text:
If you’d like to be notified of new posts, let me know via the Contact page and I’ll add you to my subscribers’ e-mail list.
The Clawbies have kindly awarded this blawg runner-up as best legal culture blog, 2016. Thank you everyone at Stem Legal/The Canadian Law Blog List, Steve Matthews, Emma Durand-Wood, the late Simon Fodden, and Jordan Furlong.
Section 33: Parliament or the legislature of a province may expressly declare in an Act…that the Act or provision thereof shall operate notwithstanding a provision included in section two or sections seven to 15 of this Charter.
Ontario premier Doug Ford’s promise to invoke the notwithstanding clause – so that he immediately can limit Toronto City Council to 25 councillors, notwithstanding Justice Edward Belobaba’s decision that his current attempt to do this, out of the blue, in the middle of the council’s election campaign, is unconstitutional – is not the first time that section 33 of the Canadian Charter of Rights and Freedoms has become a household phrase across Canada. Remember Aught-Six?
That was the federal election year that pitted Paul Martin’s Liberals against Stephen Harper’s Conservatives. During a leaders’ debate, Paul Martin said that, if re-elected (which he wasn’t), he would repeal the section. The proposal never made it into the Liberal platform, however, probably because of the bizarre hoo-hah that rose against Martin’s promise, but also because of the near impossibility of getting two-thirds of the provinces with at least fifty percent of the country’s population to approve a constitutional amendment … after the amendment had received Parliamentary approval.
Of course his mistrust has been justified over the years, but only rarely, and probably no more than now, in Ontario, where the section has been invoked because the premier is trying to replant the Ford nation flag in Toronto. Bizarrely, he doesn’t seem to comprehend that becoming premier of Ontario is more than compensation for his losing the Toronto mayoralty race to John Tory.
Mind you, Ford betrayed his motives, and displayed his lack of acumen for the job as the province’s chief lawmaker, by claiming that, while he was elected by the people, Belobaba J. had been appointed by Dalton McGuinty, the former Liberal premier. Apparently Ford is so impressed with his new powers that he believes he can run Toronto City Council (and flip the bird at Tory), but also appoint Superior Court justices. The latter are, in fact, appointed by the prime minister. Justice Belobaba was appointed by (irony alert) Paul Martin.
a lousy translation of the Latin phrase non obstante, common in our law from the 15th century and used regularly, until recently [when we “democratically” dumbed everything down by eradicating all Latin from juristic usage], in Canada’s legal discourse. Non obstante first appeared on the rolls of the English Parliament in 1444, regarding ‘notwithstanding clauses” in grants of patent. The full original catch phrase, now usually reduced to “notwithstanding anything in this Act” or “notwithstanding” certain provisions, was non obstante aliquo statuto in contrarium – literally, “other statutes being no barrier to” what this particular statute says. In the context of section 33, if statute X were said to operate non obstante Charter sections two, etc., statute X would exist in a universe separate from the Charter. The Charter would “be no barrier” to the validity of statute X.
As I concluded in 2006, Martin’s repeal proposal “was a risky and strange thing, but it was not an ignoble thing. And this got lost in the translation.” Funny how short our memories are these days, and not just because of that other impulsive authoritarian south of the border.
The second of two posts about the time I was a teenage prime suspect, until I slid extravagantly off the Wanted List in my own tears and sighs… Read Part One here.
In any event, I now understood why the police felt compelled to question me. My shock and profound hurt were not about whether they had reasonable and probable grounds; it was about injustice, that my former colleagues had dropped me in the soup, with no forethought, compunction, or sense of irony. Clearly they had felt nothing for me, knew nothing about me, and didn’t want to know.
So, without consulting Herbie, who throughout the whole business remained blasé (yes, possibly because I was more than sufficiently outraged for the both of us), I offered to take a polygraph. I pretty well dared the detectives to administer it, which seemed to surprise them, but they accepted the offer. Cousin Herb drove me back to Littleton, where the detective introduced us to the polygraph examiner. As Herb and the detectives watched from behind a one-way mirror, the examiner chatted with me for what seemed a couple of hours but probably was considerably less, mostly about the polygraph process. And as a pedant even in my youth, I had to admit that I found his monologue fascinating, such that I had just about forgotten that I was accused of what was possibly a felony. Apparently that was the reaction the examiner had intended, and it was why Herb congratulated him when it was all over, for a job well done. And yes, as my lawyer made nice with the authorities like this I experienced the hot flush of what I have come to recognize as the client’s “What the hell?” moment, as when your lawyer calls opposing counsel “my learned friend” or chats in a friendly way with the court clerk or the woman prosecuting you. What the hell?
It turned out that, upon answering questions even of this utterly innocuous nature, my chest expanded and then deflated so extravagantly under the measuring strap, he could tell I was “unusually conscientious.” The extravagance was especially convincing, apparently, on more contorted questions such as “I was Jeffrey Miller the day before yesterday and I still am today.” “The machine says that you thought carefully before answering those baseline questions,” the examiner said, “to be accurate even on things you knew were not in question.” Apparently – absurdly – I thought just as hard about whether I had ever taken a typewriter belonging to a daycare centre. I remain that sort of nebbish, albeit a nebbish now with a licence “to practise before Her Majesty’s courts.” Reflexively, I am prone to think the worst of myself, worse even than others might, no matter the evidence.
It might have been transference or the Stockholm syndrome, and it certainly was unmitigated relief, but by the time we were done I felt that the examiner and I could have been best friends. I think I probably wanted to hug him, which is another reason I suppose I can forgive Herb his praise of the guy. The examiner remained politely non-committal. I gushed an apology to the detectives for my earlier outburst, and, to their credit, they actually seemed abashed (never mind their having arranged the polygraph exam). Maybe that was the spillover of my transference, but I imagine they got yelled at a lot, albeit not generally in the way I had done, in words of two, three, or more syllables. Still, as my first experience with a lawyer reached its denouement, Herb seemed a little chummier with the cops than I thought he had to be. But of course, at the time, all I understood was my own hurt, never mind what I learned later to call exculpation. I did not see that it was in the interest of Herb’s future clientele, and possibly good spade-work for future advocacy not to mention politics, that he develop good relations with the prosecution.
And even though whatever injustice existed was mild compared to the graver injustices of the world, I felt the hurt of this for decades. I haven’t been able to write about these events until now, forty-five years after they happened, never mind that I have mined and retailed just about every other experience of my life in my long career as a writer, most often on legal subjects. But like probably every painful event, they have sharpened my acquaintance with justice as against law, a distinction that has permeated my work, but also my life and most adamantine principles.
A couple of years ago I started writing a memoir called Hauled to the Bar: A Life in Law and Letters, in Spite of Myself. I haven’t worked on it much, partly because of the uncomfortable memories, such as the one below, that is meant to serve as the prologue. To make for easier reading online, I have divided it into two posts.
Before I went to law school in 1979, at the age of twenty-eight, the only lawyer in my family was my third cousin, Herbie Galchinksy. During my childhood in Denver, I saw him maybe a couple of times, at a wedding or a bar mitzvah. But suddenly, when I was twenty-two, nasty coincidence threw us into an intense lawyer-client relationship. Within the month, I was scheduled to fly to Canada to begin my studies in the Graduate English Department at the University of Toronto. But now those plans were looking sickly. A day-care centre whose employ I’d recently left, to take up selling blue jeans and dashikis at a trendy clothing shop nearer my home, had been burglarized. I was the prime suspect.
Cousin Herb would later become a Denver County judge, and notorious as “Herbie the Love Judge” for augmenting his $141,156 government pay with about $63,000 in fees (at least in the year reported by the Denver Post) by moonlighting as an officiant at weddings. But his unromantic job of the moment, in August, 1973, was to accompany me to police headquarters in Littleton, a suburb of Denver now notorious as the site of the Columbine High School shootings. While I was at a movie matinee in Denver proper, two Littleton detectives had visited my parents’ home looking for me, and left a message requesting that I book an appointment to meet them at their station. My only connection with Littleton was the daycare centre. Mystified – panicked – I called my former boss, the director of the centre, to ask if she might know what the police wanted. She had no idea, she said.
Which of course was a lie. When the police first questioned me, it became clear that someone had broken into the place and stolen some equipment during a weekend, and what my former colleagues had told them put me in the frame. I had, after all, left the centre once the atmosphere had soured, never mind that I naively had imagined that this had blown over. In any event, it was probably obvious – particularly once I broke down sobbing and shouting at the detectives in an incredulous rage that I had no idea about any break-in or missing typewriter (What typewriter? I have my own typewriter! We have three at home! My grandmother is a stenographer for the state!) – that I was the sort of soft, bookish, please-and-thank-you nebbish who made a particularly unconvincing hard case, unsuited, as I blatantly was, to the historic craft of housebreaking by night. As a criminal, I made a great Woody Allen in one of my favourite films of the day, Take the Money and Run, except that I was even more ill-suited to crime. I think even Herb was unsettled by how viscerally, reflexively, not to say mucous-productively wounded I proved to be. But then he was unaware that I was still recovering from two years of a clinical depression (not at all trendy, or understood, in the way of today) that had meant I rarely left my room, books, and music, let alone loitered with intent at daycare centres outside the city. Landing a job and working at the centre had been a giant step. To begin with, it required a forty-five minute drive in my father’s rattling old Oldsmobile (once, in a flash flood that rendered the brake drums slitheringly useless, so that I had to stop the old tank by running it into a curb), which fact I vaguely recall I tendered, or, more precisely, bellow-choked out in semi-coherent outrage, as further evidence of why I couldn’t and wouldn’t have been the burglar.
But the cops had “evidence.” To begin with, there was that day I mentioned to a colleague at the daycare centre, a tall, prim, angularly attractive middle-aged “teacher,” that I thought the staff were unjustly, relentlessly hard on one of the boys in our care, an older kid who clearly had a rough-and-tumble home life. I was the only male staff member, bearded, young, Jewish, pedantic, which I now think seemed odd enough to my very conservative and not very sophisticated suburban colleagues to provoke distrust or resentment – never mind that I was probably hired as a “male influence.” I suppose that as a contextual (and otherwise lifetime) misfit I was moved to speak up for the boy, or at least that was why I empathized with him. The “teacher” reacted in highest dudgeon, shouting at me in my not altogether invisible fragility (I now think she sensed it and pretty well jumped on it), with the staff all around us, which – to my shame even now – so rattled me that I collapsed into a chair before breathlessly apologizing and trying to explain myself. As we shall see, although I am uncommonly good on paper and its oral cognate, prepared speechifying, I never did become much of a viva voce advocate, even for myself.
Anyway, that argument had been weeks in the past, and in the interim I seem to have joked with another staff member, in aid of something by-the-way and unmemorable, even back then, until the detectives reminded me of it. Trying to make small talk, I replied to some passing gripe of this second colleague’s, a crabbed young woman around my age, words to the effect that, in such a situation I would get revenge. It was that jocular, forgettable, and absurdly against my character, probably in a melodramatic, bad-guy tone that indicated my misfit’s attempt at humour (which habit still gets me into trouble). But she remembered it, resonantly. After my resignation, this colleague, younger than the other woman and twice as stupid, reported the remark to the police, teaching me an important lesson about the grave dangers of circumstantial evidence, a lesson that has affected the rest of my life, at the bar and elsewhere: your innocent words and actions can and will be used against you, in ways you never would have dreamed. Given the right inclination (which is to say reflexive prejudgment), people will add one and one to make thirteen. And day to day you don’t always have the shelter of the constitution. I’ve often wondered since if right-wingers in the U.S. (including conservative justices on the country’s highest court) would be so keen to overturn Arizona v. Miranda (the “you have the right to remain silent” case) if they were wrongly accused of a crime. But then, as a kid who spent the first eight years of my schooling, during the 1950s and 60s, as the only Christ-killer available on the playground for such derision, I perhaps should not have been naïve about this.
People who disappear without a trace. It’s a staple of thrillers in fiction and on-screen. Now the Supreme Court of Canada is getting in on the, uh, fun. But the thrilling aspect for lawyers is how the high court might parse the difference between a presumption of life and a presumption of death.
We don’t often think about comparative law within our own country – the fact that we have two distinct legal systems, Anglo-Canadian common law and Franco-Canadian civil law. But now comes (or goes) poor George Rosme, formerly a professor at Carleton University in Ottawa.
To fund his retirement on a Quebec farm, Rosme had opted for Carleton’s life-only pension. It provided higher monthly benefits than pensions that continued payments to survivors after the pensioner died. Rosme had a survivor in a loose sense – his former life-partner and the “tutor” of his estate (his guardian or attorney), Lynne Threlfall. She lived in a separate dwelling from Rosme on the farm, and they remained close.
An absentee is a person who, while he had his domicile in Québec, ceased to appear there, without giving news of himself, and without it[s] being known whether he is still alive.
An absentee is presumed to be alive for seven years following his disappearance, unless proof of his death is made before then.
This “presumption of life” is distinct from the law prevailing in the rest of Canada regarding an “absentee.” In a circumstance like Threlfall c. Carleton University the rest of Canada generally operates under a presumption of death. That is, drawing on British common law, after seven years of absence without reasonable explanation, we assume the absentee has died.
The seven-year rule dates from at least the seventeenth century, although in this country it is often modified by statute. British Columbia’s Presumption of Death Act provides that where “(a) a person has been absent and not heard of or from by the applicant, or to the knowledge of the applicant by any other person, since a day named, (b) the applicant has no reason to believe that the person is living, and (c) reasonable grounds exist for supposing that the person is dead, the court may make an order declaring that the person is presumed to be dead for all purposes, or for those purposes only as are specified in the order.” Again, there is common law precedent for dropping the seven-year requirement, as where someone “was last seen on the deck of a ship just before she sank” (Jowitt’s Dictionary of English Law, Second Ed.).
True enough, even under the presumption of death, we assume that the absentee is alive until there is evidence to the contrary or seven years run. But a presumption of life imposes certain positive obligations. To comply with that presumption in the Civil Code, Carleton reinstated Rosme’s pension payments. Then, just short of six years following his disappearance, a neighbour’s dog found his body in the woods near his home.
The Quebec Registrar set his date of death as the day after he disappeared. Carleton had paid almost $500,000 to him during those years, and it wanted the money back from the estate or Threlfall. She argued that, insofar as the Code obliged Carleton to pay the benefits until there was compelling evidence of Rosme’s death or seven years had passed, the money belonged to the estate.
But the Quebec Court of Appeal affirmed a ruling at trial that the funds had to be repaid. The presumption of life was rebutted (overcome) by the finding of the body, such that the estate (and Threlfall as its beneficiary) would be unjustly enriched if allowed to retain it. In other words, the payments were conditional on Rosme’s having been alive each time they were made within seven years after his disappearance.
Certainly under Anglo-Canadian common law we would say there is a strong argument that the estate was unjustly enriched and therefore must make restitution: corpses, wherever they might be, are not entitled to life-only pension benefits. Having just granted Threlfall leave to appeal, the Supreme Court must now decide whether the restitution requirement can be inferred from other provisions of the Civil Code, or, more simply, whether by its very nature the presumption of life, like the presumption of death, is rebuttable with retroactive effect.
 See Wasylyk v. Wasylyk, 2012 ONSC 7029 (CanLII), paras. 9-10, citing Doe d. George v. Jessen, 102 Eng. Rep. 1217 (K.B., 1805) and Nepean v. Doe, 150 Eng. Rep. 1021, at 1028 (Exch. 1837). See also R. v. Vader, 2016 ABQB 505 (CanLII).
Having spent many years in legal journalism and as a writer of books, I entered law practice later in life. When I was in law school more than a decade before these events, I’d thought I wanted to work in criminal law, Crown side. But more lately the opportunity had arisen to article with the country’s senior practitioner of libel law, Julian Porter. After my articles, I became the tenth barrister at the Bay Street boutique litigation firm.
One of my jobs as articling student and junior associate was to screen out the cold-callers – generally the people who would phone us during the week, especially after Julian had been on television or in the papers. Typically, these callers were livid that they had been defamed by their boss or their mother-in-law, whom they were bound and determined to sue.
Some might already see a potential ethical issue here: screening possible clients might be good training for the student, but how safe is it professionally? I was giving preliminary legal advice, unsupervised. But of course we weren’t retained (or was I? More on that anon…), I had much greater experience of substantive law than most students-at-law (as I say, I was new to law practice but older and not at all new to the law), and the partners understood that I would bring sticky situations to them. Mind you, there was also the business concern, given that I generally persuaded the callers that they didn’t have a case, or even if they did, they would have to mortgage their houses and futures for the privilege of three years of terrible, unrelenting stress. Typically I would quote them the advice of the American trial lawyer Louis Nizer: when you get splashed with a bit of mud from a passing car, it’s a bad idea to smear it around. Wait a few minutes for it to dry, then flick it away. Often, the same goes for mud slung at you metaphorically. I thought it my ethical duty to point that out, where other counsel might have taken a retainer less hesitantly (scrupulously?).
In any event, one morning during my articles, Betty, Julian’s secretary (this was before we had “administrative assistants”), buzzes me: “There’s a guy on line three, he says people are slagging him off in a bar. He wants to sue them.” Oh, goody, I think, another one of those.
So, yes, it turns out it’s the guy’s watering hole and he says that the other punters there are putting him down. I give him the mud line, I explain how libel and slander actions are generally a rich person’s game, I explain to him the defences of truth (“justification”), fair comment, qualified privilege. I talk about the stress of litigation, how slander actions are rare birds that can bite back, while consuming three, four years of his time and spirit, never mind his paycheque.
But right after I hang up, I start to panic. I don’t know this guy from Adam. He sounded like a nice fellow; he was feeling hurt; he wanted my help. I don’t want to sic the cops on him if he’s just been making a casual joke. That wouldn’t be good for anybody, and certainly not for my chances of being hired back at the firm. On the other hand, what if life and limb really are at stake? The guy feels aggrieved; I’ve just told him that he probably has no legal recourse.
So I scamper to the senior partners. My articling principal, Joyce Harris, a woman of deep experience who rose in the profession when female counsel were rare and not well tolerated, listens carefully to my narration of the call. Then she phones the guy and grills him on speakerphone, with half the firm present – a textbook cross-examination that itself is an education. Joyce makes it clear that we’re considering involving the police.
The ethics there? Well, if the guy had been hassled by the police about the matter, he might have argued that he thought there was solicitor-client privilege – that I was retained – because I did give him some advice. But this was a cold call, by him, that resulted in a preliminary, pre-retainer discussion. Any idea of a relationship would have been what is sometimes called a ghost retainer, supernatural, imaginary. Most barristers would say the same, I think, although our firm still could have had a hassle over the contrary argument. Then again, there was the possibility of an incipient crime. Which raised my immediate ethical problem and brings us back to Joyce.
The guy was cooperative with her, and a little sheepish. He reiterated that he’d been joking. We felt reassured. But after hanging up, Joyce took one further step. If you’ve encountered the so-called bloody-shirt problem of legal ethics (where a client lands counsel, his retained lawyer, with incriminating evidence), you will have a good idea of what it was.
Joyce called the practice advisory division of the law society, and got the view of counsel there on how we’d handled things. This of course gave us another senior, earnest, and – most important – official look at the matter. Not to put too fine a point on it, it helped cover our behinds with the professional regulator. Practice Advisory (another deeply experienced barrister that day, whom Joyce knew well) said that as long as we were convinced that the guy was no actual danger to the public, we seemed to have managed the problem effectively. And sure enough, we heard no more about it. But it was one of those sweating-bullets incidents that most lawyers can recount from their articling days. I have a good few, some more of which I hope to share in this blawg.
Websites: If you continue to allow internet access to material once it’s banned by a court, are you in contempt for “publishing” that material after the ban?
Law school exam question: In a news report on its website, the CBC names an Alberta girl who was murdered. Twelve days later, during the accused murderer’s first appearance in court, the judge bans publication of the girl’s name. From then on, the CBC does not name the girl in any of its stories. Does it also have to remove her name from website stories posted before the ban?
This is the context of CBC v. The Queen, released last Friday (Feb. 9, 2018) by the Supreme Court of Canada. The larger case could well establish new law on what Canadian legalese means by “publishing.” Does the word include permitting internet access ad infinitum?
Under some influential provincial law, defamatory material on a website is said to be published or broadcast every time someone “accesses” it. Related law also says that transmitting amounts to publishing. The Alberta Crown has argued that these principles should apply in the CBC website case – that, by not taking down the girl’s name, the CBC is in contempt of court, because it is still publishing her identity.
Usually, disobedience of a court order is a civil contempt. The prosecution still has to prove it beyond a reasonable doubt, but it is not criminal (supposedly more serious, although these days, business-people and battling spouses flout court orders so arrogantly that the penalties can be severe for their “civil” breaches) unless the disobedience is public and undertaken with the intent or knowledge that the court’s authority will be, or is likely to be, undermined or depreciated. In the civil context, contemnors need not intend to thumb their noses at the court: they simply must deliberately do the act that the order forbids – here, supposedly “publishing” the girl’s name.
If the Queen’s Bench contempt ruling stands, “publishing” for the purposes of contempt law will be different from publishing in other areas of our jurisprudence. To understand this, you have to parse its contempt ruling to distinguish what the court says about publishing from what it says about criminal contempts.
The court has a reasonable doubt about publication because: the CBC did not publish the name after the ban, it simply allowed access to it; “access” to material does not necessarily mean it is published, never mind that “access” and “publication” can be synonymous in defamation law and under the Youth Criminal Justice Act; the media guide issued by the Alberta Court of Appeal says that allowing access is not publishing; an infringement of a constitutional right such as free expression must be precisely defined, and whether there is disobedience here is debatable; allowing access is not transmitting or broadcasting.
The court has a reasonable doubt about criminal contempt because: the girl’s name is available elsewhere all over the Internet and in print, including in newspapers and publicly-available court records; the CBC is not disobeying the order so much as disagreeing with Alberta’s interpretation of it, such that it is not “defying” anything; the CBC has a right and duty to report. As well, Alberta’s Queen’s Bench holds that CBC has not been “strident or even disrespectful” but principled in its disagreement with the Alberta Crown’s view of the ban, and that, with potential libels, we know our obligations from the start whereas here the CBC would have had to predict the future here (i.e., that the publication ban would issue).
Perhaps anticipating all these difficulties regarding a criminal contempt, the Crown had argued that, alternatively, the CBC is in civil contempt. The court responds that the same doubt as to disobedience applies. This suggests that the Crown has failed to show (beyond a reasonable doubt) that the CBC intended to do what the order forbids.
The Supreme Court’s injunction decision (refusing to order the CBC to take down the name temporarily) does hint at what that highest court might say if the contempt appeal reaches it. First, Justice Brown (for all nine judges) says that that the Crown’s application for an injunction and the contempt motion are linked, given that the Crown seeks temporary removal of the name based on its continuing allegation that permitting access to it is a contempt. Then he notes that, in (wrongly) ordering the CBC to take down the name pending the appeal of the contempt decision, the majority of the Alberta Court of Appeal admits that both the Crown and CBC positions are “arguable.” This, Justice Brown concludes, is “an acknowledgment that the Crown had not shown a strong prima facie case of criminal contempt.” Because the Crown could not show contempt even in this arguable, presumptive sense (for the purposes of a temporary ban on access), the Supreme Court overturns the injunction – which is why it might well find that there is no contempt for internet access to material that is posted before a court bans that publication.
I recently began work on a book about plagiarism and the law. Given the subject’s lively controversy in this digital age of “everything’s up for grabs” – consider the lawsuit against Led Zeppelin for supposedly appropriating the music to “Stairway to Heaven”; the resignation of a member of the Toronto District School Board amid accusations that he had plagiarized his Ph.D. thesis; allegations that Globe and Mail columnist Margaret Wente had appropriated the work of others; and many instances in the academy, including my own experiences with plagiarism by my law students – it seems a good time for such a work, from a specifically legal point of view, on this fascinating subject. Of course, one of the first matters I have to consider is the distinctions between plagiarism and copyright violations.
Plagiarism is passing someone else’s work off as your own. If we photocopy a story by J.K. Rowling without her permission but with her name still attached, we infringe her copyright in the work but we are not plagiarizing it. If we photocopy a song by Richard Strauss and replace his name with our own, we plagiarize it but do not violate his copyright: the song would be too old for copyright protection (assuming that it had not acquired a new copyright by being edited heavily and recently, perhaps, by scholars purporting to have just found Strauss’s letters about the song, or a new manuscript of it). Justice Gonthier correctly notes, “Generally, copyright enables the owner to prevent the unauthorized plagiarism and distribution of an original work. It is therefore these acts themselves that are prohibited, without regard to their purpose, be it mercenary or otherwise.” To put it directly, plagiarism can be copyright infringement, but they are not the same thing.
In fact, the justice himself goes on to confound the two: “[I]nfringement of a work, in its most common sense, is synonymous with plagiarism or unlawful appropriation. … Reproducing a work … amounts to plagiarism and constitutes an infringement of the rights of the copyright owner.” Again, people often infringe without plagiarizing, because they don’t claim the copyrighted work as their own; infringement is unlawful use, period, of that work (whether you take credit for the work or not), where plagiarism is appropriation of voice, like identity theft; unless it constitutes some other separate offence at the same time (copyright infringement, conversion, fraud, etc.), generally it is not illegal.
Then again, we can plagiarize without infringing if we appropriate ideas or data. Copyright does not extend to those. Which brings me to a painful example from my own experience.
Decades before the publication of Simon Winchester’s The Meaning of Everything, I proposed to a producer at a national radio network that I create a “biography of the Oxford English Dictionary.” The producer responded that he would consider the project. When he did not reply to my follow-up correspondence, I assumed that he was not interested. I never heard from him again. A few months later, I switched on his program to hear “The Oxford English Dictionary: A Biography,” written and narrated by someone else.
At the time, I was concerned that making a fuss would have soured my opportunities for other writing and broadcasting work. So I fumed in silence. It occurs to me these many years later that I might have made a legal claim that, while copyright existed in neither the idea nor the title, the broadcaster’s appropriating the two together should attract sanction at law: cumulatively, there was a work-product capable of infringement. The producer had taken not just my idea, but my proposed approach, which did not concern simply the OED’s place in lexicographical history (a documentary idea), but its “personal” lifeblood – its conception among its “fathers,” its arduous development, and its continuing influence. In appropriating this and the associated title, the producer filched not just my idea, but its expression, which copyright law protects.
As a writing career these days entails enough of a battering without having your ideas hijacked, besides, the personal and ethical violations continue to chafe, many years later. It of course was never about the small sum of money I might have been paid; it was about the principle – the blatant disdain for professional ethics – and the loss of professional opportunity.
 See, e.g., Jeffrey Miller, “Miami J’yce counsel on the lookout for synteresis,” Where There’s Life, There’s Lawsuits: Not Altogether Serious Ruminations on Law and Life (Toronto: ECW Press, 2003) at 139-44 (described on this website here).
 Théberge v. Galerie d’Art de Petit Champlain inc.,  2 2 S.C.R. 336 at 388, Gonthier J., in dissent.
 Ibid. at 393, 398. The defendant gallery had bought reproductions and lithographs of Théberge’s paintings and lifted them onto new media. It was not passing the works off as those of anyone or anything other than Théberge. The majority found the use to be lawful (non-infringing).
I have mixed feelings about saying this: the law has long lived with “alternative facts.” And it’s lawyers and judges more than politicians who create them.
Legal fictions, and fact-warping legalese, have been with us since the middle ages. Readers of my books and journalism will know my fondness for the “French fries are meat” cases – prosecutions during the early 1900s under Sunday observance (“Lord’s Day”) laws in Britain. Faced with having to whack the poor who patronized fish-and-chip shops for their sabbath dinner – the underclasses whose purses did not stretch to the fish – the courts decided that “chipped potatoes” could comprise “meat” (which the legislation permitted to be sold, so that you could have your “Sunday joint” prepared commercially). As Lord Alverstone, the chief justice of King’s Bench, put it, come Sunday it “would be ridiculous to say that, although a man may cook mutton, he must not cook an eel pie” or spuds: Bullen v. Ward (1905), 74 L.J. (K.B.).
On further consideration, however, “meat” would not shape-shift to ice-cream sandwiches, never mind dictionaries that defined the word as food generally: Slater v. Evans,  2 K.B. 124.
through its owner, disclaims any vicious propensity, and contends that Mr. Cochrane brought this unfortunate attack upon himself by acting in such a manner as would lead any reasonable dog to suspect ill motives in Mr. Cochrane’s entry, and that, furthermore, Mr. Cochrane, while in the employ of [the dog’s owner], had on one occasion kicked the German shepherd and that the dog was therefore taking retributive and retaliative action.
Given that the dog avoided destruction courtesy of the evidence supporting these assertions, it seems unreasonable to call the “reasonable dog” fiction facetious. Perhaps “bemusing” suffices, as with another Canadian case that tells us that a parking lot can be a “common bawdy house” if the prostitutes using it have sufficient control over the space, never mind that it is bare asphalt.
At best, the reasonable dog might be an uber-“alternative fact” based on the reasonable person, the legal fiction against whom our law measures whether our own conduct merits praise or liability. But the chipped-potato and bawdy-house instances are not precisely fictions in this way. Calling fries meat, or a parking lot a bawdy house, is not exactly a lie, nor is it true only in the alternative universe of legal dialect.
Still, if ice cream is not meat where “chipped potatoes” are, and bagpipes are not weapons where cucumbers can be, how explain the terrain of fictions rarely if ever noted as such, a near territory so vast that it would be impossible to map it comprehensively?
These are instances when judges give truly uncommon or unexpected meaning to words or phrases – often to expressions as ordinary as “French fries,” but without the logic or linguistic support of the French-fries-as-“meat” cases. There’s the U.S. case which says that if you drive around with a gun in the bed of your pickup truck, you are not “carrying” it. Not be outdone north of the border, Ontario gives us a series of insurance cases interpreting the phrase “you are struck by a vehicle” to mean “you walk into a pole on a parked truck” and “a nearby accident blows your mind.” In the first case, a woman recovered damages for being “struck by a vehicle” after, sure enough, she walked into a pole on a parked truck. In the second, the court ruled that a woman could be struck in this way (and perhaps collect damages for both physical injury and mental distress) while sitting in her kitchen when a car crashed into her home without entering the kitchen or touching her. Such instances approach the political, with the judiciary seeming to reach a desired end by straining syntax beyond even the metaphysics of a “fertile octogenarian” – a hoary legal fiction which posited that humans of any age and physical condition can conceive children.
For more detail on these cases and others, see Chapter Five, “Humpty Dumpty in Wig and Gown: Legalese as Dialect, or, the Philology of Precedent” in my The Structures of Law and Literature. Some of the discussion above grows out of my current work on my encyclopedia of legal fictions and presumptions, and constructive, deemed, and implied entities, slated for publication by next year.
It used to be that our law distinguished between attempts that were impossible in fact and impossible attempts legally. “Factually impossible” meant the intended act was illegal but somehow the “attemptors” were prevented from completing it, even though they thought they could pull it off. These cases include the notorious R. v. Collins, an attempt to pick an empty pocket.
Legal impossibility described a situation where the “criminal” thought he was attempting something illegal but the act was legal. Canadian cases of this variety include R. v. Alicandro, in which the accused was convicted of child-luring over the Internet, when obliviously he had been “luring” a male police officer (in a sting operation) and not a girl under the age of fourteen, and, most importantly, U.S. v. Dynar, in which the accused believed he was helping to launder the proceeds of crime when in fact the money was provided by police in another sting operation.
The distinction between these two “impossibilities,” or confusion about it, led to illogical results – in Collins, that you could not attempt theft from an empty pocket, and in Dynar the dissenting justice’s insistence that, if the money is not in fact proceeds of crime, there is no attempt to launder it. This confounds possibility with execution or the specific actus reus for attempts (as against completed crimes), and confuses attempts with completed crimes. It ignores that if you are unaware that the pocket is empty or the money has no criminal taint, you are still attempting to steal or launder. In either case, insofar as we are considering an inchoate (incomplete) crime, the requisite mens rea (intention) is present; whether the actus reus is possible is irrelevant. Insofar as we might want to require an achievable actus to establish even an attempt (which logically seems unnecessary), we arrive in the realm of legal fiction.
That is, to the extent that we posit that the crime could have been completed, there is a legal fiction – that the pocket could be picked, the girl lured, the money laundered. Indeed, if we insist on preserving the casuistry of the theory of “impossible attempts,” we can posit both a deeming and a fiction: we deem the actus reus possible (we deem the pocket to contain something, the male officer a girl, the money unlawfully obtained) such that we create a legal fiction that the crime could have been completed as attempted.
 R. v. Collins (1864), Le. and Ca. 471.
 “24 (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.” R.S.C., c. C-34.
Website Creation: Me and Sid Enterprises Ltd.
©Copyright 2016 Jeffrey MIller/Burden of Proof Research Inc.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v.


text:
You can contact our data protection officer at datenschutz@multiweigh.com or at our postal address with the addition “the data protection officer”.
(3) When you contact Multiweigh GmbH by e-mail or via a contact form, the data you provide (your e-mail address, possibly your name and your telephone number) will be stored by us in order to answer your questions. We delete the data arising in this context after the storage is no longer necessary, or limit the processing if statutory retention obligations exist.
(3) On our website we offer you the possibility to contact us by e-mail and/or via a contact form. In this case, the information provided by the user will be stored for the purpose of processing his contact. The data will not be passed on to third parties. A comparison of the data collected in this way with data that may be collected by other components of our site is also not carried out (legal basis is Art. 6 Par. 1 S. 1 lit. f GDPR).
(2)Transient cookies are automatically deleted when you close your browser. This includes in particular the session cookies. These store a so-called session ID, with which different requests of your browser can be assigned to the common session. This will allow your computer to be recognized when you return to our website. Session cookies are deleted when you log out or close your browser.
(3) Persistent cookies are automatically deleted after a specified period, which may vary depending on the cookie. You can delete cookies at any time in the security settings of your browser.
(4) You can configure your browser settings according to your wishes and, for example, refuse the acceptance of third party cookies or all cookies. Please note that you may not be able to use all functions of this website.
(1) If you would like to receive our newsletter, you must register in our newsletter portal by entering your e-mail address, a password of your choice and your freely definable user name. There is no obligation to provide a clear name, pseudonymous use is possible. We use the so-called double opt-in procedure for registration, i.e. your registration is not complete until you have previously confirmed your registration via a confirmation e-mail sent to you for this purpose by clicking on the link contained therein. If you do not receive confirmation within 24 hours, your registration will automatically be deleted from our database. It is obligatory to provide the aforementioned data; all further information can be provided voluntarily by using our portal.
(2) If you use our portal, we store the data required to fulfil the contract until you finally delete your access. Furthermore, we store the voluntary data provided by you for the duration of your use of the portal, unless you delete it beforehand. You can manage and change all information in the protected customer area. The legal basis is Art. 6 para. 1 sentence 1 lit. f GDPR.
(1) This website uses Google Analytics, a web analysis service of Google Inc. “(“Google”). Google Analytics uses “cookies”, which are text files placed on your computer, to help the website analyze how users use the site. The information generated by the cookie about your use of this website is usually transferred to a Google server in the USA and stored there. However, if IP anonymisation is activated on this website, Google will reduce your IP address within Member States of the European Union or in other states party to the Agreement on the European Economic Area beforehand. Only in exceptional cases will the full IP address be transmitted to a Google server in the USA and shortened there. On behalf of the operator of this website, Google will use this information to evaluate your use of the website, to compile reports on website activity and to provide the website operator with further services associated with website and Internet use.
(4) This website uses Google Analytics with the extension “_anonymizeIp()”. As a result, IP addresses are further processed in abbreviated form, so that a personal relationship can be ruled out. As far as the data collected about you is personal, it will be excluded immediately and the personal data will be deleted immediately.
(5) We use Google Analytics to analyse and regularly improve the use of our website. We can improve our offer and make it more interesting for you as a user. For the exceptional cases in which personal data is transferred to the USA, Google has submitted to the EU-US Privacy Shield, https://www.privacyshield.gov/EU-US-Framework. The legal basis for the use of Google Analytics is Art. 6 Par. 1 S. 1 lit. f GDPR.
(1) We use the online advertising program “Google AdWords” and conversion tracking as part of Google AdWords. The Google Conversion Tracking is an analysis service of Google Inc. “(“Google”). When you click on an ad served by Google, a conversion tracking cookie is placed on your computer. These cookies lose their validity after 30 days, do not contain any personal data and are therefore not used for personal identification.
(2) If you visit certain pages of our website and the cookie has not yet expired, Google and we can recognize that you clicked on the ad and were redirected to this page. Each Google AdWords customer receives a different cookie. This means that it is not possible to track cookies on the websites of AdWords customers.
(3) The information collected using the conversion cookie is used to generate conversion statistics for AdWords customers who have opted for conversion tracking. Customers can see the total number of users who clicked on their ad and were redirected to a page with a conversion tracking tag. However, you will not receive any information that personally identifies users. The legal basis for the use of Google AdWords is Art. 6 Par. 1 S. 1 lit. f GDPR.
(4) If you do not wish to participate in tracking, you can object to this use by preventing the installation of cookies by setting your browser software accordingly (option of deactivation). They are then not included in the conversion tracking statistics. You will find further information as well as Google’s data protection declaration under § 5 para. 5 and para. 6 of this data protection declaration.
(1) We use the following social media plug-ins: Facebook. We use the so-called two-click solution. This means that when you visit our site, no personal data is initially passed on to the provider of the plug-ins. You can recognize the provider of the plug-in by the marking on the box above its initial letter or the logo. We offer you the possibility to communicate directly with the provider of the plug-in via the button. Only if you click on the marked field and thereby activate it, the plug-in provider receives the information that you have accessed the corresponding website of our online offer. In addition, the data specified in § 3 of this declaration will be transmitted. According to information provided by the respective provider in Germany, the IP address on Facebook is made anonymous immediately after it has been collected. By activating the plug-in, personal data is transferred from you to the respective plug-in provider and stored there (for US providers in the USA). Since the plug-in provider collects data mainly via cookies, we recommend that you delete all cookies before clicking on the grayed-out box using your browser’s security settings.
(3) The plug-in provider stores the data collected about you as user profiles and uses these for the purposes of advertising, market research and/or demand-oriented design of its website. Such an evaluation takes place in particular (also for not logged in users) for the representation of demand-fair advertisement and in order to inform other users of the social network about your activities on our website. You have a right of objection to the creation of these user profiles, whereby you must contact the respective plug-in provider to exercise this right. Through the plug-ins we offer you the possibility to interact with social networks and other users, so that we can improve our offer and make it more interesting for you as a user. The legal basis for the use of the plug-ins is Art. 6 para. 1 sentence 1 lit. f GDPR.
(1) We have integrated YouTube videos into our online offer, which are stored on http://www.youtube.com and can be played directly from our website.
(2) By visiting the website, YouTube receives the information that you have accessed the corresponding subpage of our website. In addition, the data specified in § 3 of this declaration will be transmitted. This is independent of whether YouTube provides a user account through which you are logged in or whether no user account exists. If you are logged in to Google, your information will be directly associated with your account. If you do not wish to be associated with your profile on YouTube, you must log out before activating the button. YouTube stores your data as user profiles and uses them for purposes of advertising, market research and/or demand-oriented design of its website. Such evaluation takes place in particular (even for unlogged-in users) to provide demand-oriented advertising and to inform other users of the social network about your activities on our website. You have the right to object to the creation of these user profiles, whereby you must contact YouTube to exercise this right.

matches:
Art. 6
Art. 6
Art. 6
Art. 6
§ 5
§ 3
Art. 6
§ 3


text:
Home > Insurance Law > Does your insurer have a duty to defend?
Does your insurer have a duty to defend?
There are two types of duties that an insurance company may have to its policy holder when a claim is made against the policy holder by a person or company that claims damage or injury (a claimant). The insurer may have a duty to defend the claim, thereby providing a defense to the policy holder through the payment of attorneys fees and costs incurred in the defense of the claim. This is often referred to as the duty to defend. The insurer also may have a duty to pay for the damages awarded to the claimant. This is referred to as the duty to indemnify.
Your insurance carrier has a duty to defend your company if a claim is made against your company that may be covered by your insurance policy. Under Ohio law, the duty of an insurer to defend its insured is distinct from, and broader than, the duty to indemnify. Ohio Gov’t. Risk Mgmt. Plan v. Harrison. Whether an insurer has a duty to defend an action against an insured is initially determined by the scope of the pleadings. City of Willoughby Hills v. Cincinnati Ins. Co. By contrast, the duty to indemnify is based on whether there is, in fact, coverage under the policy. M/G Transp. Servs. v. Water Quality Ins. Syndicate. Because the duties to defend and to indemnify are separate, an insurer has an obligation to defend even though it may later be determined that coverage for a claim does not exist.
The duty of the insurer to accept the defense of a claim attaches whenever the complaint states a covered claim, or potentially or arguably does so. Where the complaint brings the action within the coverage of the policy, the insurer is required to defend the insured regardless of the ultimate outcome of the action or its liability to the insured. Motorists Mutual v. Trainor. When a complaint alleges more than one claim against an insured based on the same occurrence, one of which is within the coverage of the policy, the insurer cannot divide the defense of the claims and is obligated to defend its insured against all claims. Chemstress Consultant Co. v. Cincinnati Ins. Co.
Pleadings alone may not provide sufficient factual information to determine whether the insurer has an obligation to defend the insured. City of Willoughby Hills, supra. Where the insurer’s duty to defend is not apparent from the pleadings in the case against the insured, but the allegations do state a claim which is potentially or arguably within the policy coverage, or there is some doubt as to whether a theory of recovery within the policy coverage had been pleaded, the insurer must accept the defense of the claim. Id. Thus, the “scope of the allegations” may encompass matters well outside the four corners of the pleadings. Id. In other words, where the insurer’s duty to defend is not apparent from the pleadings, no duty to defend exists unless the complaint is “vague, ambiguous, nebulous or incomplete” so that a “potential for coverage” exists. M/G Transp. Servs.,supra; Zanco, Inc. v. Michigan Mut. Ins. Co.
Where an insurer wrongfully refuses to defend its insured, it subjects itself to an action for bad faith. An insurer’s good faith obligations are discussed separately in the article “Ohio law requires insurers to act in good faith.

matches: v. v. v. v. v. v.


A prior crime haunts our hero Jean Valjean for twenty years in Les Miserables. The Ninth has got that beat, though: it upholds the use of a thirty-year old offense to dramatically increase the specific offense adjustment of an illegal reentry defendant. See United States v. Olmos-Esparaza, __ F.3d __, Slip. Op. 4541 (9th Cir. Apr. 24, 2007), decision available here.
Players: Creative challenge by San Diego AFPD James Fife.
Facts: Olmos-Esparaza was convicted of illegal reentry after a trial and received a sentence of seventy months. Slip Op. at 4544. He won a Booker remand and on re-sentencing got a below-guideline, sixty-month term. Olmos-Esparaza took the case back up to the Ninth, arguing that the court erred by using convictions from 1972 and 1976 to increase the specific offense adjustment under USSG § 2L1.2 (2003) by sixteen levels. Id.
Issue(s): “Leobardo Olmos-Esparaza . . . convicted of illegal reentry after deportation . . . appeals his sentence . . . . In an issue of first impression in this circuit, he contends that the district court erred by considering his convictions from 1972 and 1976 in calculating sentencing enhancements under § 2L1.2 of the 2003 Sentencing Guidelines.” Id. at 4543.
Held: “We join the Tenth and Eleventh Circuits in holding that this section contains no time limitation on the age of convictions for purposes of calculating sentencing enhancements.” Id.
Of Note: This was a clever and credible defense argument. One type of specific offense adjustment under this guideline (the “+8" bump for agg felonies) specifically states that it is to be imposed regardless of the date of the underlying conviction. Id. at 4546. Another specific offense adjustment (“+16" for more serious offenses, like those at issue here) is silent as to a time limitation. Here, AFPD Fife exhumed that great law-school chestnut, expressio unius est exclusio alterius (“when some statutory provisions expressly mention a requirement, the omission of that requirement from other statutory provisions implies that the drafter intended the inclusion of the requirement in some instances but not others.”) Id. at 4546.
Unfortunately, the opinion’s author – Judge Hawkins – identifies some credible reasons why this spin doesn’t work, including an odd result from the defense argument: less serious (+8) agg felony enhancements wouldn’t have any time limitations, but more serious (+16) enhancements would. Id. at 4547.
How to Use: There’s something wrong when a conviction too old to even count in the criminal history computation doubles (or trebles) a defendant’s guideline exposure as a specific offense adjustment. There’s also something unfair (and frankly racist) in the fact that very old convictions can’t increase specific offense adjustments in other guidelines (like § 2K2.1(a), felon in possession), but can for illegal reentry under § 2L1.2. Don’t hold your breath that the Sentencing Commission will correct these injustices, but, fortunately, district judges can after Booker. Any conviction that earns “zero” points in the Criminal History computation of the PSR, but that nonetheless jacks-up the Offense Level calculation, is ripe for a Booker / § 3553(a) attack. Maybe that’s one of the equities that earned Mr. Olmos-Esparaza a below-guideline sentence on his Booker remand?
For Further Reading: One of the hot criminal law issues in the Ninth is how to deal with prior convictions that trigger specific offense adjustments. Olmos-Esparaza deals with time limitations on the use of such priors. Many other recent Ninth Circuit cases wrestle with the “modified categorical” approach, and whether a particular “prior” qualifies. (The ramifications of Shepard v. United States, 544 U.S. 13 (2005) are finally being ironed out in the Circuits). For a very, very useful recent decision on this issue, take a look at United States v. Snellenberger, 480 F.3d 1187 (9th Cir. 2007), decision available here. This great Ferguson decision rejects criminal minutes and abstracts of judgments as fodder for the “modified categorical” mill. Id. at 1191 & n.5. This little nugget from Snellenberger has escaped much notice, but the decision is a big deal: footnote five dictates an evidentiary limitation on the government that could save Career Offender and illegal reentry defendants years in custody.
I'm always intrigued (and sometimes enlightened) by the perspective of this blog. I would generally agree that a predicate as old as the ones here shouldn't have such severe ramifications 25 or 30 years after the fact. But, in this case his criminal history category was four (IV) and contributed to the 63 to 78-month guideline range, thereby demonstating his continued criminal activity (or severe criminal history). It's convenient to forget this fact when lobbying for reduced sanctions for certain crimes.


text:
In Yvanova, 62 Cal.4th at 924, this Court held a homeowner had "standing" to challenge a void assignment of her home loan through an action for wrongful foreclosure: "We hold only that a borrower who has suffered a nonjudicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because he or she was in default on the loan and was not a party to the assignment." One of the issues the Court did not decide was what exactly constitutes a void assignment versus a voidable assignment. Ibid.
Here the court of appeal held that a late assignment was merely voidable citing Saterbak v. J.P. Morgan Chase D066636, citing Rajamin v. Deutsche Bank National Trust Co. (2d Cir. 2014) 757 F.3d 79, 88, 89 ['the weight of New York authority is contrary to plaintiffs' contention that any failure to comply with the terms of the PSAs rendered defendants' acquisition of plaintiffs' loans and mortgages void as a matter of trust law'; 'an unauthorized act by the trustee is not void but merely voidable by the beneficiary'].)" (Saterbak, at p. 815.). The Saterbak Court (4th District, Division 1) concluded a late assignment that failed to comply with the terms of the PSA would be "merely voidable," adopting a Second Circuit Court of Appeals decision (Rajamin) and rejecting the contrary holding in Glaski v. Bank of America, 218 Cal.App.4th1079 (2013), that a borrower could allege the foreclosing party lacked authority because the assignment of his deed of trust into an investment trust violated the documented rules that governed that trust.
Another judicial panel in the Court of Appeal 4th District, Division 1 in Sciarratta v. U.S. Bank Nat'l Assn. D069439 published 5/18/16 held that a property owner "who has been foreclosed on by one with no right to do so - by those facts alone - sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure."
The Sciarratta court also stated "As the Supreme Court in Yvanova explained: "'A homeowner ... has standing to challenge that assignment as void because success on the merits would prove the purported assignee is not, in fact, the mortgagee and therefore lacks any right to foreclose on the mortgage.[emphasis added]" Sciarratta slip opinion at page 15, quoting Yvanova supra, 62 Cal. 4th at pp. 935-936.
One of the prime reasons for this Court to grant review is to establish "uniformity of decision". Rule 8. 500 (b) (1) of the California Rules of Court. Should the Castro opinion stand without review, two systems of laws to govern foreclosure cases shall exist.
Without guidance from this Court, homeowners will enJOY success or endure failure depending on what court they land in, or on appeal what panel of Justices are assigned to the homeowners case. Since there is no horizontal stare decisis in California, trial judges who previously rejected Glaski claims, in favor of the established authority of Jenkins v. J.P. Morgan Chase Bank, N.A., 216 Cal.App.4th 497 (2013) and its progeny, would again be able to circumvent the Glaski rule and deny homeowners their day in court.
Geography has no bearing on the precedential power of a court of appeal decision In the current situation, any trial court in California is free to pick either the Saterbak opinion or the Sciarratta opinion, as precedential authority, to sustain or overrule a demurrer in a wrongful foreclosure case involving a securitized trust. Auto Equity Sales, Inc., supra, 57 Cal. 2d at 456 ("where there is more than one appellate court decision, and such appellate decisions are in conflict," the superior court "can and must make a choice between the conflicting decisions"). Both the Saterbak and Sciarratta opinions came from the San Diego 4th District Division 1 court of appeal by two different panels of justices.
Even if homeowners have a demurrer overruled in their instant case, the case will likely be appealed by the institutional defendant, due to the diversity that exists in current case authority. For example, if you are in San Diego County your case may be reversed if you draw a panel of justices assigned to the case that agree with Saterbak, instead of Sciarratta. The lack of uniform authority that prevailed after the Glaski ruling continues.
A home loan and deed of trust are nothing more than contracts. As contracts, they must be enforced to uphold their clear language. California allows non-judicial foreclosures, but only if a contract gives a party the power to sell the home. The standard deed of trust grants that power only to the beneficiary under the deed of trust. (Some deeds of trust, like the deed of trust in this case, use the term "lender" in place of "beneficiary".) The deed of trust allows it to be assigned, so that the party receiving the assignment can claim to be the beneficiary. Under California case law going back at least 60 years, the purported assignee has the burden of proving he owns the loan through a proper assignment. Cockerell v. Title Ins. & Trust Co., 42 Cal.2d 284, 290 (1954). Also, it undermines the public policy set by the Homeowners Bill of Rights, which clearly allows a pre-foreclosure attack against a void assignment. Finally, the foreclosure statues now make clear that they do not limit a borrower's remedies. See Civil Code section 2924.12 (h).


IDA C. POWERS vs. EDWARD RADDING & others, trustees. SARAH D. STONE vs. SAME.
Present: RUGG, C. J., LORING, BRALEY, & PIERCE, JJ.
Equitable Restrictions. Tax, Deed of land sold for taxes. Words, "One dwelling house."
thereon" referred to a dwelling to be used by one family and not merely to the form of structure, and that the erection of an apartment house must be enjoined.
A deed given in pursuance of a sale for non-payment of taxes becomes void if not recorded within thirty days from the day of sale as was required by Gen. Sts. c. 12, § 35, and as now is required by St. 1909, c. 490, Part II, § 44, as amended by St. 1911, c. 370, and St. 1915, c. 237, § 1.
It is well settled that restrictive covenants in deeds, whether conferring benefits or imposing burdens, will pass to and bind the grantees and assignees of the respective parties who had actual or constructive notice of the restriction, and that the record of the deed in the registry of deeds is constructive notice.
In the case above described, it appeared that the original grantor included in the above mentioned mortgage made by him four of the lots as one parcel and that at a foreclosure sale under a power in the mortgage the mortgagee sold each of the four lots separately, one of which passed by mesne conveyances to the defendant. Held, that, under the covenants in the deeds and the mortgage above described, the restriction as to building only one dwelling house applied to each of the four lots sold by the mortgagee under the power of sale.
TWO BILLS IN EQUITY , filed in the Superior Court on June 5, 1916, by the respective owners of parcels of land on the northerly side of Pearl Street in Springfield, known as No. 122 and No. 176 Pearl Street, against Edward Radding of Springfield, the owner of a parcel of land on the northerly side of Pearl Street, known as No. 168 Pearl Street, and the defendants Cunliffe and Ford as trustees of a voluntary association called the Mutual Mortgage Investors and as such trustees the owners and holders of a mortgage of the parcel known as 168 Pearl Street, which was made by the defendant Radding on April 25, 1916, praying that the defendants might be enjoined from constructing an apartment house on the parcel of land known as 168 Pearl Street.
The cases came on to be heard together before Hamilton, J., who reserved them upon the pleadings and an agreed statement of facts for determination by the full court. The material facts are stated in the opinion. Where quotation marks are used the passage quoted is taken from the agreed statement of facts.
A copy of a part of a plan which was attached to the record in this court is printed on page 112.
C. H. Beckwith, for the plaintiffs.
R. W. Ellis, E. H. Brewster & T. W. Ellis, for the defendants.
the grounds of the United States Armory and Arsenal which have been there since the eighteenth century.
"No buildings have been erected on the said tract since the United States so acquired the land and the premises together with other lands adjoining the same to the south have been kept open and have been carefully and artistically cared for." Bliss had also conveyed of the tract in 1848 and in February and April, 1863, lots at the northerly and southerly corners of Spring and Pearl streets.
On September 4, 1863, there remained to him of his original purchase the land on the northerly side of Pearl Street, that is the tract of land thereafter designated as the lots numbered on Pearl Street 116, 122, 138, 150, 156, 162, 168 and 176.
nearer to Pearl Street than twenty feet and no barn nearer to said street, than six rods and that but one dwelling house shall be erected thereon, or that shall cost less than two thousand dollars or less than two stories high. And it is agreed that the other lots of the grantor on Pearl Street shall be held subject to a similar restriction, which shall be for the benefit of the grantee his heirs and assigns."
Upon the death of the grantee, Brown, the premises descended to his heirs and thereafter by mesne conveyances the title passed to the plaintiff Ida C. Powers.
The next parcel was sold in November, 1863, and was land lying easterly of lot 122 and westerly of lot 138, which tract was in 1868 divided and added to lots 122 and 138 and has since remained a part of these parcels. The deed was duly recorded and contained the following provision: "Provided and this deed is on condition that no building shall ever be erected or placed upon the premises nearer to Pearl Street than twenty feet and no barn nearer to said street than six rods and that but one dwelling house shall be erected or placed thereon and that shall cost less than two thousand dollars or shall be less than two stories high and it is agreed that the other lots of the grantor westerly of the new gate shall when sold be subject to similar restrictions and be for the benefit of both parties hereto their heirs and assigns."
The chief importance of this provision is that it marks and defines the territory which the grantor and grantee agreed should enjoy the benefit and suffer the burden of the restriction as "the other lots of the grantor westerly of the new gate."
The next parcels sold were 116 in 1864, 138 in 1866 and 150 in 1869. Each deed duly recorded contained the restriction among others "that but one dwelling shall be erected thereon, and none that costs less than two thousand dollars, or is less than two stories high."
On March 13, 1872, the grantor mortgaged the remaining lots, 156, 162, 168 and 176, by deed with power of sale and containing the following provision: "Subject to such rights of drainage or aqueduct as any of my assigns may have now in said premises and subject to such restrictions as to placing buildings thereon as I have stipulated and made in my previous conveyances on record of lots on said street."
The mortgage was later duly foreclosed by sale, and by mesne conveyances the parcel above referred to as No. 156 became the property of Vrylena McClean, the property above referred to as No. 162 became the property of the defendant Edward Radding, the parcel designated above as No. 168 became the property of the defendant Edward Radding and the parcel designated as No. 176 became the property of the plaintiff Stone.
We think the proximity of the property to the grounds of the United States Armory and Arsenal with the reasonable probability that they would perpetually remain open and be carefully and artistically cared for, the provisions that no barn shall be nearer to the street than six rods, that but one dwelling shall be erected on any one lot and that none shall be erected nearer to the street than twenty feet nor cost less than $2,000, indicate an unmistakable general scheme and purpose to create a residential section which should benefit the owners of each lot and give them as owners of homes good neighbors and clean and beautiful and artistic surroundings.
We are also of opinion in view of the language of the deeds themselves in connection with the attending circumstances that the deeds were executed, delivered and received with the intention that the words "but one dwelling house shall be erected thereon" should define the use to which that dwelling should be put and not merely the form of a structure. So construed the restrictions do not permit of more than one dwelling under a single roof or the erection of a building designed to include more than one apartment or flat. See Gillis v. Bailey, 21 N. H. 149; Rogers v. Hosegood, 69 L. J. Ch. (N. S.) 59; Harris v. Roraback, 137 Mich. 292.
The defendant Radding derives his title by mesne conveyances from one Hawkes who purchased and received lot 168 at a sale under a power of sale contained in a mortgage deed to the Springfield Institution for Savings on October 22, 1879. This mortgage conveyed the premises "subject to such restrictions as to placing buildings thereon as were made by said Bliss in conveyances previous to and on record before said mortgage" of lots in said street.
title; because the provisions of Gen. Sts. c. 12, § 35, [Note p115] as to recording the deed were not followed.
It is well settled that restrictive agreements and covenants of deeds whether benefits reserved or burdens imposed will pass to and bind the respective assignees with actual or constructive notice. Parker v. Nightingale, 6 Allen 341. Whitney v. Union Railway, 11 Gray 359. Hano v. Bigelow, 155 Mass. 341, 343. Stewart v. Finkelstone, 206 Mass. 28. Tulk v. Moxhay, 2 Phillips, 774.
The defendants contend that, as the mesne conveyances to the defendant Radding were without restrictions and as lots 156, 162,168 and 176 were not divided when mortgaged, the mortgagor, Bliss, "did not intend and could not reasonably be held to have intended to restrict the mortgaged tract against more than one dwelling house."
An examination of the records of the conveyances of Bliss would have disclosed the agreement contained in the deed to Brown of lot 122 and in that to Clyde (of parts of lots 122 and 138) that the other lots, that is to say the parcels that shall from time to time be carved out of the remaining lot of the grantor westerly of the new gate, "shall when sold be subject to similar restrictions for the benefit of both parties hereto their heirs and assigns."
The purchaser at the mortgage sale took subject to the agreements of the mortgagor which appeared of record and under the power. This was sufficient notice. Peck v. Conway, 119 Mass. 546, 549.
The fact, that the mortgagee under the power carved out and sold separately four lots from the single lot mortgaged, could not free the individual lots then conveyed from the burden of the restrictions in the hands of a purchaser with notice of the agreement of Bliss. King v. Dickeson, L. R. 40 Ch. 596.
These conveyances could stand no more free from the burden of the restrictive agreement than they would have stood had they been made directly by Bliss.
constructed within the restricted district; that a dwelling house occupied by one family has been built on each lot and that no change in the locality has arisen to make the section less desirable as a place of residence. These facts distinguish the facts of the cases at bar from those in Jackson v. Stevenson, 156 Mass. 496.
It follows that the plaintiffs are entitled to a writ of injunction perpetually enjoining and restraining the defendants and each of them, their servants and agents from constructing, building, erecting and maintaining a building which shall be other than a dwelling house for one family.
[Note p115] That section provided, "Such deed to be valid shall be recorded within thirty days from the day of sale." Substantially the same provision is contained in St. 1909, c. 490, Part II, § 44, as amended by St. 1911, c. 370, and St. 1915, c. 237, § 1.


MediaLaw Monitor – Elonis v. United States: So What’s a True Threat?
Elonis v. United States: So What’s a True Threat?
DWT Media Law July 21, 2015 Comments Off on Elonis v. United States: So What’s a True Threat?
The Supreme Court has skirted a difficult question once again, leaving everyone to wonder what constitutes a “true threat” under the First Amendment. In Elonis v. United States, 575 U.S. ___ (2015), the Court held that a person cannot be convicted of communicating threats simply because a reasonable person would view the statements as threatening. The majority opinion, authored by Chief Justice Roberts, was grounded in basic criminal-law principles and avoided the larger First Amendment issues presented in the case.
After his wife left him and took the children, Anthony Elonis began posting on Facebook rap lyrics with violent and graphic language that threatened his wife, co-workers, an FBI agent, and a local school. Elonis was convicted under a federal statute that makes it a crime to communicate “any threat to injure the person of another,” 18 U.S.C. § 875(c). The statute, however, does not specify any requisite mental state. Elonis argued that statutory construction and the First Amendment required the government to prove that he intended his statements to be a threat. During the trial, the district court rejected Elonis’ arguments and instructed the jury to consider whether a “reasonable person” would regard Elonis’ statements as threats. The 3rd Circuit affirmed.
The Supreme Court reversed, holding that the reasonable person standard is insufficient and “inconsistent with ‘the conventional requirement for criminal conduct— awareness of some wrongdoing.’” To be convicted of communicating a threat, the Supreme Court explained, the defendant must have a guilty mental state; however, the Court stopped short of specifying whether a defendant had to intend for a statement to be a threat or whether recklessness would suffice. In a concurring opinion, Justice Alito contended that recklessness is sufficient, while Justice Thomas, as the sole dissenter, would have preferred a reasonable person standard.
But the majority opinion did not address the larger constitutional issue of whether the First Amendment requires a showing of subjective intent to threaten in order to constitute a “true threat”—a category of speech unprotected by the First Amendment. Indeed, the Supreme Court has provided little guidance on this issue. The last time the Supreme Court applied the true threat doctrine was in Virginia v. Black, 538 U. S. 343, 359 (2003), where the Court defined true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Since Black, courts have split on whether the First Amendment requires proof of a person’s subjective intent to threaten, as required by the 9th Circuit, or whether a reasonable person standard is sufficient, as required by most circuits that have addressed this question.
Although the majority did not address the First Amendment issue, Justice Alito and Justice Thomas did. In line with his views on statutory construction, Justice Alito explained that recklessness would be sufficient under the First Amendment because it would provide “adequate breathing space” for protected speech. Justice Thomas traced the history of true threats and concluded that the First Amendment does not require any heightened mental state; if it did, Justice Thomas explained, true threats would be “one of the most protected categories of unprotected speech.” Neither Justice Alito nor Justice Thomas gave much credence to the concern that the true threats doctrine could be used to chill protected speech.
Ultimately, Elonis is far more notable for what it did not hold. With the widespread use of social media, what constitutes a true threat online remains an open question—and will continue to be a widely debated issue that the Supreme Court may eventually have to resolve.