Don’t insult the judge (via Above the Law). While arguing a point with a federal bankruptcy judge in the Southern District of Florida, a partner from a large Chicago law firm responded to a comment from the judge as follows:

I suggest to you with respect, Your Honor, that you’re a few French fries short of a Happy Meal in terms of what’s likely to take place.

The Show Cause hearing for contempt is scheduled for this morning.

Interesting case from the Court of Appeals involving the judge of the Martin County Circuit Court holding the Martin County Clerk in contempt, sentencing him to jail for 2 days, and fining him $1,000.

Apparently, the facts are more or less these: A criminal defendant plead guilty. The defendant’s bond was ordered to be applied to certain costs and the rest remitted to the defendant. The defendant got the run around from the Clerk’s office with respect to her bond money, waited around a couple of weeks, got the run around again, and complained to the court. The court ordered the Clerk to certify that he had complied with the court’s order with respect to the bond money. Another week went by and the bond still had not been released. The trial court judge sat down with the Clerk and the criminal defendant’s file. The file contained a certification that the Clerk had complied with the court’s order but had a hand written note saying that the bond still needed to be released.

The judge then ordered the Clerk into the court room and told the Clerk he was being charged with direct criminal contempt for not immediately processing the court’s orders and for certifying that he had complied with orders when he had not. The trial court judge then summarily found the Clerk to be in direct criminal contempt of the court and sentenced him to two days in jail and the fine of $1,000.

The Court of Appeals had a few problems with this method of doing business. First of all, the trial court judge got his contempts wrong. Because the alleged wrongdoing did not take place in the court’s presence, it was indirect contempt, not direct contempt. Direct contempt usually involves things like causing a disturbance in the court room. Direct contempt is punishable summarily, without evidence or formal proceedings.

Indirect contempt, among other things, includes disobeying a trial court’s order outside of the presence of the court. The Court of Appeals determined that the alleged wrongdoing here fell within the indirect contempt statute and, therefore, required a bunch of that due process mumbo jumbo like writing down the charge and having sworn facts substantiating the charge. Why I’ll bet they’d even require that the Clerk be afforded a lawyer if it got down to it.

Another interesting statement by the Court of Appeals is that the trial court does not have jurisdiction over monies held by the Clerk. Rather, the remedy for a third party who isn’t getting money held by the clerk to which the person is entitled must proceed against the Clerk’s bond.

Via Slashdot | Are DMCA Abuses a Temporary or Permanent Problem?:

On January 16, a man named Guntram Graef who invoked the Digital Millennium Copyright Act to ask YouTube to remove a video of giant penises attacking his wife’s avatar/character in the virtual community “Second Life”, retracted the claim and stated that he now believes the video was not a copyright violation.

My regular readers will now be falling asleep, but John Waller has put together a pretty good blog entry over at his commercial foreclosure blog entitled “Attachment: The 8 badges of fraud.” He focuses on a recent Northern District decision by United States Magistrate Judge, Christopher Nuechterlein where a creditor managed to freeze and attach proceeds from a $3 million sale from the debtor to another entity where the sale showed “badges of fraud” making the transfer impermissible under IC 34-25-2-1(b)(5).

The 7th Circuit Court of appeals posted a decision on a topic near and dear to my heart, the Fair Debt Collections Practices Act (FDCPA). In the case of Catencamp v. Cendant Timeshare Resort, Judge Easterbrook writes an opinion holding that a creditor is a “debt collector” under the FDCPA if, in the course of collection, it holds itself out as a 3rd person.

Typically, the FDCPA does not apply to entities trying to collect on their own debts. But, if you refer it out to a third person, the third person is typically bound by the requirements of the FDCPA. In this case, Cendant Timeshare Resort was trying to collect on its own debt, but for whatever reason, it wrote the demand letter under a trade name, “Resort Financial Services.” The demand letter itself suggested that Resort Financial Services was a different entity than Cendant. So, the FDCPA applies and Cendant is probably on the hook if its alter ego Resort Financial Services did anything that violated the technical requirements of the FDCPA.

The Supreme Court has recently decided a couple of cases, one out of Gary and one out of Indianapolis, having to do with law enforcement immunity and police chases.

The Supreme Court decided that law enforcement immunity doesn’t apply to police officers operating an emergency vehicle chasing a criminal who cause injury to a third party. They did so because they found that the duty to operate an emergency vehicle with “due regard” for the safety of all persons under IC 9-21-1-8 negates the law enforcement immunity conferred by the legislature under IC 34-13-3-3(8).

So, the Supreme Court ruled contrary to my suggestion of how the case should be decided. But the Court’s opinions do not address my argument, so I don’t know where I went wrong. I wonder if the defendants raised a similar argument.

My argument was based on statutory construction: ““[I]t is only after a determination is made that a governmental defendant is not immune under the ITCA that a court undertakes the analysis of whether a . . . duty exists under the circumstances.” (The ellipses omit ‘common law’, but I do not believe common law duties ought to be treated any differently than statutory duties under these circumstances.)

As I wrote before:

Using this principal of immunity jurisprudence, you have to make the immunity determination first. Either the defendant is immune or not. Immunity exists in spite of duty. It’s not that the tortfeasor hasn’t breached a duty of care. That’s the whole point. The tortfeasor has acted negligently but the legislature has granted immunity in spite of the negligent breach of a duty.

So, first you look at ITCA (the immunity statute) and ask whether the police officer’s act constituted law enforcement. If so, the governmental entity and its employees are immune from liability. End of analysis. It’s only after you’ve established that immunity does not exist that you worry about whether a duty has been breached, regardless of whether it is a duty imposed by statute or by common law.

So I don’t know if my reliance on prior caselaw regarding how to analyze immunity statutes is misplaced or if I am misconstruing the cases or what. But there does not appear to be any such bifurcated approach in these cases. The court seems to say merely that the duty imposed by the legislature limits the law enforcement immunity granted by the legislature.

I was sorry to learn that Jack Guy, a prominent attorney from Monticello, has passed away. According to the Monticello Herald Journal he died at 12 p.m. on Friday, March 31, 2006 at the age of 76. His son, White County prosecutor Bob Guy, said he died of complications related to the lung cancer he battled for the past 3 years.

The White County Bar Association will be conducting a Memorial
and Recognition on April 7, 2006 at 11:00 a.m. in the Court Room of the White Circuit Court located on the third floor of the White County Building.

Kevin O’Neal, writing for the Indianapolis Star has an article on his passing. Guy served as both Representative and Senator and was instrumental in getting Monticello rebuilt after it was largely flattened by a tornado in 1974.

I had only one case against him (I lost) and did not know him well, but he was a good lawyer and a respected member of the community. Rest in peace Jack.