The Standard That Works Best For Us

(via illusory tenant)

In July of 2008, a convicted sex offender named Dinkins was due to be released from prison. State law required him to register his future address with the state's sex offender registry ten days before his release. He did not do this and was charged with a class H felony as a result.

His argument at trial was that he did not know where he would be living. No relative agreed to take him in and he had no solid prospects. He had no address to register.

Nonsense, cried the state:

...Dinkins, like everyone, knows that he must sleep somewhere, and Wis. Stat. § 301.45(2)(a)5. and (e)4. merely requires incarcerated sex offenders to identify and report the address or nearest address of the place where they plan to sleep at least ten days prior to their release—even if the place is a park bench or similar on-the-street location. The State asserts that such a location is an “address” within the meaning of § 301.45(2)(a)5., citing several dictionary definitions of “address.”

That's the WI Appeals Court summarizing the Wisconsin Dept. of Justice's position in their published opinion.

So, according to the Wisconsin DOJ, a convicted sex offender can fulfil their address registration requirement by stating they live under a park bench.

Understand they are saying this because they want Dinkins to go to jail - but consider:

Dinkins fulfills this requirement by scrawling "I think I'll sleep under a bench on the 100 block of East Main St. Not sure which one, but there are quite a few on that block" on his form and he's good to go.

Let's set aside the fact that makes the sex offender registry a whole lot less effective and zero in on the point illusory tenant makes so well.

According to the state of Wisconsin, registering as a sex offender requires filling out the address form as best you can. There is no requirement that you show a utility bill for that address, a rental agreement for that address. There isn't even a requirement that it actually BE an address. Quoting the WI Chief Justice, "...park bench okay?" State says, "You betcha!"

But if any Wisconsin resident tries to vote in an election, they will be asked for a photo ID with an address that will be checked against valid addresses for their polling place.

Priorities, people.

It's all about priorities.

Citizen's United Paradox

Love this:

If human beings can make direct campaign contributions... and if, in Citizens United’s interpretation... corporations and human beings are entitled to equal political speech rights, then corporations must also be able to contribute within (the federal) limits.

So... If I go the other direction on this and say either individuals are allowed to make unlimited political donations - or corporations are limited to the individual limits.  Which is it?

Blarrrgh.

Mukhtaran Mai

Mukhtaran Mai, the woman who gained international respect by courageously standing up to a Pakistani tribal system that sanctions rape of innocent women and girls as punishment for the crimes of others, has once again been let down by her government.

The high court in Lahore struck down the convictions of 5 of her six attackers and commuted the death sentence of the sixth to life imprisonment.

Mukhtaran Mai now fears for her life.

Ye gods.

She Got Him

All votes are in - Kloppenburg declares victory in WI Supreme Court Race 

Hung By Their Own PSA

(Via The Big Picture)

Barry points out another case where (wonder of wonders) a securitization trust is permanently barred from foreclosing on a house because they didn't obey the rules of their own Pooling and Servicing Agreement.

Brief explanation (as far as I understand it)

In order to turn a home loan into an investment (to securitize it), a number of things must happen:

1. The loan must stop being owned by orginating bank
2. The loan must start being owned by a trust, a Special Purpose Vehicle or other legal construct
3. There must be a written record of the transfer of ownership of the loan
4. The record of title transfer must meet the exacting specifications contained in a document called a Pooling and Servicing Agreement, typically they require that all the documents establishing transfer of the mortage note be completed within 60-90 days.

Why all this rigamarole?
Two big reasons are who owns the loan and taxes.

In order for an investor to invest in a security, they want to know that the thing the are investing in is truly theirs. In theory, if the home loan goes bad - they want to know that at least they will get the property in a foreclosure. If an investor knows that there are other entities that could claim to own the home loan - then their back up plan of foreclosure is now worth less, (and may be impossible). If the bank who made the original loan doesn't provide documentation that it no longer has any right to a home loan - there is a chance that that bank could show up and demand a share of the the loan's value (or of the resulting foreclosure).

Now taxes:
The SPV allows ownership of the loan by a trust without subjecting its payments or distributions to investors to taxation. This is a big deal because if the money passing through an SPV was taxed - it would make mortgage backed securites much less attractive as investments because investors would see their money taxed twice. Once as the money flows through the SPV and then again as the investors get paid. This is an intentional loophole, as the SPV is just a pass-through legal construct, it takes no profits - it just passes along the payments it gets.

The price of getting this nice loophole is complying with a very strict agreement called a Pooling and Servicing Agreement. If you don't comply with the PSA bad things can happen. Like, the tax rate on money going through the SPV goes from 0% to 100%

Investors will hate that with the heat of a nova.

And when home loans go bad - and the SPV moves to foreclose they had better have a chain of ownership that shows that they own the loan in question.

Otherwise something like this Alabama ruling will happen - Phyllis Horace vs. LaSalle Bank National Association et. el.:

Following hearing and review of all submissions from the parties the Court has come to two conclusions necessary for the disposition of this case:

First, the Court is surprised to the point of astonishment that the defendant trust (LaSalle Bank National Association) did not comply with the terms of its own Pooling and Servicing Agreement and further did not comply with New York Law in attempting to obtain assignment of plaintiff Horace's note and mortgage.

Second, plaintiff Horace is a third party beneficiary of the Pooling and Servicing Agreement created by the defendant trust (LaSalle Bank National Association). Indeed without such Pooling and Servicing Agreements, plaintiff Horace and other mortgagors similarly situated would never have been able to obtain financing.

Consequently, plaintiff's motion for summary judgement is granted to the extent that defendant trust (LaSalle Bank National Association) is permanently enjoined from foreclosing on the property...
...Further, the Court is of the opinion there is no reason for further delay as to the entry of final judgment concerning the issue of foreclosure by the trust (LaSalle Bank National Association).

That notice shall issue to the parties.
DONE this the 25th day of March, 2011.

ALBERT L. JOHNSON, CIRCUIT JUDGE

Counsel for the investors...start your engines! You will be suing the bejeezus out of LaSalle Bank National Association et. el., because the secured loans you invested in are unsecured because the trust can't prove they own the loans.

Also, your client's pass-through tax exemption is at risk. Huzzah!

LaSalle says they will appeal - although they'd better confine it to the bit about the plaintiff being ruled a third party beneficiary of the PSA, because they look seriously owned on any argument that they met their PSA obligations.

If you believe Barry and the crew, there are many, many loans out there in the same condition as this one just waiting for an enterprising attorney to detonate them.

I'll quote Barry from an earlier post of his:

Understand this precisely: This was not a case of slipshod handling, of sloppy paperwork, or bad management. This was a willful decision to break the law in order to save expenses and be more profitable.

The bank's PR machine can play whack-a-mole, but these cases are going to bubble out all over the place. They can't appeal all of them, and by rights they should lose most of them.

When does this mess reach critical mass?

Portrait of a Beatdown

Lest you think I was exaggerating in my prior post - here's some of the relevant court transcript from HSBC Bank USA, NA as Trustee for Nomura AAC vs Orlando Eslava.

Yves calls it "a doozy."

I call it art. Some artists work in clay, some work in oils, Miami-Dade County Circuit Judge Jennifer Bailey works her magic in righteous indignation. Unlike the rest of us, Judge Bailey is empowered to act on her indignation.

By way of prologue HSBC Bank has previously been ordered by the court to post a bond to indemnify the defendant - whose house they have foreclosed on despite not having the mortgage note that establishes that the house is rightfully theirs. The deadline has passed without the bond being posted. The court is not amused.

HSBC Bank is represented by a Mr. William Huffman, the Florida Default Group by Ms. Suzanne Hill, and the (reserved and presumably gleeful) attorney for the defendant, Orlando Eslava is a Ms. Sheleen Kahn.

The curtain rises

THE COURT: And so then you know what you do? You file - if you have a problem with the court order and you get inconsistent directions from your client, you file a motion for extension of the time to file the bond, you come forth and say to the Court the case is in loss mit[igation] hold, can we postpone the filing of the bond? Can we give up the sale date so that I can give it to somebody else who really needs to sell ap piece of property on the courthouse steps? Instead of just ignoring a court order, because that's what happened here.

MS HILL: I don't disagree that it could have been handled much better. I do agree to that.

THE COURT: I appreciate your diplomatic response, but is there any reason why the Court should not issue sanctions in this case? I mean, the court order was simply, based on what you're telling me, ignored because the client took the file in loss mit[igation] hold.

MS. HILL: Well, it was not complied with, that is correct, your Honor. And it was because it was on hold.
     And Mr. Huffman honestly believed that if the case was still on hold, he had no objection to having the case dismissed.
     As far as opposition at that hearing, Mr. Huffman believed he conveyed instructions to the local counsel that the case was on hold and there was no opposition.
     I can't speak to what was said at that hearing --

THE COURT: Let me just be clear. I'm not going to sanction Mr. Huffman. Mr. Huffman, you know, he's just doing what the e-mails tell him to do. I know that.
     At some level there is responsibility on the part of this court to make sure that notwithstanding whatever kind of sloppy operation the plaintiff is running, that court orders are complied with.
     And Mr. Huffman, at the end of the day, this trust is going to be over and at the end of the day some day this foreclosure crisis is going to be over. And you need to decide what kind of lawyer you're going to be. Because at the end of the day you're responsible for your client's compliance with court orders.
     And saying, oh, well, my client told me this, is not a defensible position because you swore an oath to follow the Rules of Civil Procedure and to follow the rule of law. And at the end of the day when they bury you, the words "HSBC Bank USA, NA as Trustee for Nomura Asset Acceptance Corporation, Mortgage Pass-through Certificates Series 2006--ARI will probably appear nowhere in your obituary.
     So, you know, the bottom line - and I'm not giving you a lecture that I am not routinely delivering to foreclosure lawyers at this point in my career, which is, all lawyers have is your reputations. We don't make widgets, we don't buil[d] clocks, we don't build cars. We have nothing but the pleadings we file and sign our name to to evidence the quality and integrity of who we are.
     And when you get a court order that says post a bond -- and you're being required to post a bond for a very logical reason. It's a trust. It's going to expire by its terms.
It's not the Bank of America. I don't know if it's going to be there in six years. And you've lost the note and you're required to indemnify the defendant and therefore you have to post a bond.
     When that order is simply ignored and further motions for clarifications with the Court are not sought, you know, yes, do I understand completely that this is the client not knowing the left hand from the right had, yes; but at the end of the day, you're the lawyer, you're responsible.

MR. HUFFMAN: Yes, your Honor.

THE COURT: How many people currently work in your office?

MR. HUFFMAN: Attorneys or --

THE COURT: Attorneys.

MR. HUFFMAN: Fifty.

THE COURT: How many files are you currently responsible for?

MR. HUFFMAN: I don't have that number. I'm not sure.

THE COURT: How many cases can you tell me you know anything in detail about the loss mitigation status of the file?

MR. HUFFMAN: Well, the way it's set up, the bank handles the loss mitigation separately.

THE COURT: So the answer is zero. You're filing pleadings in court every day and you don't even know what's going on with the case.
     And see, the really interesting thing to me as a judge is that in no other species or kind of law would that be remotely acceptable or, frankly, anything short of malpractice. But somehow in Foreclosure World everybody things that that's just fine, that you can know absolutely nothing about your files and walk in here and ask judges for things left and right without even knowing what's going on.
     And, you know, ultimately, the law firms are going to start doing that at their [peril].

[........]

THE COURT: ...And I'm not trying to crucify Mr. Huffman just because he happens to be the guy that I hauled in here today, but the upshot of it is the bond was not posted. How much was the amount of the final judgment?

MS KHAN: Judge, if I may look in the file?

MS HILL: [$]207,238.72

THE COURT: Did the plaintiff acquire title [to Mr.Eslava's house] at [the foreclosure ] sale?

MS. HILL: Yes, your Honor.

THE COURT: What's the status of the property? Does anybody know?

MS. KAHN: Your Honor, Sheleen Khan for the defendant.
The defendant is paying on direct debit from his account every month. This will be his fifth payment under the HAMP program, your Honor.

THE COURT: Okay. I think as a sanction what would be appropriate is to direct HSBC, who failed to comply with the Court's order, the only -- there's nobody here from HSBC to offer any --

MS. HILL: Well, Mr. Huffman is here on behalf of HSBC today, as well.

THE COURT: But he doesn't know anything about the loss mitigation status. I just asked him.

MS. HILL: It's our understanding in this case that it is still under loss mitigation, it is being reviewed by HAMP for permanent modification.

THE COURT: Mr. Huffman, please rais your right hand.

(Thereupon, William Ward Huffman, III Esq. was duly sworn by the Court.)

THE COURT: What's your name?

MR. HUFFMAN: Bill Huffman.

THE COURT: What was the loss mitigation status on March 4, 2010?

MR. HUFFMAN: It was on hold for --

THE COURT: Tell me what was going on. How much had the defendant paid in? Had the defendant made any HAMP payments? Was the defendant formally enrolled in a HAMP program? Was the defendant in a HAMP trial period for HAMP?

MR. HUFFMAN: I knew the defendant was in a trial period for HAMP.

THE COURT: When was the defendant put into a trial period for HAMP?

MR. HUFFMAN: My file went on hold November 6 of 2009, so I knew they had been in the trial period since that time. I didn't know the exact date.

THE COURT: December what?

MR. HUFFMAN: It was November 6, I believe, 2009.

THE COURT: What was the date of the final judgment? December 9, 2009.

MR. HUFFMAN: The hearing was, I believe, November 5 and the judgment was signed December 9.

THE COURT: So you have a final judgment hearing on November 5 and the file went on hold November 6?

MR. HUFFMAN: Correct.

THE COURT: When was the file HAMP approved?

MR. HUFFMAN: It hasn't been fully approved at this time.

THE COURT: When was the file HAMP approved for trial modification?

MR. HUFFMAN: From my knowledge, it was November 6.

THE COURT: But I'm not asking you about your knowledge. Because you're here to testify on behalf of your client.

MR. HUFFMAN: Okay.

THE COURT: So on behalf of HSBC Bank USA, NA as Trustees for Nomura Asset Acceptance Corporation, Mortgage Pass-through Certificates Series 2006-ARI, when was Mr. Eslava's HAMP documentation accepted?

MR. HUFFMAN: I don't have -- I didn't see the doc to see when he actually signed the preliminary mods. I don't know the exact date. I just know that I was notified on November 6 to place my file on hold.

THE COURT: Mr. Huffman, respectfully, can't answer the questions I have because --
I'm going to sanction the bank. I'm not going to sanction Mr. Huffman. I could because I think Mr. Hoffman's conduct was contemptuous of a court order. But I'm also keenly aware that a comtempt finding from a judge has ramifications throughout the rest fo a laywer's career, and I'm really trying to avoid that.
     What I'm trying to give is, for lawyers that handle these cases, a wake-up call to say this is your life, this is your career on the hook and you guys better wake up and smell the coffee.
     But he cannot answer the questions for me to tell me the nature of the contempt.
Why wasn't a bond posted in this case pursuant to the court order?

MR. HUFFMAN: When I saw the order from March 4, I kind of read it --

THE COURT: Why wasn't the order -- the bond was ordered posted -- when did I order the bond? March 4. Okay.
Why wasn't a bond posted by April 4?

MR. HUFFMAN: When I saw the language, I thought it had two options, either post the bond by April 4 or have the case dismissed. Because our file was still on hold April 4, I just chose to allow the case to be dismissed.
     Instead of posting the bond, I though that was an option I had. I thought it would be in the best interest of all parties. I didn't want to incur any more fees for the defendant in this case by moving the case forward.

THE COURT: Okay. Then as a sanction, the Court will follow the path chosen by Mr. Huffman. I will dismiss the case. I will dismiss the case with prejudice.
The note, which was canceled by this Court pursuant to a final judgment is null and void.    
     Mr. Eslava is relieved of the debt.

     The title shall be conveyed back to Mr. Eslava by the bank -- by the trust -- as the legal liability for the note no longer exists.
     The basis for this sanction is the contemptuous noncompliance with the Court's order to post the bond.
     Should, however, any claim ever be pursued against Mr. Eslava on the note which was the subject of this case, since the note was lost, HSBC Bank USA, NA, as Trustee for Nomura Asset Acceptance Corporation, Mortage Pass-through Certificates Series 2006-ARI shall jointly and liablely (sic) with Florida Default Law Group, PL, and any successor law firm, be responsible to hold harmless and indemnify Mr. Eslava from any liability should the orginal appear in the context of another case.

MS. HILL: Your Honor, if I may just briefly respond?
     I believe under the case law that in order to award sanctions, there has to be a finding of willfullness and bad faith on the part of Mr. Huffman.

THE COURT: No, this is on behalf of HSBC. I'm finding wilfulness because -- I'm not making Mr. Huffman responsible for the $207,238.72. I'm saying HSBC has been offered an opportunity to come and testify to this Court about why all this confusion erupted. They have given me Mr. Huffman. Mr. Huffman respectfully, can't answer very many of my questions in detail because all he knows is that the file was put on hold. It was put on hold the day after a final judgment was entered at the behest of the bank.
     Now, I would like to know why the bank came in here one day to get a final judgment and the next day to put a file on hold. But that's really a sideshow. Really the big question is why didn't they comply with the order of March 9? Why did they simply ignore it.
     And that answer is ["]we put the file on hold["]. That's a contemptuous answer. A bank does not have the authority or a trust does not have the authority to ignore a court order simploy because they are making business decisions on a file. And that's really where we are at.

MS. HILL: Respectfully, I understand, your Honor.
     In this case, Florida Default Law Group is taking responsibility for its actions. And I would respectfully submit that canceling the underlying indebtedness woudl not seem to fit the failure of Florida Default in this case on behalf of the bank in complying with the order. Florida Default is more than willing to stand before you and apologize.

THE COURT: No. No. No. This is way beyond -- you know, look, I don't want apologies. I want performance. I want responsible attorneys who meet the basic standards of knowing what the Sam Hill is going on in their files.
     I want acknowledgment that says, look, we understand that the court system is facing a massive number of foreclosures and we are not going to contribute to that burden by causing useless work by the Court.
     Which is really what I just got told.
What I got told is, Judge, the guy was already approved for HAMP by November 6, so the hearing on November 5, you really didn't need to do that.
     Because for every hearing that I do on these cases, the reason why I get this packet is I check service on every defendant, I look at the note, I make sure there's an endorsement. The fastest I can do one of these is about seven minutes. The slowest I can do it, if it's out of order, if it's disorganized, if there's things missing, which may well be the case in this case because the hearing was November 5 and the order wasn't entered until December, which means that there may have been missing items, it can take as much as 15 minutes or a half an hour. So the bank wasted my time on that.
     They wasted my time -- and I don't care about my time because I'm paid the enormously high sum of $144,000 to be here every day.
     But the second waste of time was then they come in and opposed the defendant's motion to cancel the sale. And we had a hearing and we talked about that. An I would imagine that took somewhere between 12 to 17 minutes, depending on how it went.
     And then they come in and walk in a motion to cancel the sale.
That's three useless, completely idiotic events. And if Florida Default wants to make HSBC whole in this, then that's between them and their carrier.
     But the bottom line is that's the sanction that the Court has ordered. Mortgage foreclosure is an quitable remedy. The plaintiff in this instance, whether it's through its own conduct -- because, frankly, I can't -- what Florida Default is telling me is we're just doing what they're telling us to do. They told us to put a file on hold.
     If this is how a bank is going to conduct its business, then the bank should be bearing the sanctions. Florida Default can cut whatever deal it wants to cut with them, but at the end of the day, the bank is responsible for this.
     Thank You.

MS. HILL: Thank you, your Honor.

THE COURT: I need the transcript ordered, please, and a simple order attached that adopts the transcript as my order, because I think that's going to be the cleanest way to do that. And I will direct that the transfer of title occur within 30 days.

Then the attorney for the defense realizes this is her moment.

MS. KAHN: Your Honor, if I may add, I have an affidavit in support of fees, attorneys fees, reasonable fees.

THE COURT: How much?

MS. KAHN: [$]1,222, your Honor. 6.11 hours.

To the surprise of no one, Ms. Kahn gets her money.

Fade to black.

Fin.

Hit Them Where Their Heart Would Be, If They Had One

(Via Naked Capitalism)

Short version:

• Foreclosure mill moves against homeowner.
• Foreclosure mill is forced to admit to a bankruptcy judge that they are moving to foreclose, sans paperwork.
• Bankruptcy judge puts her foot in said mill's ass so hard, they're spitting up shoe leather.

A thing of beauty from any angle, but really, read the whole account. I'm focusing on the 2010 case before Judge Bailey, but a more recent case is what Yves is trying to track down. As in Have judges finally starting giving out free houses to address clear instances of foreclosure fraud?

Stay tuned.

Judge Sumi Loses Her Patience - Declares WI Act 10 as Unpublished

Pressed by an Administration that insisted on squeezing through every potential loophole, Dane County Circuit Judge Sumi released a third restraining order declaring WI Act 10 as unpublished. She repeats her earlier TRO language and adds:

FURTHER, based on the briefs of counsel, the uncontroverted testimony, and the evidence received at the March 29, 2011 evidentiary hearing, it is hereby DECLARED that the 2011 Wisconsin Act 10 has not been published within the meaning of Wis. Stats. 991.11, 35.095(1)(b) and 35.095(3)(b), and is therefore not in effect.
SO ORDERED this 31st day of March 2011, at 8:15 am.

For my own tastes, I would think she would have been better served using language specifying that this TRO was to preserve the status quo pending the completion of testimony on tomorrow's hearing.

There was a bit of urgency in stopping what could be a runaway train - but more restraint in the language would serve this judge well.

I fully expect, despite their assurances that they'll fall in line, the administration is going to press hard on the WI Supreme Court to intervene at the earliest possible opportunity.

Honest to Pete... what next?

Seriously.

Late Edit: Also, for people interested in the legal wrangling over the publishing statutes, illusory tenant offers a great summary of the relevant bits.

And people interested in the relevant caselaw being bandied about concerting whether or not a judge can meddle in these affairs - I'd go no further than the WI Court of Appeals referral of the case to the WI Supreme Court. They list four cases that are pertinent and nicely summarize each of them.


(H/t The Wheeler Report, obviously)

WI Act 10 Litigation Recap

Because it helps me to spell these things out.

Ismael R Ozanne vs. Jeff Fitzgerald et al 2011CV1244

March 18, 2011 - Issues a Temporary Restraining Order

Appealed to WI Court of Appeals

March 24, 2011 - WI Court of Appeals refers case to the WI Supreme Court

No word from the WI Supreme Court

March 25, 2011 - WI Sen. Majority Leader meets with LRB chief to ask/insist that WI Act 10 be published.
WI Legislative Reference Bureau publishes WI Act 10 with a disclaimer

Dane County DA Ozanne asks for a court order to have WI Act 10 taken down. The duty judge, Judge Sarah O'Brien, reviews the situation and decides a judicial order would be irrelevant and denies it. Essentially, the status quo will be unaffected by the LRB's "display" of WI Act 10 on their website.


March 29, 2011 - The Wisconsin Dept of Justice asks the WI Court of Appeals to withdraw the case that has been referred to the WI Supreme Court because WI Act 10 is now "published" (in the WI DOJ's eyes, the case is moot). The WI Court of Appeals denies this motion.

also on March 29, 2011 - Judge Sumi holds a day long hearing and issues an amended Temporary Restraining Order and threatens government officials who violate it with judical sanctions.

But what about the other, neglected child? The case that the unions have brought directly against the state?

Dane County et al vs. State of Wisconsin et al - 2011AP613LV

The got a hearing about consolidating two cases into one, but not a lot of ink...

Maneuver and Chase

The battle over the anti-union law (2011 Wisconsin Act 10) continues...

Via the Milwaukee Journal:

Three cases are continuing over the new law, leaving the courts as the final arbiter of whether the law is in effect, whether it was adopted properly and whether aspects of it are constitutional. Huebsch said he would abide by court rulings if he is ordered to stop implementation of the law.

Dane County District Attorney Ismael Ozanne, a Democrat, filed a complaint this month to block the law. He contended that a committee of lawmakers violated the open meetings law when it approved the measure, which was a key step to advancing it to the GOP-controlled Assembly and Senate.

Republicans argue they did not violate the meetings law.

Dane County Circuit Judge Maryann Sumi on March 18 said Ozanne's case was likely to succeed and blocked Democratic Secretary of State Doug La Follette from publishing the law.

But on Friday, the nonpartisan Legislative Reference Bureau - which was not under the court order - published the law.

The director of the reference bureau, Stephen Miller, said Friday that statutes required him to take that step, but that he does not believe the law takes effect until the secretary of state acts.

Last week, the Department of Justice appealed Sumi's temporary restraining order. The appeals court panel said the state Supreme Court should take the case, but the high court hasn't ruled on whether it will take it.

On Monday, the Department of Justice asked to withdraw its appeal, saying the law had now been published. It also asked Sumi to vacate the temporary restraining order, withdraw Tuesday's hearing and dismiss La Follette from the case.

Ozanne, meanwhile, asked Sumi to declare that the reference bureau's actions did not constitute publication of the law under the state constitution and that the bureau is subject to and had violated the restraining order. He further asked the judge to order the reference bureau to remove the act from the Legislature's website.

The WI DoJ's attempt to withdraw its appeal (because it belives the law is in effect and the appeal is moot) was denied (pdf) with the court saying, in effect, "we don't have the right to yank a case away from the WI Supreme Court." As in, sorry, fellas. You asked us to give it to them so we did, we're not taking it away from them because you've changed your mind.

Ozanne's request that the LRB be ordered to "unpublish" Act 10 was denied - with Judge Sumi's proxy saying that the LRB's publication did not change the status quo.

Assuming I'm reading this right, this leaves two pending cases:

• Ozanne's public meetings violation case before Judge Sumi; and
• the appeal of Judge Sumi's restraining order sitting on the desk of the WI Supreme Court.

With Judge Sumi's hearing going on right now, it'll be interesting to know if the WI Supreme Court will let this play out before they decide whether or not to step in (it would seem to make sense, but if they believe the restraining order is in error - they might jump in now).

All in all, quite the mess.

(H/t The Wheeler Report)

Late Edit: Today's testimony ended, sounds like there will be an amended restraining order, and testimony will continue on Friday. via @madisoninfo/dcc

Unringing a Bell

(Via The Wheeler Report)

Wisconsin just keeps on with the crazy. You would think there would be little ambiguity about how a piece of legislation goes into effect.

The bill is passed, signed and becomes law.

But there's more procedure than that and the bill is not law until it is published.

And (following a complaint) Dane County Circuit Judge Maryann Sumi issues a temporary restraining order

I do, therefore, restrain and enjoin the further implementation of 2011 Wisconsin Act 10.

Judge Sumi schedules a hearing for March 29, and goes out of the state.

As everybody now knows, the State's Legislative Reference Bureau publishes the Act with this disclaimer:

* Section 991.11, WISCONSIN STATUTES 2009−10 : Effective date of acts. “Every act and every portion of an act enacted by the legislature over the governor’s partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication as designated” by the secretary of state [the date of publication may not be more than 10 working days after the date of enactment].

† Pursuant to section 35.095 (3) (b), Wis. Stats., the secretary of state designated March 25, 2011, as the date of publication for this act. On March 18, 2011, the Dane County Circuit Court enjoined the secretary of state from publishing 2011 Wisconsin Act 10 until further order of the court. Section 35.095 (3) (a), Wis. Stats., requires the Legislative Reference Bureau to publish every act within 10 working days after its date of enactment.

Litigants rush to court and demand a temporary restraining order be issued to the LRB, making them “un-publish” and bizarrely, the GOP Majority leader makes multiple statements that the LRB publication puts the law in effect.

With Judge Sumi unavailable, it falls to Dane County Circuit Judge Sarah B. O’Brien to release a statement denying a temporary restraining order – because – as she puts it:

There will likely be questions raised in the underlying lawsuit about the significance of the “publication” by the Legislative Reference Bureau in light of the existence of the restraining order issued by Judge Sumi. I am not taking any position on whether the LRB has effectively “published” the act, nor on the effect of the LRB’s action in regard to a potential effective date of the bill. However there is no critical urgency to resolving those questions. Restraining orders are issued to protect the status quo. As Judge Sumi said in issuing the temporary restraining order enjoining publication of the bill on March 18, 2011: Finally, the necessity to preserve the status quo. I think relief is essential to preserve the status quo, which is what exists here and now. The bill has passed. But it has not been published.

1 I am using quotation marks around the word “published” to make clear that this is not a ruling on whether the Act has now been legally published.

Whatever the significance of it may be, the LRB acted today by putting the bill on its website. That bell cannot be “unrung”. Ordering that the bill be taken off the website, as I believe Attorney Ozanne would like to request, would have no legal significance. Therefore I am declining to hold a hearing in this matter

The judge is studiously avoiding the publication issue, but is implicitly saying that Judge Sumi's order preserved the status quo "which is what exists here and now." i.e. Ain't nothing changed, so I'm not issuing another order that will in no way affect the legal status of Act 10.

Taken as a whole you have a series of things that just don't follow each other so good:

• Judge Sumi restraining further implementation of Act 10
• a state agency doing something it is legally obligated to do and that has no implementation significance, 
• GOP leadership claiming that the law has been implemented
• and the WI Department of Administration Secretary saying his department is moving forward with implementing the Act

A very generous soul might excuse Sen. Fitzgerald's statements as mere grandstanding, but I would think the WI DoA would be flirting with contempt.

Madness.

Supremes to Fed: Spill It

I'll be buggered. Mark Pittman's wins his FOIA lawsuit, posthumously.

Reaching Out

The Milwaukee Journal Sentinel published a letter from Dane County District Judge John Albert to the union protesters:

Members of the Rotunda Community:

Today, I have ruled in favor of the Plaintiffs concerning the issues before me on access to the State Capitol of Wisconsin. After three days of testimony, the record establishes that the recent protest was unprecedented in the history of the state of Wisconsin. Thousands of people peacefully protested for two weeks and no injuries or damage to personal or government property occurred.

I credit that to the restraint and discipline of the protesters. I further commend law enforcement supervisors and every individual policeman or policewoman for the discipline and restraint shown during these unusual times.

The order that I will issue granting the Plaintiff's relief will contain what I consider to be a reasonable restraint on the time, place and manner of future demonstrations and protests. The restraint is as follows. Staying after the building is closed, is prohibited. Protests and demonstrations can be held at any time when the Capitol is open during normal business hours and, of course, if either house of the legislature is in session or any public hearing is being held.

I have attached a copy of a Notice requiring that you peacably vacate the State Capitol after business hours today. My intent is to facilitate the reopening of the Capitol consistent with the free assembly and free speech provisions of the Wisconsin Constitution as well as the parallel provisions of the U.S. Constitution.

It is my sincere hope that you honor the Notice and do your part to adhere to the principals of non-violent protest that has characterized these events.

Civil disobedience is always a citizen's option but understandably brings consequences to those exercising that right. If you stay you can expect that you will be removed in a humane manner and without excessive force.

In the interest of avoiding injury to anyone, please obey the Order.

Judge John C. Albert.

AT&T is Not A Person...

...which would explain their consistent inhumanity to man.

Point being, a unanimous Supreme Court ruled today in FCC v. AT&T (No. 09-1279) that corporations do not have personal privacy rights.

That anything should slow the legal march towards corporate personhood is more than a little stunning, but here's the kicker: The Chief Justice even served up a bit of judicial snark:

The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

Zing!

(H/t Mom)

Worst Person in The World - Atty. Frederick J. Voss

With Olbermann out of action, I figure I'd put up a candidate for WPITW.

I'd mentioned before that I used to edit a legal newsletter. One of its recurring features was a list of attorneys who had broken the law, failed in their professional obligations to their client/profession - or disgraced themselves in a fashion that required discipline.

This issue's star was Atty. Frederick J. Voss of Rhinelander, WI.

Atty. Voss is apparently on a personal quest to become the gold standard of attorney misconduct.

He makes a pretty good case.

Exhibit A - Atty. Voss begins to represent

...a female client with a very extensive history of and treatment for various psychiatric disorders and alcohol dependency. The client's diagnoses include bipolar I disorder, post-traumatic stress disorder, eating disorders, and severe personality disorder with histrionic, borderline, anti-social, and passive-aggressive features.

In the past, a worker at one of her treatment centers engaged in sexual relations with her - and was "fired, criminally prosecuted, and jailed."

This client has major issues. Lots of responsibility there.

Enter Atty. Voss.

Within a year and a half of formally becoming this woman's attorney - he's sleeping with her. This is directly at odds with the code of professional conduct for attorneys, but hey... maybe nobody will find out, right?

Naturally, somebody found out.

Voss was reported to the lawyers regulatory agency, but the client would not file a complaint.

Improper relationship with disturbed client. Check.

Exhibit B Voss is alleged to have forced his client to have sex with him. This incident was reported to the sheriff - who recommended filing charges to the DA. No charges were filed.

Voss goes on the attack:

In an...e-mail to the client's sister, Attorney Voss said that if he were charged criminally, as part of his defense he would introduce into evidence information regarding various incidents involving the client that would not make her look good and that she would not enjoy testifying about in open court.

Voss then contacts two circuit judges telling them the allegations have no merit - he includes details of his clients sexual history. This is before either judge has any case in front of them.

He contacts the client's mother - promising to bring up personal family issues if he is called to testify in court.
He files extraneous embarrassing information about his former client in memorandum.
He pays her money in exchange for signing a self-serving statement he's prepared.

Exhibit C When all this finally blows up into a disciplinary hearing, Voss is shameless in his defense:

The [Office of Lawyer Regulation] noted that Attorney Voss claimed he has sole authority and decision-making power to decide when he is the attorney and when he is not the attorney for a client, and that the client has no right to decide whether there is a continuing attorney-client relationship. Thus, Attorney Voss argued he may end the attorney-client relationship with the client immediately after a hearing on a chapter 51 commitment and that same day may elect to have sexual relations with the client. The OLR said this is a self-serving interpretation of the supreme court rules and in this fact situation, it is particularly egregious and predatory. The OLR noted that the client was the subject of approximately 82 different treatment matters, including mental commitments, out-of-home placements, substance abuse treatments, inpatient placements, and home placements...

¶27 Attorney Voss filed a 109-page post-trial brief which started out by announcing, "[The client] is a manipulative, alcoholic, violent, mentally ill, criminal." Attorney Voss's post-trial brief ended by saying, "No relationship is symmetrical. It is one she wanted to be in. . . . The relationship was as normal as it could be under the circumstances."

And, the court observed:

Throughout this entire disciplinary proceeding, Attorney Voss persisted in attaching to his pleadings hundreds of pages of medical records containing highly sensitive personal information about the client.

In short, ginormous asswad in all respects.

Sadly, for all this asswad-ery, the disciplinary hearing does not translate into criminal charges. The court brought down as much as the disciplinary hammer as they could - suspending Voss' license to practice law for four years and eight months - and fining him over $140,000.

Although this is a staggering amount, the reason the costs escalated to this level is largely because of Attorney Voss's aggressive litigation style. It appears he greatly over-litigated the case and thus it is appropriate to assess the full amount of costs against him.

His license is still good for the next month, so if you know anyone in northern Wisconsin looking for an attorney - you should tell them to stay the hell away from this guy. He's about to lose his primary income and he owes a lot of money. A financially desperate creep is twice as dangerous as the garden variety.

Score One For Sanity

The good news: Massachusetts recognizes the rule of law in foreclosures.

The bad news: That this, truly, is news :

(Bloomberg) U.S. Bancorp and Wells Fargo & Co. lost a foreclosure case in Massachusetts’s highest court that will guide lower courts in that state and may influence others in the clash between bank practices and state real-estate law. The ruling drove down bank stocks.

The state Supreme Judicial Court today upheld a judge’s decision saying two foreclosures were invalid because the banks didn’t prove they owned the mortgages, which he said were transferred into two mortgage-backed trusts without the recipients’ being named.

I mean, really - a ruling that banks can't foreclose if they cannot prove they ownsa mortgage should not be news.

Yet it is.

At least the ruling was right. Let's see how the banks push back on this.

(H/t The Big Picture)

Switzerland, You Suck

Letting Polanski go because the US hadn't filed an extridition request "for years."

So, Polanski went to Switzerland because he "trusted that the journey would not entail any legal disadvantages for him."

And that would not be fair.

So, Swiss extradition law requires that fugitives get advance warning that they are subject to arrest and extradition?

More like Switzerland screwed up and arrested a man who clearly is not subject to law - then found an excuse to let him go.

Commensurate With The Threat

(Via Newshoggers)

Found this interesting - via Thoreau (not that one, this one):

The feds have arrested 10 people charged with spying for Russia. I do not know the validity of the evidence, so I cannot comment on that. I can, however, note that these people were charged with crimes in a court of law.

Now, charging people with crimes in an open court of law is perfectly fine if we’re merely talking about people accused of acting at the behest of a nuclear power with a global intelligence network, a navy and airforce, oil, natural resources with which they play politics with neighbors, and a $1.2 trillion GDP. Sure, they may have some resources behind them, but at least the threat is manageable.

On the other hand, if we’re talking about a small network of guerrilla fighters whose leader lives in caves and whose fighters are armed with at best shoulder-mounted rocket launchers, well, you simply cannot charge them in an open court. The risks are far too great.

He shoots, he scores.

If Corporations Were People...

Paraphrasing a perfectly apt observation I heard on the radio at lunch.

If I have a few beers before I go home and get pulled over - I get arrested. My car gets impounded. I'm out impound fees, time, and possibly bail money. Then I go to court, where I face more fines and a mark on my record that will raise my insurance rates and make it harder to get a job.

With BP, 11 people are dead and an entire region's environment and livelihood are endangered. You think anyone's going to jail for this?

Eavesdrop on Your Cell? No. Kill You? Yes.

Greg Marx runs through some tepid coverage of the Obama administration's decision to authorize the extrajudicial killing of Anwar al-Awlaki, an American citizen accused of fomenting terrorist violence.

Here's the money quote:

To eavesdrop on the terrorism suspect who was added to the target list, the American-born radical cleric Anwar al-Awlaki, who is hiding in Yemen, intelligence agencies would have to get a court warrant. But designating him for death, as C.I.A. officials did early this year with the National Security Council’s approval, required no judicial review.

“Congress has protected Awlaki’s cellphone calls,” said Vicki Divoll, a former C.I.A. lawyer who now teaches at the United States Naval Academy. “But it has not provided any protections for his life. That makes no sense.”

I'd have to agree.

I can't imagine that the Obama administration's proposed solution can stand up to legal scrutiy.

I get that a total bar on deliberate attacks on Americans can result in some crazy situations
-High value foreign target pals around with nobody American for protection
-US troops encounter a known American fighter on the battlefield and are not allowed to call in airstrikes or artillery.

You would think that military rules of engagement could deal with most of these situations - - but the idea that the US can deliberately assassinate an American without some kind of external check is about as contrary to the idea of secure in ones person as you can get.

This sh!t's gotta stop.