what i did today:
called lawyer made appointment about the important thing i didn't do monday
mailed rent check, 19 days late.
mailed phone bill.
met a cute guy in france to chat with
updated 3 of my blogs
drafted a motion
drank tons of coffee
got the laundry ready, but didn't actually go do it
opened letters about tax sale.
tried to look up tax sale info online.
hid from a cop.
oh and i took out the trash, which involved shoes and leaving the house.
this is actually more than i usually get done.
i am a mess.
tomorrow: mail motion to court 13.
(revise motion, print, stamp, envelope, etc.)
car to shop to fix brakes
laundry?
someday:
call guy who sent letter about lot.
or the other guy. and the ones on hawthorne.
make list of properties.
mizzou credit union.
this is not a public blog, just a place hwere i can leave myself notes. nothing to see here folks, move along.
Wednesday, January 19, 2005
to do:
make better list.
warrant
depos
motion to dismiss
property tax situation
re motion for rehearing of denial of motion to set aside default judgment.
rent check
did - took out trash
motion for rehearing of denial of motion to set aside default judgment.
Comes now defendant and for his motion to set aside default judgment states as follows.
The purpose of this motion is both to contest, as an abuse of discretion, the court's denial of a motion to set aside default judgment, and to inform of the court of a pattern of misconduct by the clerk's staff, ratified by the prosecutor's office.
Defendant ("I, me") was charged with failure to show a driver's license during a traffic stop in August.
I lost the ticket, and did not file an answer or response.
After hearing nothing further, I suspected the case had been dismissed.
In December, I received notice my drivers license had been suspended for failure to pay a judgment on the ticket.
That day, I paid the judgment, filed a motion to set aside the default judgment,
and had my drivers license reinstated.
The next day, I drove to the east coast for a family vacation.
Some time later, the court denied my motion without opinion.
This motion is filed within a reasonable time and postmarked within 30 days of notice of that denial, received 12/29/04.
When I went to pay the judgment, after filing my motion to set aside the judgement, I was at first presented with a card to sign, on which the clerk had checked a box indicating that I was pleading guilty.
This as wrong for two reasons.
First, it not appropriate for a clerk advise defendants how to plead, or to decide for them how they will plead. Doing so is unauthorized practice fo law, and even if authorized would not be competent or ethical practice of law.
Second, it was not what I was there to do and was expressly contrary to my wishes.
I carefully explained that I was only satisfying the judgment, and was not entering a plea of guilty. They persisted in attempting to coerce me to plead guilty, or suggested in the alternative a no contest plea. I persisted in my insistance that I had a right to satisfy the judgment without entering a plea. After discussing it with a manager, the guilty box was crossed off, and I proceeded to pay.
Upon receiving a reciept, I brought to the cashier's attention that the wrong information had been stated on the form - it indicated that I had plead guilty.
The same manager as before refused to correct the form.
This was not an isolated incident. I have been aware of this problem for about 5 years, in cases which, since they only involved a $25 seat belt ticket, I chose not to contest further. I reasonably suspect that thousands of people have had their rights violated in this manner, and that the problem will continue if not addressed.
In dissussing the merits of the case with two employees at the procutor's office, I was first told that I couldn't pay a judgment without first entering a guilty plea, and then told that if I had paid the judgment, my motion to set aside the default judgment would be denied. And indeed it was.
If, as alleged by the prosecutor's office, this court has a practice of denying motions to set aside default judgments in cases where the judgment has been satisfied pending disposition of the case, this is abuse of disgression, error of law,
denial of due process, and denial of due course of law.
On the other hand, it is conceivable the court relied on other grounds. The motion was handwritten, brief, and did not allege in detail the factual basis, or use the magic words "excusable neglect." The motion did include as an exhibit a copy of my valid Indiana driver's license.
In this case there was excusable neglect. The ticket had been lost. There does not seem to be any way to look these things up online. There was no notice by the court, either that it intended to enter a default judgment, or that it had done so.
Defendant is indigent and disabled. While I discused it with my attorney, I did not hire him to resolve it, because it would have been prohibitively expensive. While I had planned to deal with it myself, I am organizationally challenged and prone to procrastination as a result of my mental disability. The factors constitute excusable neglect. I reasonably believe that I have a meritorious defense that may prevail at trial. I have prevailed at trial in 4 previous cases in this court about 5 years ago.
Default judgments are strongly disfavored in Indiana. The right to due course of law, the right to a trial, the right, in most cases, to a trial by jury, are fundamental. While these rights can be, and usually are, waived, waiver must be knowing and voluntary. Here there has been no waiver.
In this case, where there has been misconduct by court clerk employees, first in attempting to coerce a plea, then in attempting to fraudulently misrepresent that a plea had been entered, it would create an appearance of impropriety to appear to ratify and endorse the misconduct.
Relief sought:
I respectfully ask that the court set aside its denial of the motion to set aside the default judgment, and set aside the default motion, and set the matter for trial, or for a pre-trial hearing or conference.
Alternatively, I ask the court not to deny this motion without scheduling a hearing on the motion.
Alternatively, if the court is unmoved, and refuses to set aside its default judgment, I request that it issue findings of fact and conclusions of law, so that a reviewing court would have a record on which to base a decision.
Most importantly, I ask the court to investigate the allegations of misconduct by the court clerk's staff and, as it finds appropriate, issue an order prohibiting the staff from entering pleas for defendants, directing them to allow judgments to be satisfied without entry of a plea,and that I receive a copy of the order.
I respectfully suggest that training in basic concepts of due process might be in order, especially for management level employees.
I have not included a draft of such an order, because it might be presumptuous of me to do so; the wording of such order would be a matter for the court's discretion.
Respectfully submitted,
Robbin Stewart
-------------
[insert line break]
Proposed Order
For cause shown, the default judgment in case 04157597 is set aside and the matter is set for hearing [ ] or trial [ ] on ______________________________________.
So Ordered,
Judge
Marion Superior Court 13, Marion County Indiana.
note to self: friday 9:00 am Caudill.
make better list.
warrant
depos
motion to dismiss
property tax situation
re motion for rehearing of denial of motion to set aside default judgment.
rent check
did - took out trash
motion for rehearing of denial of motion to set aside default judgment.
Comes now defendant and for his motion to set aside default judgment states as follows.
The purpose of this motion is both to contest, as an abuse of discretion, the court's denial of a motion to set aside default judgment, and to inform of the court of a pattern of misconduct by the clerk's staff, ratified by the prosecutor's office.
Defendant ("I, me") was charged with failure to show a driver's license during a traffic stop in August.
I lost the ticket, and did not file an answer or response.
After hearing nothing further, I suspected the case had been dismissed.
In December, I received notice my drivers license had been suspended for failure to pay a judgment on the ticket.
That day, I paid the judgment, filed a motion to set aside the default judgment,
and had my drivers license reinstated.
The next day, I drove to the east coast for a family vacation.
Some time later, the court denied my motion without opinion.
This motion is filed within a reasonable time and postmarked within 30 days of notice of that denial, received 12/29/04.
When I went to pay the judgment, after filing my motion to set aside the judgement, I was at first presented with a card to sign, on which the clerk had checked a box indicating that I was pleading guilty.
This as wrong for two reasons.
First, it not appropriate for a clerk advise defendants how to plead, or to decide for them how they will plead. Doing so is unauthorized practice fo law, and even if authorized would not be competent or ethical practice of law.
Second, it was not what I was there to do and was expressly contrary to my wishes.
I carefully explained that I was only satisfying the judgment, and was not entering a plea of guilty. They persisted in attempting to coerce me to plead guilty, or suggested in the alternative a no contest plea. I persisted in my insistance that I had a right to satisfy the judgment without entering a plea. After discussing it with a manager, the guilty box was crossed off, and I proceeded to pay.
Upon receiving a reciept, I brought to the cashier's attention that the wrong information had been stated on the form - it indicated that I had plead guilty.
The same manager as before refused to correct the form.
This was not an isolated incident. I have been aware of this problem for about 5 years, in cases which, since they only involved a $25 seat belt ticket, I chose not to contest further. I reasonably suspect that thousands of people have had their rights violated in this manner, and that the problem will continue if not addressed.
In dissussing the merits of the case with two employees at the procutor's office, I was first told that I couldn't pay a judgment without first entering a guilty plea, and then told that if I had paid the judgment, my motion to set aside the default judgment would be denied. And indeed it was.
If, as alleged by the prosecutor's office, this court has a practice of denying motions to set aside default judgments in cases where the judgment has been satisfied pending disposition of the case, this is abuse of disgression, error of law,
denial of due process, and denial of due course of law.
On the other hand, it is conceivable the court relied on other grounds. The motion was handwritten, brief, and did not allege in detail the factual basis, or use the magic words "excusable neglect." The motion did include as an exhibit a copy of my valid Indiana driver's license.
In this case there was excusable neglect. The ticket had been lost. There does not seem to be any way to look these things up online. There was no notice by the court, either that it intended to enter a default judgment, or that it had done so.
Defendant is indigent and disabled. While I discused it with my attorney, I did not hire him to resolve it, because it would have been prohibitively expensive. While I had planned to deal with it myself, I am organizationally challenged and prone to procrastination as a result of my mental disability. The factors constitute excusable neglect. I reasonably believe that I have a meritorious defense that may prevail at trial. I have prevailed at trial in 4 previous cases in this court about 5 years ago.
Default judgments are strongly disfavored in Indiana. The right to due course of law, the right to a trial, the right, in most cases, to a trial by jury, are fundamental. While these rights can be, and usually are, waived, waiver must be knowing and voluntary. Here there has been no waiver.
In this case, where there has been misconduct by court clerk employees, first in attempting to coerce a plea, then in attempting to fraudulently misrepresent that a plea had been entered, it would create an appearance of impropriety to appear to ratify and endorse the misconduct.
Relief sought:
I respectfully ask that the court set aside its denial of the motion to set aside the default judgment, and set aside the default motion, and set the matter for trial, or for a pre-trial hearing or conference.
Alternatively, I ask the court not to deny this motion without scheduling a hearing on the motion.
Alternatively, if the court is unmoved, and refuses to set aside its default judgment, I request that it issue findings of fact and conclusions of law, so that a reviewing court would have a record on which to base a decision.
Most importantly, I ask the court to investigate the allegations of misconduct by the court clerk's staff and, as it finds appropriate, issue an order prohibiting the staff from entering pleas for defendants, directing them to allow judgments to be satisfied without entry of a plea,and that I receive a copy of the order.
I respectfully suggest that training in basic concepts of due process might be in order, especially for management level employees.
I have not included a draft of such an order, because it might be presumptuous of me to do so; the wording of such order would be a matter for the court's discretion.
Respectfully submitted,
Robbin Stewart
-------------
[insert line break]
Proposed Order
For cause shown, the default judgment in case 04157597 is set aside and the matter is set for hearing [ ] or trial [ ] on ______________________________________.
So Ordered,
Judge
Marion Superior Court 13, Marion County Indiana.
note to self: friday 9:00 am Caudill.
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