Glenn Beck has gone to the World Intellectual Property Organization (WIPO) seeking to get them to take down a domain name. In particular, Mr. Beck wants WIPO to dispose of the domain name: glennbeckrapedandmurderedayounggirlin1990.com.

Beck is attempting to do through WIPO what he can’t do through U.S. libel law. He doesn’t like the Internet meme suggesting that he raped and murdered a young girl in 1990 — his lack of denial of this is offered as evidence. At its root, this is a critique of Beck’s style of smearing a person, notably Muslim Congressman Keith Ellison, by voicing the smear in the context of purporting to allow the person to prove their innocence.

Beck’s efforts to go after the domain name seem likely to be unsuccessful. He essentially has to make a trademark showing that he has some right to the name or that the other person’s use of the name will cause some confusion about marks owned by Beck. But, really, how likely is it that any reasonable person (not, admittedly, Beck’s target audience) would be confused into thinking a site discussing whether he raped and killed a young girl in the 1990s was associated with one of Beck’s own websites?

As the attorney representing the owner of glennbeckrapedandmurderedayounggirlin1990.com states in his brief to WIPO:

There is no indication that the Respondent has intentionally attempted to confuse anyone searching for Mr. Beck’s own website, nor that anyone was unintentionally confused – even initially. Only an abject imbecile could believe that the domain name would have any connection to the Complainant.

We are not here because the domain name could cause confusion. We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at the Respondent’s website wondering “where did all the race baiting content go?” We are here because Mr. Beck wants Respondent’s website shut down. He wants it shut down because Respondent’s website makes a poignant and accurate satirical critique of Mr. Beck by parodying Beck’s very rhetorical style. Beck’s skin is too thin to take the criticism, so he wants the site down. Beck is represented by a learned and respected legal team. Accordingly, it is beyond doubt that his counsel advised him that under the First Amendment to the United States’ Constitution, no
action in a U.S. Court would be successful.

The test is whether a sensible person, not an “imbecile in a hurry,” would be confused. The whole brief makes for some pretty good reading. It discusses Gilbert Gottfried’s amusing use of the smear technique in a roast of Bob Saget as well as Internet memes generally.

For all the fear mongering about voter fraud, it has proven amazingly elusive. TPM Muckraker has the story of some possible voter fraud in New York. The specific details are mildly interesting but not of much importance to Indiana. Basically, it involves a pissing match by proxy between Democrats and Republicans in a third-party primary in a county-level election. The important take away with respect to Indiana is that the fraud appears to have involved absentee ballots. Yet more evidence that, contrary to Gov. Daniels’ assertions, it is not “preposterous” or even partisan to require greater or at least equal security standards for absentee ballots as opposed to in-person voting.

Sheila Kennedy has a good column in the Indianapolis Star about the Indiana Court of Appeals’ recent decision on the Voter ID law, Gov. Daniels responsive outburst about “partisan judges” in particular. And I’m not at all influenced in that assessment by the fact that she quoted something from a previous entry here. Nope, not at all.

[G]ov. Mitch Daniels was quick to accuse all three judges who issued the opinion of “playing politics.” This rhetoric is unfortunate on a number of levels. It betrays unfamiliarity with the arguments involved, and — worse — paints judges as no more than partisans in robes. Such attacks, as the Indiana Bar Association pointed out, undermine the legitimacy of the judicial system.

Daniels’ intemperate reaction also appears to confirm suspicions that the voter ID law was itself a partisan effort.

Roberta Heiman has an article in the Evansville Courier Press on a topic with which I am intimately familiar – collection of debts in a small claims court. Apparently things run a little differently in southern Indiana. There appears to be a local practice where judgment debtors are held in contempt for defaulting on payment agreements. The article mentions a case out of Perry County I discussed awhile back where the judge apparently threatened the judgment debtor with jail if she didn’t make a payment arrangement.

It also mentions a situation in Evansville where a judgment debtor was going to be held in contempt for failing to honor an agreed order on a prior payment arrangement.

Debtors prisons aren’t permitted in Indiana. In the counties where I practice, non-payment isn’t going to earn you a contempt citation. What does happen, quite frequently, is that people get served with orders to appear and testify as to their income and assets, fail to appear, and then have writs issued for their arrest to compel their testimony. A person can also be held in contempt for failing to appear if they cannot show good cause for their failure.

Even though I think that debtors’ rights advocates are correct, generally, when they protest the practice of locking people up for non-payment; they go too far when they suggest that creditors can’t force them back into court repeatedly to inquire about their income and assets. A creditor is not going to have independent knowledge of the debtors’ financial situation. I can’t tell you the number of times I have let a judgment sit for awhile, and call the judgment debtor into court after many months, only to find that the person is no longer employed but held a job for a period of time between court dates. Had I been forcing the person into court every month, I would have discovered income subject to garnishment.

Returning to the southern Indiana practice of holding people in contempt for failing to abide by a payment agreement – certainly I think it’s inappropriate if, during the period of non-payment, the debtor never had any attachable income or assets; for example, if all they ever had during this period was Social Security income. But what if the person entered into an agreement resulting in a court order to pay $100 per month; had garnishable income in excess of the $100 per month; but refused to pay anyway. It seems to me that, in that situation, there is a case to be made for contempt proceedings: the court has ordered you to do something, you have failed to do it, and you cannot show any legal excuse for your failure.

In any case, if you hear one of these “debtors prisons” stories, always pay attention to what, precisely, led to the person’s arrest. I’ve had any number of judgment debtors complain about being arrested for a debt when the reason for their arrest was their failure to obey a court order to appear and testify as to their income and assets. My somewhat unsympathetic attitude over the years has been that, if you don’t have a job, generally you can make time to go to court.

The Associated Press has an article that doesn’t surprise me at all.

American students are falling far behind their international counterparts in learning second languages, creating economic disadvantages for U.S. businesses and raising national security concerns.

Virtually all European and Asian elementary students study a second language, but 97 percent of Ohio and Kentucky students do not because their schools don’t offer it.

Foreign languages are seen as something of a luxury. Our political culture tends to hold other countries in disdain. News reports about the rest of the world are pretty limited. Opportunities for Americans to travel in foreign countries are relatively infrequent. And English, for the time being, is the world’s lingua franca. School systems can’t see a lot of reason to emphasize foreign languages and students can’t see a lot of reason to learn them.

A friend of mine passed along this AP article on the fate of the property acquired by the City of New London that was the subject of the Kelo v. City of New London case handed down by the Supreme Court in 2005.

Turns out the City didn’t need the property that badly after all. The development for which the City exercised the power of eminent domain seems to have collapsed.

Weeds, glass, bricks, pieces of pipe and shingle splinters have replaced the knot of aging homes at the site of the nation’s most notorious eminent domain project.

There are a few signs of life: Feral cats glare at visitors from a miniature jungle of Queen Anne’s lace, thistle and goldenrod. Gulls swoop between the lot’s towering trees and the adjacent sewage treatment plant.
. . .
In New London the city’s prized economic development plan has fallen apart as the economy crumbled.

The Corcoran Jennison Cos., a Boston-based developer, had originally locked in exclusive rights to develop nearly the entire northern half of the Fort Trumbull peninsula.

But those rights expired in June 2008, despite multiple extensions, because the firm was unable to secure financing, according to President Marty Jones.

In July, backers halted fundraising for the project’s crown jewel, a proposed $60 million, 60,000-square-foot Coast Guard museum.

The legal decision didn’t bother me. The project, as described in the Supreme Court case — as opposed to the media reports about the Supreme Court case, did not strike me as such a departure from tradition. It was a big project with a lot of public use and, yes, some private use, but it was not a simple matter of seizing land from one person and handing it to another.

But, jeeze, make sure you can get the job done once the land is acquired. This is a horrible waste. Sometimes I’ll tell a client or potential client, “Are you really sure you want to do this? Because this sounds like the kind of case where nobody is going to win but me.” Looks like this ended up being one of those cases.

What if the mortgage industry screwed up its legal right to foreclose on (give or take) 60 million homes? That’s the potential consequence of Landmark National Bank v. Kesler (Kan. 2009). The Kansas Supreme Court can’t issue binding precedent for the rest of the country, but the reasoning here is not to be easily ignored.

I don’t fully understand the ins and outs of this process, so look elsewhere for an authoritative discussion, but generally the issue is that a number of lenders set up an entity called “Mortgage Electronic Registration Systems, Inc.” (MERS – the Wikipedia article seems informative but not neutral.) As I understand it, this entity purports to be the mortgagee of record to a note on a loan secured by real estate. Lenders who are participants in the MERS program can buy and sell interests in mortgages and, I suppose, portions thereof without having to do a lot of paperwork and recording that assigns the mortgage to one person and then another as the financial obligation is traded about. So, Bank A lends the money to a Buyer to purchase a home and has the Buyer sign a mortgage in favor of MERS. As a participant in the MERS program, Bank A can then sell the mortgage to Bank B without having to do a lot of paperwork assigning the mortgage to Bank B and recording that assignment in the county recorders office.

The facts described by the Kansas Supreme Court are probably typical of a MERS mortgage:

The second mortgage lies at the core of this appeal. That mortgage document stated that the mortgage was made between Kesler–the “Mortgagor” and “Borrower”–and MERS, which was acting “solely as nominee for Lender, as hereinafter defined, and Lender’s successors and assigns.” The document then identified Millennia as the “Lender.” At some subsequent time, the mortgage may have been assigned to Sovereign and Sovereign may have taken physical possession of the note, but that assignment was not registered in Ford County.

The problem with MERS is that the mortgage (granting the power to foreclose in the even of default) is severed from the note (creating the obligation by which default is possible). The Kansas Supreme Court describes what can happen when the the mortgage is severed from the note:

The relationship that MERS has to Sovereign is more akin to that of a straw man than to a party possessing all the rights given a buyer. A mortgagee and a lender have intertwined rights that defy a clear separation of interests, especially when such a purported separation relies on ambiguous contractual language. The law generally understands that a mortgagee is not distinct from a lender: a mortgagee is “[o]ne to whom property is mortgaged: the mortgage creditor, or lender.” Black’s Law Dictionary 1034 (8th ed. 2004). By statute, assignment of the mortgage carries with it the assignment of the debt. K.S.A. 58-2323. Although MERS asserts that, under some situations, the mortgage document purports to give it the same rights as the lender, the document consistently refers only to rights of the lender, including rights to receive notice of litigation, to collect payments, and to enforce the debt obligation. The document consistently limits MERS to acting “solely” as the nominee of the lender.

Indeed, in the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable.

“The practical effect of splitting the deed of trust from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.” Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App. 2009).

Or, in short, “If MERS is only the mortgagee, without ownership of the mortgage instrument, it does not have an enforceable right.” But, if MERS does have enforceable rights to the underlying note, it could find itself embroiled in regulations that apply to mortgage bankers.

Matt Taibbi has a blog entry on this likening the mortgage industry to a giant criminal enterprise. He also notes that, more generally, the mortgage industry has been incredibly sloppy with its record keeping. This has allowed debtors to successfully challenge a lender’s right to foreclose in some cases. These are people who have received a benefit from money lent and who have failed on their promises to repay the money, but the lender (or whoever is currently holding the bag) can’t recover because they can’t prove they actually own the debt.

I don’t know if severing the note from the mortgage has a similar effect in Indiana or if MERS mortgages use the same language in Indiana. I suspect we’ll see an increase in challenges along these lines as attorneys become more attuned to the issues and courts analyze evidence about chain of title with a more critical eye. Glancing at some of the cases, I saw a case where the Northern District of Illinois shrugged off a similar challenge based on some affidavits from people associated with MERS and no serious rebuttal or opposition from the mortgage-debtor.

If MERS mortgages were deemed to be unenforceable, it could obviously have major repercussions. I ran a quick and dirty search on the Tippecanoe County court system and found more than 500 cases where “Mortgage Electronic Registration Systems, Inc.” was a party.

Update: Per a comment, here is the link to an entry Advance Indiana did on the subject a month or two ago.

St. Joseph County is having a trial over a judicial mandate to increase salaries for judicial staff and improvements at a juvenile detention center. The Indiana Law Blog, as per usual, has some good coverage of this issue.

[Judge] Nemeth and county officials are in a legal fight over $313,000 in funding the county refused to release in 2008 to renovate parts of the JJC. The County Council and county commissioners had approved the judge’s request to transfer the money from an unspent personnel fund, but county commissioner Bob Kovach later refused to sign a requisition order.

Nemeth issued a judicial mandate order to obtain the money.

He also issued a mandate seeking to use probation services fees to fund raises for the juvenile/probate court’s executive secretary, fiscal officer, JJC director and five other managers. The proposed raises range from 10 percent increases to nearly 34 percent.

I’ve held forth on other mandate cases over the years. (See, e.g., here and here and here.) The problem, as I see it, is that judges are a little bit county and a little bit state. They can use their state created judicial powers in service of their county administrative functions. Other county department heads can’t just order the county council to dig into the county general fund and cough up more money for county employees. State judges can.

The Indiana Judicial Conference recently laid out a strategic plan (pdf) that touches on the mandate issue as well as a number of other things. Consideration is being given to centralizing administration and funding of the courts. Currently judges, magistrates, and prosecutors are paid by the state while the rest of the court staff and other administrative expenses are paid by the county.

Where we want to be:

We can do better by distributing resources across the State in a more equitable manner by pursuing centralized funding. More Hoosier citizens will benefit, particularly in counties without a large tax base.

The Division of State Court Administration is pursuing three studies regarding costs associated with centralized funding. The studies are by Larry DeBoer of Purdue University, the Indiana University SPEA school, and a local consultant. These studies are in progress, and we do not know what the results ultimately will be until these studies are complete. At this point, we cannot say centralized funding will definitely create taxpayer savings. We can say, with certainty, efficiencies will result by combining resources and eliminating duplicated efforts.

We have yet to address many complex issues, including arrangements for state court personnel to use county facilities, whether to convert court employees to state employees, and if so, which court employees should be converted. We would have to address court, probation, and security staff, public defenders and pauper counsel, as well as guardian ad litems and court appointed special advocates, interpreters and other specialized court functions. Some judicial officers who now work as commissioners and referees would become state funded Magistrate Judges under a centralized funding scenario.

We will also have to address a method for governance, budgeting, and allocating assets. It would be premature to render an opinion on how this funding change would work until such time as the three studies have been completed. Even without the results from the studies, we believe centralized funding will eliminate duplication and increase efficiency, as well as distribute resources in a uniform manner among all counties.

Generally speaking, I would suggest that the power to spend should be coupled with the duty to fund. If a state official is going to order that something be paid, then the state should be responsible for raising the funds. In the South Bend context, it’s one thing for the judge to say that staff salaries ought to be raised or that the juvenile justice center ought to be maintained better. I’m sure he’s right. But other things in the county need funding as well and, to me, it doesn’t seem quite right that the judge’s concerns get to jump to the front of the line simply by virtue of the judicial mandate.

Charles Lemos at MyDD has a post up about Senator Al Franken’s (D-MN) questioning of the Justice Department’s David Kris about the Patriot Act.

Lemos describes the parts of the Patriot Act up for renewal as:

The three powers up for renewal are, first, the Section 215 powers that allow the government to obtain literally any tangible thing held by a third party about you with a secret court order, and that court order does not have to be based on any wrongdoing on your part or any suspicion that you’ve done anything wrong. The other provision, number two, is Section 206 of the Patriot Act, which relates to John Doe roving wiretaps, which allows the FISA court to issue a secret order to follow people’s cell phones, from cell phone to cell phone, if they’re suspected of being involved in terrorism. And the third provision is known as the “lone wolf” provision, which allows a full array of searches to be issued by the court secretly, if someone is believed to be a potential threat.

Franken, playing the “aww shucks, I’m not a lawyer, but . . .” card, wondered how these powers squared with the relatively clear language of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Franken emphasized the particularity requirement in the Fourth Amendment. Kris was apparently taken aback by the question and was heard to mutter “this is surreal” and then said something about deferring to the courts.

I can’t play the “aww shucks, I’m not a lawyer” card. I know that real life situations have a way of muddying even the clearest language. But, I’m certainly glad for Franken and any other legislators who are committed to reading the Constitution and knowing what it says. There’s a difference between retreating from an absolute stance on Constitutional language because of competing requirements and doubts about intent on the one hand and simply not knowing or caring about the Constitutional language on the other hand.