Month: August 2022

From Avendano v. Shaw, decided Friday by the Alabama Supreme Court (in an opinion by Justice James Mitchell):

This case stems from the serial fraud of Brandy Murrah, the former owner of a drug-screening laboratory who is now in prison for falsifying test results. The plaintiffs, Angel Avendano and Sandy Knowles, claim to be victims of Murrah’s fraud and allege that social worker Victoria Shaw conspired with Murrah to falsify the results of their drug tests…. {For purposes of this appeal, we view the record in the light most favorable to Avendano and Knowles, and we resolve factual disputes and ambiguities in their favor to the greatest reasonable extent.}

Angel Avendano is the father of two children who, during the time frame relevant to this case, had been placed in foster care. Though the children’s foster parents were their primary caregivers, Avendano retained visitation rights and would regularly host the children at his home. Avendano’s employer, Sandy Knowles, was close with Avendano and would help care for the children while they were staying with him.

During the children’s time in foster care, one of the foster parents came to believe that the children’s biological mother (Avendano’s ex-wife) had been using illegal drugs around the children. The foster parent decided to give the children an at-home drug test, which allegedly turned up positive. The Dale County Department of Human Resources (“DHR”)—the agency charged with providing child-protective services and overseeing the county’s foster-care system—soon launched an investigation. As part of that investigation, DHR social worker Victoria Shaw (who all parties agree is an employee of the State of Alabama for purposes of this appeal) went to Avendano’s house, accompanied by Brandy Murrah, and asked Avendano and Knowles to submit to drug tests administered by Murrah. Believing that the tests were legitimate, Avendano and Knowles agreed.

Murrah administered the tests and then reported that both Avendano and Knowles were positive for “amphetamines or methamphetamines.” Avendano and Knowles insisted that the test results must be wrong. To prove it, they procured their own drug tests from an independent laboratory, which showed that they were drug-free. Avendano and Knowles presented the negative test results to Shaw, but to no avail—Shaw relied on Murrah’s test results to restrict Avendano’s and Knowles’s ability to see the children….

It eventually came to light that Murrah was a serial fraudster who had, on multiple occasions, falsified the results of tests submitted to her lab. In 2020, Murrah confessed her crimes and was sentenced to several years in prison….

The court held that plaintiffs’ intentional infliction of emotional distress tort could go forward:

Shaw argues that even if she is not entitled to the jurisdictional protection of State immunity with respect to the individual-capacity claims against her, she is nonetheless entitled to the more limited, nonjurisdictional affirmative defense of State-agent immunity, which protects State employees from personal liability for certain actions undertaken in the performance of their official duties. There is an exception to State-agent immunity, however, for actions or conduct undertaken “willfully, maliciously, fraudulently, in bad faith, beyond [the agent’s] authority, or under a mistaken interpretation of the law.” …

Here, the complaint alleges that Shaw worked closely with Murrah, personally directed Murrah in the performance of her job duties, was physically present while Murrah performed the drug tests on Avendano and Knowles, and ignored independent lab results showing that Murrah’s tests were inaccurate. Nothing about these allegations affirmatively rules out the possibility that Shaw acted maliciously, fraudulently, in bad faith, beyond her authority, or under a mistaken interpretation of the law. Thus, State-agent immunity cannot be an appropriate basis for dismissal [as a matter of law]….

Shaw also points to … § 26-14-9, Ala. Code 1975, which shields from liability persons who participate in “the making of a good faith report” in child-abuse removals, investigations, or judicial proceedings. Even if the drug-test report at issue here qualifies as a report related to child-abuse proceedings (a conclusion that Avendano and Knowles dispute and about which we express no opinion), we have just explained that the complaint leaves room for the possibility that Shaw’s actions related to that report were not undertaken in “good faith.” …

A plaintiff can satisfy [the] rigorous standard [for intentional infliction of emotional distress, known under Alabama law as “outrage,”] by plausibly alleging that the defendant’s conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused severe emotional distress that a reasonable person could not be expected to endure.

In our view, Avendano and Knowles’s allegations clear this high hurdle, because the complaint alleges that Shaw: (1) “intentional[ly] and malicious[ly]” colluded with Murrah (2) to fabricate positive drug-test results and to use those fabricated results to falsely smear Avendano and Knowles as drug addicts unfit to be around children, and that (3) this conduct caused severe and unbearable emotional distress by stripping Avendano and Knowles of their parental and caretaking rights, respectively, and by clouding their reputations within their community….

[Likewise as to fraud, which] requires (1) a false representation (2) of a material fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result of the misrepresentation…. The complaint alleges that “Shaw represented … that the [drug] tests were legitimate tests that would be properly processed to determine the results” and that this representation was “false.” The complaint further alleges that Avendano and Knowles relied on Shaw’s false representation to their detriment. Those allegations, taken together, satisfy all the elements of a fraud claim….

Finally, Shaw argues that the outrage, fraud, and conspiracy claims against her must fail because, she says, Avendano’s and Knowles’s injuries were caused solely by the criminal conduct of a third party, Murrah, who acted without Shaw’s knowledge or approval. Again, this assertion flatly contradicts the complaint, which alleges that Shaw was Murrah’s coconspirator. A defendant’s bare assertion of innocence cannot justify dismissal when that assertion conflicts with the plaintiffs’ well-pleaded factual allegations….

The post Father's Tort Claim Based on Allegedly Falsification of Drug Test Results Can Go Forward appeared first on Reason.com.

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From In the Interest of C.C., decided yesterday by the Georgia Supreme Court, in a unanimous opinion written by Presiding Justice Nels Peterson:

The Division of Family and Children Services (DFCS) is the temporary custodian of Appellants John and Brittani Chandler’s three children. {The Lumpkin County Juvenile Court temporarily removed the Chandlers’ children into DFCS’s custody on January 6, 2021. The Chandlers consented to an adjudication that the children were dependent within the meaning of OCGA § 15-11-2 (22), and that it was contrary to the welfare of the children to be returned to a home of a parent at that time.}

The Chandlers argued that, even though DFCS had temporary custody, they were entitled to “object on religious grounds to DFCS’s immunization of their children,” under Georgia law and the U.S. Constitution; but the juvenile court rejected that claim, partly based on a finding that the Chandlers’ religious objections were insincere:

[T]he Court finds that [the Chandlers’] argument that vaccination of the dependent children by the Department violates their free exercise of religion is specious at best. The Court finds that [the Chandlers] have not established by a preponderance of the evidence that they have a religious objection or even observe a particular religion. Contrary to, the evidence shows that they previously attended church but are no longer active, are against vaccination by personal philosophical choice based at least in part on an alleged perception after the oldest was vaccinated and that [John] is a self-proclaimed conspiracy theorist.

Wrong approach, the Georgia Supreme Court held:

Even if the Chandlers do not “observe a particular religion” or attend church consistently, and even if their objection to vaccination is partly secular, they may still be able to identify a religious belief that they sincerely hold and that would be violated by the vaccination of their children. See Frazee v. Illinois Dep’t of Emp. Sec. (1989) (“[W]e reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization.”); Wiggins v. Sargent (8th Cir. 1985) (noting, in First Amendment case, that “a belief can be both secular and religious”). The juvenile court’s sincerity finding apparently rested at least in part on an assumption to the contrary; this prevents us from affirming this ruling…. We therefore remand this case for the juvenile court to apply the proper standard in deciding whether the Chandlers have raised a sincere religious objection.

In fairness to the juvenile court, the proper standard is not easily reducible to a simple formula; accordingly, we offer the following guidance drawn from federal precedent regarding how to evaluate religious sincerity. Ultimately, the juvenile court must determine whether the Chandlers’ religious objection to the vaccination of their children is “truly held.” The juvenile court’s inquiry “must be handled with a light touch, or ‘judicial shyness.'” Moussazadeh v. Tex. Dept. of Crim. Justice (5th Cir. 2012) (applying federal statute). The court should “sh[y] away from attempting to gauge how central a sincerely held belief is to the believer’s religion.” Watts v. Fla. Int’l Univ. (11th Cir. 2007) (First Amendment case). And it must bear in mind that “a belief can be both secular and religious. The categories are not mutually exclusive.” Wiggins. Thus, the juvenile court will have to parse out whether the Chandlers’ objection is at least partly religiously motivated, as opposed to being entirely motivated by secular concerns. See United States v. Quaintance (10th Cir. 2010) (interpreting a federal statute incorporating constitutional standards); Penwell v. Holtgeerts (9th Cir. 2010) (per curiam); Doswell v. Smith (4th Cir. 1998); United States v. DeWitt, 95 F3d 1374, 1376 (8th Cir. 1996).

The Chandlers’ characterization of their objection as religious is not determinative of their sincerity. See Ackerman v. Washington (6th Cir. 2021) (interpreting federal statute). The juvenile court can weigh various factors, including (but not limited to) how long the Chandlers have asserted their professed religious belief, how much they know about it, and their reliance on “religious literature and teachings supporting the belief[.]” Ackerman. Whether the Chandlers have wavered in their actions related to vaccination “also appears to be relevant[.]” Id. So is whether they have been consistent and transparent in indicating that they have a religiously motivated objection to vaccination. See Friedman v. Clarkstown Cent. Sch. Dist. (2d Cir. 2003) (“We note particularly, as did the district court, evidence that plaintiff never described her religious beliefs as the basis for her refusal to immunize to her son’s pediatricians, her lack of forthrightness in answering the questions of the superintendent and the district court about the basis for her objections, and the changing nature of her objections over the course of this litigation. … [T]he record in this case suggests to us that plaintiff does not in fact hold religious objections to immunization ….”).

But the juvenile court should also be cautious in affording more than a little weight to evidence that the Chandlers were inconsistent in visibly living out their religious beliefs; for example, the frequency of the family’s church attendance. See id. (“[W]e recognize that religious beliefs may develop over time and that people may transgress religious beliefs that are nonetheless sincerely held ….”); Ackerman (holding that a sincere believer does not lose his ability to assert religious rights “merely because he is not completely scrupulous in his observance; for where would religion be without its backsliders, penitents, and prodigal sons?” (quoting Grayson v. Schuler, 666 F3d 450, 454 (7th Cir. 2012) (interpreting federal statute)).

In sum, the juvenile court’s task is ultimately to assess whether the Chandlers are credible in asserting that their objection to the vaccination of their children is religiously motivated. See Snyder v. Murray City Corp. (10th Cir. 1997) (observing in First Amendment case that “[t]he inquiry into the sincerity of a free-exercise plaintiff’s religious beliefs is almost exclusively a credibility assessment ….”); see also Int’l Soc. for Krishna Consciousness, Inc. v. Barber (2d Cir. 1981) (observing in First Amendment case that key issue was whether religious belief was asserted “in good faith”). The considerations identified above are meant merely as aids to that inquiry.

If, after applying the proper standard to the existing record, the juvenile court finds that the Chandlers failed to carry their burden of showing that their objection to their children being vaccinated was motivated by a sincere religious belief, then it should deny their claims with no further analysis. If it finds that the Chandlers have carried their burden on this point, then the court may resolve the merits of their claims based on its previous order [which had concluded that the Chandlers would lose as a legal matter in any event even if their claims had been sincere -EV] or, at the discretion of the court, may do additional analysis on the merits.

And before that, the court also discussed why sincerity is indeed the threshold for such claims of exemption (a familiar principle in religious exemption law):

The sincerity of the Chandlers’ religious beliefs is a necessary element of their First Amendment claims. See Frazee v. Illinois Dept. of Emp. Sec. (1989) (“Our judgments in [previous First Amendment free exercise of religion cases] rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from [what the government required of them] …. Because [a claimant in one such case] unquestionably had a sincere belief that his religion prevented him from doing [what the government required], he was entitled to invoke the protection of the Free Exercise Clause…. There is no doubt that only beliefs rooted in religion are protected by the Free Exercise Clause. Purely secular views do not suffice. Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held. States are clearly entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause.”). Their claim that OCGA § 15-11-30 is void for vagueness is also rooted in their asserted religious beliefs, because they argue that the statute is void for vagueness as applied to cases where parents have religious objections to vaccinations. And a party raising an as-applied vagueness claim has standing to assert only his own, actual rights, not hypothetical situations or the rights of others….

Religious sincerity is necessary for the Chandlers to pursue their statutory claim, too. OCGA § 15-11-30 provides that legal custodians of children—such as DFCS in relation to the Chandlers’ children—have “the right to determine the nature of the care and treatment of such child, including ordinary medical care … subject to … the remaining rights and duties of such child’s parent or guardian.” The Chandlers argue that the remaining rights and duties recognized by OCGA § 15-11-30 include “the right to a religious exemption to immunization.” … Unlike some other statutes that require only a sworn affidavit of religious beliefs, no language in OCGA § 15-11-30 relieves religious objectors from the obligation to prove sincerity to a court empowered to evaluate their credibility. Sincerity, then, is a prerequisite to the Chandlers’ statutory arguments as well.

In observing that sincerity is a necessary foundation for the Chandlers’ claims, we do not mean to suggest that a court must always make a determination as to sincerity before considering the remainder of a religion-based claim. Courts often assume the sincerity of a professed religious belief before rejecting claims that clearly fail on other grounds, partly because sincerity can be much harder to analyze than the merits of the claims themselves. But here, the opposite appears to be the case: the Chandlers’ claims are novel, whereas the trial court already expressed serious doubts about the sincerity of their beliefs. Under these circumstances, we decline to resolve the difficult and consequential merits of the Chandlers’ claims before the juvenile court has properly addressed the preliminary question of sincerity….

Parts of the court’s analysis suggested that, if the Chandlers were found to be sincere, at least some of the Justices might be open to their legal arguments; but that is an issue that would be taken up on a later appeal.

The post Georgia Supreme Court on Sincerity and Religious Exemptions appeared first on Reason.com.

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What happens when a bunch of radical individualists try to start a community?

That’s the subject of The Anarchists, a new six-part docuseries from director Todd Schramke and his wife and co-producer Kim Kylland that’s now available to stream in full on HBO Max.

The pair spent six years documenting Anarchapulco, an annual conference for anarchists started in Mexico by Jeff Berwick, a political commentator who calls himself the Dollar Vigilante.

The series took a dark turn when, mid-production, Schramke found out about the murder of one of his subjects, a man who called himself John Galton. And then rumors started that other members of the anarchist community may have been involved.

“It really was one of the most emotionally complicated few weeks of my life,” says Schramke. “It was just this really, really intense feeling of knowing this was going to change my life in so many ways.”

Reason‘s Zach Weissmueller talked with Schramke about how making the film has shaped his view of anarchism and libertarianism and what the story of Anarchapulco can teach us about the challenges of launching new experiments in alternative living.

“The biggest thing I took away was realizing that regardless of what ideologies we hold, what belief systems we ascribe to, no matter what we have to be looking inward as people and figuring out how to deal with our own mental health, dealing with our own relationships before we can have an improved society,” says Schramke.

Watch the full interview above.

Produced by Zach Weissmueller; edited by Danielle Thompson and Weissmueller; additional footage courtesy of HBO Max. 

Music: “Corner of the Eyes” by Amulets via Artlist; “Dark Matter” by Notize via Artlist.

The post What If We Tried Anarchy? HBO's <em>The Anarchists</em> Explores. appeared first on Reason.com.

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