Wednesday, December 21, 2011

College Football and the Nature of Reality

I spend much of my free time following sports. In my lucid moments, rare as they are, I find this use of time hard to justify. What do I get out of following sports? Does it make me a better person? Does it make the world a better place?

As you can imagine, I've been able to come up with quite a few justifications (i.e., rationalizations) over the years. But today, for the first time, my sports-following habit provoked me to reflect on the nature of reality. The specific impetus for this is the controversy surrounding the decisive play in the recent Big Ten Football Championship game, in which the Wisconsin Badgers beat Michigan State in a thrilling comeback.

The decisive play was a penalty. Wisconsin, up by 3, was forced to punt with just about a minute left in the game. Michigan State returned the punt all the way to the three-yard line, but was flagged for "running into the kicker."  Safety Isaiah Lewis committed the foul.

The result of the penalty was a first down for the Badgers, which allowed them to assume the victory formation and run out the clock.

When an official makes such a game-deciding call, there will be controversy.  There are two points of contention about this particular play:  (1) Did Lewis actually run into the punter? (2) Did the punter flop?

There really can be no dispute that the answer to both questions is "yes."  The still photo included here shows clearly that Lewis did run into the punter's legs while he was in the kicking motion.  The video of the play also shows that after this moment the punter twirled to his left, far more violently that the contact itself would seem to have caused.

Thus, the only real question is whether Lewis's contact with the punter was "incidental," as incidental contact with a kicker is not a foul. The referee's judgment that the contact was not incidental is defensible, I think, because Lewis made contact with the legs of the punter while the punter was in his punting motion. The purpose of the rule is to protect the punter while he in this very vulnerable position, so any contact made with the legs at that moment cannot be incidental.  In all my years of watching football, I have never seen contact like this not called a penalty.

Some maintain, however, that Lewis did not even touch the punter.  Among those who hold this belief, apparently, is Lewis himself, the person who did in fact run into the punter.  Lewis reviewed the tape and said, "personally, I didn't feel like I hit the guy."

How can this be?

I'll admit the statement is ambiguous.  He says he "didn't" feel like he hit the guy. This leaves open the possibility that what he's saying is just that he didn't think he hit him at the time. That would certainly be understandable. Football players are well-armored, so in the heat of the moment it's possible that Lewis didn't notice the impact from the somewhat glancing contact he made with the punter.

Still, Lewis seems to be maintaining that he actually still believes he didn't hit the punter, when the tape shows clearly that he did.  But perhaps the key words in his statement are "personally" and "feel"; he says he "personally" doesn't "feel like" he hit the guy. This seems to be an assertion that reality is subjective, and the videotape is no greater evidence of what really happened than his own visceral memory. There are no facts, only feelings.

Or, in other words, "Who are you going to believe—me or your lying eyes?"

In the end, of course, the only reality that matters is the one that the referee saw, and made. And in that reality, the Badgers are going to the Rose Bowl. Again.

Sunday, December 18, 2011

In August, I noted that Herman Cain, Thaddeus McCotter, and Newt Gingrich would "never, ever, ever be the GOP nominee for president in 2012." I was asked over the weekend whether Mr. Gingrich's recent surge has caused me to reconsider this statement. It has not. One need look no further than this article to see why he won't be president.

While I doubt the judiciary is any more "arrogant" now than it has been in the past, does it not occur to Mr. Gingrich, that the majority of federal court judges were appointed by Republicans? By way of example, President George W. Bush appointed a total of 325 judges. President Obama has appointed 123.

I have a lot more I could say about Mr. Gingrich's utterly insane proposals concerning the judiciary but since he will never be president, I will simply point out that his beliefs about a rogue judiciary sound to me a lot like the complaints raised by these two lawyers.

Monday, December 12, 2011

Are sanctions cheaper in Wisconsin or do sanction amounts vary by content?

On Thursday I posted about Rebekah Nett. Ms. Nett is a Minnesota attorney who has made the news lately because she is facing a sanction of up to $10,000 as a result of some motion papers she filed that contained anti-Catholic language. More accurately, the motion papers contained anti-Catholic language but did not provide any evidentiary support for the anti-Catholic allegations. It turns out that this is not Ms. Nett's first experience with filing court documents that don't have evidentiary support. It is also not her first experience with sanctions.

On February 8, 2011, the Wisconsin Court of Appeals, issued a decision in City of Shawano v. Darlene Sense. Ms. Sense appealed her conviction of a Shawano ordinance prohibiting refusal to permit inspection of premises that are subject to a liquor license. Ms. Sense is the former the manager of the Shawano Best Western Hotel. When Shawano police officers attempted to determine whether the hotel was operating in accordance with its liquor license. Ms. Sense, depending on whom one believes, either actively prevented the officers from making the determination or failed to help the officers. In any event, Ms. Nett represented Ms. Sense.

The appeal is notable for a couple of reasons. First, it appears that the same group that owns the hotel also owns the bankrupt company in the case that has Ms. Nett in hot water in bankruptcy court. Similar to the Minnesota case I posted about, the brief supporting the appeal:


contains several brazen assertions that are completely unsupported by the record. For instance, Sense states that the Best Western hotel’s parent company “has been targeted repeatedly with numerous complaints and false accusations and negative publicity because the president is from India.” Sense contends, “Local officials and specifically, [the] mayor of Shawano, … have positioned themselves against [the parent company’s president] time after time and seek every opportunity to cause harm to any businesses in Shawano connected with [the parent company].” Sense also alleges the police’s routine compliance check was “a tactic to get into the facility during a private party to scare and intimidate guests who value their privacy … so that they might cancel their contract with the hotel …. Cancellation of their contract would have delighted City officials[.]” Sense does not provide record citations for any of these allegations, presumably because they are completely unsupported by the record.


Because she didn't support the assertions mentioned above with evidence, and also because her brief and appendix didn't comply with four procedural/stylistic rules for the appeal, Ms. Nett was sanctioned $200.

What conclusions can we draw from this? One could be that the cost of making allegations without evidentiary support is cheaper in Wisconsin. Ms. Nett faces a fine of $1,000 per unsupported allegation in Minnesota but only paid $50 per unsupported allegation in Wisconsin (assuming that the formatting errors weren't worthy of a sanction). Another conclusion might be that the cost of unsupported allegations has risen nationwide since February. Or perhaps the Minnesota sanctions are higher because of the bigoted nature of the unsupported allegations. If that is the case, then maybe the question raised by UCLA law professor Stephen Bainbridge should be considered. When he blogged about Ms. Nett's possible sanction in Minnesota, Professor Bainbridge asked, why would Judges be able so sanction parties for offensive speech without running afoul of the First Amendment. Any thoughts, Mr. Torvik?

Thursday, December 8, 2011

The cost of a slur? Apparently $1,000.

When asked (and sometimes without being asked), I identify my religon as Roman Catholic. Some of my irreligious friends believe that I am some kind of hardcore believer because I manage to attend Mass on Sunday at one of the nine Roman Catholic churches near my office or home. Reasonable minds can, of course, disagree as to whether complying with the Fourth Commandment makes one devout. Some would say that is simply meeting one the minimum requirements.

In any event, we Roman Catholics are living in interesting times. Among other things, today is the Solemnity of the Immaculate Conception. Non-Catholics (and some Catholics) are often confused by this Holy Day of Obligation. People think that it celebrates Mary’s conception of Jesus Christ. It doesn’t. Instead it celebrates St. Anne’s conception of Mary. I think Catholics get this day confused because the Gospel reading for the day is about Mary’s conception of Christ. Non-Catholics might find the day confusing because the Bible doesn’t mention Mary’s parents, let alone Mary being conceived. However, as the Immaculate Conception is one of the two times a Pope has invoked the doctrine of Papal Infallibility, I prefer not to think about that too much.

In addition to this confusing day, last month the text of the Mass has been changed for the first time since the Mass stopped being said in Latin. A lot of other folks have opined on the changes. So, I’ll let Stephen Colbert handle that issue.

I would like to discuss the recent filings in the United States Bankruptcy Court for the District of Minnesota allege a conspiracy between Catholic lawyers and judges. I am not sure when this conspiracy got started. I must have missed church that day as I have not heard of it before.

The St. Paul Pioneer Press first broke the story. As the story notes, Yehud-Monosson USA Inc., declared bankruptcy. Rebeckah Nett is representing the company in the bankruptcy proceeding. The story mentions that the company and one of its related ventures, Midwest Oil of Minnesota, have filed five bankruptcy cases in three states dating back to March 2009. The Pioneer Press also notes that Yehud-Monosson USA Inc., is a subsidiary of the Dr. R.C. Samanta Roy Institute of Science and Technology Inc., of Shawano, Wis. The institute is named after its spiritual leader, an Indian immigrant who used to be known as R.C. Samanta Roy but now goes by the name Avraham Cohen.

Anyway, the trustee in the bankruptcy, Nauni Manty, scheduled a motion for contempt alleging that she had not received business records that the bankruptcy judge ordered Yehud-Monosson USA Inc., provide to her. The motion was scheduled to be heard at 1:00 on November 17. Due to an apparent clerical error, the hearing on the motion that was sent to the company and its attorney said that the hearing was at 1:30. Given the error, it was entirely unsurprising when Ms. Nett missed the hearing. In light of the fact that Ms. Nett wasn’t there, the judge rescheduled hearing.

In a sense, rescheduling the hearing benefitted ordered Yehud-Monosson USA Inc. After all, the company wasn’t found in contempt. However, neither Naomi Isaacson, the company’s president (and a lawyer), nor Ms. Nett apparently saw it that way.

On November 25, a week after the judge continued the hearing, the Company filed motion to vacate the order continuing the hearing. Before examining the motion, remember that Rule 9011(b) of the Federal Rules of Bankruptcy Court requires that any motion (or argument) have evidentiary support for any factual contentions and that the claims and argument not be frivolous. Simply put, neither the lawyer nor the client can simply make things up. With Rule 9011(b) in mind, the motion papers allege a wide-ranging conspiracy among Catholic members of the bench and bar. Specifically, the motion says the following items are “facts.” None of these “facts” are supported by a citation to a factual record. My thoughts on the “facts” follow the quotes:

1. “Chapter 7 Trustee Nauni Manty had actually scheduled the hearing with Nancy Dreher, the Catholic judge, for 1:00 p.m. but sent notice to the Debtor [Yehud-Monosson USA Inc.] that the hearing was set for 1:30 p.m.” It is undisputedly true that the time in the trustee’s notice was incorrect. For a discussion of Judge Dreher’s religion, keep reading.

2. “Debtor seriously questions Chapter 7 Trustee Nauni Manty’s motive in informing Debtor of the wrong time for the hearing. Was it to the make the job of the black-robed bigot that much easier? So, rather than forcing the Court to hear the case on its merits, the matter can just go by default? Debtor is suspicious of the Chapter 7 Trustee Nauni Manty’s motive given her track record of lies, deceit, treachery, and connivery, particularly, since the Chapter 7 Trustee Nauni Manty, the U.S. Trustee Colin Kreuziger, and Nancy Dreher, the Catholic judge, have been communicating with each other about this Debtor on an ex parte basis.” The section overlooks the maxim that the simplest explanation is most often the correct explanation. Instead of clerical error it alleges a conspiracy. I guess that could be called opinion. Albeit, not one based on fact. As a practice pointer I should point out that it is probably not effective argument to call the judge hearing your motion a “black-robed bigot.”

3. “U.S. Trustee Colin Kreuziger, Chapter 7 Trustee Nauni Manty, and Nancy Dreher, the Catholic judge, are of the same race and religion and their track record demonstrates their conspiracy and deceitful practices to hurt the Debtor. Even though all documents have been produced, Jesuitess Nauni Manty keeps repeating the same lie that records are missing.” Prior to this story breaking, I had never heard of a Jesuitess. I found that odd given that I went to a Jesuit University. It turns out that a Jesuitess is a member of an order of nuns that has not existed since 1633 (as a side note, the same Pope who suppressed the order also put Galileo on trial over Heliocentrism. Perhaps he wasn’t the best Pope). Since the order was suppressed in 1633, it seems unlikely that Trustee Manty is, in addition to being a lawyer, a Jesuitess.

4. “Across the country the court systems and particularly the Bankruptcy Court in Minnesota, are composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church. Judge Dennis O’Brien is a Jesuit, Judge Nancy Dreher is a Catholic Knight Witch Hunter, U.S. Trustee Colin Kreuziger is a priest’s boy, and the infamous Chapter 7 Trustee Nauni Manty is a Jesuitess.” Although it is true that a majority of the justices on the United States Supreme Court are (or were raised) Catholic, I am unaware of any statistics showing that other courts are also composed mostly of Catholics. Online research into the phrase “Catholic Knight Witch Hunter” only leads to stories about the motion so I don’t think the Catholic Church has knight witch hunters (although one has to admit that it certainly sounds like something a church should have). Suffice to say that the mental image of “priest’s boy” is not one on which we should dwell. I sincerely hope there is no evidentiary support for that allegation.

5. “Debtor and its representatives have never experienced any justice at the hands of these inquisitors. Since Debtor has been vocal is exposing their dirty deeds, these dirty Catholics have conspired together to hurt Debtor.” The filing is vocal, I think we can agree about that. Also, on December 6, Trustee Maunty filed a reply motion on her motion for contempt. That motion directed the Court to a website where Ms. Isaacson has requesting an “URGENT INVESTIGATION” (we know it is important because it is typed in all caps) into racial discrimination by Catholics and Lutherans that started in Shawno, Wisconsin (by a mayor who is, confusingly, “CATHOLIC AND LUTHERAN”) and spreading across the country. The posting goes on to discuss how the Catholic Church murdered Abraham Lincoln (things I learned today—John Wilkes Booth converted to Catholicism) and how Ms. Isaacson expects to be “incarcerated and likely murdered.” The posting also says if Judge Dreher were impartial she would liquidate the assets of the Catholic Church. How the judge could order this in the absence of a bankruptcy filing by the Catholic Church is unexplained. So there will be some factual support about being vocal. Also the bankruptcy proceeding clearly isn’t going the way the company would like. The tricky part is whether that is because of Catholics.

6. “Both the Chapter 7 Trustee Nauni Manty and the U.S. Trustee Colin Kreuziger appeared at 1:00 p.m. and both the Chapter 7 Trustee Nauni Manty and the U.S. Trustee Colin Kreuziger ‘pretended’ to not know why Debtor’s counsel was not present for the hearing. Therefore, Nancy Dreher, the Catholic judge, proceeded with the hearing in Debtor’s absence and allowed the Chapter 7 Trustee Nauni Manty to argue her case as to why Debtor is in violation of the Court’s Order for Turnover dated October 7, 2011.[...] When Debtor’s counsel arrived for hearing at 1:20 p.m., no other parties to the case were present, and the Court’s clerk informed Debtor’s counsel that the hearing had been held at 1:00 p.m. The Chapter 7 Trustee Nauni Manty and the U.S. Trustee Colin Kreuziger had already come and gone. The Court’s clerk confirmed that the notice that was sent to Debtor indicated that the hearing was set for 1:30 p.m. but informed Debtor’s counsel that the matter had been continued to December 6, 2011.” As already discussed, it is true that there was a mix-up about the hearing time. Since the judge continued the hearing, I don’t think it is true that the trustee got to argue the motion.

7. “Shockingly, on November 18, 2011, however, Nancy Dreher, the Catholic judge, issued an Order that effectively already finds that Debtor is in violation of the October 7th Turnover Order. Such Order states Chapter 7 Trustee Nauni Manty is permitted to make a record at such hearing that meets the test for a finding of contempt. The November 18th Order further states that the Debtor representative is required to be present at the hearing. Given what these dirty Catholics are capable of and particularly since there is no law to protect the minority, Debtor is concerned about what their secret plans are for the December 6, 2011 hearing. Catholic deeds throughout the history have been bloody and murderous.” By continuing the hearing, the Court was not finding that the turnover order had been violated. If one considers the Crusades and the Inquisition as part of the history of “Catholic deeds,” then “bloody and murderous” is true. However, I am not sure there is any support for such contentions in, to be conservative, the 20th or 21st Centuries. It doesn’t appear that the concern about a secret plan is well-founded.

8. “For Nancy Dreher, the Catholic judge, to issue such an Order when she knew that the Debtor was not present due to being intentionally misled by Chapter 7 Trustee Nauni Manty is unfathomable. One can only conclude that Nancy Dreher, the Catholic judge, is part of the conspiracy to deprive Debtor of its due process rights since she went ahead and issued an Order when she clearly knew the reason Debtor’s counsel was not present at the hearing.” Continuing the hearing seems like poor evidence of a conspiracy. If the Court really wanted to deprive the Debtor of due process, it would have just issued the contempt order.

9. “Under normal circumstances, a Court would wait ten minutes in case some unfortunate mishap had befallen counsel to give her an opportunity to appear. What was the reason for the haste to hold this hearing? What secret discussions occurred during their secret meeting? Debtor has filed numerous pleadings which outline in detail its response to the Chapter 7’s Trustee Nauni Manty’s motion which clearly document that Debtor has produced all the records in its possession. Debtor has a right to be heard on that issue. The entry of the order is illegal and in violation of Debtor’s due process rights. In the interests of justice, this Order must be vacated.” It’s generally my experience that hearings don’t start until everyone is present. I haven’t had a hearing where counsel was late by a half-hour without calling the court, so I can’t say it is unreasonable that the judge and lawyers weren’t still there at 1:20. Given that the matter was continued, it doesn’t seem likely that there were any secret meetings.

10. “Given the track record of injustice in this case, it seems that Debtor will never see justice until the matter is addressed in an international court in Beijing, China.” There is an international court but it is not in Beijing. Also, the International Court in the Hague only hears cases between countries. So it won’t be giving any justice in regards to this bankruptcy proceeding.

As I indicated above, after these statements hit the news and received a lot of negative press. This did not dissuade Ms. Nett or Ms. Isaacson. Instead, on December 6, they doubled down on exposing the conspiracy. In a declaration she filed with the Court, Ms. Isaacson states: “I want the Court to know, President Obama to know, Attorney General Eric Holder to know, United Nations to know, foreign media to know, and the world to know that Chapter 7 Trustee Nauni Manty keeps bolding lying because the judges and Court are controlled by her own race and Catholic religion. In the United States, under the Constitution, church and state are supposed to be separate. But, now like the Dark Ages, the Catholic Church obviously is in control of the Bankruptcy Court and the media.” This marks the first time I have ever heard that Catholics control the media. If they do, why are the shows on EWTN so boring?

Anyway, on December 7, the Court decided either that continued exposure of the Catholic Conspiracy would be harmful to the conspiracy or that Ms. Nett and Ms. Isaacson were simply making bigoted and crackpot statements in motion papers. Whatever the reason, Judge Dreher issued two show cause orders. One is directed towards Ms. Isaacson and one towards Ms. Nett. The show cause orders require Ms. Isaacson and Ms. Nett provide reasons why they should not be sanctioned for the statements in the November 25 filing.

In some respects the orders are straightforward. They explain the missed hearing and they identify the 10 statements I mentioned above. The orders point out that both Ms. Nett and Ms. Isaacson are attorneys. They also mention Rule 9011(b) and the requirement that advocacy have factual support and not be for an improper purpose. The orders also say that the sanctions may include $1,000 fine for each of the 10 statements that lack factual support; an injunction prohibiting filings that disparage the trustees or the courts of the United States; and a public written apology to Judge O’Brien, both trustees (and possibly others). Ms. Nett , but not Ms. Isaacson, might also be required to attend 30 hours of ethics training in the next year. Ms. Nett also needs to explain whey she should not be removed from the roster of attorneys permitted to practice in the United States District Court for the District of Minnesota (if the Chief Judge of the district deems it appropriate to remove her).

The footnotes to the order, however, are a little odd. Footnote 1 to each order mentions that once Ms. Nett arrived for what she thought was a 1:30 hearing, the Court tried to have a continued hearing that afternoon but Ms. Nett wasn’t available at the time that the trustee was available. I do not understand why Ms. Nett’s unavailability later in the afternoon is significant. Footnote 2 to the order concerning Ms. Nett notes that she doesn’t carry professional liability insurance. As far as I know, Minnesota lawyers are not required to carry such insurance. So, I don’t understand why that is relevant to showing cause not to be held in contempt. The footnotes in both orders note that Judge Dreher has never been a Catholic. I guess the judge pointed this out to show that there isn’t any factual support for calling her Catholic. Is that an effective way to engage with someone who claims that Catholics are taking over the country? As President Obama discovered during the controversy about his birth certificate, people who make far-fetched allegations are not persuaded actual facts (another example would the folks who call themselves “Truthers”). The orders also point out that Ms. Manty and Judge Dreher are not members of the same faith because the Judge Dreher is “not of any particular faith.” This presumably goes to the point that it can’t be a Catholic conspiracy. But again, I don’t see how it was a good idea to engage on the point. Perhaps a conspiracy of people without a particular faith doesn’t sound as ominous. After all, when and where would they meet?

The hearing on the show cause order will be on January 4, 2012. It will be interesting to see if either Ms. Nett or Ms. Isaacson avoids getting sanctioned the full $10,000. My guess is that each statement will be sanctioned. It would also be interesting to see the factual support for the statements.

Anyway, it is hard to know what to make of this imbroglio. As a member of the legal community, I am embarrassed that a lawyer filed this sort of rubbish. On the other hand, it is certainly possible that these filings are the product someone who is ill. We should feel sympathy for such people and hope they get professional help with their illness. Then again, if these are not the ravings of a mentally-ill person but instead the product of bigotry, then does anyone think that a $10,000 fine and 30 hours of ethics class will reform bigoted thinking?

Saturday, December 3, 2011

UPDATE: Can an accused tax evader submit evidence of a good-faith belief without taking the stand to testify to it?

UPDATE:

In the posts below, I discussed a district court order holding that Chris Kokenis, an accused tax evader, had to take the stand to assert the "good faith defense."  On the day before Thanksgiving, the Seventh Circuit Court of Appeals issued its opinion.  It finds that the district court was wrong to rule that Kokenis had to take the stand, because evidence of good faith can be proved by circumstantial evidence and hearsay statements of the defendant.  But the court goes on to conclude that the error was harmless because (1) there was no evidence at all of a good-faith belief in this case; (2) even the supposed good-faith didn't apply to all the charges; (3) the good-faith defense was in fact part of the charge, since the jury was instructed that Kokenis's conduct had to be "willful" and the good-faith defense is simply an assertion that the defendant did not act willfully.

ORIGINAL POST: 10/9/2010

Willfully evading federal income taxes is a felony. 26 U.S.C. § 72013. In the context of the tax laws, a “willful” violation is the “voluntary, intentional violation of a known legal duty.” United States v. Cheek, 498 U.S. 192, 201 (1991). But, under Cheek, failing to pay income taxes because of a genuine misunderstanding of the tax laws or a good-faith belief that no tax is due—even an objectively unreasonable misunderstanding or belief—is not a felony (though it may be a misdemeanor). Let’s call this the Wesley Snipes defense.

This is background for an interesting little order by the always-entertaining Judge Milton Shadur of the Northern District of Illinois in the case of United States v. Kokenis. A jury recently found Kokenis guilty on eight counts of tax evasion. He moved for a new trial, arguing that the judge improperly excluded evidence relating to his good-faith defense under Cheek. Judge Shadur denies the motion for an interesting reason: he says that Kokenis could not advance this defense because he did not take the stand to testify in his own defense:

David Prosser goes on the 30-day DL

As I reported shortly after he won reelection to the Wisconsin Supreme Court, David Prosser is old.  At the time, I predicted that he'd retire well before his ten-year term ended. Time will tell whether that prediction comes true, but early indications are support it.  We're just three months into his new term, and Prosser is already taking a health-related leave of absence.

UPDATE:

Justice Prosser is dealing with a nasty bout of diverticulitis.  Hopefully he gets well soon.