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Judges and social media: according to most judicial ethics commissions, it’s a dicey proposition that doesn’t always work out well for judges. As I’ve discussed in past columns, more often than not, judges are chastised by judicial ethics commissions for their online interactions. In many cases, the conclusions are based on knee jerk reactions to “newfangled technology” and are grounded in an inherent misunderstanding of the nature of online platforms and interactions.
Such is the case with the Supreme Court of New Mexico’s decision last week in State v. Thomas, No. 34,042. In this case, the defendant contended that social media postings by the district court judge exhibited judicial bias, where, during the pendency of the trial, the judge posted comments to his election campaign Facebook page regarding his role in the case and his opinion of its outcome.
After issuing this unfortunate mandate, the Court then proceeded to provide some conflicting guidelines designed to assist judges who choose to interact on social media.
So, essentially, the Court’s position seems to be that judges should avoid all public communications when interacting online, even communications as benign as, “Here’s a photo of my new granddaughter. Isn’t she cute?” or “What a game last night! Go Bills!” The Court asserts that it’s not creating a bright line rule prohibiting social media use by judges, but the apparent prohibition against public communications —which are the very essence of social media — seemingly belies this claim. For that reason, the Court missed the mark and I would respectfully suggest that the Court’s conclusions regarding judges using social media will not withstand the test of time.
Regular readers of my column know that every summer I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris. During the course of my research for the update, I read thousands of criminal law cases handed down over the past year with an eye toward locating those holdings that affect substantive issues relating to the Penal Code. And, given my passion for the intersection of law and technology, I also take an interest in those cases where technology impacts the Penal Code. People v. Marion, 49 Misc.3d 562 (Crim. Ct. City of New York, 2015) is just such a case.
From January 17, 2015 to April 17, 2015, I have received over 100 Instagram messages from the defendant. Specifically, one of the messages stated, “I wish you would let me find you tonight” and “I'll always be by your side.” From January 17, 2015 to April 8, 2015, I have received approximately 10–15 emails from the defendant at both my work and personal email addresses. From January 17, 2015 to January 19, 2015, I have received approximately 80 [calls] from a phone number which I know belongs to the defendant.
I believe that the court missed the mark with this conclusion, both in terms of: 1) its assertion that subsection 2 covered the alleged conduct and 2) its conclusion that subsection 3 required that the conduct occur at the physical workplace.
First, subsection 2 requires a higher standard of harm —that material harm be shown — whereas subsection 3 only requires that the conduct is “likely to result in harm.” Undoubtedly the reason that a lower standard of harm was required for subsection 3 is due to the fact that individuals have more at stake when they are stalked at work; not only are they emotionally affected, they may be financially affected as well. Thus, a lower level of harm is required to be shown.
So the court’s assertion that subsection 2 necessarily covers all situations where emails are sent to a person’s business email address is incorrect. A person may receive emails at a business address that are “likely to result in harm” due to the possibility that the employer may discover them but do not actually result in harm as required by subsection 2.
Next, the statute specifically forbids repeated contact that includes “initiating communication…at such person’s place of employment or business.” Sending an email to an individual’s work address undoubtedly constitutes the act of communicating with someone at their place of business. That’s the entire point of a “work” email address versus a personal one. A work email address is where people receive the vast majority of communications relating to their work, and oftentimes, employers have full access to all emails received in that account.
For those reason, I submit that the court interpreted this subsection far too literally, through a narrow, 20th century lens. I am confident that this myopic view of Penal Law 125.45(3) will not withstand the test of time.
My regular readers know that I typically focus on the intersection of law and technology in this column. But occasionally I come across an issue or case unrelated to technology that merits further comment. Edwards v. Nicolai, 160830/13, a New York County Supreme Court decision, is just such a case.
At issue in this case was whether the plaintiff’s claims alleging gender discrimination could survive a motion to dismiss. The plaintiff alleged that because she was fired due to jealousy on the part of her employer’s wife, who believed that she was “too cute,” that she was discriminated against based on her gender.
Justice Shlomo Hagler completely misses the point. Certainly both men and women can be attractive. But in this case the issue was whether the plaintiff was terminated either because she was attractive to her male employer or because his wife believed he felt that way. In other words, was she terminated due to her uniquely feminine traits that may have appealed to her employer, a (presumably) heterosexual male?
Contrary to the Court’s assertion, she did not allege that she was terminated because she was an objectively attractive person; she was terminated because she was a woman - one who was believed to be attractive to her heterosexual male employer.
Had she been an objectively attractive male, this would never have been an issue since her employer’s wife would not have felt threatened in that situation. Instead, the allegations were grounded in the claim that she was terminated because she was a woman and her employer was a man. The termination occurred due to her uniquely feminine qualities—traits that would not have been appealing to her employer if she were a man.
This case sets dangerous precedent and allows an employer to fire an employee on the grounds that s/he was attracted to said employee due to his or her gender. The terminations would not occur because the employer was, as Judge Hagler asserts, attractive, but would instead occur because the employer-given his or her unique sexual orientation-found the employee attractive specifically because of his or her gender.
This ruling will give employers a free pass to terminate employees based solely on their gender, as long as the employer can claim that s/he happens to be attracted to that particular gender. If that’s not impermissible gender discrimination, then I’m not sure what is.
California legislators and court officials are taking a stand. It’s a murky, misguided one, lacking in common sense, but it’s a stand nonetheless. It’s a stand against progress, the Internet, and the looming threat of this newfangled thing called social media. And they’re going to win this fight, no matter what the cost to the jury and judicial system.
At least, that seems to be their end goal, but I could be wrong. It’s a bit hard to tell since they’re so caught up in preventing conduct that’s been around as long as the jury system (but now wears a 21st century mask) that it’s difficult to discern the rationale behind their muddled thought processes.
Let me back up. I’m getting a bit ahead of myself. Let’s start with the facts. There is California legislation pending that is supported by state court officials that will result in fines being imposed on jurors (up to $1,500) for using the Internet to research and communicate about pending cases. This legislation was drafted in response to the purported threat of increasing mistrials due to juror misconduct.
Now let’s face reality. Mistrials have always occurred due to juror misconduct. Jurors have always disregarded court instructions and researched cases using outside resources. This is nothing new.
In the past, jurors read newspapers or watched the evening news to obtain information about pending cases. Jurors also discussed the cases with their spouses or neighbors. Nowadays, jurors continue to use more traditional methods to learn about cases and parties, but also have the Internet available to them and conduct online research and share their experiences via social networks.
The only difference is that jurors’ impermissible online activities can now be documented and tracked. It’s a simple matter to access digital data evidencing a blatant disregard of a court’s instructions, but it’s another matter entirely to prove that a juror read a newspaper or spoke to another person about a pending case in violation of a judicial order to refrain from doing so. So, because the violative digital interactions are more easily preserved, more mistrials may be arising due to those particular actions.
But it’s important to acknowledge that it’s not the behavior that has changed, it’s the method. Jurors are violating court orders in more trackable ways. And now that judges can prove jurors are ignoring them, heads are gonna roll! Jurors heads. Ok not their heads. But their wallets will most certainly be impacted. And that’ll teach ‘em, right?
One thing it will undoubtedly teach them is that sitting on a jury is a risky—and potentially costly—business. Instead of encouraging citizens to participate in the democratic process of serving on a jury, this legislation will have the opposite effect. People will be more reluctant to serve on juries and our judicial system will suffer. Jurors will find ways to avoid jury duty (and potential fines) and the concept of “ a jury of your peers” will become an antiquated concept that is so 20th century.
If that’s the goal of the California legislature, then Bravo! They’re well on their way to stifling voluntary citizen participation in the jury process. But it that’s not the intention, then perhaps it would be wise to reconsider penalizing jurors for simply being human in the 21st century.
Once again, social media and the law collide, this time in the Western District of New York. In March, United States Magistrate Judge Marian Payson handed down a decision in Thurmond v. Bowman, 2016 WL 1295957 addressing allegations that the plaintiff should be sanctioned for spoliation after revising the privacy settings to her Facebook account.
Two interesting issues were addressed in this case, which arose from claims that the defendants violated the Fair Housing Act and other statutes when they declined to rent an apartment to the plaintiff after learning that she had two children: 1) whether spoliation sanctions were warranted for the alleged inadvertent deletion by the Plaintiff of 3 Facebook posts and 2) whether sanctions were warranted due to the plaintiff’s revision of the privacy settings of her Facebook account after being warned by the court to preserve there status quo of her Facebook account.
First, the court considered the motion for spoliation sanctions. The defense alleged that the Facebook postings at issue were relevant to the Plaintiff’s claims of emotional distress. They asserted that they had accessed the Plaintiff’s publicly viewable Facebook posts and had printed out many of them. Then a few days later—after the court had admonished the Plaintiff to preserve the status quo of her Facebook account—many of the posts were no longer publicly available and it was later learned that three of the posts consisting of photos of the Plaintiff’s children had been deleted from her account. The motion seeking spoliation sanctions then followed.
So let this be a lesson to you: tread carefully when it comes to advising clients regarding preserving social media account information, especially when litigation is pending. And always ensure that the social media data—all of the digital data, not just the printed version—is preserved and available for disclosure. Otherwise spoliation sanctions will undoubtedly follow, to the detriment of your client’s case.
Every year, as I work on the annual update to the book, Criminal Law In New York, which I co-author with Judge Karen Morris, I take notice when I come across cases where social media and criminal law intersect. People v. Lemons, 2016 WL 1735472, which was pointed out to me by my fellow Daily Record columnist Scott Malouf, is just such a case.
In 2012, the American Bar Association amended the comments to Model Rule 1.1 to include the requirement that lawyers “should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” (Emphasis added). Since that time, more than 20 states have followed suit and required that their attorneys likewise educate themselves about the ever-changing legal technology landscape.
Now the New York State Bar Association’s Committee on Standards of Attorney Conduct is proposing changes to the Rules of Professional conduct themselves (as opposed to the comments) (online: http://www.courts.state.ny.us/rules/comments/PDF/ProfConduct.pdf). After reviewing the ABA’s 2012 updates to the Model Rules, the Committee suggested that a number changes be enacted that directly affect New York lawyers’ obligations regarding technology. Let’s take a look at a few of the more notable recommendations.
First there’s the proposed change to Rule 1.0 which expands the definition of "computer-accessed communication” and clarifies that it includes any “electronic communication or any other form of recorded communication or recorded representation,” including those specifically enumerated in the rule.
There were also proposed changes to Rule 1.4, which addresses lawyer communications with clients. The proposed changes amend the current role to replace the more narrow term ''telephone calls" with the broader “communications,” which obviously encompasses the ever-expanding array of digital communications.
Next, Rule l.6(c), which addresses confidentiality of information issues, was also touched by the proposed changes. The new version expands upon the current version and requires that lawyers themselves take reasonable efforts to safeguard client information instead of simply obligating them to ensure that their agents do so, as the current version of the rule now requires.
In the past I’ve criticized the current version of the rule to the extent that it requires lawyers to supervise and oversee those with expertise outside the realm of the lawyer’s training, such as IT expertise. To the extent that the revised language simply requires lawyers to take steps to ensure that they’ve vetted the third parties to whom they outsource IT or data storage, then this language makes sense. This is especially so given the revision to the comments to Rule 1.1 (discussed above) which requires lawyers to stay abreast of changes in technology. In other words, lawyers must take steps to educate themselves about technology so that they’ll have a basic understanding sufficient to allow them to vet third party technology providers.
At least, that’s my perspective. If yours differs, make sure your voice is heard! The Bar is now seeking comments from New York lawyers regarding proposed changes. Comments should be sent via email to rulecomments@nycourts.gov through June 1st.

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On February 13, March 11, and March 15, 2015, the Delaware Department of Justice (“DOJ”) received from Ms. Marcia L. Schieck and other property owners several complaints (collectively, the “Schieck Complaint”) alleging violations by the Town of Dewey Beach, Delaware (the “Town”)1 of the open meetings and public records provisions of the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA”).
On March 3, 2015, the DOJ received from Dell Tush and several other property owners a separate complaint (the “Tush Complaint”) raising issues substantially similar to those raised by the Schieck Complaint.
On March 11 and June 19, 2015, respectively, we received the Town’s responses to the Tush and Schieck Complaints. In accordance with 29 Del. C. § 10005(e), we are treating the Schieck and Tush Complaints jointly as a petition for a determination (hereinafter referred to jointly as the “Petition” or the “Petitions”) by the DOJ as to whether the Town violated FOIA. We render no opinion regarding compliance with any other applicable law of the State of Delaware.
2) Public Hearing regarding the possible purchase of real estate located at 1503 and 1505 Coastal Highway, Dewey Beach, Delaware. See item 2 below.
• There are no minutes of a special meeting held by the Town Commissioners on January 2, 2015 to discuss the sale of another real estate asset.
On March 11, 2015, we received from Ms. Schieck and various other property owners a second letter (the “March 11 Letter”) described by the authors as an “addendum” to the initial Schieck Complaint. The March 11 Letter enclosed several email messages between Mayor/Commissioner Hanson, Commissioner Jasinski, Mr. Appelbaum, and Jim Deedes (Assistant Town Manager). According to the March 11 Letter, the emails collectively demonstrate (among other things) that Hanson, Jasinski, Applebaum and Deedes colluded in private to sell and purchase the Properties without informing the other commissioners, conducted serial meetings in violation of FOIA, and intentionally delayed the fulfillment of Ms. Schieck’s February 6, 2015 public records request. Ms. Schieck also concludes that the emails prove that Hanson, Jasinski, Appelbaum and possibly other administrative staff “had full knowledge of the Town’s interest in purchasing the land on Route 1” as early as December 7, 2014, and repeatedly provided property owners with misleading and/or false information.
The March 11 Letter also takes issue with a January 13, 2015 email from Mayor Hanson to the commissioners that urged them “to take advantage of meeting with Marc and/or Nancy so you are well informed about the budget,” and argues that any discussion of the budget between the mayor and the commissioners violated FOIA because the commissioners are required to discuss the town budget during public meetings.
1. The Dewey Beach Town Council violated [FOIA provisions] related to open meetings and any other provisions of FOIA laws by failing to convene a public meeting to discuss and vote to authorize Mayor Diane Hanson to identify property, determine contract terms and price, allocate $25,000.00 in escrow funds and to grant Mayor Hanson the authority to act on Council’s behalf in executing the Agreement of Sale for Delaware Commercial Property for the purchase of 1503 and 1505 Coastal Hwy, Dewey Beach, Delaware on January 31, 2015.
2. The Town Council violated [FOIA] by posting an agenda for its March 14, 2014 Council meeting under Regular Agenda item 2. The description did not accurately represent what was being discussed.
With respect to allegation 1 of the March 18 Letter, the Property Owners argue that Mayor Hanson signed the Agreement without the prior authorization of the Town Council in violation of the Town Charter.29 The March 18 Letter also questions the validity of the vote itself since of the three commissioners who voted in favor of the Agreement, two were involved in the negotiation of the purchase of the property.
With respect to allegation 2 of the March 18 Letter, the Property Owners contend that the Notice and Agenda of the March 14, 2015 Town Council meeting was misleading. Specifically, item 2 of the agenda indicates that the Town will discuss the sale of real estate, and does not mention the purchase of the Properties. Accordingly, the Property Owners contend that the public was not provided notice of the Council’s intention to discuss and vote on the approval of the Agreement.
• The January 17, 2015 Town Manager’s Meeting violated FOIA’s notice requirements.
Fred Townsend, Esq., writing on behalf of the Town, submitted responses to the Petitions on March 11 and June 19, 2015. The Town contends that the Town Council did not violate FOIA because the Agreement was contingent upon the Town’s approval of the purchase of the Properties, and the approval vote occurred at the Town’s public meeting held on March 14, 2015. Additionally, the Town submits that it did not violate FOIA when it did not disclose the minutes of the meetings held in executive session in June and October 2014. The Petitioners requested those minutes in February; at that time, the disclosure of the June and October meeting minutes would have “defeated the purposes of the executive session” because the “site acquisition” was pending. The Town further notes that a redacted version of the minutes was provided to Petitioners on March 11, 2015. However, the Town admits that it did not prepare minutes for the meeting held on January 2, 2015.
Based on our review of the record of this case, we have identified several potential FOIA violations, each of which will be discussed below.
We find that the Town cited a proper purpose for entering executive session on June 20 and October 11, 2014, and that the respective agendas for the June 20 and October 11 meetings sufficiently described that purpose. We therefore conclude that the June 20 and October 11, 2014 meeting agendas did not violate FOIA.
II. The Town’s Failure to Maintain Minutes of Executive Session Portion of Meetings Held on June 20 and October 11, 2014.
III. Whether Email Communications between Mayor Diane Hanson, Town Manager Marc Appelbaum and Commissioner David Jasinski During December 2014 and January, 2015 Constituted “Serial” Meetings that Violated of FOIA.
The Petitions allege that certain email messages between Mayor Hanson, Mr. Abbelbaum and Commissioner David Jasinski, sent during December 2014 and January 2015, constituted “serial” meetings that violated FOIA’s open meetings laws. The emails at issue included discussions of the Town’s potential acquisition of the Properties and discussions of negotiations between Mayor Hanson and a local realtor. There is no evidence in the record to suggest that any commissioners other than Mayor Hanson and Commissioner Jasinski were involved in or aware of these email discussions.
While the email discussions between Mayor Hanson, Mr. Appelbaum and David Jansinski indisputably involved “public business”, we cannot conclude that the discussions amounted to a meeting for purposes of FOIA. No quorum of members was involved in the email discussions of the Properties. Indeed, it appears that the other three Commissioners first became aware of the Agreement after Mayor Hanson sent email notifications to the Commissioners on January 31 and February 2, 2015.48 While it is perhaps troubling that the Commissioners were not involved in a public discussion regarding the potential acquisition of the Properties, the Agreement itself was expressly contingent upon final approval by the Commissioners.49 We cannot find that the email communications, standing alone, constituted a “serial” meeting in violation of FOIA.
On July 29, 2015, we asked the Town Solicitor, Mr. Townsend, whether minutes were created for the January 2, 2015 Town meeting. Mr. Townsend informed our office that no minutes were created for the open portion of the January 2 meeting. However, minutes were created for the executive session portion of the January 2 meeting. According to Mr. Townsend, no public business was discussed during the open session of the January 2 meeting. Rather, the sole purpose of that portion of the meeting was to permit the Town Commissioners to vote to enter executive session. Mr. Townsend further informed our office that the Town Commissioners agreed to adopt the minutes of the open portion of the January 2 Meeting at a public meeting held on August 14, 2015.
Section 10004(f) of FOIA requires a public body to “maintain minutes of all meetings.”53 We find that the Town’s failure to maintain minutes of the January 2, 2015 meeting constituted a violation of FOIA.
The Petitioners allege that the notice and agenda of the January 17, 2015 “Town Manager’s Meeting” failed to comply with FOIA’s notice requirements. We conclude that the January 17, 2015 notice and meeting agenda complied with FOIA. The notice and agenda for the meeting were posted on January 10, 2015, at least seven days in advance of the January 17, 2015 meeting as required by 29 Del. C. § 10004(e)(2). There is no evidence or allegation that the Town posted the notice and agenda in a manner that violated 29 Del. C. § 10004(4), or that the meeting was held in a location not permitted by 29 Del. C. § 10004(g). Therefore, we find no FOIA violation in connection with the Town Manager’s January 17, 2015 public meeting.
In this case, the Town was required to, and did, respond to Ms. Schieck’s FOIA request by February 27, 2015. However, the Town’s response did not comply with FOIA. FOIA requires a public body to provide one of three permissible reasons for delayed delivery of public records.60 Here, the Town informed Ms. Schieck that it was processing her request and, without further explanation, explained that the records would be ready in approximately 2 weeks. Ms. Schieck did not receive records responsive to her request until March 6, 2015.61 We find that the February 27, 2015 response to Ms. Schieck’s February 6, 2015 request for public records violated 29 Del. C. § 10003(h).
The Petitions allege that the March 14, 2015 meeting agenda was misleading because it did not adequately put the public on notice that the Town would take a vote to ratify the Agreement. We disagree and find no FOIA violations with respect to the March 14, 2015 meeting agenda.
We find that the March 14, 2015 agenda provided adequate notice to the public of the Town’s intention to ratify the Agreement. The agenda indicated that the Commissioners would discuss and potentially vote on the acquisition of the Properties at the March 14, 2015 meeting. The agenda itself indicated the precise addresses of the properties under consideration. There were no broad generalities concerning the Properties such that a member of the public could not determine that the Properties would be discussed and possibly voted on at the meeting. Therefore, the agenda for the March 14, 2015 meeting complied with FOIA.
We find that only two of the numerous issues raised in the Petitions constitute FOIA violations: the failure of the Town to provide a timely and appropriate response to Ms. Schieck’s February 6, 2015 request for public records; and the failure of the Town to record minutes of its January 2, 2015 public meeting. However, we decline to find that any action taken by the Town was invalid because we do not believe that these violations affected substantial rights of the public.
With respect to the February 6, 2015 FOIA violation, the Town provided responsive records to Ms. Schieck on March 6, 2015. Ms. Schieck has not alleged that those records were not responsive or that the Town otherwise failed to comply with her request. Ms. Schieck’s only complaint appears to be with respect to the timeliness of the Town’s response. While we urge the Town to promptly respond to all public records requests in a manner that complies with 29 Del. C. § 10003(h), or to note with specificity that the request is under legal review or requires additional time for another statutorily permissible reason, we nonetheless find that Ms. Schieck’s complaint with respect to the February 6, 2015 request for public records is moot and requires no remediation.
The Town Solicitor informed us that the Town did not create minutes of the public session of the January 2 meeting until recently. Mr. Townsend represented that no public business was discussed during the public session of the January 2 meeting. According to Mr. Townsend, the purpose of the Town’s public session was to vote to enter executive session. The Town voted to adopt the January 2, 2015 public session meeting minutes at a regularly scheduled meeting held on August 13, 2015. We find no further remediation is required.
We understand that the Petitions are primarily concerned with the Town’s decision to enter the Agreement and potentially spend significant public funds without first discussing the issue at a properly noticed public meeting. We further understand that the petitioners believe this decision violated the Town’s Charter and other State laws. However, FOIA is a limited statute designed to fulfill a particular purpose: to guarantee that “public business be performed in an open and public manner.”68 While Delaware’s general assembly granted enforcement powers to our office under Sections 100005(b) and (e) of FOIA, the scope of those powers is limited to reviewing and issuing determinations regarding actual or potential violations of FOIA. FOIA does not carry with it the power to police towns’ compliance with their charters or any other applicable law.
We find that the Town did not violate FOIA when it voted to sell the Ruddertowne Space or when it voted to approve the purchase of the Properties. The Town did violate FOIA when it failed to provide a statutorily acceptable response to Ms. Schieck’s February 6, 2015 request for public records. Finally, the Town violated FOIA when it failed to prepare minutes of its January 2, 2015 meeting.
1 The Town of Dewey Beach is governed by the “Commissioners of Dewey Beach.” The Town’s Charter provides that “[t]he government of the Town and the exercise of all powers conferred by [the] Charter . . . shall be vested in the Commissioners of Dewey Beach.” According to the Town’s Charter, the “Commissioners of Dewey Beach” (also known as the “Town Council”) consists of five members. One of the Commissioners must have the title “Mayor of the Town of Dewey Beach.” During all times relevant to this matter, the “Commissioners of Dewey Beach” included Mayor Diane Hanson, David Jasinski, Anna Legates, Gary Mauler, and Courtney Riordan. See Charter of the Town of Dewey Beach at Section 3, available at http://ecode360.com/12077425 (last visited July 29, 2015). See also http://www.townofdeweybeach.com/Town-Council/. It is undisputed that the Town Council is a “public body” subject to FOIA’s open meeting laws. See 29 Del. C. § 10002(h).
2 Because of the fact-specific questions raised in the Petition, we briefly summarize our understanding of the relevant facts. Please note that we do not, in the context of evaluating petitions for determination under FOIA, operate as an independent fact-finding body. We have also omitted any factual information that does not directly relate to the FOIA violations raised in the Petition.
3 See March 11, 2015 Response Letter, at p. 1; Minutes of July 19, 2013 Town Commissioner Meeting (attached as “Exhibit F” to the Tush Complaint).
6 Section 15 of the Town Charter permits the Town Mayor, “with the concurrence of a majority of all elected Commissioners of the Town,” to appoint a “Town Manager.” The Town Manager serves as the Chief Administrative Officer of the Town, the Secretary of the Commission of the Town, and the Treasurer of the Town. The Town Manager is not a member of the Town Council, but is required to perform various duties described in Section 16 of the Town Charter. Many of the Town Manager’s duties are subject to approval by the Town Commissioners. See Charter of the Town of Dewey Beach, Delaware, at Section 16, available at http://ecode360.com/12461111.
7 See Minutes of July 19, 2013 Town Commissioner Meeting (attached as “Exhibit F” to the Tush Complaint).
8 See Town Commissioners Meeting Agendas for June 20, 2014 and October 11, 2014.
9 Flood, Chris, Dewey signs contract for town hall expansion, Cape Gazette (February 3, 2015) (attached as “Exhibit J” to the March 11 letter complaint received from Marcia Schieck and other property owners).
10 See Minutes of January 24, 2014 Town Commissioner Meeting.
11 Flood, Chris, Dewey signs contract for town hall expansion, Cape Gazette (February 3, 2015) (attached as “Exhibit F” to the Schieck Complaint dated February 13, 2015). The Petitions question whether this transaction was in the best financial interests of the Town and accuse the Commissioners of failing to explore other bids for the Ruddertowne Space. Because such concerns are outside the scope of this opinion, no determinations concerning the propriety of the sale of the Ruddertowne Space are made herein.
13 See March 11, 2015 letter complaint from Marcia Schieck and other property owners.
14 See Buyer Agency Agreement, dated December 12, 2014.
15 See Agreement at p. 9.
16 See id. at p. 1.
17 Id. at p. 8.
18 See February 2, 2015 email from Mayor Diane Hanson to the Town of Dewey Beach Commissioners (attached as “Exhibit J” to the March 11 letter complaint received from Marcia Schieck and other property owners).
19 February 4, 2015 email from Anna Legates to Mayor Diane Hanson (attached as “Exhibit D” to the March 11 letter complaint).
22 See Town Manager Meeting Agendas for meetings held on January 17, 2015 and March 7, 2015.
23 Agenda of Town Meeting held on March 14, 2015.
24 See March 18, 2015 letter complaint from Marcia Schieck, et al.
25 The February 13 letter complaint raises numerous allegations that the Town Council, the Mayor, and the Town Manager, among other things, violated its charter and the public trust, and engaged in “haphazard and reckless” decision making regarding the Ruddertowne Space and the purchase of the Properties. The Property Owners also complain that many of these critical meetings were held during the winter months when the majority of property owners would not be in attendance, that Mayor Hanson’s written communications to the Town’s property owners misrepresented critical information, and that Mayor Hanson and the Town Manager failed to obtain appraisals of the various real estate properties involved prior to entering the agreements of sale on behalf of the Town.
These accusations do not relate to the Town Council’s obligations under FOIA. Rather, most of these claims relate either to alleged violations of the Town Charter or the alleged breach of fiduciary duties of the Town Council, the Mayor and the Town Manager. As these issues fall outside the scope of this office’s review, we decline to address them in this Opinion.
26 Flood, Chris, Dewey signs contract for town hall expansion, Cape Gazette (February 3, 2015) (attached as “Exhibit F” to the Schieck Complaint dated February 13, 2015).
27 See Notice of Executive Session, dated October 11, 2014; February 10, 2015 email to Maria Schieck (attached as “Exhibit H” to the February 13 letter complaint). According to Mr. Townsend’s March 11, 2015 response letter, the Petitioners were provided with a redacted version of the October 11, 2015 executive session meeting minutes on March 11, 2015.
28 See Photo, Elena L., Dewey enters contingency contract to acquire $875,000 property without any public meeting, discussion, or vote, Dewey Beach News (Feb. 3, 2015) (Claiming that the Town Commissioners did not vote on potential site acquisitions during the public portion of the October 2014 meeting even though Agenda Item 17 indicated that a vote would occur).
29 Because this allegation does not state a violation of FOIA, the legal significance of this claim will not be addressed by this Office.
30 The Tush Complaint raises several additional legal issues (i.e., breach of fiduciary duties, violation of the Town Charter and Town Code, etc) that do not relate to FOIA. These matters will not be addressed by this Office in this determination.
31 For purposes of this determination, we assume that Ms. Tush submitted a separate request for public records on February 6, 2015.
33 29 Del. C. § 10004(a).
35 See 29 Del. C. § 10004(c).
36 Town Commissioners Meeting Agenda for meeting held June 20, 2014.
37 Town Commissioners Meeting Agenda for meeting held October 11, 2014, at item 13.
38 29 Del. C. § 10004(b).
39 O’Neill v. Town of Middletown, 2007 WL 2752981, at *7 (Del. Ch. Mar. 29, 2007).
40 29 Del. C. § 10004(f) requires all public bodies to maintain minutes of all meetings, including executive sessions, conducted pursuant to FOIA. Although FOIA does not require that the Town store or maintain meeting minutes in any particular location, section 10004(f) requires public bodies to make meeting minutes available for public inspection and copying as a public record.
41 According to the October executive session meeting minutes, the Town discussed litigation matters, personnel matters, and a possible site acquisition during that portion of the meeting. The minutes also indicate that “[n]o actions or votes were taken at this meeting.” Although the Petitions and a local newspaper allege that the Town voted to approve action taken by Mr. Appelbaum regarding a site acquisition during the October 2014 executive session portion of the meeting, the minutes clearly indicate that no such vote was taken.
42 Section 10004(f) permits a public body to withhold “minutes or any portions thereof” taken during the executive session portion of a meeting “so long as public disclosure would defeat the lawful purpose for the executive session.” See also 29 Del. C. § 10004(l)(10) (exempting from public disclosure, “any record of discussions held in executive session pursuant to § 10004(b) and (c).”).
43 29 Del. C. § 10002(g).
44 29 Del. C. § 10002(j).
45 See Att’y Gen. Op. 08-IB03 (“[A] public body may achieve a quorum for purposes of FOIA through serial discussions which allow members of a public body ‘to receive and comment on other members’ opinions and thoughts, and reach a consensus on action to take.’”).
46 Att’y Gen. Op. 06-ID20, at p.2 (quoting Att’y Gen. Op. 06-ID16, at p.4).
48 See February 4, 2015 email from Anna Legates to Mayor Diane Hanson, attached as “Exhibit H” to March 11 letter (expressing concern that the Agreement was signed without input from the Town Council).
49 Agreement at p. 9, Clause 32.
50 See 29 Del. C. § 10004(e)(2)-(5); (g).
51 See Agenda for Town Council Executive Session and Open Meeting, held January 2, 2015.
52 The Petitions also challenge the Commissioners’ decision to hold a meeting during the winter and shortly after the holidays when most property owners are not in town. We are sympathetic to Petitioners’ concerns—the purpose of FOIA is to ensure “that public business be performed in an open and public manner.” 29 Del. C. 10001. However, FOIA does not require that public meetings be scheduled in such a way to ensure maximum public attendance. As discussed above, FOIA only requires that public bodies schedule meetings in a manner that complies with 29 Del. C. § 10004.
53 29 Del. C. 10004(f).
54 See March 6, 2015 Letter from Town of Dewey Beach Manager to Ms. Marcia Schieck, attached as “Exhibit A” to the March 11 Letter. The Tush Petition also states that Ms. Tush requested public records on February 6, 2015. Because the Tush Petition did not enclose the original FOIA request submitted to the Town, only the Schieck request is addressed herein.
55 See February 27, 2015 email from Ashleigh Hudson to Marcia Schieck (attached as “Exhibit B” to the March 11 Letter).
56 See 29 Del. C. § 10003(1).
57 See March 6, 2015 Letter from James Dedes, Assistant Town Manager, to Ms. Maria Schieck, regarding Ms. Schieck’s February 6, 2015 FOIA request (attached as “Exhibit A” to the March 11 Letter).
58 29 Del. C. § 10003(h)(1).
61 See March 6, 2015 Letter from James Dedes, Assistant Town Manager, to Ms. Maria Schieck, regarding Ms. Schieck’s February 6, 2015 FOIA request (attached as “Exhibit A” to the March 11 Letter).
62 Att’y Gen. Op. 12-IIB13, 2012 WL 6858971, at *4 (Dec. 21, 2012).
63 Ianni v. Department of Elections of New Castle County, 1986 WL 9610, at *5 (Aug. 29, 1986) (Allen, C.).
65 Att’y Gen. Op. 12-IIB13, 2012 WL 6858971, at *5 (Dec. 21, 2012).
67 See, e.g. Att’y Gen. Op. 08-IB07, at *9, 2008 WL 2397495 (May 23, 2008) (declining to recommend any remediation because the FOIA violations were harmless and resulted in no prejudice to the public rights created by FOIA); Att’y Gen. Op. 04-IB02, 2004 WL 257223, at *3 (Jan. 28, 2004) (remediation unnecessary where public body decided not to take the action agreed upon at public meeting held in violation of FOIA); Att’y Gen. Op. 97-IB18, 1997 WL 606482, at *3 (Sept. 2, 1997) (remediation unnecessary where decision reached during meeting held in violation of FOIA no longer applicable).
68 29 Del. C. § 10001.


It is a good business decision to form a corporation in Mississippi because the state provides strong infrastructure and transportation. The economy of the state is also quite healthy with the GDP in quarter 1 of 2018 at $111,707 million. The contribution of various industries to the GDP of the state at the end of quarter 1 of 2018 was $114,330 million with the largest industry being real estate followed by ambulatory health care services.
How do you form a Mississippi business LLC or Corporation? There is a certain process that you will be required to follow for proper registration of your business in the state. We have provided a small guide to help you in getting an insight into the process.
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If you are planning to form a Limited Liability Company in Mississippi then you will be required to continuously maintain a registered agent in Mississippi in the state pursuant to MS Code § 79-29-106 (2010). This law is applicable for domestic limited liability companies as well as foreign limited liability companies. We would take this opportunity to share with you the fact that we are one of the top registered agents in the state and have been responsible for over 11,494 businesses set up in Mississippi. We can assist you to form a Mississippi business LLC.
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If your business entity is a foreign corporation then you will be required to file a “Certificate of Authority” to transact business in the state pursuant to MS Code § 79-4-15.03 (2013).
The application or documentation for registration of a corporation can be filed with the office of the Mississippi Secretary of State, through mail or online.
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DEPARTMENT OF GAME OF WASHINGTON et al. Nugent KAUTZ et al., Petitioners, v. DEPARTMENT OF GAME OF WASHINGTON et al.
Argued March 25 and 26, 1968.
Rehearing Denied Oct. 14, 1968.
Arthur R. Knodel and Jack E. Tanner, Tacoma, Wash., for petitioners.
Joseph L. Coniff, Jr., and Mike Richard Johnston, Olympia, Wash., for respondents.
George S. Woodworth, Portland, Ore., for State of Oregon, as amicus curiae.
Mr. T. J. Jones III, Boise, Idaho, for Idaho Fish and Game Dept. as amicus curiae.
These cases present a question of public importance which involves in the first place a construction of the Treaty of Medicine Creek made with the Puyallup and Nisqually Indians in 1854 (10 Stat. 1132) and secondly the constitutionality of certain conservation measures adopted by the State of Washington allegedly impinging on those treaty rights.
These suits were brought by respondents in the state court against the Indians for declaratory relief and for an injunction. The trial court held for respondents and with exceptions not relevant to our problem the Supreme Court affirmed in part and remanded for further findings on the conservation aspect of the problem. Department of Game v. Puyallup Tribe, 70 Wash.2d 245, 422 P.2d 754; Department of Game v. Kautz, 70 Wash.2d 275, 422 P.2d 771. We granted the petitions for certiorari and consolidated the cases for oral argument. 389 U.S. 1013, 88 S.Ct. 584, 19 L.Ed.2d 659.
The fish to which the Treaty rights pertain in these cases are salmon and steelhead, anadromous fish that hatch in the fresh water of the Puyallup River and the Nisqually River. The steelhead is a trout; the salmon are of four species—chinook, silver, chum, and pink. They come in from the ocean, pass through the salt water of Puget Sound, enter the fresh waters at the mouths of rivers, and go up these rivers to spawn. The adult salmon die after spawning, but not necessarily the steelhead. In time the fry return to the ocean and start the cycle anew.
The 'right of taking fish at all usual and accustomed places, in common with' citizens of the Territory under a treaty with the Yakimas was involved in United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. The lands bordering the Columbia River at those places were acquired by private owners who under license from the State acquired the right to fish there and sought to exclude the Indians by reason of their ownership. The Court held that the right to fish at these places was a 'continuing' one that could not be destroyed by a change in ownership of the land bordering the river. 198 U.S., at 381, 25 S.Ct., at 664. To construe the treaty as giving the Indians 'no rights but such as they would have without the treaty' (198 U.S., at 380, 25 S.Ct., at 664) would be 'an impotent outcome to negotiations and a convention which seemed to promise more, and give the word of the Nation for more.' Ibid. In Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555, the Court construed the same provision liberally so as to include all 'accustomed places' even though the Indians shared those places with other Indians and with white men, rejecting a strict, technical construction not in keeping with the justice of the case.
It is in that spirit that we approach these cases in determining the scope of the treaty rights which the Puyallups and Nisqually obtained.
The treaty right is in terms the rights to fish 'at all usual and accustomed places.' We assume that fishing by nets was customary at the time of the Treaty; and we also assume that there were commercial aspects to that fishing as there are at present. But the manner in which the fishing may be done and its purpose, whether or not commercial, are not memtioned in the Treaty. We would have quite a diferent case if the Treaty had preserved the right to fish at the 'usual and accustomed places' in the 'usual and accustomed' manner. But the Treaty is silent as to the mode or modes of fishing that are guaranteed. Moreover, the right to fish at those respective places is not an exclusive one. Rather, it is one 'in common with all citizens of the Territory.' Certainly the right of the latter may be regulated. And we see no reason why the right of the Indians may not also be regulated by an appropriate exercise of the police power of the State. The right to fish 'at all usual and accustomed' places may, of course, not be qualified by the State, even though all Indians born in the United States are now citizens of the United States. Act of June 2, 1924, 43 Stat. 253, as superseded by § 201(b) of the Nationality Act of 1940, 8 U.S.C. § 1401(a)(2). But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.
'(W)hile the treaty leaves the state with power to impose on Indians equally with others such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here.' Id., at 684, 62 S.Ct. at 864.
In other words, the 'right' to fish outside the reservation was a treaty 'right' that could not be qualified or conditioned by the State. But 'the time and manner of fishing * * * necessary for the concervation of fish,' not being defined or established by the treaty, were within the reach of state power.
'(S)urely it was within the competency competency of the nation to secure to the Indians such a remnant of the great rights they possessed as 'taking fish at all usual and accustomed places.' Nor does it restrain the state unreasonably, if at all, in the regulation of the right.' 198 U.S., at 384, 25 S.Ct., at 665.
'We do not think that it is a proper construction of the reservation in the conveyance to regard it as an attempt either to reserve sovereign prerogative, or so to divide the inherent power of preservation as to make its competent exercise impossible. Rather are we of the opinion that the clause is fully satisfied by considering it a reservation of a privilege of fishing and hunting upon the granted lands in common with the grantees, and others to whom the privilege might be extended, but subject, nevertheless, to that necessary power of appropriate regulation, as to all those privileged, which inhered in the sovereignty of the state over the lands where the privilege was exercised.' 241 U.S., at 563—564, 36 S.Ct., at 707—708.
'The salmon are milling and delaying, and especially in times of law water or early arrival of the run or for any number of reasons, the delay may be considerable.
'Once again the fish are available to the net again and again. This is the main reason for the preserve, so that the milling stock will not be completely taken.
'Then further, this is a point in the bay at the river mouth where you very definitely have a funnelling effect.
It should be noted that while a reservation was created by Article II of the Treaty, Article VI provided that the President might remove the Indians from the reservation 'on remunerating them for their improvements and the expenses of their removal, or may consolidate them with other friendly tribes or bands.' Article VI also gave the President authority alternatively to divide the reservation into lots and assign them to those individuals or families who were willing to make these places their permanent home. In 1887 Congress passed the General Allotment Act (24 Stat. 388) authorizing the division of the reservation land among the individual Indians. In 1893 Congress passed the Puyallup Allotment Act, 27 Stat. 633, which established a commission to make the allotments. And by the Act of April 28, 1904, 33 Stat. 565, Congress gave 'the consent of the United States' to the removal of prior restrictions on alienation by these Indians. The trial court in No. 247 found that all lands within the boundaries of the reservation created by the Treaty have been transferred to private ownership pursuant to these Acts of Congress, with the exception of two small tracts used as a cemetery for members of the tribe; and much of it is now in the City of Tacoma. See State v. Satiacum, 50 Wash.2d 513, 314 P.2d 400 (1957). Whether in light of this history the reservation has been extinguished is a question we do not reach. Cf. Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 356—359, 82 S.Ct. 424, 427, 429, 7 L.Ed.2d 346. The Washington Supreme Court seems to hold that the right to fish in streams once within the old reservation is protected by the Article III guarantee. See 70 Wash.2d, at 261, 262, 422 P.2d, at 763, 764. There are indeed no other fishing rights specifically reserved in the Treaty of Medicine Creek except those covered by Article III.
Fishing for salmon in the high seas is governed by a convention agreed to by Canada, Japan, and the United States on May 9, 1952, 4 U.S.T., Pt. I, p. 380, T.I.A.S. No. 2786. As to sockeye salmon and pink salmon, the United States and Canada have a separate convention first signed May 26, 1930, and amended as of July 3, 1957. 8 U.S.T., Pt. I, p. 1057, T.I.A.S. No. 3867.
Washington bars the use of nets in fishing for salmon in the international waters of the Pacific. Wash.Rev.Code § 75.12.220.
Wash.Admin.Code §§ 220—16—010 to 220—48—060 (salmon); Wash. Dept. of Game, Perm.Regs. Nos. 32—35 (1964), Temp.Reg. no. 273 (1968) (steelhead).
Wash.Rev.Code. §§ 75,28.010—75.28.380; §§ 77.32.005 77.32.280.
Wash. Dept. of Game, Perm.Reg. No. 34 (1964).
Wash.Rev.Code § 75.12.140 defines the permissible areas for reef net fishing. Section 75.12.010, while containing a prohibition against commercial fishing in a large salt water area, allows the director of fisheries to permit commercial fishing there within stated times and with prescribed gear. And see Wash.Admin.Code §§ 220—32—010 to 220—32—030 (Columbia River area); §§ 220—36—010 to 220—36—020 (Grays Harbor area); §§ 220—40—010 to 220—40—020 (Willapa Harbor area); §§ 220—48—010 to 220—48—060 (Puget Sound area). Commercial fishing in other areas is banned. Wash.Rev.Code § 75.12.160; Wash.Admin.Code § 220—20—010.
Wash.Rev.Code § 75.12.280. It appears that the monofilament type of gear (made of plastic) is less visible in clear water in daylight than the nylon web.
Petitioners in No. 247 argue that the Washington courts lacked jurisdiction to entertain an action against the tribe without the consent of the tribe or the United States Governement (citing United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 and Turner v. United States, 248 U.S. 354, 39 S.Ct. 109, 63 L.Ed. 291), viewing the suit as one to 'extinguish a Tribal communal fishing right guaranteed by federal Treaty.' This case, however, is a suit to enjoin violations of state law by individual tribal members fishing off the reservation. As such, it is analogous to prosecution of individual Indians for crimes committed off reservation lands, a matter for which there has been no grant of exclusive jurisdiction to federal courts.
See, e.g., DeMarrias v. State of South Dakota, 319 F.2d 845 (C.A.8th Cir. 1963); Buckman v. State, 139 Mont. 630, 366 P.2d 346 (1961). With respect to crimes committed by Indians within reservation boundaries, see 18 U.S.C. §§ 1153, 1162. And see § 401(a) of Title IV of the 1968 Civil Rights Act, Pub.L. No. 90284, 82 Stat. 78; Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346; United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195.
A purse seine is a type of gear that encircles a school of fish, lead weights taking the net down, and a boat operating at each end of the net. A line runs through rings on the bottom of the net, making it possible to close the bottom of the net. Wash.Admin.Code § 220—16—010(15).
A gill net has a mesh which fish cannot back out of once their heads get through. Gill net fishing is drift fishing, the net being up to 1,800 feet in length. Wash.Admin.Code § 220—16 010(8).
Purse seines and drift gill nets are used in salt water.
Set gill nets are often anchored at one end, stretched on a cork line, and held down by weights, while drifting at the other end. They are often located one above another at a short distance. Fish are taken by hadn out of the nets as a boat travels its length. The mesh in the gill net varies, depending on the size of the species of salmon that are running—chinook, 8 to 8 1/2 inches; silver, chum, and sockeye, 5 1/2 inches. Set gill nits and sockeye, 5 1/2 inches. Set gill nets width of the river at the point they are used. Wash.Admin.Code § 220—16—010(19).
Much emphasis is placed on Maison v. Confederated Tribes of Umatilla Indian Reservation, 314 F.2d 169 (C.A.9th Cir. 1963), where another treaty right pertaining to other Indians was tendered in opposition to Oregon's power to regulate salmon fishing in the interests of conservation. This Treaty gave the Indians the right to fish off the reservation at all 'usual and accustomed stations in common with citizens of the United States.' Id., at 170. The Court of Appeals held that Oregon could regulate the Indians' Treaty right to fish under two conditions: first, that there is a need to limit the taking of fish, second, that the particular regulation sought to be imposed is 'indispensable' to the accomplishment of the needed limitation.' Id., at 172.
As to a 'regulation' concerning the time and manner of fishing outside the reservation (as opposed to a 'tax'), we said that the power of the State was to be measured by whether it was 'necessary for the conservation of fish.' 315 U.S., at 684, 62 S.Ct., at 864.
The measure of the legal propriety of those kinds of conservation measures is therefore distinct from the federal constitutional standard concerning the scope of the police power of a State. See Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93; Williamson v. Lee Optical Co. of Okl., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 69 S.Ct. 550, 93 L.Ed. 632; Olsen v. State of Nebraska, etc., 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305.


Introduction. When it comes to taxes many people seem to believe that they will never go away, and they can’t be discharged in bankruptcy. A great bankruptcy attorney can help. I’m happy to report that this perception is not entirely true. While it is true that some taxes cannot be discharged, and special rules apply to taxes so they are not like ordinary debts, at least some taxes can be discharged in bankruptcy. That means they disappear forever.
Trust fund taxes. The two most common types of taxes that individuals are assessed with are income taxes and trust fund taxes. Trust fund taxes cannot be discharged. These kinds of taxes mostly apply to business owners. They are taxes that are collected from a third party to be paid over to someone else, i.e., the government. For instance, when an employer withholds income tax, Social Security tax, and Medicare taxes from an employee, these taxes are supposed to then be paid to the U.S. Treasury. In essence, the employer holds the money in trust to be paid over to the government. The same is true of sales taxes and other state non-income taxes. If the taxes are not paid to the government, the individual business owner is often assessed for these taxes, but they are not dischargeable in bankruptcy by either the owner or the business.
i. Three-Year Rule: The tax year in question is one for which the return was last due, including extensions, more than three (3) years before the filing date of the bankruptcy petition. The three-year period is computed from the most recent date of the tax return due for the tax year (typically April 15 of the year following the taxable year). An extension to file the return delays the eligibility date to the next due date even if the return is filed earlier. 11 (a)(8)(A)(i).
ii. Two-Year Rule: A tax return has been filed by the debtor/taxpayer or the tax year(s) in question are at least more than two (2) years preceding the filing date of the bankruptcy petition. Even when no tax return is filed, the tax may still be dischargeable in a Chapter 13. 11 U.S.C. §(a)(1)(B).
iii. 240-Day Rule: The tax liability sought to be discharged was first assessed at least more than 240 days preceding the filing date of the bankruptcy petition (plus any period of overlapping time during which an offer in compromise made during such day period was pending, plus 30 days). This rule is designed to avoid a situation, in which a taxpayer files an offer in compromise to delay collection, and then withdraws it and immediately files bankruptcy. 11 U.S.C. §507(a)(8)(A)(ii).
iv. Non-Fraudulent Return: The tax return in question must be non-fraudulent. 11 U.S.C. §523(a)(1)(C).
v. No Willful Tax Evasion: The debtor/taxpayer has not engaged in an activity that is deemed to be a willful attempt to defeat or evade the tax. 11 §523(a)(l)(C).
vi. Assessable But Not Yet Assessed: The tax claim has not been assessed before but is assessable, under applicable law or by agreement, after the commencement of the case and does not relate to (1) an unfilled tax return, (2) a return filed late but within two years before the petition filing date, (3) a fraudulent return, or (4) a situation where the debtor willfully attempted to evade a tax. 11 §507(a)(8)(A)(iii); 11 U.S.C. §523(a)(1)(B)(i) or (ii) and 523(a)(1)(c).
vii. Lien Remains on Exempt Assets.
B. Chapter 13 — Determining Factors for Discharge of Taxes in Chapter 13 Based on Rules for Discharging Taxes in Chapter 7.
i. The Three-Year Rule, always applies.
ii. The Two-Year Rule, doesn’t apply.
iii. The 240-Day Rule, may apply.
iv. Fraudulent Return, doesn’t apply.
v. No Willful Tax Evasion, doesn’t apply.
vi. Assessable But Not Yet Assessed, will apply but only if the debtor was a compliant taxpayer.
II Substitute for Return. If for some reason you did not file a return and the IRS filed a return for you, that disqualifies that year for which a return was filed by the IRS for a discharge even if you later file your own return. Typically a return filed by the IRS is not accurate because it does not allow for deductions or credits the taxpayer might be entitled to take. But even if the taxpayer later files his own return, the filing by the IRS renders that year non-dischargeable forever.
The right attorney. The above list is a summary of the most common rules affecting dischargeability. However, there are other technical rules that can also impact dischargeability, and specifically your case, so as you can see, the discharge of taxes is a highly technical area and should not be attempted without consulting with an experienced attorney in both tax and bankruptcy laws such as Setareh Mahmoodi. We look forward to helping you.
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code. Our bankruptcy attorneys are here to help!


text:
The chairman of the supervisory board is Marco Romswinkel. He is a tax advisor and based in Greven.
Mario Knepper is the deputy chairman of the supervisory board. He is a lawyer and tax advisor and partner of MEYER-KÖRING Rechtsanwälte Steuerberater Partnerschaftsgesellschaft mbB, a nationally and internally acting law- and tax firm, based in Bonn and Berlin.
Ralf Scholz is a member of the supervisory board. After his studies in commercial studies at the university of Bonn and his doctor’s degree at the economic faculty of Cologne university, he took up several leading positions in the insurance sector. Today, he is an entrepreneur and managing director of CDA Consulting & Development Alliance GmbH, which focuses on the consulting of international insurance companies, investment companies and financial institutions.
MAYLAND AG is registered under HRB 36686 at the local court in Duesseldorf. The sales tax identification is DE 198485357.
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Within the scope of our activities as a consulting firm for mergers & acquisitions, we operate a large number of different operations. We process personal data of entrepreneurs (data relating to entrepreneurs is only personal data if the entrepreneur is a natural person) or of employees of companies. The respective companies or entrepreneurs may have a contractual or pre-contractual relationship with us, but in individual cases we may also process data from companies and their employees if no such pre-contractual relationship exists. In the following sections we inform you about the purposes, the respective legal basis as well as the storage period of these processing by companies or company employees and the data categories, as far as we do not collect the personal data from the person concerned. The data will be deleted as soon as they are no longer necessary to achieve the respective purpose, i.e. there is no longer a contract with the business partners or customers and we no longer intend to enter into a contract with the respective business partner or customer, there is no longer any legitimate interest and we are also no longer legally obliged to retain documents which may contain personal data.
We process personal data for the purpose of contract management, i.e. in order to provide our business partners or customers with the services covered by the contract and for the purpose of corresponding contract preparations. If the business partner or customer is a natural person, the legal basis is that the processing is necessary for the fulfilment of a contract or for the implementation of pre-contractual measures pursuant to Art. 6 para. 1 lit. b GDPR. If we process personal data of employees of the business partner or customer, the legal basis is a legitimate interest according to Art. 6 para. 1 lit. f GDPR. The legitimate interest lies in the execution of our business activities and those of the business partner or customer. There is no conflicting interest on the part of the person concerned in this respect, because from the perspective of our business partner or customer processing by us within the framework of the existing employment relationship with the person concerned is already necessary (§ 26 BDSG-neu). For this purpose we store personal data for the duration of the contract.
In addition, we store accounting documents for a period of ten years and business letters, i.e. any message relating to the preparation, execution or cancellation of a transaction, for a period of six years in order to fulfil our legal retention obligations.
We process the personal data of our business partners or customers, interested parties or their employees, received in connection with our business activities, as contact persons within the framework of the initiation, conclusion and execution of a contract and also after the end of the contract or, if no contract is concluded, for the purpose of business and customer support and in order to be able to use or provide suitable services ourselves in the event of a new inquiry by the business partner as well as customers or interested parties, based on the previous contract conclusions, the offers or inquiries received. The legal basis is a legitimate interest pursuant to Art. 6 para. 1 lit. f GDPR. The legitimate interest lies in the implementation of our business activities. For this purpose we store personal data as long as we assume that the respective customer can conclude a further or first contract with us in the future, which is the case until the business partner or customer concerned declares to us that under no circumstances will he ever conclude a contract with us.
We process personal data of our business partners and/or customers as well as other entrepreneurs and companies not in a business relationship with us and, in this context, also of the contact persons there, if applicable, for the purpose of sending any invitations, insofar as legally permissible. The legal basis is a legitimate interest within the meaning of Art. 6 para. 1 lit. f GDPR. The legitimate interest lies in the processing of personal data for this purpose itself (cf. recital 47 GDPR). The data subjects have the right to object at any time to the processing of personal data concerning them. You can raise this objection at any time under the contact data mentioned in paragraph 1. We store the data for this purpose as long as we are interested in concluding a contract with the company concerned or until an objection has been declared.
The technologies mentioned above are not used on our website.
Cross-references („links“) to the contents provided by external providers are to be distinguished from the contents of our own. By setting a link to external websites („hyperlinks“) we do not adopt this website or its content as our own, as we cannot constantly control the content on these pages. Furthermore, the company is not responsible for the availability of these websites or their contents. The use of hyperlink connections to these contents is at the user’s own risk.
MAYLAND is not liable for direct or indirect damages incurred by the user from the use and existence of the information on these websites. Furthermore, MAYLAND is not liable for the freedom from viruses of the information accessed by the user.
You can ask us to confirm whether personal data concerning you will be processed by us.
– Any available information on the origin of the data if the personal data are not collected from the data subject.
This right to information may be limited to the extent that it is likely to make it impossible or seriously impair the realization of statistical purposes and the limitation is necessary for the fulfilment of statistical purposes.
You have a right of rectification and/or completion vis-à-vis the data manager if the personal data processed concerning you is incorrect or incomplete. The person responsible shall make the correction without delay.
– If you have filed an objection to the processing pursuant to Art. 21 para. 1 GDPR and it is not yet clear whether our justified reasons outweigh your reasons. If the processing of personal data concerning you has been restricted, such data may only be processed – apart from being stored – with your consent or for the purpose of asserting, exercising or defending rights or protecting the rights of another natural or legal person or on grounds of an important public interest of the Union or a Member State.
– You revoke your consent, on which the processing was based pursuant to Art. 6 para. 1 lit. a or Art. 9 para. 2 lit. a GDPR, and there is no other legal basis for the processing.
– You file an objection against the processing pursuant to Art. 21 para. 1 GDPR and there are no overriding legitimate reasons for the processing, or you file an objection against the processing pursuant to Art. 21 para. 2 GDPR.
– The deletion of personal data concerning you is necessary to fulfil a legal obligation under Union law or the law of the Member States to which we may be subject.
– The personal data concerning you have been collected in relation to information society services offered pursuant to Art. 8 para. 1 GDPR.
– For the assertion, exercise or defense of legal claims.
– Processing is carried out using automated methods.
In exercising this right, you also have the right to request that the personal data concerning you be transferred directly from one party responsible to another party responsible, insofar as this is technically feasible. The freedoms and rights of other persons must not be affected by this.
At any time you have the right to object, for reasons arising from your particular situation, to the processing of personal data concerning you, which is carried out on the basis of Art. 6 para. 1 lit. e or f GDPR.
Without prejudice to any other administrative or judicial remedy, you have the right of appeal to a supervisory authority, in particular in the Member State where you are staying, working or suspected of infringement, if you believe that the processing of personal data concerning you is contrary to the GDPR.
We reserve the right to change this data protection declaration in compliance with data protection regulations. You will find the current version at this point or at another easily accessible point on our website.

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John F. Kautzman is a life long Indianapolis resident and graduated from North Central High School in 1977. John graduated from Indiana University in 1981 and the Indiana University Robert H. McKinney School of Law in 1984. He joined the Ruckelshaus law firm in 1985 and also served as a Circuit Court Commissioner for several years.
Mr. Kautzman served as the 2005 President of the Indianapolis Bar Association and remains on the IBA Board of Directors. He is the Immediate Past President of the Metropolitan Bar Caucus of the National Conference of Bar Presidents. He is a Distinguished Fellow of the Indianapolis Bar Foundation. He maintains memberships in several professional affiliations, including the Indianapolis Bar Association, the Indiana State Bar Association and the American Bar Association. He is a past President of the Indiana University Foundation Board of Associates and is a Life Member of the Indiana University Alumni Association. Mr. Kautzman is also a past Chair of the Indiana University Robert H. McKinney School of Law Board of Visitors.
John is admitted to practice in all Indiana State and Federal Courts. His practice includes both civil and criminal litigation, and he has served as lead counsel on a number of high-profile State and Federal Court jury trials, including the first televised Federal Court jury trial in State history. He has also successfully appeared before both the Indiana Court of Appeals and the Indiana Supreme Court for Oral Argument. Mr. Kautzman is listed in Who’s Who, is a frequent seminar speaker, and is on the faculty of the ICLEF Trial Advocacy Skills College. He has consistently placed on the Indiana Super Lawyers list for achieving peer recognition as one of the top five percent of attorneys in Indiana.
John represents individuals and organizations on a broad range of legal matters, and focuses primarily in general litigation, criminal defense, personal injury, and law enforcement discipline and liability defense.
Mr. Kautzman practices in the following areas: Administrative Law, Appellate Practice, Civil and Criminal Litigation, Disciplinary Hearings, Personal Injury, Police and Firefighter Representation, DUI Defense, and Epungements.
Served as lead counsel in more than 100 State and Federal Jury Trials including 1st televised Federal Court Jury Trial in State history; a $42 Million class action trial court judgment; and several other high profile civil & criminal trials.
Reported cases include more than 50 Appellate decisions, including Criswell v. State of Indiana, Littleton v. State of Indiana, State v. Fettig, Ingram v. City of Indianapolis, Arden v. State Employees Appeals Commission, and City of Indianapolis v. Fields.

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D.C. Law Library - § 29–102.04. Withdrawal of filed record before effectiveness.
↪ § 29–102.04. Withdrawal of filed record before effectiveness.
§ 29–102.03. Effective time and date.
§ 29–102.05. Correcting filed record.
§ 29–102.04. Withdrawal of filed record before effectiveness.
(a) The parties to a filed record may withdraw the record before it takes effect.
(b) To withdraw a filed record, the parties to the record shall deliver to the Mayor for filing a statement of withdrawal.
(3) If not filed by all parties, state that the filed record has been withdrawn in accordance with the agreement of the parties.
(d) Upon filing by the Mayor of a statement of withdrawal, the action or transaction evidenced by the original filed record shall not take effect.
This section is referenced in § 29-102.12, § 29-608.12, § 29-708.10, and § 29-807.06.
The 2013 amendment by D.C. Law 19-210 substituted “’Upon filing by” for “On the delivery for filing to” in (d).