In the words of Lieutenant Colonel Charles E. Stanton (sometimes attributed to General Pershing), Lafayette, we are here! Whereas Stanton was talking about repaying the French a 140 year old debt of gratitude for their assistance in the American Revolution by aiding them in World War I, I am talking about a 25 mile move to the southwest from Monticello to Lafayette, Indiana. So, roughly equivalent.

And what a welcome! The doughboys got shot at by the Huns. I get the Lafayette Police Department knocking on my door in the wee hours of the morning. Apparently the neighbors, who seem nice enough, have a wayward son who was staying with them who brought certain chemicals into the house that, one way or another made law enforcement authorities think that they needed to bring in a bomb technician. (My original thought was that they suspected a meth lab. Further investigation has revealed that the substances were suspected to be materials for making dynamite or a pipe bomb, so I’m oddly somewhat relieved.)

Neighbors, such as myself, were evacuated “just in case.” Thank goodness we had taken the kids to their grandparents during the move so we didn’t have to roust them out of bed. I’ve been told that this “really is a nice neighborhood,” but to have my first night’s sleep at my new house disturbed by the police knocking at the door is just disturbing.

So, now we just have to find out whether this story will end up being of the “We knew it was trouble right from the start” variety or the “Haha, . . . but do you remember that *first* night?” variety.

The Fort Wayne Journal Gazette (and several other outlets) has a story on Indiana leading the nation in dropouts. Obviously this isn’t a statistic in which you want to lead the country, but how do you combat this sort of thing?

Indiana lawmakers recently passed legislation making it more difficult for students to drop out of school. Previously, students under the age of 18 could drop out of school with their parents’ permission.

Now, students under the age of 18 can only drop out for reasons of financial hardship, illness or with the consent of a judge.

I guess I don’t know if this is a good approach or a bad approach. The lawmaker’s hearts are obviously in the right place, but it seems to me that if you have a 16 year old who wants to drop out with a parent willing to let that happen, forcing them to stay in school is going to do more to diminish the quality of education of the rest of the students than it is going to help the would-be dropout.

In honor of the nation’s 230th birthday:

The Declaration of Independence of the Thirteen Colonies
In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain [George III] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us, in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Charlie Averill has a post on the average CEO compensation to minimum wage ratio. According to the chart he posted, in 1966, the average compensation of a CEO was about 50 times the minimum wage. By 1978, it had increased to 78 times the minimum wage. But, between 1980 and 1992, CEOs hit the jackpot, making about 319 times the minimum wage by 1992. The dotcom years were also exceptionally good to CEOs and, as of 2005, the average CEO made 821 times the minimum wage.

In the case of Hamdan v. Rumsfeld, the Supreme Court has decided, by a 5 to 3 vote, that the Bush administration’s military commission’s, set up to try alleged terrorists, are illegal. The Court basically determined that the Bush administration has 3 options: 1) Try the accused under the Uniform Code of Military Justice; 2) Try the accused in a federal court; or 3) Go to Congress and get them to provide the authority to try the accused in the manner desired by the President. That analysis would change if the trial were under emergency conditions.

The Court also held that certain minimum provisions of the Geneva Conventions apply to purported al Qaeda members captured by the United States military. Specifically,

in a ‘conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories],each Party to the conflict shall be bound to apply, as a minimum,”certain provisions protecting “[p]ersons . . . placed hors de combat by. . . detention,” including a prohibition on “the passing of sentences . . . without previous judgment . . . by a regularly constituted court affording all the judicial guarantees . . . recognized as indispensable by civilized peoples.’

The Bush administration argued that the fight against al Qaeda was international in character. The Court retorted that, “international” means “between nations,” and therefore the fight against al Qaeda is not “international,” and this minimal protection required by the Geneva Conventions applies.

Well cool. Greensburg has landed the new Honda plant. Money in the pockets of middle class workers does a lot to make everybody’s life better.

I am writing to you as the judges presiding over civil litigation in Tippecanoe County and ask your consideration with respect to local procedures in light of IC 33-37-5-15(a), as added by the 2006 General Assembly and which becomes effective on July 1, 2006 for cases filed after June 30, 2006. That subsection requires the sheriff to “collect a service of process fee of thirteen dollars ($13) from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff.”

Depending on how this statute is interpreted and implemented, this statute could make pursuing judgment debtors cost prohibitive. To mitigate potential costs, I would ask that the judges consider two issues: 1) modifying the current local practice of requiring proof of service for proceeding supplemental hearings; and 2) an interpretation of whether it is a party to the case or the court itself requesting that the Sheriff serve a writ.

A. PROCEEDINGS SUPPLEMENTAL

The notice requirements for a Proceeding Supplemental are set forth in Trial Rule 69(E). The Motion for Proceedings Supplemental and the court’s order stating the time for the appearance and hearing shall be served upon the judgment debtor as provided in Rule 5. Trial Rule 5(B)(2) provides that service by ordinary mail to the person’s last known address with certificate of service is appropriate.

This would seem to be a continuation of the principle recognized by Indiana’s Supreme Court prior to adoption of the Trial Rules:

It is well established that once a court acquires jurisdiction over parties, the jurisdiction continues until the final disposition of the litigation including the enforcement of the judgment or decree.

State ex rel Brubaker v. Pritchard, 138 N.E.2d 233, 233-34 (Ind. 1956). The Brubaker case involved contempt proceedings for violation of a temporary injunction. The Defendant had been personally served upon commencement of the original action and had appeared by counsel. An injunction was entered in the original action. Subsequently a contempt motion was filed by the Plaintiffs and the motion was served on Defendant’s attorney. The Brubaker Court rejected an argument that a court did not have jurisdiction over a person in contempt proceedings absent personal service on an individual by Sheriff. While this is different from the typical situation in which a judgment debtor is not represented by counsel, the Trial Rules apply to pro se parties just as they do to represented defendants. There is a distinction between the formal service necessary for a court to acquire jurisdiction over the person of a party in the commencement of an action and the right to reasonable notice of the proceedings after jurisdiction has been acquired in the first instance. Id. at 234.

B. RULE TO SHOW CAUSE & CONTEMPT

One of the issues most commonly faced by the courts with respect to Proceedings Supplemental is failure of the judgment debtor to obey the court’s order to appear for the hearing. This constitutes indirect contempt of court which is governed by IC 34-47-3, provided the order has been served upon the judgment debtor. IC 34-47-3-5 and 6 set forth the procedures for punishing a judgment debtor for indirect contempt. Under section 5, all persons charged with indirect contempt are entitled to be served with a rule of the court against which the contempt is alleged to have been committed. The rule must: 1) set forth the facts constituting contempt; and 2) specify the time and place at which the defendant is required to show cause why he or she should not be attached and punished for contempt. To procure personal jurisdiction over the alleged contemnor, the court may issue a writ of attachment directing that the person be taken into custody and subject to release on bail or escrow. IC 34-47-4-2. Such a writ is to be issued by a court to the Sheriff and must fix an amount of bail.

Under IC 34-47-3-6, if the defendant fails to appear or fails to show cause why he or she should not be held in contempt, the court may punish the defendant by fine, imprisonment, or both.

As to the service requirements in contempt proceedings, in Brubaker, the Supreme Court concluded:

It is our judgment that where the purpose of the contempt proceedings is to enforce a court order against a person who is a party properly brought in to the main action, no new process for personal service is required to enforce such order after notice to the parties or his attorney, and an opportunity to be heard has been given.

Brubaker, 138 N.E.2d at 228.

C. EXECUTION OF WRIT OF BODY ATTACHMENT AND CONTEMPT CITATIONS BY SHERIFF

There are two ways in which a court may enlist the assistance of the Sheriff in the course of civil contempt proceedings: writs of body attachment and contempt citations.

IC 34-47-4-2 governs writs of attachment upon the body of a person. Such writs are to be issued by a court for the purpose of procuring personal jurisdiction over a person who has allegedly violated a court order or who is otherwise in contempt of court. The writ is to be issued by the court to the Sheriff and is to fix a bail amount. The Sheriff or the Sheriff’s assistant is required to serve the writ and take the person into custody and take the person before the court or release the person on bail as in criminal matters.

IC 34-47-4-1 provides for service of contempt citations by the Sheriff upon an alleged contemnor requiring the alleged contemnor to appear before the court at a certain date and time and show cause why he or she should not be held in contempt. The citation is to be served in the same manner as a summons is served in a civil proceeding.

D. MITIGATION OF EXPENSES IN LIGHT OF IC 33-37-5-15(a) SHERIFF’S FEE

Current practice in Tippecanoe County with respect to Proceedings Supplemental makes extensive use of service by Sheriff in large part because of the protections afforded to judgment debtors by having a return of service demonstrating that a copy of an order was at least posted at the judgment debtor’s last known address and a copy was mailed and not returned undeliverable. However, this practice will become prohibitively expensive if a judgment creditor is required to pay the Sheriff $13 each time the creditor attempts to have an order served on a debtor in an effort to enforce the judgment.

The statutes and case law cited above set forth the minimum standards governing service of Proceedings Supplemental and use of writs of attachment and the courts’ contempt powers to enforce compliance with its orders. If an individual is properly served with a summons and complaint at the commencement of a suit, the court obtains personal jurisdiction over the individual and further service of motions and orders, including petitions for Proceedings Supplemental may be made by ordinary mail under Trial Rule 5. After being served with the initial process, it is the individual’s duty to keep the court advised of a current address until such time as the case is dismissed or the judgment released.

If a judgment debtor fails to appear at a Proceeding Supplemental after an order issues, even if by ordinary mail, the court has three options for pursuing consideration of whether the person failing to appear should be held in contempt: 1) If the facts of the alleged contempt are brought to the court’s attention through a verified statement, the court may issue a rule requiring the person to appear at a certain date and time to show cause why he or she should not be held in contempt. If the alleged contemnor is a judgment debtor who was properly served at commencement of the suit, the rule may be served upon the person by ordinary mail as provided for in Trial Rule 5; 2)
The court is empowered to direct the Sheriff to take the person into custody and either have the person post bail in an amount set by the court or have the person brought before the court; or 3) The court is empowered to direct the Sheriff to serve a contempt citation requiring a person to appear before the court at a particular date and time and show cause why the person should not be held in contempt of court.

If the alleged contemnor does not show cause for failing to obey the court’s order to appear at the proceeding supplemental, he or she may be held in contempt and may be punished by incarceration, fine, or both.

These are minimum standards and a court is within its discretion to adopt more stringent procedures insomuch as a court has broad latitude when deciding whether to exercise its contempt power. The more stringent procedures followed by the Tippecanoe County Courts requiring service by Sheriff or certified mail were laudable in that they provided protections for judgment debtors who may not have been diligent about notifying the court and creditors when they changed their address or may not have been diligent about checking and reading their mail while at the same time those procedures did not unduly burden judgment creditors attempting to enforce their judgments.

Under the new IC 33-37-5-15(a), however, judgment creditors will be subjected to a service of process fee of $13 any time the judgment creditor requests the Sheriff to serve “a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the Sheriff.” Certified mail is an alternative in many instances. However, this is likely to prove more expensive to the County in that IC 33-37-3-6 provides that “Court cost fees under this chapter include service of process by certified mail, unless service by the sheriff is requested by the person who institutes the action.” Where proof of service is required, litigants will presumably opt to serve opposing parties via certified mail since that expense is already included in the filing fee even though such service is often less effective in Proceedings Supplemental because judgment debtors often decline to accept certified mail.

E. SHERIFF’S FEES FOR WRITS OF BODY ATTACHMENT AND CONTEMPT CITATIONS

IC 34-47-4-2 concerning writs of attachment and IC 34-47-4-1 concerning service of contempt citations are reasonably clear in stating that it is the Court directing the Sheriff to take action. The new IC 33-37-5-15(a) requiring the Sheriff to collect a service of process fee is triggered when a party requests service of a particular document. It would be helpful if the Courts would make a determination as to whether the fee is triggered when a party requests that a Court hold a judgment debtor in contempt for failing to appear, causing the Court to issue a writ or a citation to the Sheriff to be served upon a judgment debtor in the course of exercising the Court’s contempt powers.

F. CONCLUSION

In light of the new Sheriff’s fee imposed by the General Assembly for causes of action filed after June 30, 2006, the courts should consider changes to current procedures required of judgment creditors seeking to enforce their judgments. Under the prior law, the procedures provided protection to judgment debtors without unduly burdening judgment creditors. Under the new law, the current procedures will become financially burdensome to those seeking to enforce their judgments.

I would respectfully suggest that the Courts permit service of Proceedings Supplemental and Rules to Show Cause by ordinary mail under Trial Rule 5 as permitted by Trial Rule 69(E). I would also request a determination that service of writs of body attachment and contempt citations are being requested of the Sheriff by the Court and not by a party and, therefore, do not require the Sheriff to collect a service of process fee under the new IC 33-37-5-15(a).

HEA 1158-2006 (P.L. 174-2006)

SECTION 12. IC 33-37-5-15 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 15. (a) The sheriff shall collect a service of process fee of thirteen dollars ($13) from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff.
. . .

SECTION 21. [EFFECTIVE JULY 1, 2006] IC 33-37-4-4, IC 33-37-4-6, IC 33-37-5-15, and IC 33-37-5-28, all as amended by this act, apply only to cases filed after June 30, 2006.

IC 33-37-3-6
Inclusion of service of process by mail in court costs fee
Sec. 6. Court costs fees under this chapter include service of process by certified mail, unless service by the sheriff is requested by the person who institutes the action.
. . .

The Journal & Courier has an editorial supporting Benton County’s wind farm development initiatives.

So far, the reaction is the opposite to the reception to the proposed Cape Wind project in Nantucket Sound. Company officials say the 130-turbine wind farm off the Northeast Coast could meet three-fourths of electricity needs of area residents.

But the Cape Wind project has run into a severe case of “not in my backyard” syndrome. Its opponents include area residents, local governmental bodies and chambers of commerce, Massachusetts Gov. Mitt Romney and U.S. Sen. Edward M. Kennedy.

Contrast that to Benton County, where California companies Orion Energy LLC and enXco Inc. are pursuing plans to build wind farms. Orion is proposing a project with at least 75 turbines to generate electricity for 30,000 to 40,000 homes. In 2004, reports said enXco was considering at 70-turbine project.

Unlike Cape Cod, officials in Benton County are working to help the wind farms materialize.

Benton County is decidedly different from Cape Cod. For starters, it’s less affluent and it’s less densely populated. I haven’t seen the design, but I don’t think banks of windmills would be unsightly in Benton County’s vast expanse of fields.

I tend to agree with the J&C’s assessment:

Other companies, including a dairy farm and a landfill, interested in locating in Benton County have drawn opposition.

Maybe the wind farms will fly. There won’t be complaints about the smell of manure or trash, and there’s no risk of contaminating the water or the air.

According to the Department of Homeland Security, Alexandria, Indiana has more national icons than does New York, New York. In computing how anti-terrorism money should be distributed, the Department of Homeland Security decided that New York did not have any national monuments or icons.

The formula did not consider as landmarks or icons: The Empire State Building, The United Nations, The Statue of Liberty and others found on several terror target hit lists. It also left off notable landmarks, such as the New York Public Library, Times Square, City Hall and at least three of the nation’s most renowned museums: The Guggenheim, The Metropolitan and The Museum of Natural History.

On the other hand, Alexandria Indiana’s Largest Ball of Paint was included in the DHS calculations. An aerial view of the location of this precious precious landmark provided courtesy of Google Earth.

Update: It occurs to me that I may have been sucked in by the dry humor at the Cheers & Jeers entry at Daily Kos. I haven’t been able to find corroboration of the list there (and Kos is down for maintenance so I can’t read the comments for confirmation). On the other hand, I think it’s sufficiently bad that DHS and the Bush administration’s past performance has been bad enough that it is even plausible that a big ball of paint in Alexandria, Indiana might figure into DHS terrorism/pork calculations.