Monday, June 4, 2018

Texas Thicc Tip Series 9 - - Wells Fargo Bank, N.A. v. Farkas, and § 50(a)(6) for Texas homestead law compliance

https://www.linkedin.com/pulse/texas-thicc-tips-series-9-wells-fargo-bank-na-v-farkas-j-cottle/?published=t
I'm beggin' for someone to Shepardize this case for me but according to Casetext no one has cited this case. The case is Wells Fargo Bank, N.A. v. Farkas, Civil Action No. A-15-CV-165-AWA (W.D. Tex. Apr. 28, 2017). If you Google it, 8 results pop up, all of them germane to the case itself, and nothing about citing authority.
I've written about constitutional litigation under Section 50(a)(6) of article XVI of the Texas constitution, which regulates foreclosure-eligibility laws for homestead loans. In 2016, the Supreme Court of Texas issued a pair of related § 50(a)(6) opinions in Wood and Garofolo.
A lot of debtors sue creditors seeking to foreclose on pretty spurious grounds that they essentially can seek to, at any time, have the validity of the loan "declared," and that no statute of limitations defense bars such. I disagree with this interpretation. While the Court and Texas law are both clear that no void lien may be, essentially, protected from being set aside by dint of a limitations defense, the law is equally clear that merely voidable liens are susceptible to applicable limitations defenses--namely, the four-year SOL.
The Farkas case said that a loan which incorporates the provisions of § 50(a)(6) will be valid. It based its decision on contract incorporation law; under Texas precedent, unsigned papers may be incorporated by reference into signed documents. Thus, homestead lien contracts and related notes could "incorporate" the Texas Constitutional provisions into their own terms and thereby bind the lender, and also imbue the loan documents with lien validity. The Court observed that a magistrate's decision to deny a motion to dismiss a foreclosure action because the magistrate found "that Section 50(a)(6) had been incorporated by reference in Section 29 of the Agreement, and thus not all terms needed to be explicitly referenced for the lien to be valid." The court observed that since "Section 50(g) requires the exact language of that section to be sent in a notice to the homeowner," and there is a "general requirement to comply under Section 50(a)(6)," the duty to sent out a notice delineating the § 50(a)(6) requirements "is further proof that not every provision will be explicitly referenced in the lien documents. Rather, it was expected that some of the provisions could be incorporated by reference." The Court concluded that the loan agreement and deed both "reference[d] the entirety of Article (sic) 50(a)(6) in at least two sections," the first being the caption of the Agreement which claimed it was an "Extension of Credit as that term is defined by Section 50(a)(6) and 50(t), Article XVI of the Texas Constitution." The Court found that such language "evidences a clear intent to incorporate Section 50(a)(6). By defining 'Extension of Credit' under the terms of Section 50(a)(6), the Agreement references the requirements of that Section as being the terms by which the Agreement is made. Section 50(a)(6) does not define an extension of credit, but rather provides that a valid lien complies with the provisions of that section. Thus, defining 'Extension of Credit' as provided in Section 50(a)(6) incorporates the entirety of that provision. Moreover, this section provides clear notice that the provisions are to be applied through the document wherever 'Extension of Credit' is mentioned and clearly indicates an intent to be bound."
Only this last sentence is a bit unclear as to whether the Court meant that it viewed that simple statement as providing such notice, or if other provisions in "Section 29 of the Agreement" did this heavy lifting.
The Court then asserted that even if it bought (which it did not) the debtor's argument that such language only met the disclosure requirement of section 50(a)(6)(Q)(vi), the agreement also incorporated Section 50(a)(6) in another provision which said that the "Bank shall comply with any of its obligations under sections 50(a)(6), 50(e)-(i), or 50(t). The Court said this is more than "'mere reference' and indicates a clear intention to comply with with the constitutional provision." To add more beef to the argument, the Court noted that the document was internally consistent thereafter and even specifically reference various "terms" (which are likely terms contained in the § 50(a)(6) list). "This points to a clear intention to abide by the Texas Constitution, and 'plainly refers' to Section 50(a)(6)."

So this is pretty cool. The Supreme Court hinted at "incorporation" in Garofolo, although when I reviewed the lower case, I did not find any clear evidence that this was done "by reference." Farkas stands for the proposition that a creditor can comply with the lien validation protocols of the Constitution and the Supreme Court's concerns in Wood and Garofolo by incorporating by reference the "terms and conditions" of Section 50(a)(6).

Texas Thicc Tip Series 8: There's no such discovery objection as "Assumes Disputed Facts" - stop using it



I remember one day day I went to court, where I got to watch and listen to the antics and gesticulations of a maniacal attorney, which were (mercifully for him) off the record. The court told us to work out the motion to compel basics out before he had to rule on anything. This guy is the laziest sack of shit I've ever been against; he said that the case "wasn't his first rodeo" but when I asked him why he didn't give me the responses on the facts underlying his clients' defense of failure to mitigate damages, he literally said "that's the first I've heard that term." Makes me wonder if the rumors are true.
He's not the subject of this Thicc Tip. His misplaced discovery responses to some requests are the subject.
In a debt collection suit, his clients provided a general denial and a specific denial of "each allegation" of my client creditor's claim for debt. In other words, they said there's no debt, and if there is one, they don't owe it, right? They also made an affirmative defense of "payment," which means a full payment or partial payment not accounted for has been made, and accounting is to be made by them.
So I ask: tell me why you don't owe the debt and also, show me your facts supporting the defense of payment.
Objection: Assumes disputed facts.
Assumes. Disputed. Facts. Besides the inherent incompetence of this attorney and the danger he poses to the bar by being allowed to send stuff like this out, I was miffed by the objection. I'd never heard of it before. Turns out, there's a good reason: it's almost never been uttered until recently in the discovery context. Most people object to "assumes facts" or "assumes facts not in evidence." It may very well be that something which "assumes disputed facts" is the rarer, original form of "assumes facts." An objection that a question "assumes facts not in evidence" is generally reserved for trial witness examination objections, and is generally aimed at attacking a question posed to get testimony on a subject not yet introduced into evidence (though a trial witness should be able to testify and thereby introduce the evidence into the record, right?).
So I did a little historical research. The term "assumes disputed facts" is a proscriptive term applied against judges' jury instructions or charges, and not a parties' discovery objection basis. This was how it used to be through all the way through the first third of the 20th century. Only recently have I found any indications that this term is creeping into modern litigation discovery, but it seems that it is crawling in through reliance on cognitive psychology handbooks.
As early as 1887, this term was found in an appellate court's refusal to consider certain points of error assigned, as it felt the question was in the jury's province and to do otherwise would "assume[] disputed facts for the jury to determine" (this issue involved whether a certain property line fell on this or that side of some fencing). See Central Reporter Vol. IX (all Cases Determined In The Courts Of Last Resort), ed. Edmund H. Smith (citing case of Stryker v. Ross).
An Oregon case found in an 1897 reporter of cases in the Supreme Court of the State of Oregon, as reported by Robert G. Morrow, summarized the holding of a case called Owens v. Snell, 484 as the following: "An instruction which assumes disputed facts to have been established is properly refused." [I like that one, don't you? The assumption of establishment is the real evil this rule is aimed at blocking.]

In 1902, De Witt Clinton Blashfield wrote a treatise on judges' instructions to juries, and remarked that it is "the exclusive province of the jury to determine the existence or nonexistence of the facts" and is an invasion of such "for the court in its instructions to assume the existence or nonexistence of material facts which are in issue between the parties, and as to which the evidence is conflicting." He adds: "The instructions should be so drawn as to state the law upon a supposed state of facts to be found by the jury. No matter how slight the evidence is, the court cannot assume the existence of facts...." (Blashfield also noted the obvious exception in the cases of a "directed verdict" where the court can instruct the ruling "where the evidence would not sustain a contrary finding.") Blashfield has a section devoted to instructions "held not to assume disputed facts," and remarked that such instructions are those which "state[] in hypothetical form the facts which the evidence tends to prove." In other words, the proper jury charge should be framed in the conditional of certain findings of fact by the jury.
A case compiler called Current Law: A Complete Encyclopedia of New Law, Volume II: Fires to Witnesses, from Foster and Longdorf in 1904 had a remark that a jury instruction which "conceded" that decedent died "under the circumstances" did not count as a conclusion as to defendant's agency therein, and thus did not "assume disputed facts." The case cited was Bliss v. State (Wis.), 94 N.W. 325. So you see the nature of this argument: a judge cannot "assume disputed facts" in its instructions, and people would frequently harp that certain orders did so based on basic inferences that would be permitted.
In 1904, the Supreme Court of Alabama in Frierson v. Frazier, 37 So. 825, found that a jury instruction was "not merely misleading, but when referred to the evidence, as all charges must be, was positively erroneous" (involving a finding that if one side was to be determined negligent by the jury in a case, then negligence had to be assessed, notwithstanding any evidence of defendant's negligence as well - tsk tsk).
The same term was found in Blashfield's 1916 version of the treatise. Not a bad set of reads.
The same concern about invading the jury's province and "assum[ing] disputed facts" occurred in a 1920 opinion from the Supreme Court of Oregon, State v. Turnbow.
Even Wal-Mart used the term as late as 2002 in attacking a jury instruction regarding the timing of some event in Kenney v. Wal-Mart Stores, Inc., No. SC84770.
In a 2013 filing in the Supreme Court of Texas for the case Shagrithaya v. Argo Data Resource Corp. et al, there's a court transcript where the attorneys are reading into the record that a subpart of an instruction was "vague and confusing . . . and assumes disputed facts or otherwise fails to instruct the jury on the pertinent inquiry." Hell yeah.

So what happened?
I dunno. But I see an application of the term "assumes disputed facts" in a motion to compel case from 1961, Cembrook v. Superior Court of the State of California in and for the City and County of San Francisco, Civ. 19564 (Cal. App. First Dist., Div. 1, Feb 23. 1961). (dealing with motion to compel response to lengthy RFAs, and "cull[ing] the questions to sanction those that call for direct and simple answers" after categorizing the requests as proper and improper, finding the improper ones to include those which "assume disputed facts" or "seek admission of facts whic hconstitute the ultimate issue.") The Court noted: "To assume and assert, as part of the question, a fact in dispute is to make it impossible for the questioned party to render an intelligible answer. The following questions do so" and then it listed certain interesting questions for further study, which the court argued "assumes the pre-existence of a disputed fact." In my book, I read this as essentially blocking any questions which take for granted a mens rea of sorts. One of the questions it counted as "assuming disputed facts" is the following - "That prior to the above time, and with knowledge of the above, D did nothing to warn P or others that said irritation of the stomach could result from taking said Bayer Aspirin regularly for colds and/or headaches during a period of over one year." I think it's fine to condition the request in issue depending on previous requests' being admitted which establish the mens rea or other assumed fact as to that otherwise objectionable request; in other words, if your question WOULD assume disputed facts but for the fact that just before that you asked them to admit something else which would clear up the fact to be assumed, then I think it's okay to ask it. But it is interesting to note that the judge has essentially found objectionable an entire body of questions which "assume disputed facts" and leaving it to us to figure out what that means. I think the question could have been knocked out for simply being compound and vague. I really don't like the ruling as it is - which part is disputed, exactly? Every part? Just the parts about irritation?
But you see the term "assumes disputed facts" appear in a global objection to requests for admission from DuPont here (page 2, and this is a 2000 case in Dallas, Broussard v. GAF Corp.). At least DuPont defined the term for its own use - "When DuPont objects to a specific admission on the basis that it 'assumes disputed facts,' DuPont is referring to facts on which Plaintiff Joseph Genzer has the burden of proof and that are currently disputed or are facts that DuPont reasonably believes will be disputed as investigation and discovery proceeds."
Maybe I should ask Larry Cotten why he used this term. I'm trying to get at this - take a breach claim: Plaintiff has burden of proving things like valid contract, breach and damages, right; so if you ask the other side in a case where nonpayment is a condition of default and therefore breach, "Admit you stopped paying the contract as required under the terms." "OBJECTION: ASSUMES DISPUTED FACTS." Maybe. But what about "Admit you stopped making payments after this date"? Less so, right? And then Plaintiff can just use that admission as evidence of violation of the contractual term. Doesn't seem like as a tool it does much heavy lifting, especially as a "global objection."
In 2014, a similar objection was raised in a Department of Telecommunications and Cable suit from Massachusetts - the global objection was to any requests which "assume disputed facts or legal conclusions in defining the information sought." Comcast of Massachusetts III, Inc. v. Peabody Muni. Light Plant et al, D.T.C. 14-2. See also this case from Texas (same shit - global objection to interrogatories on basis that they may assume disputed facts or legal conclusions).
In Fratus v. Mazyck, No. 2:16-cv-0076 KJM EFB P (E.D. Cal. Nov. 1, 2017), we see it again: the response to discovery request on data about correctional officers' "beatings" of a guy objected that the request "assumes disputed facts" (i.e. "no we didn't beat him") and was also vague; but the court upheld the motion to compel on this request and overruled the objection.
Now we're seeing manuals characterize as a type of leading question as one which "assumes disputed facts" like - "was the red car going fast" when the color of the car isn't yet established; easy to get around by just getting a DX on the color of the car first, right? But that's not really a "disputed fact" so much as one "not yet in evidence." So it sounds like people are just adding gobbledygook into legal proceedings which had one place only, in jury instructions. Check out the Handbook of Psychology of Investigative Interviewing - Bull, Valentine and Williamson 2009 - (noting that since kids are susceptible to suggestion, you should not ask questions which "assume disputed facts" such as "How fast was the red car going" when the color of the car is not yet ascertained" - but clearly if we had established that the color of the car was red, then this would not be disputed fact.) [Also check out the 2016 book Art of Advocacy Series: Direct Examination (noting that certain questions to avoid during DX include those which 'assume disputed facts." (This goes to the trial evidence text which says that this is a kind of leading question) (referring more reading to chapter 2, § 2.02[1] of that book - after review of this, I did not find anything on the topic, only a general description of proper DX form)).]
I saw this in an answer on file. Johnston v. Crawford, E.D.Mo. Jun. 30, 2005 (denying a petition's allegation paragraph because the paragraph "contains allegations that assume disputed facts and assume the ultimate allegation and, therefore, defendants deny.")
We also see this in settlement guides: Here's a supplemental excerpt from Sexual Harassment in the Workplace: Law and Practice, by Alba Conte from 2010 - Cook v. Yellow Freight System, 132 F.R.D. 548, 554 (E.D. Cal. 1990): ""What is stated as fact on the record could very well not be the sort of evidence which the parties would otherwise actually contend to be wholly true. That is, the parties may assume disputed facts to be true for the unique purpose of settlement negotiations. The discovery of these sorts of 'facts' would be highly misleading if allowed to be used for purposes other than settlement." (Basic holding: "plaintiff female former employees alleging that their supervisor sexually harassed them were not entitled to obtain written communications between the employer and supervisor regarding his termination and possible settlement when such communications were privileged and protected by the right of privacy." See id. here: "parties may assume disputed facts to be true for the purposes of settlement negotiation" because "Settlement negotiations are different from litigation and therefore its factual details should not be considered for any purposes other than settlement."
SO WHAT GIVES? Why is this term coming into the discovery and trial examination world after being so long hidden within the annals of obscure judicial rules?
I don't know. But it's something to pay attention to and prepare for. I think this objection is easily dealt with, as it appears to be most often handled with clumsy hands.

Monday, May 21, 2018

A reply to Infant Theology - Originalism and Jesus

https://infanttheology.wordpress.com/2017/02/02/neil-gorsuch-stanley-fish-martin-luther-and-the-bible-wither-authoritative-interpretation/#comment-6351

I wrote this earlier.  I hope the guy takes it up. It could be a fun conversation. I could get schooled. Can't wait to see.
An explanation:
Recently, the idea of "Jesus as originalist" or "the originalism of understanding Jesus" came to my mind as an interesting boredom project.  A lot of people have written on the subject in mostly bad, or highly assumptive ways.  I came across one site which praised the corpse of Scalia for being, essentially, one of God's own.  While his worm certainly does not die, who's to say he's not of God's kingdom?  Only God, I'd wager.  No more would I say he is in the kingdom, or that there is a kingdom.

One scholar, Zellentin, is pretty interesting and has done some very good dives into the "originalism" of the Sadducees and, perhaps, of Matthew as a stand-in for Jesus in the Book of Matthew.  Most people are not creative enough to assume that the writers of the Gospels are not actually writing on behalf of Jesus, but merely propping his notional self up like a corpse's scarecrow to assert positions on their behalf for the generations to follow.  Zellentin aptly points out the distinctions between Mark and Matthew's same passage on a "ritual impurity" scandal before the Pharisees (which Zellentin compares to the "living constitutionalists") - Mark bluntly asserts that Jesus is erasing all defilement God pronounced in the Torah as to non-kosher foods for the Chosen People, but Matthew subtly couches the dispute as one which rejects the Pharisaic additions to the Torah (the law of the fence, oral law, traditions of the elders, etc.), namely, that one must do a ritual wash before eating (kosher) food lest one defile the body; as each passage would presumably point out that Jesus was eating non-kosher food, and thus the bold, extremely heretical announcement that food cannot defile the body, would make for a notable religious dispute between the Messiah and his detractors, the absence of such reference entails that it is not the dispute at hand.  Mark does more work than Matthew, in other words; and for Mark, Jesus did what Peter ended up saying he did in his dream - magically curing all non-kosher foods of their defilement which was pronounced to the Hebrews by God through Moses.  Jesus for Matthew represented an "originalist" take that rejected the Pharisaic add-ons to the Torah; a Scalia to a Breyer, in other words.  (Zellentin notes the paucity of authentic documentation on the "traditions of the elders" by the way - worth a read.)

So in my research, I came upon a bunch of documents online that talk about "originalism" and "Jesus", and the link above is one such.  I recommend reading its brief entirety. It will establish the context of my response which follows:

***

You make an appeal to some kind of unclear originalism as meaningful to biblical interpretation, and in part appeal to authority in the form of Luther, who is writing with the extremely contentious viewpoint that the positive descent of law is divine in origin, and by extension has a mirror in the form of Christian "laws and rules" governing interpersonal disputes ("by which to adjust and settle themselves and all issues between them").  Therefore, if "laws" given to man by God (which only begs the question of how to distinguish those from those which are not, if any are not, and then establishing the principle as to why some are, or some are not, or all are, or all are not) are "clear" then God's law must be "equally clear."  Many are the prosecutors who claim "laws" are clear, and many are the defendants who claim they are not clear.  Was Scalia right that the federal statute outlawing "use" of weapons in drug transactions did not cover an exchange of a gun for drugs, or was he wrong? If what "Congress" wanted was to make sure no guns are brought to drug transactions, then he was simply wrong; if "Congress" is a meaningless entity which doesn't exist, and only these texts which originate ex nihilo matter, then Scalia was maybe right, but only if his "common-sense" definition of "use" (which isn't much of a "textualist" appeal) is right.

I think you create an interpretive quagmire by assuming a) the Bible as compiled by the church is some kind of reliable, hermetically sealed text which provides all its own interprephrands and
interprefiers (to coin some nonsense from Jaynes) and b) even if the Bible-as-closed-canon does not provide its immediate solvent to a question posed internal to it, some kind of easily identified and reliable external parol evidence will do the trick (the consensus as to which qualify I am sure you know is hardly fixed).  Even assuming that the Torah and the Prophets are somehow error-free and the New Testament canon is equally error-free, the problem of uncovering the "original" meaning of such documentary archives remains.

Take the Mark and Matthew passages regarding what is the real defilement of the body.  Nobody can, by simply reading a piece of paper bearing the name MARK at the top and broken up into helpful little separate passages like chapter and verse, compare to a similarly edited document titled MATTHEW and find that any one predated the other; whether the more complicated passage in Matthew is the pertinent ruling of the "real Jesus" on the topic at hand (ritual cleansing and kosher foods in Matthew or some mystical blessing of all non-kosher foods by the Jewish Messiah in Mark).  No amount of originalist reading is going to uncover the meaning of these passages unless some kind of perfect epistemology is assumed, which would mean, at minimum, a) a native understanding of the Judean culture including its religious texts and the "oral tradition," and b) a native understanding of first century Greek.  That is beyond the ken of practically every person alive, and even for those that can do so, differentiation of opinions as to "original" meaning arise.  Compare Saiman with Zellentin on the term "traditions of the elders." It's a hopeless task to pretend that some kind of originalist myth will uncover the "real Jesus" out of the available texts, especially as Jesus didn't bother to write anything down (as far as we know).

Fish's example of a sign left standing is terrible. Imagine the sign was left up in error, after the panini store had closed: a sign left up in error is no sign at all; anymore than a sign on a shop which says "OPEN" but is locked, with lights off and unstaffed "really" means that the shop is OPEN.  So the "sign" doesn't mean anything until the message of the "sign" is confirmed.

Now for my argument: most signs are left up in error - our world is a ghost town full of signs with no meaning any longer; uncovering the original meaning satisfies only an archaeological / anthropological fetish to learn and to know about the past, but no amount of speculative banter over, e.g. why Moses had to stone the man who picked kindling when the "positive law" at the time did not expressly forbid the mere act of picking up sticks, has no application to the world "open for business" now.  Consider the Rule Against Perpetuities - there's a reason it's a good law: we don't want some lawyer 1000 years later trying to decipher what people in 18th century America meant for a document with relevance only to the heirs in question (if such heirs could even be deciphered).  If some future scholar tasked himself with doing that for fun, it's no different than those "originalists" Biblical scholars trying to uncover the "real" meaning of various Biblical passages.

***

EDIT: We're currently engaged in some responses to his post on his site, a pleasant change from most Wordpressers who don't respond to people who comment on their posts.  I think his responses reveal his total ignorance of the terms at play, but I may be spoiled as I studied under an originalism scholar (but no originalist), Mitch Berman, and frequently review papers on originalism. I think the problem comes when people confuse their attempts to "figure out the meaning" of some old text, be it the Constitution or an alleged utterance of Jesus, with "asserting the meaning" of the old text, or worse yet, "revealing the meaning as they believe was conveyed to them."  Infant Theology's writer is a guy named Nathan Rimme who is apparently a Lutheran professor at some private school, so when Luther says crazy shit like "all law is clear, and God gave us such law; therefore 'God's law' is super clear" or, alternatively, "if all law is clear and if God gave such law, wouldn't 'God's law' be super clear?"  As I pointed out to Rimme in a follow-up response, that's not saying much.  We could simply say "well law isn't clear" or "God didn't give us the laws" and his syllogistic sophistry would crumble - God's law can't be clear, and it may not even exist.

I think a careful reading of the modern theories of originalism, which have only been swirling around in reality for a few decades, will provide some interesting insights into the critical readings necessarily to delve into the meanings of more ancient, assumedly authoritative texts for many cultists.  The assumption that the Evangelical Right on the main believes in originalism is not exactly compelling, unless you think that what "originalism" means to such a group of people is the simplistic notion that all texts can have their meanings derived from the author's intent and the "original public meaning" of the words deployed (as opposed to, say, a cryptic meaning).  So when people are arguing about "do not call unclean what the Lord hath called clean," according to the originalist, the only way to determine it is from the "clear language" deployed and the related "original public meaning" of those terms; except, guess what, cultic meanings are not exactly "public," and appealing to the cultic meaning of certain words as an explanation for their significance to a derivative cult seems like a weak position to start with.  Parsing cultic meanings away from truly "public" meanings seems like a task most originalists are not up to snuff to do, and may be impossible; contextualism would seem to solve the problem (and is the going theory of my friend as I recall one of his papers to have asserted), but is a stiff modification of originalism as we know it.

More on this...I am working on an originalism post of my own eventually.

***

Nathan Rimme continues in his responses. 

Paul loathed the Greek culture of debating held ideas out until the untenability of one or the other fell away (yet his disciples claim the only way to do Christianity is to trust in its tenets and myths entirely).  I'm for it.

Here's what Rimme and I have said to date.  The trajectory reflects poorly on me but fuck it. It's at this time an ongoing exchange of letters, of sorts.



May 22, 2018 at 12:34 am
FullCottle,
Let’s get concrete. How familiar are you with the Bible? Do you think it has a main, overarching message? What part of that message do you think is unclear or up in the air?
+Nathan

May 22, 2018 at 1:56 am
Yeah it seems irrelevant to your post on originalism, but a decent extension of your Lutheran discipleship, which for you is no unimportant undertaking! The second half, which asserts that God reveals himself in full to the dedicated readers of the Word (or if you follow the Psalmist, through all creation), also seems to undercut the first half, which is that Christians are people who take reading the Bible “seriously.” The one is revelation to the called-out ones, the second is a commonplace trait of any adherent to a guiding text. (Nor does it rebut the bizarre assumption of Luther that mortal laws are “clear,” and therefore God’s “law” must be perfectly clear! Tell that to the Pharisees.)
The obvious problem with your parroting of the “meaning” of the term originalism as simply being some kind of assumed position whereby one “interprets” the Constitution based on “plain language and original public meaning” (two exercises so difficult they belie the simplicity of the terms deployed). Fish is wrong to say that “originalism,” which necessarily entails an epistemological / metaphysical undertaking in discerning meanings and then drawing rules from such meanings out of ancient texts, “is [per se] interpretation.” When you synopsize Fish and the originalist position (per Wikipedia) as simply referring to people who take the “words” of the Big C seriously, it is not much at all; even non-originalists take the “words” seriously; I have yet to see a non-originalist assertion that, e.g., Katz’s “right to privacy,” even if existing within the “umbra” of explicit Constitutional verbiage, could exist without such explicit verbiage; although many hypotheses could be advanced that a Katz-like decision could be so reached. Once you assert this undisputed, and unimportant, point, you then make the leap to an equally undisputed and unimportant point: that Christians take the words of the Bible seriously. Taking something seriously is, of course not originalist in and of itself. Taking “heresies” seriously is important for people who are concerned with heresies, which may be in the province of an originalist theologian or otherwise, no?
It is a red herring as to whether I (or anyone else) think that the Bible has an overarching message, which may be clear or well-established (or not). I’ll posit that there is no “one” message in the 66 books of the Bible, and to the extent that you think monolithic meaning-inferring is the task of the originalist (or any reader), I’ll rebut it.
From your reply and these two posts, it doesn’t sound like you have much considered originalism in any serious way (although I have found recently that many scholars and more than a few idiots have done so), and that’s fine; I just think that it does Biblical scholarship and jurisprudence a disservice to pay lip service to providing a gloss of originalism to the (arguably life-saving) task of Biblical understanding.

May 22, 2018 at 10:32 am
Josh,
“Nor does it rebut the bizarre assumption of Luther that mortal laws are “clear,” and therefore God’s “law” must be perfectly clear! Tell that to the Pharisees.)”
Luther was a serious student of the law. I don’t think he made that remark without much thought.
“I have yet to see a non-originalist assertion that, e.g., Katz’s “right to privacy,” even if existing within the “umbra” of explicit Constitutional verbiage, could exist without such explicit verbiage; although many hypotheses could be advanced that a Katz-like decision could be so reached.”
I don’t see how those persons could be considered to be taking the Constitution seriously at all.
Thanks, btw, for engaging here. I don’t doubt that I might learn something if you don’t lose patience with me due to my terse responses. : )
+Nathan

May 22, 2018 at 12:35 pm
Luther can make any remark he wants; it doesn’t make it an apt description of law. Certainly, many laws are clear; “you must be this tall to ride” only makes sense if the measure of height is accompanying the text, but “children 12 and under get in free” seems to mean what it says, and it may also mean that children 13 and over do not get in free, but it’s certainly not “clear” (to borrow a piece from Mitch Berman).
In fact, there are tons of judicial decisions in America alone dealing with “vague” laws, where such laws are struck for vagueness, or held inapplicable until changed. I don’t know what laws Luther analyzed, but such a terse, almost certainly overbroad generalization about the extreme clarity of “man’s law” is wrong; there’s a distinction between rhetoric and right.
I really fail to understand the “seriousness” as originalism or constitutionalism assertion, and I think some of the bigger points raised regarding the semiotics of law in the first responsive post would be a more fruitful area to begin working through in order to bring some enlightenment to this topic.

May 22, 2018 at 2:03 pm
FullCottle,
“‘children 12 and under get in free’ seems to mean what it says, and it may also mean that children 13 and over do not get in free, but it’s certainly not ‘clear’ (to borrow a piece from Mitch Berman).”
How is that not clear? Why would you not assume that is exactly what it means, implies? It seems your example already illustrates how wide the divide between us might be.
“there’s a distinction between rhetoric and right.”
And the best rhetoric is based on truth.
BTW, when Luther talks about the clarity of law, he certainly has in mind the 10 commandments — and would be eager to point out that whatever this or that culture might believe, all of their societal expectations and even laws will never really fully get away with the concerns expressed in the 10 commandments.
+Nathan

May 22, 2018 at 2:10 pm
Also, note what Luther says: “…if laws need to be luminous and definite in secular societies…”
He doesn’t say they always are. He says that it takes a lot of work to make laws that are clear, and that are meant to *not change* with the times.
As I have noted before, writing is an act of trust. It is not an act of trust like verbal communication with one’s fellows is an act of trust, for here one may correct others if misunderstood – that is, if one can be present. Writing, in one sense, would seem to secure the ongoing presence of the author. This however, is not the whole story. The act of writing presumes the presence of another who can be trusted to use the tool in a way that is responsible – that is making every effort to understand that the intentions of the author are understood as he would have intended and then applied in ways that are appropriate. Writing as an act of trust does not presume that all those who read can be trusted, but that there will be some who will make every effort to make sure that proper interpretation happens. Of course, authors can also take precautions themselves, writing in language that is clear and that takes into consideration not only other cultural contexts to the extent that they know about these, but also a particular breed of intellectually-inclined persons whose highest desire seems to be denial that there are some things in life that cannot be changed by our human interpretation, and our power to manipulate in general – through the other various tools they use to secure their version of reality.
+Nathan

May 22, 2018 at 3:13 pm
The sign regarding kids getting in free is not “clear” insofar as it does not necessarily, explicitly state that children over 13 must “pay,” or that “adults” over 13 must pay, or what it considers “children” – most people would say it SEEMS that the meaning is “people who are 12 years or younger are children, and must get in free; children who are not under 12 and any adult, whatever that term may mean in this society, do not get in free;” the fact that it has expressed a category as to who may enter for free does not, however, enjoin any other category from such access. And again, as I said about Fish’s sign, it may not “mean” that at all because there may be nothing to accompany the sign (consider the classic teen movie angsty boy bedroom door bearing the “DO NOT ENTER” sign, which appears at first pass more ironic than it does “meaningful”).
“all of their societal expectations and even laws will never really fully get away with the concerns expressed in the 10 commandments” – I do not know what this is saying – “get away with” the actions proscribed, or escape the “spiritual law” underpinning the Ten Words?
I think it is cheating to ascribe to Luther that he is only talking about a conditional “if” world with regards to secular laws; according to your excerpted passage, he actually says such laws are actualized (unless we read “and such laws” as more of a continuation of the “if” conditional, in which case his follow-up that God’s “divine law” must be perfectly clear actually says nothing, because the “if” conditional wasn’t met). So either Luther is saying “well, man’s laws should be clear, and God did give us such man’s laws, therefore God’s divine laws must be super clear,” which is a bad assumption and a huge argument about two things, clarity of man’s law and the divine dispensation of such laws, or he is saying “to the extent man’s laws are not clear, and/or are not provided by God, then God’s laws don’t have to be clear, either.” Cool, thanks man. That’s exactly what I think about law: they don’t need to be clear.
I concur with you that readership should engage in “good faith” readings of texts, and that there is a cottage industry of “bad faith” readings. I don’t think that this reflects into originalism or non-originalism in any meaningful way, either. Originalism, such as it is, tends to only be useful as a literary / lexicographic technique of binding authoritative texts, and not much else – critical reading can be useful to delve into why we assume originalism is viable as such a technique, and to the multiplicity of meanings and extrication one can derive from non-authoritative texts.

May 24, 2018 at 2:42 am
FullCottle,
Re: an answer to your first paragraph, I have nothing more to say. I repeat my previous comment about the sign.
““all of their societal expectations and even laws will never really fully get away with the concerns expressed in the 10 commandments”
Sorry — it should say “fully get away from”.
3rd para: the point is that if man recognizes the need for clear laws and strives for such, how much more so God?
“…critical reading can be useful to delve into why we assume originalism is viable as such a technique…”
Sigh. Different worlds.
+Nathan

May 24, 2018 at 1:22 pm
You just said that you think readers need to have good faith when engaging with a text. It looks like comments like “sigh different worlds” is a bit shy of the mark, no? Terseness is one thing, Professor. You still haven’t really come to the defense of originalism yet – you’re spending your time on ancillary remarks. That said, your treatment of the ancillary remarks is noteworthy of the mind at work.
1) You didn’t “say” anything about the sign. You just committed the text equivalent of bugging your eyes out at the idea that a sign which says “children 12 and under get in free” may not have what is called a “pragmatic implicature” that anyone who is not under the age of 12 must pay. Let’s try this one – “He who shall not work shall not eat.” If this was a law, do you think it means that the community must starve a man who does not work? Must imprison him in order to effectuate the injunction? Or that if he does not work, he will not have the right to participate in community dining experiences? Perhaps even the scavenge of the world will avoid him like the grapes and water did Tantalus? It SEEMS to say one simple thing, right? But certainly it cannot MEAN all of these things. Now for the “pragmatic implicature” (which entailed one of the meanings I just listed) – does such a law bar anyone else from feeding the man? It doesn’t say so, does it? Does it apply to invalids? To the ill? Or just to able-bodied men? Not to women? Not to children?
In other words, does a text which does not cover the full ambit of prohibitions and permissions not cover certain prohibitions or permissions? Is Moses the murderer to be condemned under the laws of God or of Egypt? is third-party defense an exception to murder, or a defense? (And if “even Egypt” outlawed murder, whoopdeedoo for the Israelites deciding to add that one to the list of no-no’s, too.)
2) What does it even mean to “get away from” the Ten Commandments, and what does it matter? Most communities don’t follow YHWH, and most people seem okay with paintings and sculptures of things under heaven these days, and have long before the Hebrews got lost walking 130 miles across the Sinai.
3) If Luther’s point with his remark on laws’ clarity is that “God” recognizes the need for clear laws, I’d love to know how he comes to assert the mind of God on this subject. This is pretty obviously a bastardization of Anselm’s atonement.

Wednesday, May 9, 2018

Secretary of State as Substitute Agent for Service of Process on Naughty Companies - a big mess



One day, a dumbass staff attorney working for a judge as a gatekeeper told me that default judgment wouldn't be signed by the judge unless a return of service for a company who had failed to maintain its registered office showed that the server had forwarded documents to the SOS. This was his understanding of Texas Business Organizations Code § 5.251. I asked him why he thought that and he immediately got sick of me. He couldn't really say. But he told me to read the "USAA rule," which I could only assume was the case from 2017 in the San Antonio Court of Appeals.

Besides the perplexing problem of being told that you can't argue before a court that service exists and you are entitled to default judgment because these third-rate imaginary lawyers don't think you are, and the way more worrisome fact that certain courts have apparently deemed it constitutional and lawful to delegate decision-making to non-judges, filling out a return of service on behalf of the SOS seems unnecessarily expensive and complicated, and almost never done except in some backwards courts.

Here's my writing on SOS service of process where the SOS stands in as an agent for service on a company which has failed to maintain its registered office in the state.

Some basics

Rule 103 says that process, including citations and "other papers issued by the court" can be served anywhere by "any person authorized by law or by written order of the court who is not less than eighteen years of age, or any person certified under order of the Supreme Court." Tex. R. Civ. P. 103. However, "no person who is a party to or interested in the outcome of a suit may serve any process in that suit." Id. Interesting.

Rule 105 says the "officer or authorized person to whom process is delivered" needs to "endorse thereon the day and hour on which he received it" and needs to execute and return without delay. Id. at R. 105. I've written about this elsewhere. Rule 107 adds that the "officer or authorized person executing the citation must complete a return of service" and then describes the return requisites. Id. at R. 107(a). Unfortunately for ol' Cottle, one of these requisites is that the return must be signed, and if signed by anyone not a sheriff, constable, or clerk of court, it be "verified or be signed under penalty of perjury." Id. at R. 107(e).

The Secretary of State is not a process server. They're just an agent who can be served with process (in some instances). Some of those instances that are germane to collectors' practices include companies who are supposed to have a registered agent at an address (the registered office) to pick up papers for service of process. When those registered agents aren't found at these registered offices despite due diligence (read: prove you tried to serve - Humphrey Co. v. Lower Water Wells, 709 S.W.2d 310 (Tex. App.--Houston [14th Dist.] 1986, no writ) (finding no due diligence exercised where petition and return both failed to show that failed service address was the defendant's registered office; Ingram Indus., Inc. v. U.S. Bolt Mfg., 121 S.W.3d 31, 33-34 (Tex. App.--Houston [1st Dist.] 2003, no pet.) (one attempt to serve agent at office showed due diligence)), and also if there's no record that the company has appointed a registered agent, then in both cases the SOS "is an agent of an entity for purposes of service of process, notice, or demand on the entity." This is the case for domestic or foreign entities doing bidness in Texas. Tex. Bus. Org. Code § 5.251(1). So, the SOS is not a process server; they're just a stand-in for the guy who should have received service. Someone still needs to do the serving. Therefore, someone still needs to fill out the return. Who can do that? Under Rule 103, it seems pretty clear: any of those good folks already described. Definitely not an attorney, right?

I dunno. Look at TBOC § 5.252. This section defines how to serve the SOS. "Service on the [SOS] . . . is effected by delivering to the [SOS] duplicate copies of the process . . .; and accompanying the copies with any fee required by law, including this code or the Government Code: for maintenance by the secretary of a record of the service; and forwarding by the secretary of the process . . . . Notice on the secretary of state under [this provision] . . . is returnable in not less than 30 days."

Well, it doesn't say who can send the materials over; it just says that "service is complete" when you do this. But if the Rules say that "service" can only be done in one of a few ways pursuant to Rule 106, then shouldn't we be reading this as a "special statute" susceptible of its own rules? In other words, because of the specificity and speciality presented by the Code, wouldn't it trump the general basics of the Rules? Maybe. Or maybe since it doesn't clearly conflict with the Rules, the only way to "serve" the SOS is through the proper "authorized person" or officer delivering to the SOS the required papers and fee, and no one else. I imagine that the figments were thinking something like this. Thinking, however, is a task these figments give good cause for others to doubt possible in their infirm cadre. If they had thought, I'd think they'd have found the Campus opinion from 2004 by our Supreme Court which says that the certificate of the Secretary of State is proof of service. What's a return but "proof of service"?

Let's dig into this a bit. Luckily, Blenden and Roth put a small paper on this out in one of the CLEs a while back, which combined well with some recent research I did on the subject. Blenden Roth thinks that in those cases where you try to serve on the agent at the office but can't find them, then an affidavit of non-service should be filed to support the record as to why service on the SOS was proper. After all, the SOS's Whitney certificate doesn't show anything other than that, someone at some time paid the SOS a fee to send some papers over; it doesn't show the papers, or why this address was picked, nor does it say "oh yeah that's on our records as the right address for the agent and office." Why not? Don't ask me. Get them to amend the law. This is dumb. See Humphrey Co., 709 S.W.2d at 311 (particular address on the certificate does not on its own establish the address was the registered office). God forbid the SOS, which charges a "fee" for someone to see where the registered office is per the SOS's own records (and fucks up on loading results way more than is needed for a "good website," necessitating a new hit and thus (probably) a new $1.00 fee per time their system "doesn't work"), do the simple task of checking its own records before taking the bribe to mail out stuff. Oh yeah: wrong address? No service. Westmont Hospitality Group, Inc. v. Morris, No. 07-07-0173-CV (Tex. App.--Amarillo Apr. 14, 2009, n.p.h.) (mem. op.).

Rule 107 says that if service can't happen, which is presumably the first step before asking the SOS to receive service of process, then the server should show diligence used to execute and why they failed, and where the defendant could be found if ascertainable. Tex. R. Civ. P. 107(d). You have to have the right address as a predicate for SOS service. Wright Bros. Energy v. Krough, 67 S.W.3d 271, 274 (Tex. App.--Houston [1st Dist.] 2001, no pet.) (only information showed attempts by mail at wrong address, without any affidavit or unexecuted return of service, required judgment reversed and remanded).

So there's no "return of service" to fill out - only an affidavit of due diligence or unexecuted return showing due diligence and where the address might be for the defendant. The Supreme Court of Texas came out and said that proof of service is established through the Whitney certificate alone. "As the purpose of Rule 107 is to establish whether there has been proper citation and service, the Secretary's certificate fulfills that purpose." This is so even if the plaintiff served out "a defective citation through substituted service on the Secretary of State." Why? The "defendant may bring a bill of review and establish those facts." Campus Invs., Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex. 2004) (per curiam).
The figments must be of the opinion that the Campus opinion is errant, and/or their lesser trial court judges in authority are right.
In summary: how to get a default judgment on a company through the SOS for failure to maintain a registered office in Texas
It seems that all that is required for a successful default judgment against a corporate defendant under Section 5.251 of the TBOC is to have established some evidence that the registered agent doesn't keep an office in Texas as required, or that after one effort (or more depending on the jurisdiction) at the correct office address, with the correct materials to serve, the server couldn't find the registered agent to serve. After that, someone has to forward service over to the SOS. The SOS then "receives" service and issues a certificate. Some needs to be in record showing why that address was the right one for them to try, and usually that could be done by having the server refer to the SOS's own electronic records showing that this was the correct address, and that service thereat would be successful. After that, the certificate is proof positive of service and no further return need be filled out.

Interesting note about Campus in light of the Katy Venture opinion from 2015 - if a plaintiff knows where the "right address" is, you can't put the registered office address you know isn't good in the "certificate of last known address." It's a no-no, and will entitle someone to a bill of review. If they hadn't updated the SOS with their correct address for the registered office, then this would be negligence of their own design under Campus which would not expose a default judgment to attack. So you can serve them at an address you know is no good, but make sure you certify that the "last known address" is the right one. The thinking being: they'll at least have the chance to file a timely postjudgment motion or other form of attack on the default judgment. Isn't law fun?

About those bozos mentioned above...

So what about Bozo the Clown I mentioned above?

The guy cited to a case called USAA v. Werlein, a San Antonio COA decision. Let's read along, shall we, to learn how the lesser half thinks.

USAA files restricted appeal from default judgment. Restricted appeal means, basically, the appellant is limited to the face of the record to show "obvious error" on the part of the decision. For default judgments, the only pertinent issues are a) proper pleadings, b) proper service, c) deadline to answer or appear passed before taking default judgment, and d) return of service was on file proper time before taking default judgment. Implicit within these basics are a host of rules and principles, like due process, jurisdiction, fair notice etc. This is all spelled out in the Rules.

The "face of the record" is just the papers on file at time of the challenged order. So in most default judgment cases, that means the petition, citation and return. Some folks are a bit more clever and bundle discovery into the petition, so you can get that worked in as well. There's not much need for other things since no answer means less to do. Yazdchi v. Wells Fargo, No. 01-15-00381-CV, 2016 WL 6212998, at *2 (Tex. App.--Houston [1st Dist.] 2016, no pet.).

No presumptions of valid issuance, service or return of citation are allowed on restricted appeals. So if the record does not show strict compliance with the Rules regarding such citation operations, then service will be found invalid, and thus any resulting default judgment improper. Comply or die. Ins. Co. of the State of Pennsylvania v. Lejeune, 297 S.W.3d 254, 256 (Tex. 2009). 

The court made its decision on the return, since the return was what USAA was harping about on appeal. Because the return of service on file did not show what was served with the citation, it was found invalid. A return of service needs to explain everything served, or it fails to "show service of any pleading." Yazdchi, 2016 WL 6212998, at *2. In USAA's case, the return didn't indicate a petition was issued. Error in face of record. Default judgment improper. Reversed and remanded.

Damn, dude, that really sounds a lot like a ruling that the Secretary of State's Whitney certificate is invalid to show service. How does such a sterling academic end up in such a menial role for society?