A Citizen's Guide to Indiana

Masson's Blog

This Can’t Be Good

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U.S. Attorney Joe Hogsett is going to make an announcement today with respect to charges against Family and Social Services Administration employees alleging their involvement in “large scale theft.”

I’ve never been impressed with FSSA. A lot of that stems from first impressions when I was trying to help a state senator secure then-FSSA chief Kathy Davis’ testimony for a commission on autism hearing. It wasn’t so much that she didn’t agree to come testify. It was the utter lack of responsiveness from her office. I was left with the impression that if I, with a law degree and the General Assembly at my back, could not get a response; someone with little means and a great need probably had no hope at all.

But, I don’t know a thing about the charges Hogsett will be alleging, so my impression of FSSA as an organization might be a complete aside if the charges are tangential or completely unrelated to the services provided by FSSA. The nature of those services likely make it a place ripe for abuse. A lot of money involved. The people served are generally powerless. The benefits derived from the services are hard to measure. So, if a chunk of money gets diverted one way or another, it might be more difficult to notice or care about than money diverted from other areas.

Anyway, it will be interesting to see what Joe Hogsett is alleging.

Update According to Zach Myers, writing for Fox59, three FSSA employees are accused of using information from TANF recipients to create bogus debit cards and either use them to withdraw cash or sell to third parties. They are accused of stealing $191,103.

Daniels Not Running

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Every newspaper and blog in the vicinity of Indiana has this, so I’m not sure I’ll add any value with my own entry. But, for sake of posterity, I’ll go ahead and link to Eric Bradner’s piece in the Evansville Courier Press indicating that Gov. Daniels won’t be running for President. And this time, I guess, he really, really means it.

Though Gov. Mitch Daniels wanted to seek the Republican nomination for president in 2012, his family gave the idea a firm and final veto, he announced late Saturday night.

I did find this paragraph amusing:

In the end, he said, the hopes of Republicans who hoped his message of fiscal conservatism – he called the nation’s $14 trillion debt the “new red menace” – could give them a serious alternative to President Barack Obama were outweighed by his family’s opposition.

Given Gov. Daniels’ not insignificant role in helping to create that “red menace” as part of the Bush administration, it would have perhaps been difficult for him to credibly run as the savior to defeat that menace.

In any event, with Gov. Daniels apparently out of the national race, I can probably start gearing up to recall his administration wistfully as a Pence administration shows me what disagreeable policy really looks like.

Update Also, Brian Howey got a tiny bit burned on the timing of this column about a possible Daniels Presidential run that ran alongside the news that Gov. Daniels would not run. According to Howey, “At this writing, there are a cornucopia of clues pointing to a run.”

I Like Ike

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I’m naturally pre-disposed to hold Dwight Eisenhower in high regard. Besides bringing the Thousand Year Reich to an abrupt end, he is also a distant cousin on my maternal grandmother’s side. I like him even better after reading this passage from a letter he wrote to his brother on November 8, 1954:

Now it is true that I believe this country is following a dangerous trend when it permits too great a degree of centralization of governmental functions. I oppose this – some instances the fight is a rather desperate one. But to attain any success it is quite clear that the Federal government cannot avoid or escape responsibilities which the mass of the people firmly believe should be undertaken by it. The political processes of our country are such that if a rule of reason is not applied in this effort, we will lose everything – even to a possible and drastic change in the Constitution. This is what I mean by my constant insistence upon “moderation” in government. Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt (you possibly know his background), a few other Texas oil millionaires, and an occasional politician or business man from other areas. Their number is negligible and they are stupid.

(emphasis added). The numbers, or at least the influence, of people who believe that we can or should eliminate these things is no longer negligible. But their wisdom is the same as it ever was.

Eisenhower’s brand of Republicanism was the sort I was raised with; and the one with which I am most comfortable. And that’s why I look at what’s going on today and have to shake my head.

Newt Gingrich, of all people, looks at Paul Ryan and the House Republican plan to eviscerate Medicare and calls it a bridge too far. Rather than taking Gingrich’s comments as a call to back off, discuss, or reconsider its position on Medicare, the G.O.P. – at least the prominent national voices of the party – views this as an opportunity to double down on the Medicare position and to punish Gingrich for daring to give voice to heretical views.

Friends, in a political environment where Newt Gingrich is regarded as insufficiently conservative, a man such as Eisenhower would be hounded from the ranks as a communist or worse.

All is for the best in the best of all possible worlds

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Sure glad someone had the foresight to plant a lot of trees and flowering plants. It was a very pleasant morning to take my dog for a walk. Sunny, cool, lots of birds and pleasant smells. Not to get all panglossian on you, but I think it’s easy to overlook some of the nicer things in the world. Newspapers, blogs, and the like can work like a toxin on the brain. You get enmeshed in the Bad News. There is obviously a balance to be struck; you don’t want to go the other direction and bury your head in the sand.

Of course if that stuff about the Rapture coming up tomorrow is true, I guess I’ll feel awfully silly.

More MERS Madness

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The Indiana Court of Appeals decided one of those MERS cases, relying a good deal on a Kansas case I mentioned some time ago. (Also see). In the case of Citimortgage v. Barabas (pdf), a split panel of the Indiana Court of Appeals held that MERS, as a nominee for Irwin Mortgage, had no interest to pass along to Citimortgage.

Apparently what happened was something like this: Barabas bought Property with Irwin Mortgage as the Lender. The mortgage securing the loan was given to MERS “solely as nominee” for Irwin Mortgage. Later, Barabas took out a second loan with ReCasa and defaulted on that loan. ReCasa foreclosed on the second mortgage and, in the course of the foreclosure proceedings named Irwin but not MERS to speak to their interest. In the meantime, Irwin had apparently sold its interest in the loan and, therefore, when the foreclosure proceedings came around simply filed notice with the court disclaiming its interest.

Whoever bought Irwin’s interest in the loan never got notice; they were likely relying on MERS to get notice of the lawsuit and either take appropriate action or send the notice along. The buyer may have been Citimortgage, but it’s not clear — it appears that Citimortgage bought its interest in the loan sometime after the ReCasa foreclosure. In any event, judgment was entered in favor of ReCasa and the mortgage securing the first loan was foreclosed. Sometime later, Citimortgage came along and tried to set aside the ReCasa judgment because the ReCasa proceedings had not provided notice to MERS, the entity named on the mortgage recorded at the Recorder’s office.

The Court of Appeals rejected that claim, saying that notice requirements to MERS were satisfied when notice was sent to Irwin Mortgage. Because the mortgage document set forth that MERS was the nominee for Irwin, the court reasoned, MERS was simply a strawman for Irwin.

This is a problem for MERS participants. You’ll recall that the MERS system was created so that loan notes could be sliced, diced, repackaged, bundled and sold hither and yon without the messiness of having to re-record mortgages securing those loans every time the loan changed hands. MERS would simply be a placeholder for whoever the owner of the loan happened to be at the moment. Here the court is saying that MERS is not an independent entity entitled to notice. If the lender of record gets notice of foreclosure proceedings, that’s sufficient for the court. And, if the lender of record, after selling the loan, does not pass along notice to MERS or whoever happens to own the loan, junior lienholders are going to jump their place in line.

In Fairness, It’s Not *All* Mitch’s Fault

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I saw a short blog entry (h/t Josh Gillespie) referring to a Congressional Budget Office Report indicating that the 2001 budget projection was off by $11.8 trillion (pdf). The $5.6 trillion surplus we were headed for in 2001 turned into a $6.2 trillion deficit, largely on the strength of ill-advised tax cuts, a new Medicare prescription benefit, and a couple of unfunded wars.

In fairness, I don’t think Gov. Daniels had anything to do with the Medicare prescription benefit. And, really, I wouldn’t be picking on Gov. Daniels for this except that the mythology creeping up around him is that he “balanced the budget without raising taxes.” That mythology would require you to ignore the $2 billion+ we owe the feds because of our grossly underfunded unemployment insurance benefit program. It would also require you to ignore the 16% sales tax increase in Indiana.

Mr. Colbert Goes to the FEC

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Stephen Colbert is having some fun with campaign finance law. He went to the FEC for an advisory opinion as to whether Viacom would have to make disclosures if he was promoting his PAC on his show. This highlights a lot of what Fox News does, putting high profile political candidates or potential candidates on the air to promote themselves. Some of Colbert’s better lines:

Colbert explained his move was motivated by his belief in “the American dream. And that dream is simple. That anyone, no matter who they are, if they are determined, if they are willing to work hard enough, someday they could grow up to create a legal entity which could then receive unlimited corporate funds, which could be used to influence our elections.”

. . .

“I believe that the Citizens United decision was the right one. There should be unlimited corporate money and I want some of it, I don’t want to be the one chump who doesn’t have any.”

. . .

he described its purpose as setting the stage so “the Colbert Nation could have a voice, in the form of my voice, shouted through a megaphone made of cash” in the 2012 elections.

. . .

“Why does it get so complicated to do this,” Colbert said. “I mean this is page after page of legalese. All I’m trying to do is affect the 2012 election. It’s not like I am trying to install iTunes.”

Right to Resist Unlawful Entry By Police Officers

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The Indiana Supreme Court handed down a controversial decision (pdf) last week that said that Indiana would no longer recognize the common law right to resist unlawful entry by police officers.

At common law, a person had the right to resist, using reasonable force, the unlawful entry of police into one’s home. The Indiana Supreme Court decided, in effect, times have changed since the old days, and the costs outweigh the benefits in our modern times. In the bad old days, the king’s men could abduct you, hold you indefinitely, and torture you. And, if you did get out of the dungeon, you had no recourse against the king. Today, you have a right to bail, speedy trial, a probable cause hearing, etc., and you can sue the government for false imprisonment and other violations. With those protections, the dangers are reduced, and make the dangers on that side of the scale less than the dangers you get when you allow people in tense situations to make snap legal decisions about whether police action is lawful and use force to resist the police.

Not mentioned in this decision, but quite possibly on the judges’ minds, was the prospect of everyone who used force against the police making up some unlawful entry story in retrospect and making violence against the police a more viable alternative for criminals.

Philosophically, I’m uneasy about this case. As a practical matter, under the facts of this case, I’m not too troubled. I think I would have preferred that the court use language to allow resistance in egregious cases, but not under close calls like this one. Justice Dickson and Justice Rucker’s dissents urge something like this course.

The police apparently got called to the apartment to respond to domestic violence in process. Husband was throwing stuff around the apartment and had apparently ripped a phone out of Wife’s hands and thrown it against the wall. When the police got there, Husband & Wife met the police in the parking lot. Police followed them back to the apartment, Husband barred entry while Wife said things like “just let them in.” Police tried to force their way, and Husband resisted physically.

The majority almost certainly could have issue a narrower rationale for telling Husband he wasn’t allowed to do what he did.

Innumeracy and the Jury System

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Yesterday, after a four day jury trial, my client won a case that has been consuming a lot of my time over the past few years — not to mention occupying a good bit of office space with 8 or 9 bankers boxes full of documents. My satisfaction in this is tempered a good bit by the fact that our co-defendants, good people, got hit by a big verdict that confirms my notion that the American public is largely innumerate.

The verdict amount was not at all supported by the evidence. I’m biased because I have gotten so close to the case, but I don’t think I’m just being cranky. Using the Plaintiff’s numbers, the verdict had to be based on, among other things, a multiplier that the witness characterized as “a wild guess,” a loan that was used for a lot of other expenses in addition to the one that was the subject of the lawsuit, and futures price fluctuations that can’t remotely be characterized as any of the defendants’ fault.

I’m glad my client won, but it’s hard to have a lot of faith in the system when the numbers just don’t add up. It will go up to the Court of Appeals, but they are bound by a body of law committed to the legal fiction that juries understand the instructions and the relevant facts.

It was a breach of contract case, and the facts arguably supported an inference that there was a breach. But the damages attributable to that breach as opposed to other factors simply weren’t even 25% of what the verdict amount was. That’s the kind of thing that makes a lawyer cautious and inclined to pay more than a claim is worth for a settlement just to avoid uncertainty and exposure to jackpot justice.

Filed Under: Law

Open Thread

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I’m too busy with work to say much. In the meantime, here is a gratuitous picture of Cole, fresh from his team’s first baseball victory.

Cole baseball pic