave so that DFPS could see the women and children.[lvii] Apparently, they declined. Both of these incidents reveal that if safeguarding the children was the real goal, it could have been accomplished less forcefully. That is, if you are willing to work with group members, which Galen Kelly is not, as a matter of policy and practice. He advises officials not to trust them.[lviii] Social services commissioner in Vermont John Burchard came to see church members in the same way, as uncooperative and inherently suspect.[lix]  For state officials to prejudge members and their religious beliefs is to deprive them of the presumption of good faith and to make them suspect for no good reason. That is the essence of prejudice. The Kelly plan to persuade others to be fearful of group members by use of tactics results in marginalizing them, to the extent that state government can be convinced that they are not entitled to the protections of the law and Constitution. Such a pattern is happening time and again.

6)    The Result Of The State Not Following The Intent Of Its Legislature Was An Effort To Get The Children From Their Religion Rather Than To Protect Them From Immediate Risk Of Harm, As Mandated.

“The theory is that there is some evidence of some abuse at some time in the past of some other children in the community. The same, of course, may be shown of Middlebury, Burlington, Rutland, Newport or any other community. Such generalized assumptions do not warrant mass raids by the police removing the children of Middlebury, Burlington, Rutland, Newport or any other community (even a small, unpopular one).” In Re: C.C., supra fn 1, J. Mahady

            In Vermont the state presented the court with a single petition to detain all of the children seized in the round-up, intending to keep them for three days in custody at a local ski resort that was outfitted with doctors, social workers and psychologists to examine them.[lx] Similarly in Texas a single petition requested that the court grant DFPS possession of over 330 children of varying ages, sexes and situations. Neither of these requests followed the procedures mandated by state law requiring proof that each child is in danger before the state can interfere.[lxi] The plan in Vermont was to detain the children at Burke Mountain some 37 miles away; in Texas the seized children were initially kept at Fort Concho in San Angelo, some 40 miles from their home, a strikingly similar intention.

            When the moment came to produce evidence of harm for each child, in both courtrooms, half a country and a quarter century apart, the states of Vermont and Texas both relied upon testimony about religious beliefs ascribed to the group as a whole and assertions of broad cultural harm. These claims were not based upon expert witnesses who had studied these groups, but rather on the testimony of defectors and unsubstantiated hearsay, the very types of data routinely used by anti-cultists to defame a group.[lxii] Courts have repeatedly held that such proof by presumption is inappropriate when parental rights are at stake. [lxiii]

            DFPS never presented any evidence-or even alleged-that these mothers pose any threat to their children’s “physical health or safety,” much less one that could not be avoided with reasonable effort….”[lxiv] By issuing orders based on the state’s broad evidence regarding the alleged community culture alone, the district court failed to meet its statutory obligations to find each of the elements of the law  (Family Code 262.201) satisfied with regard to each child to whom its orders applied.[lxv] Texas erred in the exact same way as Vermont when, as Judge Mahady noted

“Therefore, the essential causal nexus in the State’s position was the association of each child’s parent, custodian or guardian with the church in the face of the church’s tenet teachings regarding child discipline.”

-In Re: C.C. supra fn 1, Dismissal Order

            Since the State has an urgent interest in the welfare of the child, it shares the parent’s interest in an accurate and just decision at the fact-finding proceeding. Anything less exacerbated the harm to the state as well as to the parents.[lxvi] In other words, the state bureaucrats involved were somehow convinced to abandon their own procedures and protocol. Instead, they spoke against the beliefs of the children’s parents, insisting that they put their children in harm’s way.

            Because Judge Mahady held individual hearings in Vermont, and no specific evidence was presented, the state request for investigative detention was denied. In contrast, in Texas, Judge Walther granted custody of over 400 children to the state, to their substantial harm. The methods and actions of the social workers revealed that their purpose was to expose these children to a different culture, rather than to have the intention of returning them home.

            Feeding the children food to which they were unaccustomed and allergic, giving them clothes that both they and their parents considered immodest, showering them with toys and bicycles foreign to their upbringing and workers deliberately baring their tattoos to young children all smack of the deliberate intention to disrespect their religion. Mental health social workers that were brought to the scene as a support to DFPS quickly determined that much of “what they were told by DFPS officials turned out to be wrong” and that the “women and children showed absolutely no signs of abuse”. [lxvii]

            Similarly the lawyers and guardians who represented children of the Island Pond raid commented on how “well-behaved” they were and how they observed the good relationships between parents and children, showing no signs of abuse.[lxviii]

            What is striking in both cases is not just that the state could not make out its case, but the fact that in both Vermont and Texas anyone else who observed the group members had a diametrically opposed impression than that presented to the court. People such as lawyers, guardians and support workers quickly sympathized with the injustices being perpetrated upon the group, as they did not reflect at all the claims against them, but quite the contrary.[lxix] The state cases were based on animosity toward a particular religion fomented by exaggerated claims taken as true and not on evidence of harm to named children. We have a Constitution to guard against such illegal tactics, but it was not followed by the executive branch and its agents, both in Vermont and in Texas.[lxx]

7)    In Both Cases The Judiciary Was The Gatekeeper To See That The Rule Of Law Kept The Executive (Social Services And Law Enforcement) In Check.

            As Judge Mahady held in 1984 when he dismissed the State’s Petitions

It is certainly inappropriate for the Judiciary to allow the Executive to circumvent the clear requirements set forth by the legislature. The petition is defective. The defect is jurisdictional.”

            - In Re: C.C. supra fn 1, Petition opinion, p. 3

           “The phrase ‘child abuse’ cannot be invoked as a talismanic incantation to support the exercise of state power which egregiously violates both the First and Fifth Amendment rights. Even where the state acts in a noble cause, it must act lawfully.” Id., Dismissal Order, p. 7

            Unless the judiciary upholds the rule of law, discriminatory and illegitimate state action is likely to continue to occur against new religious movements, especially when the anti-cult movement influences state action.[lxxi] Government agents need to be educated to the tactics and methods of the anti-cult movement[lxxii] so as not to be vulnerable to their subjective information about minority groups. Such information is not trustworthy and is legally insufficient.

            In the Island Pond case the court applied the rule of law sooner to prevent the executive and its agencies from interfering with the family integrity of church members beyond what the Constitution allows. In Vermont the administrative judge deliberately chose a different judge to review the case than the judge who signed the warrant authorizing the seizure. This seems like wise practice, especially in a case of such magnitude. Whereas in Texas Judge Walther signed the warrant and reviewed it, affirming herself at great cost to the children and parents of the FLDS and also at great cost to the citizens of Texas. The legal proceedings reportedly cost Texas $12,000,000 [estimated at upwards to $30,000,000], whereas the one-day action in Vermont cost several hundred thousand dollars. In the end, neither raid was justified by the evidence.[lxxiii] This means that something other than evidence actually instigated the raids. That something was the moral panic fomented by the anti-cult agenda. While not always successful in court, it nevertheless serves to deceive the public about any given group that it targets. [lxxiv]

            Seeing that due process is followed at every step along the way is essential. Due process means notice and an opportunity to be heard for every individual involved. At the initial Island Pond hearing Judge Mahady took the time to make sure that due process happened by conducting individual evidentiary hearings. This quickly exposed that the state had no evidence about any of the seized children. He gave the parents time to speak with their lawyers and let the parents themselves also speak.

            At the April 17-18 hearing in Texas, however, there was no opportunity for meaningful participation by the FLDS families. A fresh judge reviewing the matter and actual evidentiary hearings would likely have ended the calamity and the expense much sooner. Still it was the Texas Court of Appeals that stood in the gate to prevent the government’s lawless action. While the social service departments of both states insisted that the action was “routine” and “different in size only,” this was far from the case. Due process and legal protections were egregiously forsaken in the execution of both raids.[lxxv]

           “However, under the circumstances presented to this court on June 22, the State’s own theory of the case obviously ran afoul of both the First Amendment and the Fifth Amendment to the U.S Constitution.”

“The Deputy Attorney General and the Special Assistant Attorney General both stated to the court that there was no evidence whatsoever of any specific acts of abuse directed toward any one of the 112 children brought before the court.”

-In Re: C.C., supra fn 1

            If the state agencies such as social services and law enforcement are not going to substantiate the validity of complaints that they receive, it will be left to the courts. When preliminary investigation uncovers sources with ties to anti-cult organizations and networks[lxxvi], the administrative agencies should be forewarned to “dig deeper” to investigate the reliability of complaining witnesses. (e.g. Flora Jessop and Rozita Swinton in TX, Juan Mattatall and Roland Church in VT were all prompted by anti-cult activists) Defectors and ex-members are notoriously unreliable.[lxxvii] Instead, they are relied upon prematurely as if they are credible. Interestingly enough, the evidence shows that Flora Jessop is linked to some of the very same anti-cult organizations that proved unreliable in the Island Pond case.[lxxviii] While claiming to work on certain projects and to share a common goal, it appears that the common goal is to rescue members from any group that they deem “destructive.” This is not the business of government. Agents of government need to learn to discern such operatives because they have no business influencing, much less controlling, actions of governments supposedly conducted in the public interest and under the protection of the Constitution. Such private interests are not entitled to motivate what is entrusted to the public sphere. [lxxix] The private members of the anti-cult network have no place to influence or control government action because their motivation is not the public welfare, but their own private interests.

8)        Social Services Actions Against Religious Minorities Are Being Used As A Means Of Social Control, Often Ignoring The Judiciary and The Limits Of The Law.

(Nationally And Internationally)

            Andrew Crane, the Defender General of Vermont who led the parents’ defense team after the Island Pond Raid, commented in a May 2000 interview that

 “It was the easiest and best case of my life: easiest because there was no legal question that what the State did was wrong. It was the best because of the degree of injustice that was defeated that day.”

 Crane called the language used by Mahady “important” because people in Vermont:

“needed to see how outrageous it was [what the state did]. He [Mahady] wrote his opinion] that way to educate the citizenry that the State was completely out-of-line.” Swantko (2000) ii

What children believe is in the exclusive domain of their parents.

-Wisconsin v. Yoder, 406 U.S. 232 (1972)

            In 1962 the U.S. Supreme Court warned of “coercive pressure upon religious minorities to conform to the prevailing officially approved religion.” By and large social workers do not understand such limits when working to protect children. For social workers to immediately and dramatically change the clothing style of the girls seized from the FLDS compound is telling. They somehow felt that they had the right and duty to do so. They did not and even worse, they did not know that they did not. Thomas Jefferson once said

I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.”[lxxx]

Such tyranny by social workers is often not recognized when applied to members of religious minorities.

            In both Vermont in 1984 and in Texas in 2008 there was a certain momentum gaining speed for the state to intervene in the lives of families of two different minority religions.[lxxxi] Now this momentum was not based upon evidence, but upon fear. Somehow these state governments believed that they could exercise more control over 500-plus children than their parents could. Both states got far along in their efforts before being stopped by a judiciary who followed the law and required evidence before interfering in the parent/child relationship. It should be that such overreaching and unnecessary actions could easily be predicted to fail and therefore would not be executed. We have not yet arrived at that day.

            The relevance of Judge Mahady’s opinion documenting the illegalities of the 1984 Raid in Island Pond becomes all the more apparent given the similar violations perpetrated by the State of Texas on the FLDS group in Eldorado 25 years later. Social services departments all over the world need to digest the Island Pond opinion and use it as a basis to train practitioners. What is noteworthy is that the laws, procedures and practices are already in place, but social workers do not abide by them. Instead the anti-cult influence on government actors prevails. After being soundly admonished by the court for the Vermont action, the Commissioner of Social Services, John Burchard, wrote two articles[lxxxii] defending his department and proposing new laws promoting more expansive access to children who live in “closed religious communities”[lxxxiii] when he did not receive or believe that his actions broke the law according to Judge Mahady’s ruling. Both he and the prosecutors failed to show a “legal justification,” a key point unrecognized by the state in their 1984 efforts. However, this essential element required for intervention into the lives of individual families was not overlooked by Judge Mahady. He ruled

Of course the best interest of the child involved is the principle concern in juvenile proceedings. However…the best interest of the child is a useful maxim, but it comes into play only when there is a legal justification.” In Re: C.C. supra

            John Burchard wrote scholarly articles in professional journals without referencing his own errors as judged by the legal opinion of Judge Mahady. Burchard failed to acknowledge his actions as illegal and unconstitutional. Instead he writes as an expert as if he is on solid footing to provide sound guidance to other social workers. He cried “best interest of the child” but failed to produce evidence of danger to each child before intruding into his life, a prerequisite for application of this standard. To fail to come under the ruling of the judiciary is in marked contrast to wise advice; rather, it is unprofessional and unethical. [lxxxiv] Unfortunately the executive branch in Texas operated in the same fashion.

            After precisely enumerating the State’s utter failure to obey the juvenile proceedings established under Vermont law, as well as the provisions of the U.S. Constitution upholding family integrity, Judge Mahady concluded

Indeed, it is all too clear that the State’s request for protective detention permitted by the statute upon an appropriate showing was entirely pre-textual.

(emphasis added) What the State really sought was investigative detention. In effect, each of the children was viewed as a piece of evidence. It was the State’s admitted purpose to transport each of the 112 children to a special clinic where they were to be examined…Not only were the children to be treated as mere pieces of evidence; they were also to be held hostage to the ransom demand of information from the parents.”

In refusing the “State’s rather incredible request that the court issue a blanket detention order for 112 children ex parte and without even holding hearings”, the court concluded “even such a goal as avoiding the abuse of children, however, cannot justify the means here employed.” In Re: C.C. supra fn 1

            In Texas the court did not “refuse the state’s rather incredible request.” Texas officials used the exact same tactics as those in Vermont, that is to claim that their seizure of the children was to protect them, when in reality it was to use them as mere pieces of evidence to gather further evidence against their parents and against their parents’ religion. Such raids are not inadvertent, innocent or accidental. They are increasing. Nevertheless,

The freedom of children and parents to relate to one another in the context of the family, free of governmental interference, is a basic liberty long established in Constitutional law…. Had the Court issued the detention orders requested by the state it would have made itself a party to this grossly unlawful scheme.”

-In Re: C.C. supra, fn 1, Detention Order decision, p. 2, p. 6

In Texas the family court did make itself a party to such a grossly unlawful scheme. As Judge Mahady warned in 1984 “social welfare agencies and the police must not be allowed to perceive that they are being given a blank check with regard to juvenile proceedings.” In Re: C.C. supra fn 1

Conclusion

            The question must be asked: How can social welfare agencies be well-intentioned when they know the law and intentionally violate it when dealing with new religious movements? They allow the influence of moral panic generated by the agenda of the anti-cult movement to persuade them to act outside the bounds of the law. The media plays a major role in fomenting fear and panic about a minority religion because it relies on the flawed information deliberately generated by the anti-cult movement.

            Social service agents allow themselves to be persuaded by something other than evidence; they allow themselves to be persuaded by fear and suspicion, the very calling card of the anti-cult movement.  The effect is subtle. Every call is a judgment call and the anti-cult people know how to maximize this leverage; the power of persuasion is their business. Both of these Raids were pre-planned and not a necessary response to an emergency to protect children.

            For people like Galen Kelly and those motivated by the anti-cult movement philosophy, the rights of members of minority religions get in the way, but the government has a duty to protect people’s rights, even theirs. And that is why people like Galen Kelly have no business advising government, because they do not make it their business to follow the law or to bother with protecting peoples’ freedoms. Their goal is only to appear as experts who know what they are talking about to those who have the authority of the law behind them. Either the government rules over the anti-religious, anti-cult movement and its unjust mindset or the anti-religion movement will run the government.

            Governments disobeying the law amplifies the power of moral panic. Galen Kelly’s plan to destroy the Island Pond Church Community is a textbook example of how to generate fear in the public arena. It did not work in Vermont because Judge Mahady stopped it on the very day that the raid was executed. He stood in the midst of the pressure created by the moral panic and ruled righteously according to the Constitution.

            In 1984 the Twelve Tribes was not destroyed, but neither was the Galen Kelly plan. It is alive and its momentum did not die after the deaths at Waco or after the Justice Department Report.

            An extreme measure of the effect of the Galen Kelly plan is the increasing militarization of law enforcement. Consider this:

1)        1984-In Island Pond the believers were not armed and did not have weapons. They surrendered to the seizure and waited on the processes of government. Vermont State Police were armed and wearing bullet-proof vests, but there was no violent action.

2)        1993-Both the Branch Davidians and the government were armed and the weapons they had were used. The side with more might including the federal government won and 86 people were killed.

3)        2008- FLDS were not armed and used no weapons. The government waited with tanks before there was even a warrant issued. The children were seized and the state’s motive was apparent: Do everything to purge them of their faith and the religious beliefs of their parents…the very goal of the anti-cult movement.

***

Outline of Galen Kelly Proposal

A. Introduction

1. Preliminary Inquiries

           a. sent investigators of G. Kelly Associates to IP

           b. conducted voluntary deprogramming on member (Mike Taylor)

           c. interviewed various former members

           d. read media literatiure about NEKCC

           e. concluded NEKCC a destructive cult

                       1) exhibiting any number of anti-social activities

                       2) variations of law

                       3) practicing mind control for purpose of exploiting members

2. Point of Development

           a. will collapse, or;

           b. phenomenally grow

3. Conduct well structured investigation

           a. designed to develop and document facts about activities of NEKCC

           b. use investigation as vehicle to

                       1) coordinate law enforcement, media and grass roots opposition

                                   to NEKCC

                                   a) which will prevent growth

                                   b) assist in dissolution of the group

4. CFF assist in this project for two reasons

           a. First

1) group small enough and localized enough to be studied,

           investigated, and researched as microcosm

2) what can be learned from study will be applicable to other

           groups in future

3) the investigative/research project an experiment in developing

           ways to teach communities how to cope with incursion of

           a cult.

                       b. Second

                                   1) CFF participation in “research project” will be great step

                                                forward in its taking aggressive action

                                               a) prior role has been constructive but passive

                                               b) only aggressive anti-cult action has been deprogramming

                                                          which entails various controversial problems

B. Basis for Investigation

            1. Investigative Goal

                       a. conduct field investigation to develop and document information on

                                   existing allegations of criminal, quasi-criminal and otherwise

                                   anti-social actions regarding NEKCC

                       b. uncover and document similar incidents that heretofore were not

                                   known to the community, general public or the authorities

            2. Existing Allegations

                       a. severe and frequent cases of child abuse

                       b. child neglect, children died from medical neglect

                       c. unreported death of children and/or adults from natural and

                                   unnatural causes

                       d. NEKCC policy to violate law in failure to report births, deaths,

                                   enroll children in school, violation of zoning and housing

                                   regulations, tax laws, distribution of controlled medication

                                   without prescriptions

                       e. investigation of violent actions including shooting incident at

                                   store when drive-by shots fired through front glass

                       f. questionable financial actions

                       g. violation of court orders in custody matters

                       h. incident of violent rape

C. Report Preparation

            1. Report will include results of investigation into allegations of criminal,

                       quasi-criminal, and other anti-social actions

            2. Contain information confirming or denying additional allegations that

                       group is not synthesized around theological belief but “Systematic

                       Manipulation of Social Influences” or mind control

                       a. if psychological coercion is found, it is essential for report to state

                                   specific techniques employed

D. Regulatory Agency

            1. Work closely during investigation with law enforcement and regulatory

                       agencies to gain access to information they have developed themselves

            2. Working with regulatory agencies would establish credibility with them

            3. Would subtly or not so subtly force any reluctant enforcement or regulatory

                       agencies to take appropriate action against NEKCC

E. Media Exposure

            1. Coordinate with appropriate and legitimate news media

                       a. bring scrutiny to IP situation

                       b. use IP situation to focus attention on the cult issue

                                   1) child abuse

                                   2) serious anti-social behavior

                       c. keep cult issue away from more clouded and controversial issues as

                                   mind control, deprogramming and religious controversies

F. Local Education

            1. Educate individuals and institutions in communities (towns) affected by

                       NEKCC

                       a. will enable local people to

                                   1) prevent their young people from affiliating with NEKCC

                                   2) assist in providing support services for those who want to leave

                                   3) assist families who have travelled great distances to see children

                                               in NEKCC to hopefully get them out

                                   4) effectively cope with NEKCC activities through legal means and

                                               appropriate techniques rather than develop vigilante

                                               mentality


Endnotes



[i] In Re C.C., 22-6-84 Osj, District Court of Vermont, Unit 3, Orleans Circuit (1984), J. Frank Mahady, Vermont District Court, Unit III (decision suppressing everything seized under the warrant for the 1984 Island Pond Raid, p. 21, 23), available at www.twelvetribes.org C.C. refers to “certain children” exemplifying that the state had no specific names, but sought out all the children in the church group. They also took notebooks, writings, personal effects.

[ii] Swantko, Jean A., "An Issue of Control: Conflict Between the Church in Island Pond and State Government", World Congress of Sociology, July 1998, Swantko, Jean A., “The Messianic Communities in the European Union: 
An Issue of Parental Authority”, Cesnur 1998, both available at www.twelvetribes.org

[iii] The “Investigative Proposal Regarding Island Pond” written by Galen Kelly of Kingston, NY in 1983 for Priscilla Coates was discovered in the files of the bankrupted Cult Awareness Network in 1999. Swantko, (2000) “Anti-Cultists, Social Policy and the 1984 Island Pond Raid,” Cesnur, Error 11: State Intentions Reveal Direct Coordination with Anti-Cultists: Burchard [VT social services commissioner] acknowledges that at ‘strategy meetings’ in the fall of 1983 he and other officials discussed options inclusive of the state action to raid the church and take its children. Priscilla Coates and Galen Kelly met with the Attorney general’s staff August 9, 1983. Thereafter, state investigators were sent around the country to talk to ex-members hand-picked by them to dig for stories of abuse. This is not the procedure contemplated by the statutory scheme. This is not, as Burchard claims, ‘routine procedure, different only in numbers.’ p. 17

[iv] Kelly proposed “a well-structured investigation designed to develop and document facts about the activities” of a group. He then uses the “investigation as a vehicle to coordinate law enforcement, media and grass roots opposition to the group…which will prevent its growth and aid in its dissolution.” He interviews former members, searches out their ‘gripes’ and then has material to aid him in deprogramming other defectors. Kelly, supra fn 3, 3(a-b); Id.

[v] In November 1982 Galen Kelly orchestrated a public meeting in Barton Vermont to incite fear about the neighboring Island Pond group. He recruited citizen activist Suzanne Cloutier to coordinate the meeting, as well as to cultivate press contacts and to coax members to defect and write affidavits against the group that Kelly could use. This resulted in affidavits for criminal charges and custody battles where so-called “anti-cult experts” were relied upon as credible when they were not. Eventually deprogrammed and anti-cult coached defectors were whisked to the media and to state authorities to initiate legal action. State lawyers are ‘subtly or not so subtly’ duped into authorizing state action that is actually grossly illegal. In Texas, in 2004 there was a similar public meeting held to promote fear of the unknown FLDS who had purchased property in Eldorado. Also, the apparent connection between hoax caller Rozita Swinton and FLDS “career apostate” and anti-cult activist Flora Jessop is of critical importance. Why did Swinton call Jessop? Who fed Swinton the facts for her alleged complaint? Why did CFPS give weight to either caller whose complaints were unsubstantiated and only days before the massive raid? (Richardson 2009 Prospectus)

[vi] Kelly instructs his people to “work closely during an investigation with law enforcement and regulatory agencies to gain access to information that they have developed themselves” with the goal of “establishing credibility with them” so as to “subtly or not so subtly force any reluctant enforcement or regulatory agency to take appropriate action” against the group. Kelly plan D (1-3); See also “Regulating Religion,” (Richardson 2000)

[vii] “Had the Court issued the detention orders requested by the State it would have made itself a party to this grossly unlawful scheme. In our society, people are not pieces of evidence. Such a "contention … clashes with a fundamental written into our Constitution …; no human being in the United States may be [so] dealt with … by government officials, or by anyone else." Blackie's House of Beef, Inc. v. Castillo, 467 F.Supp. 170 (D.C. 1978). In Re: C.C., supra fn 1,J. Frank Mahady

[viii] Kelly assisted the Citizens’ Freedom Foundation in the Island Pond project for two reasons: 1) because the group was “small enough and localized enough to be studied, investigated and researched as a microcosm,” providing lessons “applicable to other groups in the future,” as a “research project to experiment in developing ways to teach communities how to cope with the incursion of a cult;” and 2) having the participation of CFF (precursor to C.A.N.) “will be a great step forward in taking aggressive action, since the only aggressive anti-cult action has been deprogramming which entails various controversial problems.” Kelly plan A(4)(a-b); Nine years later we witnessed the tragedy at Waco, TX in 1993, then Eldorado, TX in 2008 and scholars Stuart Wright and Susan Palmer are currently researching some 40 other similar raids for a forthcoming book called “Storming Zion.” 

[ix] In re: Sara Steed, et al., __S.W.3d__(Tex. App.- Austin, orig. proceeding No. 03-08-000235-CV) (mem. op.) May 22, 2008; In Re Texas Dept. of Family and Protective Services, Relator, S.Ct. Tex. (per curiam) (2008)

[x] Texas motives can hardly be challenged when one looks at the facts and the speech of Gov. Perry, Sheriff Doran, Rep. Hilldebran, Angie Voss, CPFS supervisor. “But the broader contours of the raid parallel the assault on the Branch Davidians as well as other skirmishes between unconventional religious groups and the government.”  Religion in the News, Fall Issue 2008,  “FLDS 1, Texas 0”, Eugene V. Gallagher, p. 8 “Organized opposition by former members and their sympathizers seems to have played a significant role in provoking government action.” Id. The evidence that public officials and public servants targeted the FLDS based on their religious beliefs is there for all to see. ‘It is also part of a much larger story having to do with the history of unconventional religious groups in the U.S.- and the nature of religion itself.” Id. 7.

[xi] That the child welfare departments of both Vermont and Texas blatantly overstepped the bounds of their own state law as well as the U.S. Constitution is evident and graphic in the judicial opinions cited herein. Swantko, (2000) “Anti-Cultists, Social Policy and the 1984 Island Pond Raid,” Cesnur, Error 8: State’s Claim that the 1984 Raid was “ a preventative action, taken under the standards, mandates and responsibilities of child abuse law…” was Found a ‘grossly unlawful scheme’ by the Court. p. 15-16, pp.13-15 show how the state defied previous legal rulings, available at www.twelvetribes.org

[xii] “Moreover, the State admits that there is not a single piece of evidence in the material submitted that documents a single act of abuse or neglect with regard to any of the 112 children.” In Re: C.C., supra fn 1 The state of Vermont did not appeal the trial court decision to dismiss the petitions because they had no basis of appeal, as determined by the special prosecutor appointed after the failed raid. The Texas Dept. of Family and Protective Services called the YFZ raid “the largest child protection case documented in the history of the United States.” In Re Texas DFPS, supra, fn 8

[xiii] “Who Is Afraid of Religious Minorities? The Social Construction of Moral Panic,” Massimo Introvigne, CESNUR 1998, http://www.cesnur.org/testi/panic.htm, Swantko (2008) supra fn 11, Error 10: State’s Position Reflects a Misapprehension of the State’s Burden and the Limits of State Power, Wessinger (2006)

[xiv] Religion in the News, supra fn 9, Gallagher, E., Citizen’s Freedom Foundation letter to National Council of Churches, January 17, 1984 states “they [destructive cults] have infiltrated and proselytized mainline denomination among other recruitment practices….I would be extremely pleased to be able to present a plan of cooperation with the National Council of  Churches on the cult issue.”

[xv] This paper focuses only on these two raids, but other scholars have conducted broader research as to an increased number of raids by government on new religious movements following similar patterns. (Stuart Wright, Susan Palmer, James Richardson)

[xvi] Kelly plan D (1-3), supra fn4; B (2) building moral panic with what he labels “existing allegations” consisting of exaggerated and defamatory statements alleging “severe and frequent child abuse” to the press and public agencies; unsubstantiated accounts, twisted with lies and untruths. “An example of the effect of the state’s biased approach is to impute a bad motive because community parents home-school their children, a legal alternative. [Burchard] states as if objective, that parents home-school ‘to avoid the potentially evil influences of outsiders’ and ‘to reject the authority of local, state and federal laws.’ Such slanted perspectives distort the process of finding the truth. Swantko (2000) supra fn 11 at 16-17. Wessinger (2006), Minimal information will be given about group members tending to “dehumanize and erase them, failing to generate any empathy with the public.” Richardson, J. (1995) The way that media reports tends to generate “manufactured consent” in the public perception. It is very powerful.

[xvii] In Re: C.C., supra fn 1, Detention Order Decision, C, J. Frank Mahady

[xviii] Tex. Fam. Code 262.201 (b); Vermont law and most states have virtually identical provisions

[xix] In re: Sara Steed, et al, supra fn 9; “Even if one views the FLDS belief system as creating a danger of sexual abuse by grooming boys to be perpetrators of sexual abuse and raising girls to be victims of sexual abuse…there is no evidence that this danger is ‘immediate’ or ‘urgent’…with respect to every child in the community.”

[xx] In keeping with Kelly’s plan A (3) to investigate to “document criminalities.” Among the dozen people interviewed two were children, two were visitors, one was a professional deprogrammer and about half were deprogrammed first. Afterwards former members called stating that their statements to Vermont authorities had been distorted, exaggerated and that the investigators had come only to “look for the dirt,” not the truth. See also documentary, “The Children of the lsland Pond Raid: An Emerging Culture” Swantko (2005), available at www.twelvetribes.org

[xxi] “The theory is that there is some evidence of some abuse at some time in the past of some other children in the community. The same, of course, may be shown of Middlebury, Burlington, Rutland, Newport or any other community. Such generalized assumptions do not warrant mass raids by the police removing the children of Middlebury, Burlington, Rutland, Newport or any other community (even a small, unpopular one). Adlai Stevenson once quoted that "guilt is personal", and I might add "not communal". Our Court has held many times that mere presence at a particular place is not sufficient to establish participation in a particular act.” In Re: C.C., supra fn 1, J. Mahady

[xxii] “The role of the anti-FLDS network came to light in the press’s investigation of the phone calls that apparently instigated the raid. The calls, now widely regarded as a hoax, were made March 29 and 30 by someone identifying herself as an underage bride and victim of abuse named Sarah. On April 18, Ben Winslow of the Deseret News reported that the caller had also contacted Flora Jessop, an anti-polygamy activist and Joni Holm, a woman who helped children who had left the FLDS. In the same article, Winslow reported that Rozita Swinton, the 33-year-old woman whom authorities believe was the most likely caller, had a history of making such calls and identifying herself as a young victim of sexual abuse. It is clear that her ruse gained traction because of the widespread sense of suspicion about those at the YFZ Ranch. As one neighbor, rancher Mary Leigh Donegan, told Pamela Manson of the Salt Lake City Tribune in an April 4 story, “When anything is a mystery, you get apprehensive.” The anti-FLDS activists gave that vague apprehension a face and a rationale. Religion in the News, Gallagher, supra fn 9.

[xxiii] As noted by James Gallagher in Religion in the News supra “part of CPS’s self-examination will be to consider how much its strategies were shaped by a generalized suspicion of and distaste for, an unconventional religion.” p. 25; Swantko, Issue of Control, supra fn 2

[xxiv] In Re: C.C. supra fn 1, search warrant decision, J. Mahady

[xxv] Judge Joseph Wolchik, Caledonian Record, Feb. 11, 1987 (St. Johnsbury, Vermont)

[xxvi] Kelly plan D (1-2) supra fn 4 says that ACM applies pressure once an agency trusts him. James Richardson, interviewed in June 2004, notes the pattern of officials to claim they were responding to an emergency, when in reality the magnitude of the state action clearly takes months to plan and execute, belying the state’s explanation of the invasion being driven by the immediate complaint. What Kelly knows from ex-members does not meet legal standards of reliability but social services trusts him because he presents himself like an expert who knows what he’s talking about. Valid experts such as David Bromley, author of the Politics of Religious Apostasy, Praeger (1998) confirm that stories from defectors and apostates are notoriously unreliable. (Palmer 1998) It is noteworthy that the former social services commissioner in Vermont, John Burchard has written as an expert in professional journals actually claiming that “those individuals had some very compelling information which guided their actions; information which was not available to the public,” placing reliance on Galen Kelly caliber data. Burchard, John, "Children At Risk: Why Protective Action in Island Pond was Necessary", July 17, 1984 “Burchard’s bibliography causes the reliability of his recommendations to collapse like a house of cards.” (Swantko, 2000, at p. 12, 15 Error 7: Information Claimed ‘Compelling’ Was Not Evidence; Error 9 reveals reliance on newspaper accounts as valid and that he acted only on the possibility of abuse at p. 16.)

[xxvii] The state was seeking children whose mothers were under 17 or who were married under 17 to an adult male. Beliefs are sacrosanct; only illegal actions can be prosecuted. In Texas the state tried to claim that FLDS beliefs condoned underage marriage as a basis to hold all the children seized, but the only concern that the state can legitimately claim is for underage females that were actually married. Without such evidence, the state crosses an impermissible line. Furthermore the law in Texas had been “14 with parental consent” but it was changed in 2005 to 16 in response to the FLDS moving to Texas in 2004.

[xxviii] In Texas, when the first warrant proved to be founded on a hoax, the state sought a second warrant to keep the raid alive, but there was still no risk of harm based upon evidence. In Re: Sara Steed, et al, supra fn 9, In Re Texas Dept. of Family and Protective Services, Relator, S. Ct. Tex. supra, fn 9; In Vermont “the State attempts in its memoranda to justify the warrant as an administrative warrant and/or as a search warrant relating to evidence of a crime. However, the State never picks a horse and rides it to the finish line. As expediency dictates, the State's position shifts from "administrative" to "criminal" analysis depending upon which most nearly fits the State's position on any given issue. The resultant inconsistencies and lack of clear analysis are blatant.” In Re: C.C. supra fn 1, J. Mahady, p. 23 search warrant opinion

[xxix] “A fundamental flaw in John Burchard’s approach is that the state was concerned more with the destruction of a group whom it believed embraced ‘destructive ideas’ contrary to the State’s definitions of sound ideas of child rearing, rather than with coming against “bad acts” that there was evidence to substantiate.” (Swantko, 2000, p. 13)

[xxx] Santosky v. Kramer, 455 U.S. 745,753 (1982), Stanley v. Ill., 405 U.S. 645 (1972), Yoder v. Wisconsin, 406 U.S. 421, 431 (1962), Engel v. Vitale, 370 U.S. 421, 431(1962), In Re: C.C. supra fn 1, J. Mahady

[xxxi] See Matter of Marriage of Knighton, 723 S.W.2d, 274, 277-78 (Tex. App.-Amarillo 1987, no writ), Brief of Marie Steed, Response to Mandamus, p. 3

[xxxii] In Re: C.C. supra fn 1, 6/22/84, Tr. p. 67, quoting acting Assistant Attorney General of Vermont, P.H. White

[xxxiii] Marie Steed Brief in Response to Mandamus, p. 3 and CFPS quotations there, infra.

[xxxiv] Id., Kelly’s plan A (1) suggests a “preliminary inquiry that reveals group to be a destructive cult” (based upon their belief system without necessarily having evidence to prove actual harm); “Lawyers who practice family law will know to say that the burden is on the state in these cases. The underlying principle is whenever you take a child away from his parents, that you do so when there is serious risk of abuse.” Teachout, Peter, Constitutional Law professor quoted in “1984 Vermont Raid had similar conclusion to Texas case,” W. Ring, AP Wire 6/4/08; “It could be that you have wrongdoers somewhere in there. But the thing that you have to do is identify them. You can’t just throw a net over 1,000 people.” David Schenk, TX attorney for mothers quoted in “Court Rejects Seizure of Texas Sect’s Children: Groups Beliefs Not Seen as ‘Urgent’ Danger”, David Fahrentold, Washington Post, 5/23/08

[xxxv] It is contrary to anti-cult practice to seek information from members of the group themselves as to their beliefs and practices because it is presumed that they are untrustworthy and unreliable. UPI Press Release, 11/28/82, Orleans, Vt., Appendix I,  An Issue of Control, Swantko, www.twelvetribes.org It is common practice for them to use so-called ‘experts’ who have never had any contact with a given group or its belief system. Anti-cultist Steven Hassan made an evaluation about Island Pond without ever visiting a community, asking questions or interviewing members.

[xxxvi]In Re: Sara Steed, et al, supra fn 9, In Re Texas Dept. of Family and Protective Services, Relator, S. Ct. Tex. Supra, fn 9, Brief of Marie Steed pp. 8-10

[xxxvii] There were 40 hearings, because there were that many named children; the other 60 plus children who had not provided names were being held in a city gym across the street awaiting the fate of the named 40. Eventually, the other 60 were returned home without a hearing.

[xxxviii] “Comments by locals in the Eldorado area indicate that from the time the FLDS started developing the YFZ property in 2004 it had been the target of opposition. Although some neighbors maintained a posture of tolerant disagreement, the local state representative, Harvey Hildebran, acknowledged to Kirk Johnson of the New York Times April 12 [2008] that the authorities had been looking for ways to fight against the FLDS since they bought the property.” Religion in the News, supra fn 9, p. 8; YFZ Reports video quoting Gov. Perry

[xxxix] Massimo Introvigne, supra, fn 12; Wessinger (2006) at 147, 156-159 [and citations therein: Wright, S. (1995), Wessinger (2000), Richardson, J. (2001), Bromley, D. and Melton, G. (2002)]

[xl] Even what issues were not raised were programmed by Galen Kelly. Kelly’s plan E (1)(c) advised authorities to keep “the cult issue away from more clouded and controversial issues such as mind control, deprogramming and religious controversies.” At this time, scholars were undermining the brainwashing theory in court and anti-cultists were being convicted in criminal court for their deprogramming activities. Swantko (1998, 2000), Palmer (1988)

[xli] Kelly’s plan E (1); Wessinger (2006) supra fn, p. 5, Wessinger, C. “Culting- From Waco to Fundamentalist Mormons,” at pp. 4-5, www.religiousdispatches.org/art219.php; Attorney General Janet Reno was forced to retract any claims of abuse to children after the siege because they had no such evidence. p. 3.

[xlii] Kelly’s plan advised focusing on what he termed “serious anti-social behaviors.” Id. E 1(b)(2); See “Anti-Cultists, Social Policy and the 1984 Island Pond Raid,” Swantko, Jean A., Cesnur 2000, available at www.twelvetribes.org for analysis of twelve specific errors made the Vermont Dept. of Social Services revealing the anti-cult influence on state government policy and action.

[xliii] In Re: C.C. supra fn 11, J. Mahady, search warrant opinion at 25

[xliv] In Re: C.C., supra, Summons, June 19, 1984

[xlv] Tr. 6/19/84, 1-6-84j, “Essex Seven,” www.twelvetribes.org

[xlvi]In Re: C.C., 1-6-84j, 6/19/84, Judge F. Ray Keyser Order denying state jurisdiction; www.twelvetribes.org, Issue of Control, Swantko, supra fn 2, Appendix DD

[xlvii] State v. Wiseman, Decision to Dismiss, District Court of VT, Unit 3, 91-7-83 Ecr, “The most "heinous" crime laid against a church leader was the simple assault charge on Charles Wiseman in 1983. When push came to shove in the hearings after the Raid, and the State was called to justify itself after all the children had been sent home because there was no evidence of any abuse, the State declared that "all the children were at risk because they lived in the same Community as Mr. Wiseman." The Wiseman case was eventually dismissed for lack of a speedy trial on June 13, 1985. The reason the trial was not "speedy" was because the State declined to call available witnesses, instead choosing to rely on unsigned depositions of defectors who recanted their exaggerated accounts, explaining how they had been pressured by anti-cultists. The complaining witnesses in this case were a defector named Roland Church and his thirteen-year-old daughter, who became the unwitting pawns of Galen Kelly and his plan to destroy the Community Church in Island Pond. The trial judge found the State of Vermont guilty of prosecutorial misconduct for their strategy of appealing to delay the case when the witnesses were ready to testify to the truth.”  Messianic Communities in the European Union, 1981-1984 A., “State v. Wiseman,” Swantko (1998) www.twelvetribes.org

[xlviii] In Re: C.C., supra fn 1, J. Mahady, Dismissal opinion at p. 7; Swantko (2000) supra fn 3, Error 12: State’s Theory Reveals Ignorance of Legal Standards and Lack of Good Faith Toward Church Members, at 17-18.

[xlix] Philip H. White quoted in the press, State's Attorney for Orleans County, Vermont, 1984, deputized to act as Assistant Attorney General for the Island Pond Raid. Was it because he knew that the whole Kelly plan had been condoned by the highest executive levels of government in Vermont?

[l] Wessinger, Catherine “The Branch Davidians and Religion Reporting- A Ten Year Retrospective,” from

Expecting the God: Millennialism in Social and Historical Context, ed. Newport and Gibbons, (Waco, Baylor University Press 2006

[li] Dept. of Justice Report on Waco, Excerpt of Dr. Nancy Ammerman report, (1994) at www.twelvetribes.org, Issue of Control, supra Swantko,  Appendix T; Wessinger supra fn 51

[lii] Wright, Stuart and Richardson, James, See Prospectus for Paradise Plundered: The Texas State Raid on the Fundamentalist Latter Day Saints (2009)

[liii]Id., James Tabor and Eugene Gallagher, “Why Waco? Cults and the Battle for Religious Freedom in America” (1995), Wessinger (2006) supra fn 51.

[liv] Kelly plan A (1-4), D When one understands that Kelly’s plan called for “working closely during investigations with law enforcement and regulatory agencies to gain access to information that they have developed themselves, in order to establish credibility with them so as to subtly or not so subtly force any reluctant enforcement or regulatory agency to take appropriate action against the group” it becomes clear that state agencies were influenced to go beyond the limits of the law.

[lv] Religion in the News, supra fn 11, Eugene V. Gallagher at 8

[lvi] Id., Swantko (2000) supra fn 3, Swantko, infra at 9-13, Wessinger (2006) supra fn 51

[lvii] Interview with YFZ church member Lamar Johnson , April 3, 2009, San Angelo, TX

[lviii] Swantko (2000), supra at 5-9, Error 1: Use of Prejudicial Language and Ill-founded Premises; Kelly plan C; UPI Press Release, Nov. 28, 1982, Orleans, VT: “Priscilla Coates said she and Kingston, N.Y. private investigator Galen Kelly will not meet with members of the Northeast Kingdom Community Church [Island Pond], however, because her mission is education, not confrontation.”

[lix] Swantko (2000) supra at 7-8, Error #2: Claim That Parents Were Uncooperative Used to Justify Expanded State Power; By way of contrast, another state official responded quite differently to a potential conflict with church members. The state had been trying unsuccessfully to obtain truancy convictions for Island Pond Community Church parents between 1978 and 1990. When a new Commissioner of Education came in he was invited to Island Pond to observe the students in class so that he could see for himself the education that the children were receiving. Commissioner Mills, after personally visiting and seeing the educational program advised his staff to find a way to accommodate the Island Pond Community Church. Within months the Dept. of Education recommended a minor amendment to the home-schooling law and the Church members have been in compliance with the state requirements since 1990.

[lx]Swantko (1998), Issue of Control, supra fn 2

[lxi] “The district court then considered all of these petitions during a single, two-day hearing with most parties absent and lawyers, appointed only days before, scattered between the courtroom and an auxiliary facility staged in the City auditorium.” In Re Texas DFPS, S. Ct. Tx., No. 08-0391, Brief of Amicus Curiae (ACLU) in Opposition to Relators’ Petition for Mandamus, p. 7

[lxii] D. Bromley (1998), supra fn 26, James Richardson, Susan Palmer articles therein; Wessinger (2006)

[lxiii] “Further, despite the basic principle that legal standards must be proved on an individual basis, and the clear accordant requirements in the Texas Family Code, and despite the varied circumstances- different ages, sexes, families and living situations- of the children before it, DFPS failed to provide evidence sufficient to show that each child was in danger, relying instead upon testimony about beliefs ascribed to the group as a whole and assertions of broad cultural harm….Courts have repeatedly held that such proof by presumption is inappropriate when parental rights are at stake.” ACLU Brief supra fn 59, p. 8

[lxiv] Marie Steed brief p. 7

[lxv] ACLU Brief, supra fn 59 at 8.

[lxvi] “The evidence DFPS put forth was not just over-generalized. It also focused heavily on the beliefs ascribed to the parents rather than on actions or omissions that threatened to place the children in harm’s way.” Id. 9-10

[lxvii] Smith, John A., Las Vegas Review Journal, (2008), Mental health worker, Linda Weirlein who was called in to support DFPS stated in an affidavit that DFPS officials misrepresented evidence of child abuse and that “My staff and I soon learned that each and everything that we were told was either inaccurate or untrue.”

[lxviii] Emily Davis, Vermont lawyer for seized children, and Jack Hoffman, Vermont Press Bureau journalist (1984), interviewed in 2004 provide a representative sample of the impressions of lawyers and reporters who observed the children on the day of the seizure, as did retired Vermont State Police Captain Michael LeClair, infra, fn 66.

[lxix] Smith supra fn 68, Wessinger (2006), Wessinger “Cultingsupra, Swantko (1999)

[lxx] M. LeClair, retired Vermont state Police Captain, uses Judge Mahady’s decision to teach search and seizure law at the police academy in Vermont. He retired in 1996 remembering the Island Pond Raid case as the only one he regretted participating in.

[lxxi] Wessinger (2006)

[lxxii] Id., As revealed in Galen Kelly’s 1983 “Investigative Proposal Regarding Island Pond” and applied in subsequent state-sanctioned raids since 1984.

[lxxiii] Scholars who have studied these raids have called for greater protections, less hysteria and more vigilance to the law in order to avoid similar actions in the future. Wessinger (2006), Swantko (2000), Wright, Richardson, Bromley

[lxxiv] In Vermont in the early 1980’s the anti-cult movement sent so-called experts to testify in custody battles that were reported in the media and they used these cases to convince judges and the public that there was a pattern and evidence of abuse, but it was ‘manufactured’ by the unqualified ‘experts’ who weren’t. Swantko (1998)

[lxxv] In Re: C.C., supra fn 1, J. Mahady: opinions on dismissals, photographs, petitions, search warrant. In Waco there was never any seizure or hearings at all and Attorney General Reno similarly had to back off from any justification based upon child abuse. Wessinger (2006) at 162.

[lxxvi] Wessinger (2006)

[lxxvii] Bromley (1998) supra, Susan Palmer article infra

[lxxviii] Steven Hassan, Robert Pardon, AFF, Rick Ross

[lxxix] State action is bound to follow the Constitution; private actions are not. Crimes are actionable by the state; torts are private injuries and not actionable by the state. Therefore Constitutional protections do not apply.

[lxxx] letter to Benjamin Rush, Sept. 23, 1776

[lxxxi] In large part this was due to inflammatory and distorted press coverage instigated by the anti-cult network.
Palmer (1988), Swantko (1998), Wessinger (2006); “The label “cult” has been applied to both the Branch Davidians and the Fundamentalist Latter-day Saints at the YFZ ranch. In both cases, media representatives have turned to self-styled “cult experts,” who have no academic credentials in the study of religions, to provide explanations associated with the pejorative words “cult” and “brainwashing.” Such stereotypes increase public outrage against religious groups and help to make the believers seem like outsiders. Wessinger (2008)

[lxxxii] Burchard, John, “Children at Risk: Why Protective Action was Necessary in Island Pond,” July 17, 1984, “Investigations of Child Abuse/Neglect Allegations in Religious Cults: A case Study in Vermont,” Behavioral Sciences and The Law, vol. 10, 75-88 (1992)

[lxxxiii] Wessinger (2006), Richardson

[lxxxiv] Swantko (2000) supra p. 17, Burchard fails to note his connection to the anti-cult movement, their influence and their “expert” advice. Wessinger (2006)