On Lines & Inner Nets, Publicly Recorded

The Best 2013 List Ever!

The List
list

Since it is the New Year  almost February middle of March 15th of April end of May start of June 2014, I feel obligated to finish my “Best of 2013” list. After all, the year will be half over soon (today is the 159th day and it is only 43.56% over). You can’t do a “Best of List” of the preceding year when you are into February March April May June July of the current year. That would be way too late. Too late for polite company. It would be like wearing white shoes after Labor Day; or is it wearing white pants, no shoes, er, anything white including shoes? Who wears white shoes? Basketball players and ballerinas.  Oh! Or is it white before Memorial Day? I don’t have any white shoes . . . or ballet slippers . .  and it is almost Ground Hog Day Saint Patty’s Day Tax Day just was Memorial Day, almost so . . .. Self, get back to the list-thing.

December 2, 2013–Top Ten Cases of 2013

Everyone does a list, especially bloggers who have already wrote everything imaginable about Christmas by December 2 and can’t think of anything else to write about so they move to the next holiday. Attorneys always list their best cases–The Winners!–on their web sites. So I thought (originally no doubt): A list of my “Top Ten Cases of 2013.” Legal topics, marketing purpose, personal experiences, PERFECT! I can draft this post easily! I’ll have it up in no time. They say bloggers should write lists because people like to read lists. Not real sure why? Something about short attention spans I think. So a List it will be! I’ll be listing!

December 25, 2013–Top Ten Topical Topics of 2013

As December wore on, it kept getting harder to come up with an overall topic, a triumphant theme that tied together ten tantalizing, things tightly.  But related items made it harder. Something will come to me if I just take my time and think. And I didn’t want to post it too soon in December for fear of being perceived as a blogger who ran out of Christmas themed blog posts too soon. I did not. I still wrote about reindeer on the 23rd (in red and green fonts)! But not in a list? Hmmm. . . .

January 18, 2014–The Favorite Five 5

Once it got to be into the new year, I thought, “Well, I’ll just do a list of my, “Top Five Cases of 2013.” Listing 10 would sound too pretentious anyway. I don’t want to come off like some arrogant jerk bragging about myself. Even with 5 cases, it is still considered marketing. Five cases seems about right. A list can have 5 items. Milk, bread, sugar, coffee and . .  toilet paper. If the short attention span thing is true, then ten is too long anyway. Way too long. I’ll keep it to five. A list of 5.  Self, the list ain’t gonna write itself, ya know! 

February 28, 2014 The _____Five Cases of 2013

I knew I should have started this earlier. Like in 2012. I was finally getting ready to start listing things. OK. Top cases. Best cases? Shouldn’t be too tough. Let’s see . Above all else? The highest, the tallest, the apex? . . Top, The Best, Greater, Better, Grander, Superior, this is starting to sound like I’m describing a ballroom.  . . . What’s so superior or grand or better about Lawsuits? Settlements? Hmm . . . Maybe Outcomes?  Sounds easy enough . . . Best Resolutions.  . . . Wait! What about if it just wound up being the lesser of two (or five) bad outcomes. It was still a Grand Resolution, but it won’t sound very grand. Hmmmm?

March 21, 2014 The-Top Greatest Best Winners Most Epic Awesomeness 5 Cases of 2013

How do you define “Top Resolution”? “Win” won’t work. Best results? Expectations exceeded? Most money saved? Greatest trouble avoided? Unlikeliest results achieved? Quickest? Most cost-effective representation? Best value? Most ridiculous deadline met? Most obnoxious opponent defeated. This might be real short. This is hard. Self, write the damn list already!

May Day–The Five 2013

I know, I’ll do a list of my top 5 “Victories” of the year. I’ll make the definition general and broad enough to cover the cases I feel had a good resolution and can be easily viewed as victorious. Even if it is by those “on the outside looking in.” No lesser of two evils. Strictly feel good results. Remember the marketing! Yes. This will work. “Top Five Triumphant Victories of 2013” it is then. Now to get to the listing.

  • Not too many inside references. Check.
  • Typical attorney fashion. Check.
  • Keep the descriptions vague. Check.
  • Keep the types of cases somewhat generic. Check.
  • Have to obscure identities. Check.
  • Use a different basis for claim. Check.
  • But still keep it real. Check.
  • Only select best parts. Check.
  • Leave out negative facts. Check.
  • Don’t mention the awful parts that only I think are funny. Check.
  • Don’t mention any bad parts. Check.?
  • Didn’t I already say that one? Check!
  • Say how awesome I am. Check?
  • Make it all self-congratulatory, without sounding too braggadocio. Check.
  • But it’s for marketing purposes, ya know? check;

June 1–A List

I need to get started. But it is so hard to write a list! At least to get started I’ll write a title: “Most Victory Tops 15 Things I did Last Year Resulting  in, uh. yea. um and Better. . . .”

Aww, forget it. I’ll do it next year. Self, but there was a list or two . . .sorta.

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 Related articles

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Story from ABA Journal

After judge’s fistfight with public defender was broken up, he returned to the bench, says report

By Martha Neil
Jun 2, 2014, 05:45 pm CDT

Updated: A Florida judge told a veteran public defender to step outside the courtroom on Monday, then punched the attorney until sheriff’s deputies broke up the altercation, WFTV reports.

Although the incident occurred outside the range of a court camera, it captured audio, including what the station describes as several loud thuds. No one was charged in the incident, and Brevard County Judge John Murphy is said to have gone back on the bench afterward and continued his criminal court call.

The fireworks occurred after a courtroom dispute in which assistant public defender Andrew Weinstock resisted pressure to waive his client’s speedy trial rights.

“If you want to fight, let’s go out back and I’ll just beat your ass,” Murphy told Weinstock as the two men exited the courtroom, WFTV reports. A short time earlier, the judge said: “You know, if I had a rock I would throw it at you right now. Stop pissing me off. Just sit down.”

Weinstock said he had expected to talk with the judge in the hallway outside the courtroom, 18th Judicial Court public defender Blaise Trettis told the station. “The attorney said that immediately upon entering the hallway he was grabbed by the collar and began to be struck. There was no discussion, no talk, not even time for anything. Just as soon as they’re in the hallway, the attorney was grabbed.”

Florida Today has obtained the courtroom video and reports that those in the courtroom applauded as the judge returned to the bench saying: “I will catch my breath eventually.”

WKMG also has a story and video.

The articles don’t include any comment from the judge or any court official.

Weinstock has now been assigned to another courtroom.

in a Tuesday written statement, Chief Judge John M. Harris said Murphy is on a paid temporary leave of absence and has agreed to take anger management classes and get unspecified “treatment.”

A spokeswoman told Florida Today on Tuesday that the Florida Bar is looking into the incident. Florida’s Judicial Qualifications Commission would not confirm to the newspaper whether it was investigating Murphy.

A county sheriff’s spokeswoman said Tuesday that the department is seeking statements from both Murphy and Weinstock.

Updated on June 5 to include more information from a subsequent ABAJournal.com post.

Fraudulently Fooled, It's Criminal!

Warning! Arrest Warrant Scam | United States Courts

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You’ve received a warrant by fax or email saying a federal law enforcement officer or an attorney for the government wants to arrest you. Charges may be for money laundering or bank fraud, or missed jury duty. To avoid arrest, the warrant says, send money.

Read more here . . .

Warning! Arrest Warrant Scam | United States Courts.

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Attorneys & Lawyers & Counselors, Civilized Proceedings, Litigation of Business | Business of Litigation

In Minnesota, June 2014 is: “File Your Hip Pocket Service Cases Month”

Ring, Ring, “Law Office.”

Hello. Yeah, uh, this is probably a stupid question, but, um, I got some legal papers here, someone gave ’em to mMH900364314e, but, they got my name on there, but, there’s no court file number listed. It’s just blank. So, like, this is fake, right? I mean, it’s just another scam, or fraud, or something. But it ain’t real with no court number on there, is it?

A common question from a potential client not realizing they were just served with a real lawsuit in Minnesota state court.

Yeah, I gotta question for ya. My client was served with papers down here from some lawyer in Minnesota. But they haven’t filed it, see?. So, we figure, the attorney is just trying to scare us. Bluffing. I’m not planning on answering it, ‘cause, ya know, there isn’t a file number to file it with. Does this sound right to you? They’re just hoping we’ll pay and don’t really wanna litigate, ya know?

–A common question from an out of state lawyer with a client being sued in Minnesota state court.

(Court File No.: __________)

courthouse-1330873-mPeople are always bewildered to hear in Minnesota we can sue someone without filing anything with the state court. All it takes is for an attorney to draft, sign and serve a summons on a defendant (with a complaint) to start a lawsuit.

It can be confusing. If you don’t think it is real without a court file number printed on it, think again, before it becomes a default judgment (with a Court File Number and dollar amount on it). And don’t bother calling the court. There will not be a record of it there. The court will have no idea A lawsuit was commenced, because the lawsuit began when the summons was served and the court was not involved. This is commonly known as “hip pocket service,” despite some legal commentators calling it “hip pocket filing.”

Minn. R. Civ. P. 3.01(a) and its OriginsMinnesota Seal

Under Rule 3.01(a) of the Minnesota Rules of Civil Procedure, “A civil action is commenced against each defendant . . . when the summons is served.” Compare that to what Rule 3 of the Federal Rules of Civil Procedure provides: “A civil action is commenced by filing with the court.” A small difference in wording, with a large impact on when a lawsuit begins.

Our current Rule 3 was a statute in Minnesota as early as 1866, when actions at law and equity were merged so that only one procedural type of civil action existed. Minn. Gen. Stat. ch. 66 (1866)(Minn. Stat. Ann. § 540.01 superseded by Rules); and Bond v. Pennsylvania R. Co., 124 Minn. 195, 144 N.W. 942 (1914)(discussing this history).

Minnesota’s statutes progeny began in 1851 when we were still a territory and continued after Minnesota became the 32nd state in 1858. Id. In the 1866 version of Minnesota’s Rule 3, it was spread out among two sections. See Section 13 and 14, c. 66, G. S. 1866. The two sections were combined into one through the 1905 revisions to Minnesota’s statutes (Revised Laws). See Section 4102, R. L. 1905.

Can’t Find My Pocket?hip pocket

I searched but could not find “hip pocket service” or “hip pocket filing” used by a Minnesota appellate court, although it is used by the advisory committee in comments to Rule 12 of the General Rules of Practice in 2009. Suffice it to say the procedure has been around a long time. I will leave the exact origin of the affectionately used slang term a mystery for now.

Only North and South Dakota have the same procedure as Minnesota. In some other states you can serve a summons before filing, but the case must be filed shortly after service is complete (from a little over a week to a few months later). The majority of states follow the federal rule and require you to file (and pay the fee) to start a lawsuit.

Effect of Not FilingMB900216576

Pocket service can save you from immediately paying the filing fee for a lawsuit. This is nothing to scuff at with the filing fees for a civil action at about $325.00, unless you want a jury, then add on another $102.00. Other benefits are significant and be attractive for many cases.

moneymoneyAfter service (about $60 to $100), you have an active lawsuit not under court supervision and no court-imposed deadlines apply, but you can engage in discovery and the case can proceed with all of the civil procedure rules applying. Not filing can be beneficial in settling cases early with less expense. Sometimes it can be abused by a plaintiff with a weak case looking for a nuisance value settlement. But still not without a counterbalance: A defendant can file the case at anytime too.. As defense counsel, I’ve filed first many times to call a plaintiff’s apparent bluff.

How Many?

Since the case is not filed, there is no way to count how many lawsuits are actually are pending. If a suit is timely served, it could have remained pending indefinitely. In 2011, it was estimated (guestimated) by collection attorneys (usually suing people for credit card debt) that 50,000 un-filed consumer credit cases had been served in the state while the Great Recession was ongoing.

That was more than twice as many as the collection law firms had filed. When New York ended hip pocket filing in the early ‘90s, it saw court filings swell by about 20%. The number of un-filed cases in Minnesota is unknown a
nd unknowable, but it’s a safe bet there are more than a few and maybe a lot more.

Private Litigation

ptivateA great benefit of hip pocket service is it allows a lawsuit to be filed without being publicly disclosed. I worked on one case where it was about 6-7 years from the time it was served and neither party had any desire to file it. They were not interested in a public airing of their grievance.

They were both professionals and one of them had transmitted a loathsome disease to the other. They each had claims accusing one another of spreading the pre-existing condition to each other. Maybe it was a mutual infection? The case sat at a stalemate and lingered. I tried to find a way as a law clerk to resolve it, but could not dismiss it without filing it with the court for the whole world to see. That was not acceptable. As far as I know, that case may still be out there pending, and has been for about 20 years by now.

2013 Amendments to Rules 3.01 & 5.04

Effective July 1, 2013, Rule 3.01 was amended and now requires all cases to be filed within one year after they were served. Rule 5.04 deems a case dismissed with prejudice (the case over and can never be started again) if is not filed within a year. Perhaps as a nod to privacy, the parties can waive the one year limit and keep the case active indefinitely.MH900309662

For all of the older pending cases, the clock began to run on the effective date and the one year limit is up July 1, 2014. If not filed, your case will be automatically dismissed and you can never bring the same claim again. Great news for defendants, not so much for the tardy or absent minded plaintiff.

An Exception to Every Rule

If you have a real good reason, act promptly, have a legitimate claim and it won’t be too unfair to the person being sued, Minn. R. Civ. P. 60 may work to reopen a dismissed case. But don’t count on Rule 60 saving the case if you were negligent, inexcusably tardy, have a questionable case and/or the defendant will be at a disadvantage. It should be used  only when these factors are present.

Time to Review
20140423-012057.jpg

It will be interesting to see how many old cases are filed in June, especially how many are filed the last week of the month. I am sure we will hear about the numbers once they are in and I may post them here after I do. In the meantime, make sure you review all of your cases served before July 1, 2013 and get them filed ASAP or keep your head low and hope the clock runs out on any claims outstanding and un-filed. Right now, I need to go inventory my older files.

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Legally Educated, Litigation of Business | Business of Litigation

Risky Business—Why you Operate as an LLC or Corporation

“Whenever you see a successful business, someone once made a courageous decision.” ― Peter F. Drucker, Getting Started

Every new venture is as unique as the people trying to start it up and each new business has its own distinct needs and challenges. One thing they all have in common is the people who are willing to take risks.

There are few universal truths in anything , but one that runs through all businesses, is to make sure your personal assets are not at stake. In order for a new business to have the best chance of succeeding, it must start with a rock solid foundation that allows it to take risks and hopefully reap great rewards. In case the risk does what it is inclined to do, there must be built in protection for the risk-taking owners’ personal assets. The key to that protection is to form a business entity to run under before the first Open sign is hung.

Some for You & Some for Me

Law_Firm_ImageMost people that call me about starting up a new business already understand that running it as corporation (Inc.) or a limited liability company (LLC) is what they must do to protect their personal assets. If the business is organized as a corporation or LLC, the possibility of the owners being personally responsible for the business’s debts and liabilities is much diminished. The best way to build in this protection is to take advantage of the liability shields authorized under state law. These laws, usually statutory, authorize the creation of a separate legal entity to conduct business through that will bear the burdens that may befall. On the flip side, the Inc./LLC also bears the benefits, which the government is happy to see created since it gets to relieve you of some of the burdens of those benefits, i.e., taxes.

Personally Protected

The owners of a corporation or LLC can be protected from personal liability for the business’s debts as long as the business is formally organized, operated and maintained under their state’s laws governing businesses. This personal liability protection is commonly called a “liability shield” or “corporate shield” and can be extremely valuable if the new business does not do well.

For instance, if a business has one deal go wrong at the worst time possible (when else does it happen?) it could be financially ruinous to the company. It may force the business to file for bankruptcy. Or if things are bad enough, two or more creditors could file petition for an involuntarily bankruptcy against your company, forcing your business into bankruptcy court so the creditors would have a better chance of recouping what they are owed (at least some). Under either of these scenarios, if the liability shield has been maintained so it is intact and enforceable, your business’s creditors would be unable to get a judgment against the you as the owner personally. This helps to encourage people to take chances and start businesses, something the government sees as a valuable to society.United_States_Bankruptcy_Court_Seal

Doing it for Themselves

A number of businesses I represent seem to be increasingly formed without a lawyer’s assistance. Especially by anyone who has been involved with the ownership of an incorporated/organized small business (or LLC) before. In law school, my Corp Prof explained how you only had to fill out a few lines on a postcard, check a couple of boxes and then pay a fee to form a Minnesota corporation, I was flabbergasted! (Yeah, I said a postcard. And flabbergasted. At the time, the form was the size of a large postcard. And the State didn’t have many decent or useful websites either. I don’t have any excuse for flabbergasted).

Flying Solo

For a single owner just going out and doing her own thing, forming a corporation or LLC in Minnesota is easy and can be done without a lawyer. In fact, the page, “Starting a Business or Nonprofit” at the Minnesota Secretary of State’s website, that has some great information for startups, only mentions the word “lawyer” once, the same number of times it uses “accountant.” If you have the right forms from the Secretary of State, a link to the business filing website and a credit card that is about all you will need (You can use your checkbook, a stamp and a paper application, but it is on 81/2” X 11″ paper—larger than a postcard).

Multiples Need Counsel

If there is more than one owner, I always recommend getting an attorney involved. Usually to make sure the new business gets an operating agreement, control agreement or a buy-sell agreement in place right away that will define the owners’ mutual rights and responsibilities and address how any future disputes will be addressed and handles (a business prenup). After all, business partners get along great when they are broke and just opening the doors to an exciting, promising and unknown future. The fussing and feuding never starts until after they taste some success, want more and ain’t gonna share. Once that point is reached, it can be impossible to agree on anything, let alone how to resolve any disputes like the one going on now!

Here are some more resources to help you startup your Minnesota business so it has a solid foundation and you can feel a bit better about the risks you want to take.

Governmental Resources With More Information

 

Organizing. Planning. Financing. Licensing. Hiring. Managing. Growing.

The Minnesota Department of Employment & Economic Development’s Division’s Small Business Assistance’s website maintains a handy directory of license and permit information. SMALL BUSINESS ASSISTANCE” also puts put out numerous helpful publications for the new business, including an awesome book everyone thinking about starting a business in Minnesota should have, and it is even more awesome as a digital download: “A Guide to Starting a Business in Minnesota.” Simply essential.

In order to pay for all the awesomeness, we cannot forget about the really useful tax info (forms, schedules, instructions, etc.) at the websites for Uncle Sam and Aunt Minnie.

The Three Ds:

DEPARTMENT OF EMPLOYMENT & ECONOMIC DEVELOPMENT or DEED (MN Unemployment Insurance Program);

DEPARTMENT OF LABOR & INDUSTRY affectionately called DOLI (pronounced “Dolly”)(Worker’s Compensation & Trades Licensing for Boiler operators, Building officials, Contractors, Electricians, Elevators and more!); and last but not least:

DEPARTMENT OF COMMERCE (Licensing info for Banks, Credit Unions, Insurance, Securities, you know “commerce” stuff).

Now go forth and start your own business! (and if you get sued, I know this guy that’s a business litigator . . . I think this is that lawyer’s website).

 

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Appealing Appeals Applied, Technically Lawful

Is Your Cell Phone Private?

“The Right to be Let Alone— the Most Comprehensive of Rights and the Right Most Valued by Civilized Men.”1

An Unreasonable Intrusion upon Seclusion

– William L. Prosser, Legal Scholar (1960)

Tomorrow, the US Supreme Court hears arguments over the constitutionality of searching a person’s cell phone without a warrant. This Fourth Amendment area of law is complex and always nuanced. Warrantless search cases usually boil down to whether or not the person has a reasonable expectation of privacy at the time of the search. If there is a reasonable expectation, then the search may be found unconstitutional because it violates the Fourth Amendment’s protections.

My cell phone is my best friend

Carrie Underwood, Country Music Star (2013)

In the two cases the Court hears tomorrow, Riley v. California and United States v. Wurie, the former involves a smartphone and the latter a flip phone. The big difference between the two is the amount of data they may store and the advanced functions one is capable of performing. This results in one device conceivably having more confidential and private data than the other. On the flip side, how confidential and private do you consider your phone’s data? Do you ever leave it out of reach? Do you charge it in an open place that’s accessible by others? Is it password protected? Is it encrypted?

Use technology rather than being used by it

– Neil Postman, Cultural Critic (1996)

I am unsure if the Court is well-equipped to decide technology cases. It was only 4 years ago they decided a sexting case involving a warrantless search of a government employee’s pager. City of Ontario vs. Quon, 130 S.Ct. 2619 (2010). Yes, a pager in 2010. Last summer Justice Sotomayor stated the Justices do not use e-mail even internally (but their staff does). In another technology case involving streaming TV earlier this month, Justice Scalia didn’t seem to understand HBO is not a broadcast TV channel you must pay to obtain. Chief Judge Roberts, whose initial drafts of decisions are written longhand in pen and on paper instead of with a word processor on a computer, asked during oral arguments in the 2010 pager case what is the difference between an email and a pager.

042914_0240_IsYourCellP4.png  

Google policy is to get right up to the creepy line and not cross it 

    – Eric Schmidt, CEO Google

In prehistoric technological times, the Court decided we had a lower expectation of privacy in our gas powered, internal combustion vehicles (Motor Vehicle Exception) than in our homes. Carroll v. United States, 267 U.S. 132 (1925). Armed with only probable cause, a search of your car without a warrant is permitted. Id. More recently, but still in a technologically antiquated time, the Court decided a person in a telephone booth had a reasonable expectation of privacy (Hey, does anyone remember telephone booths? Or payphones?). Katz v. U.S., 389 U.S. 347, 350 (1967). But a person does not have a reasonable right to privacy in the actual numbers they have dialed to call someone on the phone. Smith v. Maryland, 442 U.S. 735 (1979).

A business cannot expect privacy. California Bankers Ass’n v. Schultz, 416 U.S. 21, 65 (1974). However, the government is not allowed to gather evidence against you via surgery—yes—medical surgery. Winston v. Lee, 470 U.S. 753, 758 (1985). Reasonably expecting your garbage is private would be a mistake. California v. Greenwood, 486 U.S. 35 (1988). In 1990, the Court said sobriety checkpoints are a reasonable way to search and seize (and catch drunks driving). Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). If you work for the government, your office is not private if your are suspected of work-related misconduct. Samson v. California, 547 U.S. 843 (2006). Although the rule established may be a “freedom-destroying cocktail” that encourages “malevolent” tipsters to make false reports, an anonymous tipster can now call 911 and the cop is authorized to stop you and search your car (despite your obedient driving skills) without anything more. Navarette v. California, __ U.S. __ (2014).

noeye

You already have zero privacy – get over it

– Scott McNealy, Co-Founder Sun Microsystems

You have to wait until sometime around June 2014 to find out if the US Supreme Court thinks your cell phone data is private. But in the meantime, below is a poll to indicate how private you believe your cell phone is. Let’s at least find out how people that actually use computers, cell phones, the internet and all kinds of modern electronic wizardry believe the right to be let alone is.

 

1 Olmstead v. U.S., 277 U.S. 438, 478 (1928) (Brandeis,J., dissenting) and see The Right to Privacy, “Samuel Warren and Louis Brandeis, 4 Harvard L.R. 193 (Dec. 15, 1890)

 

MKT

 

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Civilized Proceedings, On Lines & Inner Nets, Publicly Recorded, Uncategorized

Stop Making Sense!

What is this? A Pol with a real apology? He’s reading it, but it sounds heartfelt. I giveth thee the benefit of my doubt, Charlie. You picked the wrong guy to swipe a song from, but hey, at least you have good taste!

I love the creative settlement term that seems to fit the offense. If you used the song on YouTube without licensing it, then you should apologize on YouTube for doing so. Seems apt.

What bothers me is our “lawmakers” either: 1) Don’t know much about the law (less than a typical teenager in this case); 2) Don’t care what the law is if it gets in their way; 3) Don’t believe it applies to them; or/and 4) Are so dumb they don’t think they’ll get caught using a song publicly for a political campaign. All of the above?

MKT

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It's Criminal!

Over 3 Years In Prison For Typo

When does 36, but not 34, equal 3?

When it’s in a federal court’s pre-sentencing report.

Typo in Jail

A man serving time for conspiracy and money laundering, discovered a typo in his report after about six years in prison that extended his stay by 3 1/2 years. Not noticed by his lawyer or the Court in 2006 when he pled guilty, the typo listed his offense level as 36, instead of 34, which resulted in a 17 1/2 year sentence.

After being able to check the report in 2012, the man brought a motion to correct the undisputed error in the court that had sentenced him. The motion was denied as untimely because it was not brought within a year after the sentence was imposed.

Last week, in a rare exercise of the power, President Obama granted the man clemency. He should be released now in 2015-instead of 2018.

Read more from the NYTimes.com here.

MKT

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Constitutionally Civil Rights, Litigation of Business | Business of Litigation, On Lines & Inner Nets, Publicly Recorded

Alabama’s Priores Sustineo of a Blogger

Blogger and Contemptner Roger Shuler“I was the only jailed journalist in the Western Hemisphere for 2013”

After spending five months locked up for contempt of court, an Alabama blogger was released from the Shelby County jail on March 26, 2014. Roger Shuler writes and publishes a blog on Alabama law and politics called “Legal Schnauzer.” He had been accused of defamation and was ordered to stop writing about a prominent Alabama attorney, Robert R. Riley, the son of a former Alabama Governor. Mr. Riley was rumored to be planning a run for Congress at the time.

  • SHUT UP, SHULER!

Mr. Shuler asserted he was never personally served with the Court’s “gag order” and had continued writing about the potential future congressman. Mr. Shuler’s posts alleged Mr. Riley was having an extra-martial affair and impregnated a local lobbyist named Liberty Duke (can’t make this up). Mr. Riley filed a Petition with the Court and requested Mr. Shuler and his wife be locked up for violating the Court’s Orders by continuing to post defamatory statements.

  • LOCKED UP

Shortly after Mr. Shuler was jailed in late October 2013, the Reporters Committee for Freedom of the Press (RCFP), a non-profit legal assistance organization, sent a letter to the presiding Judge. The RCFP’s letter requested The Honorable Claude D. Neilson to reconsider his decision that censored and confined the blogger. The RCFP argued Mr. Shuler’s jailing for contempt of court was an unconstitutional prior restraint on speech in violation of the U.S. Constitution’s First Amendment.

  • SEALED SHUT

Prior Restraint is when the government makes you shut your mouth before you can even open it–more descriptively called “Pre-Publication Censorship.” The RCFP’s letter succinctly laid out the law for one of the most egregious types of censorship and First Amendment violation:

The Supreme Court has never upheld a prior restraint, or a government prohibition on speech. In Nebraska Press Association v. Stuart, it found these bans on speech presumptively unconstitutional and called them “the most serious and the least tolerable infringement on First Amendment rights.” 427 U.S. 539, 558-59 (1976). See also Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931) (calling prior restraint “the essence of censorship.”) The Supreme Court has speculated that prior restraints may only be allowed to prevent disclosure of information that would provide troop locations in wartime or “set in motion a nuclear holocaust.” Id. at 716.

  • MORE TO COME

    First Amendment Freedom Fighters

    First Amendment Freedom Fighters

The blogger’s wife had to take down the blog posts to spring Mr. Shuler out of jail. Mr. Shuler writes well, but I’ll tell you, his posts about the alleged illicit affair were not as torrid, dangerous or inflammatory as an actual nuclear holocaust.

Shuler plans to sue.

More Sources

And because I couldn’t resist, photos at the following respective links are of: Mr. Robert R. Riley and Ms. Liberty Duke
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