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

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

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

A. PROCEEDINGS SUPPLEMENTAL

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

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

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

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

B. RULE TO SHOW CAUSE & CONTEMPT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F. CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We’ve had some discussions about what label ought best to be applied to those segments of Christianity that are more about welding their brand of Christianity to the machinery of government than about trying to conduct their own lives as Jesus taught.

Llamajockey introduced me to the term Dominionism. According to the Wikipedia entry linked above:

Dominionism is a trend in Protestant Christian evangelicalism and fundamentalism, primarily though not exclusively in the United States, that seeks to establish specific political policies based on religious beliefs. It is most often used to describe politically active conservative Christians with a specific agenda.

Apparently the term has more currency than I thought. I saw it used over at Shakespeare’s Sister by poster Paul the Spud in his post about the new video game offering from mega-church pastor and author of “The Purpose Driven Life,” Rick Warren.

The video game is described as follows:

Imagine: you are a foot soldier in a paramilitary group whose purpose is to remake America as a Christian theocracy, and establish its worldly vision of the dominion of Christ over all aspects of life. You are issued high-tech military weaponry, and instructed to engage the infidel on the streets of New York City. You are on a mission – both a religious mission and a military mission — to convert or kill Catholics, Jews, Muslims, Buddhists, gays, and anyone who advocates the separation of church and state – especially moderate, mainstream Christians.
. . .
The game, slated for release by October 2006 in advance of the Christmas shopping rush, has been previewed at video game exhibitions, and reviewed by major newspapers and magazines. But until now, no fan or critic has pointed out the controversial game’s connection to Mr. Warren or his dominionist agenda.

On the other hand, the game apparently lets you switch sides and fight for the army of the AntiChrist. So, as a secular humanist, I might be obligated to check it out.

I’m generally suspicious of our good Governor’s numbers, but here is some good news, if true. He says that funding for the state’s recreation trails will soon double from $10 million/year to $20 million/year.

“The state will take the lead, but local communities and private organizations must play a large role if we’re to take a real leap forward and create the kind of trails network that really sets Indiana apart,” Daniels said. “We’ll favor cooperative projects among communities that will link local trails into long continuous routes.”

Sounds like a good plan.

It’s Memorial Day. I don’t have any real interest in commenting on Indiana politics this morning, so I’ll just add my voice to the chorus of thanks for the men and women who have given their lives fighting in America’s wars.

According to the Wikipedia entry linked above, Memorial Day was formerly known as “Decoration Day” and began first to honor Union soldiers who died during the Civil War. After World War I, it expanded to include those who died in any war or military action. I wonder if that includes the southern rebels who committed treason by fighting against the union for the Confederacy, killing the Union soldiers for whom the holiday was originally enacted. Along those lines, the Wikipedia entry goes on to state:

Many of the states of the U.S. South refused to celebrate Decoration Day due to lingering hostility towards the Union Army, which it was commemorating. Many Southern States did not recognize Memorial Day until after World War I, and even after continued to have a separate Confederate Memorial Day, with the date varying from state to state.

I’m not sure if it’s proper to honor our military dead in this fashion, but when so many are dying in Iraq, I’m reminded of Lord Tennyson’s Charge of the Light Brigade. The traditional image of Memorial Day is the brave soldier dying for a noble cause. But with the war in Iraq, the Charge of the Light Brigade seems more appropriate — brave soldiers dying for their country, but in a futile cause because their superiors have misused the honor and loyalty of their soldiers.

1.

Half a league, half a league,
Half a league onward,
All in the valley of Death
Rode the six hundred.
“Forward, the Light Brigade!
“Charge for the guns!” he said:
Into the valley of Death
Rode the six hundred.

2.

“Forward, the Light Brigade!”
Was there a man dismay’d?
Not tho’ the soldier knew
Someone had blunder’d:
Their’s not to make reply,
Their’s not to reason why,
Their’s but to do and die:
Into the valley of Death
Rode the six hundred.

3.

Cannon to right of them,
Cannon to left of them,
Cannon in front of them
Volley’d and thunder’d;
Storm’d at with shot and shell,
Boldly they rode and well,
Into the jaws of Death,
Into the mouth of Hell
Rode the six hundred.

4.

Flash’d all their sabres bare,
Flash’d as they turn’d in air,
Sabring the gunners there,
Charging an army, while
All the world wonder’d:
Plunged in the battery-smoke
Right thro’ the line they broke;
Cossack and Russian
Reel’d from the sabre stroke
Shatter’d and sunder’d.
Then they rode back, but not
Not the six hundred.

5.

Cannon to right of them,
Cannon to left of them,
Cannon behind them
Volley’d and thunder’d;
Storm’d at with shot and shell,
While horse and hero fell,
They that had fought so well
Came thro’ the jaws of Death
Back from the mouth of Hell,
All that was left of them,
Left of six hundred.

6.

When can their glory fade?
O the wild charge they made!
All the world wondered.
Honor the charge they made,
Honor the Light Brigade,
Noble six hundred.

This is sacrilarious. I don’t want to give it away, but I’ll just mention that it involves Jesus, “I Will Survive,” and an ending I’ve wanted to see in many, many movies.

The Richmond Palladium-Item has had a dust-up concerning its policy with respect to publishing the names of suspects. The background to this dust-up concerns an incident that took place on May 13 involving Scott Porter, a prominent business man in Richmond. The police investigation suggests that he was driving near the Olde Richmond Inn when two couples going to prom were walking by. Porter apparently made some “inappropriate” remarks about the girls, their dates attempted to defend their honor, Porter flashed a pistol (Porter says it was actually a cell phone), got of the car and kicked one of the boys “in the groin.”

In today’s story, the Pal-Item made a statement concerning its policy with respect to naming suspects:

The Palladium-Item does not print the names of alleged victims of violence. Nor is it the newspaper’s policy to print the name of suspects before they are charged with any crime.

Apparently the failure to name this particular name riled up some of the readers who thought that Mr. Porter was being given special treatment. This led to 2 Pal-Item editor’s blog entries defending the practice.

With respect to the policy, the editor (somewhat jokingly) compared it to the Ten Commandments:

What many people suggest is that we break our policy. But policy is an institutional form of ethics and morality and their argument is akin to suggesting that we have morals but break them when the situation calls for it.

It’s like saying that the Ten Commandments forbid adultery but I can commit adultery if Angelina Jolie has stopped by my house. (Now, don’t think I wouldn’t give it serious consideration. But that’s another blog entirely.)

Trouble is, they had already published Mr. Porter’s name the day before:

NEWS: Police hand prosecutor results from investigation of local real estate agent

Local real estate agent J. Scott Porter has been the target of an investigation into allegations of battery and criminal recklessness for the past 10 days. Police sent the results of their probe to Wayne County Prosecutor Michael Shipman on Tuesday.

Originally published May 23, 2006

That link has since been pulled. So I don’t know if it was a mistake, momentary vacillation, or what. Richmond area blogger Chris Hardie noted some big holes (see comments to 5/24/06 11:00 entry) in the Palladium-Item’s policy.

I did want to ask if you could speak (or, type) to the difference between what it means to be “under police investigation” and just “under suspicion of wrongdoing”?

Using some of the Don Holbrook / EDC events (and your coverage of them) from earlier this year as a contrast, it would seem that someone who has allegedly done wrong (criminal, moral, or otherwise) enters into some sort of special protection (in the newspaper’s eye) at the point they start being investigated by official law enforcement. But up until that point, they’re not protected…?

If someone has just allegedly done something wrong but is not yet even (or ever) under police investigation, are they fair game for greater exposure in your pages as a result? Does the Pal-Item have a policy related to publishing someone’s name as a part of allegations against them, even though it may not be a matter of illegal activities? Or is this a case-by-case editorial decision?

Incidentally, I’m not blowing anybody’s cover. Porter was charged with 5 felonies today and the Palladium-Item published the name.