Act I, Scene IV: Jerman v. Carlisle, McNellie, Rini, Kramer, & Ulrich LPA

Hold the presses: it’s another case involving debt collection! In case you haven’t yet, check out “How Debt Collectors are Transforming the Business of State Courts.” Basically, about 1 in 4 civil cases brought to state court is related to debt collection, the total number of cases continues to increase, and most result in default judgments. Translation: attorneys for debt buying agencies are filing suit against unrepresented parties for debts that may belong to someone else, they may have already paid, or they may be unable to pay. Charming.

Thankfully, Congress enacted the Fair Debt Collection Practices Act (FDCPA) “to eliminate abusive debt collection practices, to ensure that debt collectors who abstain from such practices are not competitively disadvantaged, and to promote consistent state action to protect consumers.” Good job, Congress! Only wait… this was passed in 1977 and the problem is worse than ever. I guess keep collecting your paychecks and thank you for your service?

Anywhoozle! Back to our case. The thrilling question: whether the “bona fide error” defense, codified in section 1692k(c) applies to a violation resulting from a debt collector’s mistaken interpretation of the legal requirements of the FDCPA.

Section 813(c) of the Act, 15 U. S. C. §1692k(c), provides that a debt collector is not liable in an action brought under the Act if she can show “the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.”

Pause. I’ll translate in a minute. First, let’s tackle the elephant in the room: how to pronounce “bona fide.” According to Oxford, we’ve got four options to tackle this Latin phrase:

  1. bōnə ˌfīd. Is this the most common? Maybe it’s regional?
  2. ˈbänə ˌfīd. The short “O” feels more relaxed. Plus, I used to think it was “banafide” so this makes sense to me!
  3. bōnə ˈfīdē. Incredibly Latin, fun to say, plus a bit snobby. Professor Haynes pronounced it this way in class once and I was so distracted that I have no idea what we covered.
  4. bōnə ˈfēdā. Now with even more Latin! Never heard it.

Returning to the question, there’s an easier way to ask it: does the FDCPA provide a mistake-of-law defense to civil liability? Can someone who misunderstanding or misapplies the law avoid penalties when someone brings suit? Nope.

[I]gnorance of the law will not excuse any person, either civilly or criminally. Barlow v. United States

Most interesting to me, is the fact that an error occurs despite “procedures reasonably adapted to avoid any such error.” Despite all the checks put in place a mistake still happens. That’s fine, so long as is not a misunderstanding or misapplication of the law. So, what was the error that Carlisle committed that got us here in the first place?

Karen L. Jerman had a mortgage (emphasis on had, as Karen had already paid it in full). Carlisle sought foreclosure! That escalated quickly and also, doesn’t make any sense knowing what we know (remember, Karen had ALREADY paid off the mortgage). In their efforts to foreclose on Karen’s real property, Carlisle included a “Notice” that stated “the mortgage debt would be assumed valid unless Jerman disputed it in writing.” Yikes. Thankfully, Karen hired a lawyer who sent a letter “disputing the debt” (remember, Karen had ALREADY paid off the mortgage). Karen’s mortgagor, Countrywide Home Loans, acknowledged full payment and Carlisle withdrew the foreclosure suit.

Taking a step back, someone who PAID OFF their mortgage receives a piece of mail that says “This mortgage debt will be assumed valid unless you dispute it in writing.” Doesn’t that smell scammy? Plus, it’s total nonsense because the homeowner knows they’ve already PAID OFF their mortgage. What if Karen had thought it was just some junk mail and shredded it? Carlisle would have received a default judgment, meaning that the undisputed mortgage debt was valid and delinquent. Carlisle could have proceeded with foreclosure. That’s how the system works! It’s absurd.

This case also raised my skeptical eyebrow because of Rule 11(b).

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

The lawyers did not conduct “an inquiry reasonable under the circumstances…” because their “factual contentions” totally lacked “evidentiary support,” as an “reasonable opportunity for further investigation or discovery” from their client would show that Karen had already paid off her mortgage. The complete lack of due diligence means that filing this complaint only served to harass Karen and other former mortgagees. Certification of this complaint by attorneys at this firm should have resulted in sanctions.

Oh, but that can’t just happen. Karen’s attorney would have needed to file a Motion for Sanctions under Rule 11(c)(2).

A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.

Despite the harassing nature of filing complaints bringing foreclosure action against former mortgagees who have already paid of their mortgages, a motion for sanctions must not be filed or presented if the complaint is challenged and then dropped within 21 days after service of the answer, motion to dismiss, or some other action by the former mortgagee. So, even if Karen thinks this conduct is horrific, as long as the firm withdraws the suit within the time period, Karen is barred from filing for sanctions.

For the the people in the back: a mortgage company hires a law firm, a law firm sues “delinquent” clients of mortgage company, Karen (a former mortgagee) is not delinquent, Karen hires an attorney to say so to the law firm, law firm drops suit after mortgage company verifies that Karen is not delinquent. And the Supremes, in their infinite wisdom, focus on whether requiring the reply challenging the outstanding debt be in writing is an unfair debt collection practice (because it violates the legal requirements within the FDCPA). Despite the fact that a simple inquiry by the law firm could have prevented this entire interaction, Karen probably couldn’t file for sanctions under Rule 11(c). Karen was able to keep the property, but think about what she had to go through to hold on to it.

Surprise to no one, John Oliver talked about debt buyers and this mess back in 2016:

Also, I cannot believe we live in a world where Debt Collector gets a sequel… Debt Collectors:

Oh no, you’ve found a parking ticket on your car or a red-light camera took your selfie in an intersection and sent you some fan mail. What happens if you just don’t pay it? Apparently, a lot. I mean, New York City even has an Office of Parking Summons Advocate that assists unrepresented/underrepresented members of the community with parking and camera violation issues. Under COVID guidelines, the time limit for submitting hearing requests and appeals have been suspended; no additional penalties will be added to unpaid tickets on or after March 22, 2020 (though interest continues to accrue on tickets issued before this date).

So, what can actually happen? Late fees, interest on the ticket/fee, installation of a car boot, suspended license, suspended registration, court summons, bench warrant for failure to appear at court summons, and even impounded vehicles.

But what happens if you’ve filed for bankruptcy? Specifically, a Chapter 13 bankruptcy which allows you to retain your property while you pay off your debts over three to five years? Enter Chicago v. Fulton.

The City of Chicago was busy! Many, many vehicles had been seized by Chicago for unpaid parking and red-light tickets. Aside: this was a class-action case and Robbin Fulton, as the named party, served as the class representative (despite no promises for Taco Tuesdays or Pizza Fridays). Establishing and proving a class is a massive undertaking, so if nothing else, that’s a remarkable accomplishment here. Fulton filed for Chapter 13 bankruptcy and Chicago refused to return Fulton’s vehicle. Both the bankruptcy court and Seventh Circuit Court of Appeals found that Chicago was obligated to return the vehicles upon filing for bankruptcy.

The Supremes decide to go in a different direction, instead answering the eternal question that plagues us all and keeps us up at night: “whether an entity violates [the automatic stay] by retaining possession of a debtor’s property after a bankruptcy petition is filed.” Basically, did Chicago take any action to exercise control over the cars after the debtors filed for bankruptcy? The debtors argued yes, Chicago refused to return our vehicles. Chicago argued no, as they simply kept the property they already had. The Court held that “mere retention of property does not violate” the automatic stay. Great. Thanks for answering a question that doesn’t actually answer anything (très Suprême).

Sonia, in true Sonia fashion, points this out:

[T]he Court has not decided whether and when §362(a)’s other provisions may require a creditor to return a debtor’s property . . . Nor has the Court addressed how bankruptcy courts should go about enforcing creditors’ separate obligation to “deliver” estate property to the trustee or debtor under §542(a). The City’s conduct may very well violate one or both of these other provisions. The Court does not decide one way or the other.

We’re diving into the bankruptcy code! §362 is the automatic stay provision. This pauses individual creditor efforts to collect debts; instead, everyone uses the bankruptcy procedures. §542 is the turnover provision. This transfers property to the trustee, disgorging the debtor and any preferential transferees. Under a Chapter 7 bankruptcy, the idea is that the trustee will gather up what they can and then dole out what’s available. Under Chapter 13, the debtor keeps their property and makes payments toward a court-approved repayment plan. Chapter 13 is only available if the debtor has “regular income.” (11 USC § 109(e))

So, hypothetically, what happens if someone needs their car to commute to work in order to maintain their employment to meet the terms of their Chapter 13 repayment plan? Sonia highlights just this type of situation with respondent George Peake:

Before the City seized his car, Peake relied on his 200,000-mile 2007 Lincoln MKZ to travel 45 miles each day from his home on the South Side of Chicago to his job in Joliet, Illinois. In June 2018, when the City impounded Peake’s car for unpaid parking and red-light tickets, the vehicle was worth just around $4,300 (and was already serving as collateral for a roughly $7,300 debt). Without his car, Peake had to pay for rides to Joliet. He filed for bankruptcy, hoping to recover his vehicle and repay his $5,393.27 debt to the City through a Chapter 13 plan. The City, however, refused to return the car until either Peake paid $1,250 upfront or after the court confirmed Peake’s bankruptcy plan. As a result, Peake’s car remained in the City’s possession for months. By denying Peake access to the vehicle he needed to commute to work, the City jeopardized Peake’s ability to make payments to all his creditors, the City included. Surely, Peake’s vehicle would have been more valuable in the hands of its owner than parked in the City’s impound lot.

George drives an older, high mileage vehicle that has already been collateralized. Also, he owes Chicago over $5K… from parking tickets? How? Having bus commuted over 60 miles away, it can take forever and be cost prohibitive without employer/institutional supplementation (thanks, Metro). Hopefully, George was able ride share with a colleague. But what is Chicago even hoping for? George’s car was already collateral for a different debt!

Drivers in low-income communities across the country face similar vicious cycles: A driver is assessed a fine she cannot immediately pay; the balance balloons as late fees accrue; the local government seizes the driver’s vehicle, adding impounding and storage fees to the growing debt; and the driver, now without reliable transportation to and from work, finds it all but impossible to repay her debt and recover her vehicle. Such drivers may turn to Chapter 13 bankruptcy for a “fresh start.” But without their vehicles, many debtors quickly find themselves unable to make their Chapter 13 payments. The cycle thus continues, disproportionately burdening communities of color . . . and interfering not only with debtors’ ability to earn an income and pay their creditors but also with their access to childcare, groceries, medical appointments, and other necessities.

This is the part where we can all express our shock and horror that there is a disparate impact, that racism and white supremacy play a central role. Thankfully, people have already pointed this out in investigative reporting and there are tools available like Do Not Pay and Upsolve that may reduce the barriers to contesting tickets and tackling the administrative procedures. And in typical John Oliver fashion, he talked about this issue IN 2015!

Criminal Procedure is a poorly named class: you don’t learn how to become a kingpin. It should just be called “Totally Legit State-Sponsored Violence.” We read case after case justifying horrific police misconduct. The court goes out of its way to prioritize officer safety and discretion. It’s insane. One case was only an excerpt: Utah v. Strieff.

Me being me, I ignored the reading assigned and read Thomas’ full opinion and Sonia’s dissent. Then, I reread the dissent. And then I told my friends and family about the dissent. And now, Internet, I am here to share the good news with you: I love this dissent and so will you. Let’s start with the first paragraph:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

Okay, wait the police can do what? I’m over here minding my own business literally just existing and the police can just “Give me your identification, Ma’am”? Shouldn’t they need to–oh, I dunno–suspect that I am one of the uber-terrible criminals they are supposedly hunting for with their military gear? Aside: shouldn’t I have learned this without going to law school? Ugh.

Here’s the setup: Strieff walks out of a house; officer stopped him, questioned him, took his identification, and ran it through some sort of active warrant database. The officer did not suspect Strieff of wrongdoing. The State of Utah recognizes “this stop was illegal.” There is also precedent (which supposedly matters):

An officer breaches that protection when he detains a pedestrian to check his license without any evidence that the person is engaged in a crime. — Delaware v. Prouse

The officer deepens the breach when he prolongs the detention just to fish further for evidence of wrongdoing. — Rodriguez v. United States

After his arrest, the officer searched Strieff, found drugs, and Strieff was ultimately charged with illegal drug possession. That’s the only reason this case even happened, the only reason the Supremes heard it, the only reason I read it, and the only reason why I am telling everyone about it. If the officer had not found drugs after this totally illegal (aka unconstitutional) seizure, Streiff would have basically no recourse. Sure, he *could* file a civil rights lawsuit, but oh wait, qualified immunity! Double ugh.

It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct . . . When “lawless police conduct” uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence.

The law calls this ill-gotten evidence “fruit of the poisonous tree” and excludes it from admission at trial under, wait for it, the Exclusionary Rule. The *idea* is that officers will follow the rules and build a case based on evidence they can actually admit to the court. Scoff along with me! Scoff scoff scoff.

Applying the exclusionary rule, the Utah Supreme Court correctly decided that Strieff’s drugs must be excluded because the officer exploited his illegal stop to discover them. The officer found the drugs only after learning of Strieff’s traffic violation; and he learned of Strieff’s traffic violation only because he unlawfully stopped Strieff to check his driver’s license.

Did you catch that procedural tidbit? Both Utah’s Supreme Court and the State of Utah agree this was an illegal stop. Utah, progressive bastion and trend setter, thinks their officer crossed a constitutional line; the Supremes think otherwise.

To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence. This is a remarkable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.

Who cares about all that pesky illegal or unconstitutional misconduct, right? There’s a warrant now! So, everything is fine. The Court goes so far as to cobble together a bogus “good-faith mistakes” argument that characterizes the officer’s illegal, unconstitutional misconduct as “‘negligent’ and therefore incapable of being deterred by the exclusionary rule.”

To recap: police can stop you for no reason, demand your ID, and then arrest and search you if you happen to have any active warrants in their handy database. But I mean, come on, how common are warrants anyway?

Outstanding warrants are surprisingly common. When a person with a traffic ticket misses a fine payment or court appearance, a court will issue a warrant . . . When a person on probation drinks alcohol or breaks curfew, a court will issue a warrant.

That’s all it takes. And there are a lot:

The States and Federal Government maintain databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses. Even these sources may not track the “staggering” numbers of warrants, “ ‘drawers and drawers’ ” full, that many cities issue for traffic violations and ordinance infractions.

Remember Ferguson, Missouri? A 2015 Department of Justice Investigation of the Ferguson Police Department  revealed that in a city of 21,000 people, 16,000 had outstanding warrants (76%). Under Strieff, an officer can just walk up to over 3/4 of the people in Ferguson and arrest them. I don’t remember this during any of the media coverage, but maybe I missed it. And it’s not just Ferguson. Sonia drops stats from New Orleans, Newark, and St. Louis. It’s widespread, systemic, and ripe for abuse. I mean “good-faith mistakes.” Right.

If you never read another case, just read this final section from Sonia’s dissent:

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U. S. 806, 813 (1996) . That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U. S. 873 –887 (1975), where you live, Adams v. Williams, 407 U. S. 143, 147 (1972) , what you were wearing, United States v. Sokolow, 490 U. S. 1 –5 (1989), and how you behaved, Illinois v. Wardlow, 528 U. S. 119 –125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, 543 U. S. 146 –155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014).

The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991) . Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “ ‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’ ” Id., at 17, n. 13.

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista, 532 U. S. 318 –324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014).

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

Now that’s a dissent.

Learn more about this case and these ideas:

Oral Arguments & Case Background
Opinion & Dissent
Fourth Amendment: Overview
Criminal Justice Debt: A Barrier to Reentry
America’s “Offender-Funded” Probation Industry

I remember two things from working as an intern at OSHA: accidents happen all the time and safety is usually an afterthought. The leading cause of death for people aged 1-44 is unintentional injury; accidents. For people aged 10-34, suicide is number two.

So when I read “Reducing the Stigma: The Deadly Effects of Untreated Mental Illness and New Strategies for Changing Outcomes in Law Students,” the statistics seemed relevant. Well, sort of anyway. I kept obsessing over one line of the law review article:

CNN reported that suicide by occupation (as calculated by the CDC) lists lawyers in the top five.

What CNN actually reported was that “[l]awyers ranked fourth when the proportion of suicides in that profession is compared to suicides in all other occupations in the study population (adjusted for age)” (emphasis added). But CNN does not reference the report from the CDC. The only regular CDC publication regarding suicide and occupation is the Morbidity and Mortality Weekly Report (MMWR). Also, yikes.

Before looking at the data, it is important to note that these statistics are based on civilian, noninstitutionalized, working persons aged 16-64. This means we already have gaps (military, institutionalized, unemployed, and possibly incarcerated).

When compared by sex, male-bodied people are committing suicide at over 3x the rate of female-bodies people. The table below shows the the rates by sex for selected occupations with highest rates (suicides per every 100,000 people).

Occupation Male Occupation Female
 Legal 16.3  Legal 7.9
 Average 27.4  Average 7.7
 Fishing & Hunting Workers 119.9  Artists & Related Workers 45.5
 Artists & Related Workers 93.5  Laborers & Freight, Stock, & Material Movers (Hand) 20.9
 Structural Iron & Steel Workers 79.0  Personal Care Aides 12.1
 Automotive Service Technicians & Mechanics 64.8  Retail Salespersons 11.5
 Chefs & Head Cooks 47.8  Wait Staff 11.3
 Farmers, Ranchers, & Agricultural Managers 43.2  Registered Nurses 10.1

Maybe something changed between 2014 and the current CDC data. Maybe I’m looking at different data. What I’ve found makes me think in a different direction: what impact does the law have on the suicide rates of other occupations?

For example, let’s pretend we are part of a deep sea fishing crew chasing crabs in the Pacific.

Statistically, deep sea fishing crew members are committing suicide at 4x the male average (or 12x the female average). What safeguards have been put into place? Is there annual screening? Victim compensation funds? 10-year plans for industry reform? I know everyone wants to buy king crab at Costco, but don’t we have an obligation to look out for these vulnerable people?

Act I, Scene III: Milavetz, Gallop & Milavetz, P. A. v. United States

I am blessed with an artistic family. We are creative, brilliant, and socially awkward because of our unique perspective. Pondering connections between ideas or exploring issues from multiple angles is just the natural process of art making. Growing up, my sister loved drawing and naturally wanted to be a drawer (definition: noun; one who draws). I wanted to be a counter! Thanks to the Milavetz decision, every child wanting to grow up to be a debt relief agency can pursue their dream!

Sonia begins each opinion with a concise roadmap: topic area, issue presented, and decision. Normally, the game is “figure out the issue, the rule, the holding” blah blah blah. Sonia knows that I have limited time on this world. She knows that I want to use this decision for justice, if I’m able. So, she’s given me a cheat sheet. Thanks, buddy!

Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA or Act) to correct perceived abuses of the bankruptcy system. Among the reform measures the Act implemented are a number of provisions that regulate the conduct of “debt relief agenc[ies]”—i.e., professionals who provide bankruptcy assistance to consumer debtors. See 11 U. S. C. §§101(3), (12A). These consolidated cases present the threshold question whether attorneys are debt relief agencies when they provide qualifying services. Because we agree with the Court of Appeals that they are, we must also consider whether the Act’s provisions governing debt relief agencies’ advice to clients, §526(a)(4), and requiring them to make certain disclosures in their advertisements, §§528(a) and (b)(2), violate the First Amendment rights of attorneys. Concluding that the Court of Appeals construed §526(a)(4) too expansively, we reverse its judgment that the provision is unconstitutionally overbroad. Like the Court of Appeals, we uphold §528’s disclosure requirements as applied in these consolidated cases.

Pause!

Without going any further in the opinion, do you know what you’re getting into? Most opinions do not follow this approach. Why? Honestly, I blame Cardozo. Moving on!

At oral arguments, the phrase “in contemplation of bankruptcy” was badmintoned around like some sort of high class dinner party (or at least what I assume might happen at fancy dinner parties). Milavetz basically argued that attorneys were barred from giving any advice that would result in the client incurring any additional debt, even if that advice might be completely ethical in other contexts. There was also concern about having to advertise the bankruptcy firm as providing debt relief agency services (the statute gives specific language to use).

At this point you might be thinking, “are these really the sorts of issues that need to be resolved by the United States Supreme Court?!” I see your exasperation and raise you because the Supremes hear cases that a majority of the justices have chosen to hear. They wanted to decide this issue. Plenty of injustice issues existed in 2010; determining whether or not lawyers are debt relief agencies that need to use specific language in their advertisements was the crucial issue the court decided to tackle.

Later on in the arguments Justice Ginsburg says:

Why don’t we say, well, whatever it means in 707(b), it also means in 5, whatever it is.

Civil Procedure Queen, Lover of Rules, “I Find Technicalities And Have The Glasses to Prove It” Ginsburg can’t keep track of the two codes in the argument? Honestly, this sounds like I’m sitting on the court. However, at least she made an effort. Scalia was in wonderful Scalia form:

Now, it may be a stupid law, but I don’t see why it’s unconstitutional… [s]o it’s a stupid law… [a]nd that’s why it’s a stupid law… where is the prohibition of stupid laws in the Constitution?

However, then something unexpected happens: the gallery erupts in laughter. What am I missing? What’s so funny about the Supremes wasting everyone’s time and failing to protect our rights by prioritizing non-issues like this case? Definitely not hilarious.

Changing the lyrics of “Stupid Hoe” to “Stupid Law” and imagining Nicki roasting Scalia, the Federalist Society, and everyone else using the courts to further injustice? Funny. However, YouTube didn’t have that (yet). So, please enjoy Arty tearing it up with ASL instead.

 

Act I, Scene II: Wood v. Allen

Now this case, for me at least, is terribly confusing, because I thought, reading the cert petition, that the Court granted cert to deal with a legal question that has confused the lower courts, that is, what is the relationship between (d)(2) and (e)(1) of AEDPA? Justice Ginsburg

I agree, Ruth. This case is terribly confusing. First things first, what is “cert” and why does the court grant it? Technically, Justice Ginsburg is using cool, legal shorthand to try and seem hip and relevant to teens (hint: no one is relevant to teens). Cert is short for certiorari. When someone wants the Supremes to review their case, they ask the court. If at least four Supremes want to hear the case, they grant a “petition of certiorari;” even Justice Ginsburg realizes this is a bit stuffy.

Next up: that pesky acronym “AEDPA”: The Antiterrorism and Effective Death Penalty Act (yikes). Thankfully, Justice Sotomayor explains the act “contains two provisions governing federal-court review of state-court factual findings.” Great. It is clear what this case is about from the first sentence of the opinion. That has to be a record.

Under 28 U. S. C. §2254(d)(2), a federal court may not grant a state prisoner’s application for a writ of habeas corpus based on a claim already adjudicated on the merits in state court unless that adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Under §2254(e)(1), “a determination of a factual issue made by a State court shall be presumed to be correct,” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”

Habeas corpus is pretty nifty. It is basically the ability for someone in state detention to ask the federal courts to make sure their confinement is legal. Translation: “Can they really hold me here like this? Like for real for real?”

In this case, petitioner, a capital defendant, challenges the key factual finding made by the Alabama state court that denied his application for postconviction relief: that his attorneys’ failure to pursue and present mitigating evidence of his borderline mental retardation was a strategic decision rather than a negligent omission. Petitioner argues that the state court’s finding was unreasonable under §2254(d)(2) and that, in denying his federal habeas petition, the Court of Appeals for the Eleventh Circuit erroneously conflated this standard with that of §2254(e)(1), which petitioner contends is not applicable in cases, such as this one, not involving a separate federal habeas evidentiary hearing.

Woods is basically arguing that he is receiving the death penalty because his legal team chose not to pursue evidence that may have resulted in a lesser sentence. However, Woods also argues that (e)(1) would only apply to habeas cases that involve evidentiary hearings (this means the federal court would actually review new evidence and not just review the record). Evidentiary hearings are uncommon, and “less frequent after AEDPA” according to a 2007 Department of Justice-funded study.

Only 9.5% of the capital cases in the sample included an evidentiary hearing, compared to 19% prior to AEDPA. Although some of the unfinished cases in the sample could yet include evidentiary hearings, the number is unlikely to reach the rate reported prior to AEDPA.

During oral arguments, Justice Roberts said, “the problem is that (d)(2) refers to determination of facts and asks whether it’s unreasonable. (E)(1) talks about facts and has a whole different test, and I guess the difficulty I’ve had is reconciling the two.” That’s two Justices confused, for the record. Justice Breyer asked counsel to give “an example where you’re trying to proceed under (d)(2), and (e)(1) is somehow relevant.” General Maze gives and example and Justice Breyer is having none of it, saying, “No. You just look at them, and you look under (d)(2), and you say this is an unreasonable determination of fact, period. There’s no reason to go into (e)(1). I mean, if it is an unreasonable determination of fact, he wins. And if it isn’t, you win.”

General Maze fires back, “The reason that you go under (e)(1) is because Congress has said that you have to.”

Justice Breyer volleys, “It didn’t say that. What it says in (e)(1) is (e)(1) is talking about in a proceeding instituted by an application by a person in custody, the factual issue is presumed correct. But if you fail to develop — you know, in a proceeding, it’s presumed correct. You’re right it doesn’t say it literally. But I can’t figure out an application for it unless they’re talking about where there is a new hearing. Otherwise there is just no need for it, it is just repetitive and it gets people mixed up, and (d)(2) does all the work.”

During the recorded oral arguments for this case, three Justices clearly stated confusion. Not indecision, not moral ambiguity, pure and simple doctrinal confusion. So, do the Supremes take this opportunity to clarify how these two aspects of the law interact?

We granted certiorari to address the relationship between §§2254(d)(2) and (e)(1). We conclude, however, that the state court’s factual determination was reasonable even under petitioner’s reading of §2254(d)(2), and therefore we need not address that provision’s relationship to §2254(e)(1).

No they do not.

 

Five-Four is one of my favorite podcasts. I look forward to Peter, Rhiannon, and Michael cracking jokes and skulls (parody! parody! parody!) each week. One tiny seed they planted in my brain is about Justice Ginsberg. Maybe she is a complex human being (aka fallible), not a super-powered elder fighting injustice. Maybe Notorious R.B.G, RBG, and On the Basis of Sex have oversimplified her story. (Review: The Danger of a Single Story).

One of the hosts made an off-hand comment (what is an on-hand comment?) about how Justice Sotomayor is probably the strongest writer and most solid in terms of jurisprudence. So, I’ve started a quest. I’m going back in time to listen to oral arguments and read through the opinions authored by Justice Sotomayor in hopes that I can glean some wisdom and improve my writing.

Listen to arguments at Oyez.
Read through opinions at Justia.

Act I, Scene I: Mohawk Industries, Inc. v. Carpenter

Our first stop involves the world’s largest flooring manufacturer, allegations of employing undocumented immigrants, and the disclosure of information protected by attorney-client privilege.

The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.

Listening to oral arguments, I am reminded that improvisation is an essential skill during appeals.

Reading through the opinion, I found a gift. Order from the chaos, structure among the murkiness of Scalia, Alito, or Uncle Umpire himself. This case was unanimous (9-0) and so clearly skipped on the podcast. It is an interesting question: can the world’s largest flooring manufacturer immediately appeal the district court’s decision to compel them to provide Carpenter with information from his meeting with their counsel about his allegations the company was employing undocumented immigrants? In a word: no.

Permitting piecemeal, prejudgment appeals, we have recognized, undermines “efficient judicial administration” and encroaches upon the prerogatives of district court judges, who play a “special role” in managing ongoing litigation. Firestone Tire & Rubber Co. v. Risjord

Ah yes, my old nemesis: judicial efficiency. While deciding the other way may have been disruptive to the judicial system, I think the pandemic offers great insight: the system will not change without major disruptive events.

MI trial courts have made a pretty incredible transition in the last four months. Probably more than in the last two decades. Michigan Chief Justice Bridget Mary McCormack on Legal Talk Network

P.s. What about the alleged employment of undocumented immigrants to lower wages? In 2012, Mohawk settled a class-action suit for $18 million.

This summer, I participated in Passport to Practice. The focus was on competencies outside of legal know-how needed for success in the legal profession. It was great! I felt vindicated (I am selfish, I am wrong). But one major take-away? So. Much. Jargon.

For instance: valuation. What does that even mean? According to Oxford Dictionary, valuation is “an estimation of something’s worth, especially one carried out by a professional appraiser.” Since I’m not a professional appraiser, I’m going to think about valuation as: what do I value and why?

Step 1: Choose Your Big 8. Which values from chart below resonate to you when it comes to your career? Initially, I found myself making arguments for adopting as many of the poor, defenseless values as I could. (Note: not a helpful exercise). My Big 8 are:

  • Accountability;
  • Adventure;
  • Compassion;
  • Diversity;
  • Enjoyment/Fun;
  • Flexibility;
  • Generosity; and
  • Learning.
Advancement Competency Enjoyment/Fun Efficiency Security
Adventure Individuality Loyalty Dignity Influence
Aesthetics Equality Credibility Collaboration Learning
Affiliation Integrity Honesty Stewardship Compassion
Artistic Creativity Service Innovativeness Empathy Friendliness
Diversity Responsibility Teamwork Accomplishment Discipline/Order
Autonomy Accuracy Excellence Courage Generosity
Meaningful
Work		 Respect Accountability Wisdom Persistence
Moral
Fulfillment		 Dedication Empowerment Security Optimism
Physical
Challenge		 Improvement Quality Dependability Flexibility

Step 2: Apply Those Critical Thinking Skills, Work Edition. Why do you work? What defines worthwhile work? How does it related to the individual, others, and society? What does money have to do with work? What do experience, growth, and fulfillment have to do with work?

These questions are basic… and tricky. Why I work? Capitalism means I need resources to obtain Maslow’s staples: food, water, and shelter. I have to work to survive. Oddly, survival is not one of my Big 8. I like to work, too, especially when I get to help someone figure something out. Like when a student and I talked through a math problem. The student needed a different perspective, a translation of the instructions, and someone they felt safe asking for help. Or when I helped someone complete the gauntlet of obtaining their food handling certification (5 hours and $47 dollars later). I work because vulnerable people are being taken advantage of everywhere. It’s just not right and I have the opportunity to try and do something about it.

Step 3: Apply Those Critical Thinking Skills, Life Edition. What is the purpose of life? What is the relationship between individual and others? Where do family, country, and the rest of the world fit in? What is the role of joy, sorrow, justice, injustice, love, peace, and strife in your life?

Step 4: Find the Rub. Where do your views on work and life complement one another? Where do they clash? Does one drive the other (and if so, how)?

I honestly was not expecting such a deep dive. Why aren’t these conversations happening as part of law school? Why is thinking about my life, how my values impact my work, not part of law school?

If you ask Googs, it says a primer is “an elementary textbook that serves as an introduction to a subject of study or is used for teaching children to read.” An introduction. A place to start. Training. It’s easy to feel overwhelmed when there is a lot happening – pandemic, protest, violence, political incompetence. Sometimes it has been a relief to divert my attention to automated document assembly and sometimes it has been just as overwhelming.

Welcome to the world of…

A very poor rendition of a very famous logo.
Tweets flying through majestic digital skies, Quip scales keeping the beast organized, GitHub cat/octopus and Docassemble cat crowding out the forest of Slack chatter.

I may, or may not, have spent an inappropriate amount of time creating a parody logo… out of logos. Why? Because over the past few months, I have been inundated with tools. They are a cluttered mess, just like the abomination above. There has been a distinct absence of primer. Below, I’ve drafted an overview of what the heck each of these things are, how I’ve used them, and what I still don’t understand. Because it’s a lot.

  • Zoom
    • How I’ve Zoomed: video calls, live chat, hand raising, polling, white boards, screen sharing, break-out rooms. It is almost ready to form a committee to solve homelessness.
    • Zoom Success: First Generation Support Group sessions! We’ve been able to continue meeting regularly despite pandemic, relocation, and summer employment. I look forward to seeing everyone each month. We all have no idea what we’re doing and we keep showing up and struggling along. They keep me going!
    • Zooming Questions:
      • Do I currently have end-to-end encryption or not? “We plan to begin early beta of the E2EE feature in July 2020.” So, not yet? Read more on Zoom blog.
      • How do I setup a meeting so that people can add it to their calendars?
      • If private chat messages aren’t viewable to the host, why do my classmates think they are?
      • How did Skype, Hangouts, and all the other virtual conference/webinar platforms whiff so mightily? What happened?
      • Virtual Meeting Etiquette? The Googs returned over 4 million results (versus only 1.4 million for “uranium contaminated groundwater”). People! Prioritize!
Raise the white flag of defeat when it comes to staring at a screen all day.
Zoom Fatigue. Look for it in the DSM-VI.

 

  • Slack
    • How I’ve Slacked: team and group communication, email alternative, access to archive of prior communication, access to network outside of organization roster, managing multiple “workspaces” feels awkward at the user level.
    • Slack Success: I really like having access to the prior communication. Want to catch up on a project? Just read through what Jenny posted last year. Gives helpful context to framing questions, especially when just starting out.
    • Slacking Questions:
      • Why would I ever want to enable notifications? Yuck.
      • Is this an efficient way to communicate or just a different way?
      • Can I have a slimmed down version? Ideally, one feature. A tutorial mode to unlock other features. Otherwise, it’s very much deep end of the pool.
      • How are these communications stored/archived/logged? How are the data used by the company? When am I going to receive targeted adds for Champlain College online?
Beaver drinking Fizze, eating flavored corn chips, and playing a video game console. It is marvelous.
Note: this is not the official branding for the tool. I think they really lost an opportunity. Plus, now I know this beaver also enjoys flavored corn chips.

At this point, I’ve only briefly highlighted two of them. I’m exhausted. I also wrote down Quip, GitHub, Documate, Docassemble, A2J, and Twitter, but this is starting to get cumbersome. I don’t think a blog is the right place for a primer.

Welcome to the Alaska Court System Self-Help Service’s web page. With just one click, anyone can travel back to the internet as it was in the 1990’s (if only it had an animated GIF).

Alaska Court System Self Help Services Webpage

The thing is, they know it isn’t great and they want to change it. But that’s not my project.

Back in 2016, Alaska developed their Justice for All project. It aims to create justice for all Alaskans by building an ecosystem of justice services. My project focuses on automating the debt collection forms, so when I read the report, I paid special attention to those sections.

Close to 99% of the cases involved lawyer representation1.

Great. Why is this a problem?

Almost all the lawyers represented those trying to collect the debts: 92% of the cases had only the debt collectors represented2.

Okay. But, this isn’t necessarily problematic.

Our efforts to positively address the consequences of debt will involve building out the network of resources available to debtors; debtors may be more likely to engage in services in a preventative fashion before the issues result in a debt collection matter, or respond to a debt collection action in court, reducing the likelihood of a default judgment and additional amounts added to the judgment3.

What? Who are these lawyers even collecting debts for?

Most civil cases today are brought by businesses against individuals for money owed. The most recent national data available show that, as the overall volume of cases has declined, business-to-consumer suits, particularly debt collections, mortgage foreclosure, and landlord-tenant disputes, have come to account for more than half of civil dockets4.

Professionals are bringing suit against people without representation on behalf of debt buying companies. The amount of money grows from what is set out in the complaint and may not even actually apply to the person, but default judgment forgoes the need to figure this out. 

Debt collection is out of control. And this isn’t new. If I was swanky enough to afford an HBO subscription, John Oliver could’ve gotten me riled up about this over four years ago:

Hello, Alaska. Welcome to The Now!

Summer Reading: