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The Military United States Your Rights Online

Wikileaks Receiving Gestapo Treatment? 667

An anonymous reader writes "Wikileaks announced on Mar 21 (via its twitter account) its intentions 'to reveal Pentagon murder-coverup at US National Press Club, Apr 5, 9am.' It appears that during the last 24 hours someone from the State Department/CIA decided to visit them, by 'following/photographing/filming/detaining' an editor for 22 hours. Apparently, the offending leak is a video footage of a US airstrike."
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Wikileaks Receiving Gestapo Treatment?

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  • by 99BottlesOfBeerInMyF ( 813746 ) on Wednesday March 24, 2010 @11:08AM (#31597924)

    There are national security laws for a reason.

    True, but those laws are not the highest laws of the land.

    Why anyone using/working on Wikileaks thinks they are above the law, I have never understood.

    Actually, many government officials think they are above the law and can apply state secrets laws indiscriminately and without regard for constitutionality. It has been a huge problem throughout the history of the US, because it is very difficult for the fourth estate and the judicial branch of our government to provide the proper checks to balance misuse of that power because of the secrecy involved. What Wikileaks has been doing in many (but not all) cases is protected whistleblowing, protected freedom of the press, and protected free speech that the courts most likely will rule as constitutionally protected if they ever actually make it to court.

  • More of the same. (Score:0, Interesting)

    by Anonymous Coward on Wednesday March 24, 2010 @11:14AM (#31598014)
    Sadly, it doesn't really matter what the truth is to people that are determined not to believe it. How well documented are atrocities like Operation Keelhaul or the USA's active involvement in the genocide of the people of East Timor in the 70s? Very. Many people have taken it upon themselves, at great risk to their own safety, to bring things like that to the attention of the public at large... most of the time it does no good whatsoever.

    For every 1 dedicated researcher out there, there is a countless myriad of parrots that simply read off the carefully prepared messages their teleprompter tells them to, to the slews of average citizens that are more concerned with bickering over which news channel is actually presenting unbiased raw facts.

    When you bother to alert said average citizens that no major news outlet is trustworthy because all major news outlets agreed with one another in 2005 that they should be allowed to lie on public airwaves, legally*, you get labeled as a conspiracy theorist.

    * []
  • by Anonymous Brave Guy ( 457657 ) on Wednesday March 24, 2010 @11:14AM (#31598018)

    There is certainly a potential problem with classifying things inappropriately, but my opposition to Wikileaks is based on three principles that are not affected by such problems:

    1. If Wikileaks is useful, we already have a fundamental problem of insufficient checks and balances in our government (see my sig).
    2. Supporting an organisation that actively tries to place itself above the law is not the solution to those problems. We should fix bad laws for the good of everyone, not merely try to circumvent them.
    3. Wikileaks in particular has exhibited a lack of good judgement about what is really in the public interest in the past, so they get little sympathy from me on any sort of civil disobedience/public interest whistleblower argument.
  • by Anonymous Coward on Wednesday March 24, 2010 @11:20AM (#31598114)

    The original tweet has been removed.

    This was the original text:

    "WikiLeaks to reveal Pentagon murder-coverup at US National Press Club, Apr 5, 9am; contact 10:43 PM Mar 21st via"

    Two possibilities: they're planning immediate release, or they decided to give up with it.

  • by Anonymous Coward on Wednesday March 24, 2010 @11:47AM (#31598572)

    These higher premiums lead to even more people being unable to afford health care. It's a cycle that had to be stopped.

    So, to stop this cycle, we're changing from "we have higher premiums because some people use the ER for free" to "we have higher premiums because we're subsidizing the people who used to use the ER for free"?

    So you think its more expensive to send people to the doctor BEFORE they have to go to the ER... ER Costs > Doctors costs . I mean either way your going to pay for it, which would rather pay for? Dont shoot the messenger here, Im not saying its right, or fair or whatever. Its the facts of the situation, and honestly ive been one of those "poor" people, i just finished paying off my medical bills from 4 and a half years ago. My credit is ruined, im underemployed beacuse of my credit rating (Had interviewers specifically state this), And Ive lived well under the poverty line, even though I made more then the poverty level. Im not saying its right for people to not pay the bill. Im saying when you have a medical bill in one hand and a rent,power,gas,water,phone,food bill in the other, you have to choose one, and honestly which would you choose? All of this would have been avoided, if I could have afforded to go to a doctor before it got serious.

  • Re:[citation needed] (Score:3, Interesting)

    by Rogerborg ( 306625 ) on Wednesday March 24, 2010 @11:58AM (#31598792) Homepage

    What can be gained by holding it back [until] then??

  • by Anonymous Coward on Wednesday March 24, 2010 @12:04PM (#31598916)
    Earlier this year, my work's insurance informed us that they're raising rates a mere 131%, mostly because of me, a 30 year old cancer survivor. Oh, and they reject all claims relating to my continued cancer screening, because it was a preexisting condition. So, they get to pull more money from me, while at the same time making me pay for everything. Joy! I can't even get insurance on my own. No individual policy will take me, even though I had insurance when I was diagnosed with cancer, and I have been cancer free for a few years now. But not the 5-10 years that most companies want before they'll even talk to me. If I have to pay more in taxes or whatever so that some other person out there can get screening for cancer/disease/etc., so that they can live a better life, I'm all for it. Oh, and I'm pretty sure that raising your rates like that is illegal in some manner, might want to have your employer look into it with their lawyers.
  • by Anonymous Coward on Wednesday March 24, 2010 @12:04PM (#31598918)

    And here's where it gets worse.

    If I have 10 low-skilled employees such as yourself and I now must pay for expensive medical care, I'll simply cut the number of employees that I have to pay for.

    After all, I'm not getting more money, something has to give here.

    I've said many many times, you can put any sort of obligation on employers except that don't have to hire you, and they certainly don't have to keep you.

    You may have won a victory, but you've lost the war. Maybe when you get 10 years experience they'll pay for your healthcare; until then, you're unemployed. Oh wait, how will you get that experience?

    Oh well, you can always get it for "free" from the government.

    Good luck to you.

  • I'm Canadian, but I may be able to answer your question to some extent. We've elected a Conservative government since 2006. They are on the far right of the Canadian political spectrum, even falling to the right of centre on the American spectrum. Since they've come in power, there are several small but significant changes to our country's traditions.

    - The Prime Minister now abuses his executive authority to evade Parliamentary accountability and mask his contempt of Parliament.
    - The Prime Minister now has an entire entourage of armed guards and travels with them in a fleet of at least 5 cars ... to a house across the street (our Governor General's house), instead of walking like every single one of the previous PMs.
    - We now have, for all intents and purposes, free speech zones, although they're not called as such. The RCMP blocks protesters from coming within a certain radius of the Prime Minister because the PM, and I quote from an RCMP letter, "could have been embarrassed."
    - The Prime Minister has, time and again, tried to intervene with arms-length governmental agencies by appointing to important positions those who share his neo-conservative views and equal contempt of Parliament. For example, the Rights and Democracy organization chair was appointed by the PM, and now that the organization is coming under fire, the chair refuses to appear before a Parliamentary committee.
    - The PM also intervenes with arms-length agencies by firing or replacing those in positions of power in those agencies for disagreeing with him. Paul Kennedy, former RCMP watchdog, is the latest victim of this campaign, as he was way too critical of the RCMP. For example, Kennedy wanted to hold officers accountable for their actions! Unthinkable.
    - The PM has, for a couple of years now, if I recall correctly, refused to do unscripted interviews with mainstream national media outlets (particularly with the public broadcaster, CBC) because he accuses mainstream national media outlets of liberal bias (where have you heard that before?). He's also tried, unsuccessfully, to dismantle the CBC, but has instead settled for reducing its budget year-over-year.

    To understand how that is relevant to your question, you will need some background information on Canadian politics and our Prime Minister, Stephen Harper. Mr. Harper LOOOOOVVVESSS you guys. He LOVES America. In a 1997 speech [], he blasts Canada for being a "Northern European welfare state" (like Norway or Sweden) and makes the case that America is the shining conservative beacon towards which we as a nation should strive to resemble. This is reflective of his practices while he was in office. He's hired former Republican consultants and PR people and strategists to help with his campaigning and policy decisions. To cut to the chase, Mr. Harper is an American Republican at heart.

    In Canada, we've had a long political tradition of responsible politics. There were some scandals here and there, but they were relatively minor. The most controversial use of the executive power of the PMO (Prime Minister's Office) was back in the Trudeau era, when Pierre Trudeau invoked the War Measures Act because of terrorism-related acts (bombings, kidnappings) by the FLQ in Quebec, a Quebec nationalist group. Even then, the use may be controversial or questionable, but it was undoubtedly a crisis situation. Otherwise, the executive power of the PMO has almost always been exercised responsibly. That is, until Mr. Harper came along. He abused Parliamentary process by defying the will of Parliament. In Canadian politics, the appointment of a PM is not technically decided by the party with the most seats. It is decided by whichever Member of Parliament has the most support in terms of the number of other Members of Parliament. So a coalition with the opposition parties would mean a new Prime Minister. Mr. Harper didn't like this very much, so he decided

  • by austinhook ( 656358 ) <> on Wednesday March 24, 2010 @12:21PM (#31599160)

    A bit of suspense makes it more interesting. Also it provokes a reaction from the government, and thereby shows to what lengths they will go to suppress it. That itself then becomes news. We need to be reminded how hard the government will try to cover up their crimes, until we act to clip its talons. Otherwise we end up like China, where every government blunder is covered up.

  • by N. Criss ( 961443 ) * on Wednesday March 24, 2010 @12:28PM (#31599278) Homepage

    This essay from Bruce Schneier goes directly to this issue: []

    Government has a lot of power over you. Whereas you as an individual have very little power over the government. To balance things out, large/powerful entities should be transparent. Smaller entities and individuals get to have secrets (privacy).

  • by commodore64_love ( 1445365 ) on Wednesday March 24, 2010 @12:47PM (#31599576) Journal

    >>>it provokes a reaction from the government, and thereby shows to what lengths they will go to suppress it

    I'm planning to create a website documenting U.S. government (and possibly EU government) abuses. Everytime someone says, "But government is good," it's a pain to have to scramble to gather all the info & educate them.

    This way I can simply point to and be done with it.

  • Advertisement (Score:3, Interesting)

    by kangsterizer ( 1698322 ) on Wednesday March 24, 2010 @12:47PM (#31599584)

    Why do you think everyone else in ANY industry are pre-announcing what they do?
    Products, goods, actions, whatever..

    You need to create the expectation for your information to last long enough. Otherwise, its going to be on the news for 2 days and gone and forgotten even if it was rather sensationalist.

    We're at Slashdot, ever thought about Apple's marketing? It's all about that; Rumors, expectations, then a big announcement.. and actual product availability month later.
    You did not think it was related to their success?

    The other points are irrelevant. What wikileaks want, is to share some specific information with the population. To be shared in the fastest and widest way possible, you've to do like the "big boys" and use advertisement tactics. No way around it (unless they discovered aliens exist, maybe).

  • by Anonymous Coward on Wednesday March 24, 2010 @01:47PM (#31600534)
    Sorry, but some anti-government organization simply saying on twitter that they have information and that the government is now harassing them doesn't mean it is so. If they start actually providing evidence, then I'll think about it. But currently, all they have are tweets.
  • by cduffy ( 652 ) <> on Wednesday March 24, 2010 @06:20PM (#31604678)

    Preventative care is a myth. Patients don't want it and will not use it. Those that do use it are going to experience a cost far greater than the benefit due to all the overhead and false-positives. They will soon stop using it, unless there's some kind of anticipated need for it.

    Mmm. I find that I make use of preventative care all the time now that it's conveniently accessible (my current very-large employer has an in-house clinic next door to the company cafeteria), but let me recount some of my personal history, such that you can perhaps better understand why I'm gung-ho about health care reform. Admittedly, it's pretty disjoint from the economic arguments I gave earlier.

    When my wife and I married, I was working for a tiny startup that couldn't afford health insurance, and she was recently unemployed. The company started doing better, after a while, and began offering benefits. Within a few months after this, she gets severe abdominal pain. Her first instinct was to stay at home and try to wait it out -- same way she was accustomed to dealing with everything, having no or very poor insurance. But hey -- we had benefits now -- so I took her to the doctor, who sent her directly to the medical imaging center, which sent her directly to the hospital to go into surgery, as she had an appendix that was about to rupture.

    If the timing had been just a little different -- if she'd tried to do the stoic wait-it-out thing for even another half-day -- there's a very good chance I'd be a widower right now.

    A few years pass, I find blood in my urine, and eventually have a benign tumor removed from my bladder. I think about leaving that still-struggling small startup to join a still-smaller venture some friends are running, and find that I'm effectively uninsurable except as part of a large company's risk pool... which is part of why today, I'm working at a very big company with very good benefits, despite having had a few good ideas in the interim that might have been something worth starting a new venture over. Republicans talk about representing the best interests of small business owners? I might be a small-business owner right now if I were able to buy decent health coverage on my own.

    I don't expect any kind of resurgence of the bladder tumor issue -- heck, I'd gladly allow an insurance company to disclaim responsibility for any further bladder problems if that's what it would take to be able to buy individual coverage -- but I'm still stuck where I am right now, forced by financial necessity to work for whatever form of Da Man is willing to put me in a large enough risk pool to make me insurable. The no-preexisting-condition-denial + individual-mandate system means I can buy my way into a larger pool on the exchange, decoupling my ability to purchase insurance from whom I happen to work for at the time.

    So -- there's my personal stake in the issue. Sure, making legislation is like making sausage -- there's lots that's not pleasant to know about involved in the process -- but I find it hard to see what was recently passed as anything other than a massive win for the public as a whole.

  • Re:[citation needed] (Score:3, Interesting)

    by gilgongo ( 57446 ) on Wednesday March 24, 2010 @07:49PM (#31605528) Homepage Journal

    Which means they're idiots. Seriously.

    This gets modded as "insightful"??

    Here's a crash course in strategy vs tactics. Wikileaks isn't pulling some teenage prank solely for the purpose of seeing people in power with their pants down. In order to actually make a long-term difference to society, you need to play a long game by allowing your adversaries to respond in a way that allows you to be agile. By announcing ahead of time, Wikileaks can observe patterns of reaction which allows them to optimise the way in which they reveal the payload for maximum effect and minimal risk to themselves. At the very least, it's better to reveal several smaller scandals and live to fight another day then to blow the lid on a massive issue only to be totally silenced for all time.

You can tune a piano, but you can't tuna fish. You can tune a filesystem, but you can't tuna fish. -- from the tunefs(8) man page


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EFF Reverse Engineers Carrier IQ 103

MrSeb writes "At this point we have a fairly good idea of what Carrier IQ is, and which manufacturers and carriers see fit to install it on their phones, but the Electronic Frontier Foundation — the preeminent protector of your digital rights — has taken it one step further and reverse engineered some of the program's code to work out what's actually going on. There are three parts to a Carrier IQ installation on your phone: The program itself, which captures your keystrokes and other 'metrics'; a configuration file, which varies from handset to handset and carrier to carrier; and a database that stores your actions until it can be transmitted to the carrier. It turns out that that the config profiles are completely unencrypted, and thus very easy to crack."
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EFF Reverse Engineers Carrier IQ

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You can tune a piano, but you can't tuna fish. You can tune a filesystem, but you can't tuna fish. -- from the tunefs(8) man page

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An Overview of the Do Not Track Debate 108

jonathanmayer writes "The Verge is carrying an accurate and accessible overview of the Do Not Track debate. Quoting: 'With the fate of our beloved internet economy allegedly at stake, perhaps it's a good time to examine what Do Not Track is. How did the standard come to be, what does it do, and how does it stand to change online advertising? Is it as innocuous as privacy advocates make it sound, or does it stand to jeopardize the free, ad-supported internet we've all come to rely on?' The issues surrounding Do Not Track can be difficult to understand, owing to rampant rhetoric and spin. This article unpacks the tracking technology, privacy concerns, economic questions, and political outlook. Full disclosure: I'm quoted."
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An Overview of the Do Not Track Debate

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  • by sootman ( 158191 ) on Friday October 12, 2012 @06:10PM (#41636845) Homepage Journal

    It's much shorter. :-)

    Your post advocates a

    (x) technical ( ) legislative ( ) market-based ( ) vigilante

    approach to fighting tracking. Your idea will not work. Here is why it won't work.

    (x) Dude, fucking seriously. A checkbox to say "Hi marketers, please don't track me!"? What are you, on crack? You've got better odds walking through a bad neighborhood wearing gold chains and a "Please don't mug me" shirt.

    Furthermore, this is what I think about you:

    (x) This is a stupid idea, and you're a stupid person for suggesting it.

You can tune a piano, but you can't tuna fish. You can tune a filesystem, but you can't tuna fish. -- from the tunefs(8) man page


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Voluntouring in Jomalig

photo by Mara Balayan

It’s this time of year again to explore yet another destination here in the Philippines. Yes, I’m referring to my yearly birthday trip. 🙂 Last year, I traveled to Ilo-ilo, Guimaras and Bacolod City where I had experienced my first ever CouchSurfing.

This year though, I decided to travel for a cause. One of my couchsurfer friends, James, had organized this so-called Voluntourism at Jomalig Island in Quezon Province. Without second thoughts (not to mention the short span of time in booking my plane ticket to Manila), I grabbed the opportunity. It was like hitting two birds with a stone. I get to volunteer and travel at the same time. 🙂

FYI, Project Jomalig is a community development project that aims to alleviate the condition of the children in Jomalig Island, Quezon, which has the most number of malnourished children in the Philippines.

More information about the project here. This project was also featured in a local TV program, Reel Time. You can view the clip here.

Okay, so here’s the details of my trip to the island:

Davao → Manila → Real, Quezon → Jomalig Island vice versa

That’s how far I traveled. All the Volunteers came from Manila (or nearby/relocated in Metro Manila) except me 0_o | from google maps

My plane arrived earlier (around 10PM instead of 11PM) in Manila on the 12th of September. I only have the jeepney routes as guide in reaching the meeting place which was set at 4AM on the 13th and I don’t have the slightest idea on which way to go. I spent almost 5 hours roaming around Manila (actually, I got lost.. hahaha) Yes, I’m bad at directions. I could have asked the locals but I just went on searching for clues/landmarks of the places that I had to go. I did ask some locals though. Talk about thrill and excitement. 🙂 I spent almost 2-3 round trips in every jeepney route I’ve ridden until I reached the meeting place. One jeepney driver almost scolded me for not pointing out my destination beforehand (who thought I was a runaway girl). In the end, I befriended him to which I shared a part of my story. 🙂 By the time I arrived at the meeting place, (i’m one of the early birds of course :D) I was dead tired and sleepy (from work plane ride jeepney rides getting lost + backpack). But I did enjoy the rides. Somehow, I was able to sight-see a part of Manila. 🙂
The next ride was about 4 hours from Manila to Real, Quezon. What I remembered on this trip were the circles, the ups, and downs and bumps on the road. And light rain? I was asleep the whole time (I was dead tired, remember?) By the time I woke up, we were already at Real. I think it was around 9AM. We stopped over for breakfast and project briefing.
photo from journeyingjames

photo by journeyingjames

And while we were heading to the port, I noticed this seemingly-old bar and restaurant. (I had this fascination with old architectural buildings :3) It reminded me of the wineries in Spain and France. I meant in photos, not that I’ve visited the wineries of those places. I wished I was. 🙂

Around 11AM, we headed to Isla Jomalig. A 5-6 hour boat ride from Real, Quezon port.
ready to row the boat

ready to row the boat

By the time we reached the island, it was around 5PM already. We camped at the beach since there were many of us. Plus, it was more fun. 🙂
the tent quarters, the beach and the sunset

the tent quarters, the beach and the sunset

The day after was the community reach-out. We traveled by boat again for 2 hours to reach Barangay Apad. And we also traveled for about 30 minutes by truck going to the port.
The families were already gathered by the time we arrived at the place. There were lots of skinny children. 😦 Somehow, we uplifted their spirits by sharing the goods that we brought for them. (toys, clothes and slippers) Even exchanged food with them. We brought chicken for the community and they gave us squid and fish for lunch. They were so happy. And we were also delighted just seeing their smiles. (despite the super hot weather and hours of transpo) 🙂
reaching out to the community | photo by wave 6 volunteers of project Jomalig

reaching out to the community | photos by wave 6 volunteers of project Jomalig

Of course, we did not let the evening pass without doing some childish acts. Here’s us doing the logroll on the sand going to the beach. 🙂 (Video to be uploaded later.. evil laugh)
do the logroll baby! :D photo by Ivy

do the logroll baby! | photo by Ivy Ignacio

Night came and we had our socials (back to the beach camp). We were graced by the mayor’s arrival and even more surprised when he brought crabs and lobsters for dinner and also some local drinks. 🙂

Wave 6 Volunteers of Project Jomalig | Photo by  Duane Bernardo & Erwin Nuer

Wave 6 Volunteers of Project Jomalig | Photos by Duane Bernardo & Erwin Nuer

And now for the most exciting part; our departure from the island. We left the island around 11AM (waves were still strong even by day so we had to delay a bit). Unfortunately, the waves turned out stronger in the late afternoon accompanied by rain. Some of us (including me) got soaking wet because we had a small boat and there were many of us (including other locals), some had to stay outside. And talking about strong winds and raging sea water embracing us… for 10 hours. (It was a good idea of slipping away from the drinks during the socials :)) Our boat ride was unexpectedly extended for more hours since we got lost in the middle of the sea due to the bad weather, with no light, no food and no good shelter. We were supposed to arrive around 5PM but we arrived at 10PM at the port of the province.
Of course, we arrived safely despite the situation. 🙂 (I wouldn’t be having this post if we weren’t.. hahahaha)
“We don’t mind the big waves there’s a space to forget the fear and sleep. sa bubong ng cargo boat sa gitna ng baybaying Lamon” #masandaltulog #higahigapagmaytime ~Shammy Lisay
“Honestly, it felt traumatic, tragic for some but after a few moments of silence.
I continue to celebrate, I survived. We alive.” ~Shammy Lisay
“Pagod pa rin after a grueling 9 to 10-hour boat ride yesterday. Almost lost at sea, wet, cold and itchy, but still worth it.” ~Duane Bernardo
And supposedly, I should have gotten into a spa after the trip to island. But since I ran out of time (we arrived in Manila at 1AM and my flight back to Davao was around 4AM), I headed to the airport instead and had my massage in Davao. Sadly, most of us were not able to say goodbye to each other. (That is why thanks to Facebook and Twitter for reuniting us.) 🙂

This birthday trip.. It’s probably my best trip for this year! 🙂

TAG TEAM | Jas, Anne, Mara & Ivy | #tentRoomies #uniform

TAG TEAM | Jas, Anne, Mara & Ivy | #tentRoomies #uniform | photo by Mara Balayan

#ProjectJomalig: ” In meeting new friends, doing a community reach-out, eating simple yet satisfying meals, and staying on a cool beach camp.. I wouldn’t have experienced these all if it weren’t for #projectJomalig.. Indeed, it was a well-spent birthday trip..” ~yours truly 🙂

Oh, and by the way, there were five of us September celebrants. And for sharing and making this trip memorable for us five, SUPER DUPER THANKS to all Wave 6 Volunteers, to the community and of course to the organizers (without you, there’s no #ProjectJomalig “teary-eyed”) Boss James, Chef Arvin, Ms. Mitch and Ms. Em.  🙂
“being part of the wave6 of #projectJomalig and meeting you guys were more than enough to me. Happiness to the highest level na yun! Chos! ” ~yours truly
This trip has ended, but I’m looking forward on my next trip already.. (I still dunno where though)
And someday, maybe we can share another trip together. 🙂

4 thoughts on “Voluntouring in Jomalig

  1. Wow Jas! Karon lang ko nasaag sa imong blog balik. 🙂 Kudos to this! If you’re looking for a companion sa imong next project, count me in! Hehehe. Gusto sad ko mag-ingon ani. Wala lang ko kabalo asa magduol. 🙂

    Btw, I’ve privatized (tama ba na word na? Hehe) my wordpress and blogspot account due to security problems. Char. Hehe. Sa karon, I frequent tumblr sa. You can visit me at lifeaftercheese.tumblr.com. 🙂

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text:
Daily Decisions: Unlawful Detainer Jurisdiction For Dummies

In Angelo Property Co. v. Maged Hafiz (Division 2, April 17, 2012), the Court of Appeals goes into a lot of detail (and that’s saying something, coming from me) explaining the limits of the trial courts’ unlawful detainer jurisdiction. I’ll do my best to sum up the Court’s 37 pages in, well, something less than that.

Maged (as he referred to himself in his papers) leased a commercial property in Vancouver, Washington from Angelo Property; he ran a nightclub called The Nile on the property. There was some dispute between Maged and Angelo, which resulted in Angelo filing an unlawful detainer action against Maged in an effort to kick him out.

Washington law provides for a “summary proceeding” in unlawful detainer actions that is “designed to facilitate the recovery of possession of leased property; the primary issue for the trial court to resolve is the ‘right to possession’ as between a landlord and a tenant.” The summary proceeding has limited discovery and occurs on shortened time. But it is a limited proceeding. A trial court in an unlawful detainer action can only determine (1) the right of possession and (2) counterclaims “based on facts which would excuse a tenant’s breach.”

After Angelo filed its case against Maged, Maged decided he’d had enough of renting from Angelo. So he surrendered the property, answered the unlawful detainer complaint, and asserted various counterclaims against Angelo. Because the counterclaims went beyond the “facts which would excuse a tenant’s breach,” Maged also asked the trial court to convert the case to a regular civil action. Such a conversion would (a) allow Maged to bring his unrelated counterclaims and (b) give Maged the full arsenal of civil discovery and the extra time provided by the Civil Rules.

In response to Maged’s counterclaims (and related motion practice) the trial court (a) concluded that, despite Maged’s surrender of his possessory interest, Angelo’s unlawful detainer action continued because “legal” possession was still an issue, (b) declined to convert the action to a general civil action, (c) permitted Maged to assert some (but not all) of his counterclaims because they were sufficiently related to the unlawful detainer action, and (d) granted summary judgment in Angelo’s favor.

The Court of Appeals didn’t like any of those decisions. But before I get to that, a note on “jurisdiction.” I put that word in quotes because, while the Court uses the term “subject matter jurisdiction” throughout the opinion to refer to the trial court’s power to hear certain claims in an unlawful detainer proceeding, the Court disclaims making any decision on whether the trial court’s power in this case is truly “jurisdictional” or merely a matter of statutory “authority.” The distinction doesn’t matter here because (according to the Court of Appeals) Maged timely raised all the relevant issues in the trial court and on appeal, so there’s no issue of waiver; the Court just needed to decide the legal issues presented. Regardless, given the Court’s proclaimed agnosticism on the jurisdictional nature of the relevant questions, I’d much prefer the Court not use the term “jurisdiction,” which has all sorts of connotations.

But anyway, sorry, I know I said I would be pithy! Despite going on for 37 pages in its opinion, the Court of Appeals actually made pretty quick and simple work of this case. First, the Court looked at Maged’s counterclaim that the trial court permitted to go forward in the unlawful detainer action. The counterclaim did involve the terms of the lease, but that is not the standard. The counterclaim can only be heard if it is “based on facts which would excuse a tenant’s breach.” That determination is specific. In other words, it is not sufficient that the counterclaim is based on facts of a sort which might, in some circumstances, provide an excuse. Rather, the court must look to the specific nature of the plaintiff’s unlawful detainer claim and determine whether, based on the specific claim, the proposed counterclaim is based on facts that would excuse a tenant’s breach under the theory actually advanced by the plaintiff. Here, Maged’s counterclaim was not based on sufficiently related facts, so it should not have been heard in the unlawful detainer action.

Second, the Court looked more generally at the trial court’s authority in the unlawful detainer action. Unlawful detainer actions are meant to determine actual and legal possession of leased property. Therefore, according to the Court of Appeals, once Maged forfeited his right to actual or legal possession of the property, the unlawful detainer action was mooted — or, in the Court’s language, the trial court’s “jurisdiction” was “extinguished.”

Once the unlawful detainer “jurisdiction” was extinguished, the trial court lost the power to issue any rulings or take any action without first converting the action into a run-of-the-mill civil action with all the protections and rights of the Civil Rules. But the trial court did not effect such a conversation. Accordingly, the Court of Appeals vacated every one of the trial court’s orders entered after Maged’s concession. The trial court had no power to issue any rulings under its unlawful detainer authority once that matter was closed.

So the trial court did a few things wrong. It should have either (a) terminated the unlawful detainer proceeding or (b) converted it to a civil action as soon as Maged conceded possession. And while the unlawful detainer proceeding was alive and kicking, the court should not have permitted Maged’s counterclaims to be asserted in the action. Maged did a nice job with this at the trial court: He specifically forfeited possession just so that the unlawful detainer action could be converted into a general civil action, which would then permit him to assert his counterclaims. A good plan, except the trial court wasn’t on board. I imagine he’ll have better luck on remand.

One thought on “Daily Decisions: Unlawful Detainer Jurisdiction For Dummies

  1. Pingback: Monday Morning Mash-up: April 23, 2012 | Ziff Blog

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Friday night noms

I’m not a chef. I’m not even really a decent cook and I hate cooking anything that has more than 5 ingredients. Tonight, I splurged and used 6 ingredients for this tasty roasted chicken & veg. I got the recipe out of my March issue of Real Simple.

So what exactly are you drooling over? That’s roasted red potatoes with broccoli and very thin pieces of chicken with red pepper and feta cheese rolled up inside. I had to brown the chicken in a frying pan before putting it in the oven to roast, but only a minor hassle, really.

I guess I could have really stuck to my 5 ingredient rule, but I’m a big fan of flat parsley. It just gives a really fresh taste to everything.

Happy belly, over and out.

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text:
Should shouting “Fire!” in a crowded theater really be illegal?

(Another question: Should shouting “Flareon!” in a crowded theater be illegal? We know what happens with Vaporeons, for one thing.)

(Now you can see that I started writing this blog post back when Pokémon Go was still popular. Isn’t it great to just begin a blog post with evidence that it was left in the pantry as a draft for a long while?)

‘Shouting “Fire!” in a crowded theater’ is the go-to example of why the freedom of speech shouldn’t be unlimited. Here, I would like to question and more closely examine this case.

I will start with a disclaimer that is seen all too often in conversations where the freedom of speech is mentioned, but is still appropriate. I’m not talking about whether shouting “Fire!” in a crowded theater is a bad thing to do. I’m talking about whether it should be illegal, whether we should consider someone who does so a criminal.

The typical argument on why shouting fire in a crowded theater should not be protected by the freedom of speech is that it places surrounding individuals in danger by causing a false panic.

So let’s consider this assertion that causing a false panic should be illegal.

What exactly is a false panic? Certainly accusing the president of having faked his credentials to the presidency and suggesting its contribution to the destruction of this country counts? All the Obama birthers should now get thrown in prison, right?

Okay, but it’s still fairly unlikely that this accusation causes some unnecessary deaths, whereas it’s very possible for an ensuing stampede from a theater to kill a few people. If elevated chances of unnecessary death are the metric of evaluating a false panic, then why isn’t telling people to not get their vaccines illegal? This is a false panic that can cost quite a few lives. Is the problem that the danger will imminently manifest?

At this point, why don’t we look back to the original case where this anecdote was presented to find what was originally meant by a “false panic”?

It turns out this anecdote was first given by a judge for a comparison to why handing out anti-war flyers during World War I should not be protected under freedom of speech. That’s the offense upon which this reference was built. It is time to consider the possibility that the belief that shouting “fire” in a crowded theater should be illegal is based on an outdated mindset and ideology, one where having insufficient patriotism by expressing disapproval of a war was a punishable offense, and that the act really ought not to be illegal anymore.

Actually, though, how many people that you know will immediately believe a building’s on fire when someone shouts “fire” and not first suspect someone’s trolling? It may be sad that society has progressed to such a state, but nevertheless, this anecdote needs at least a rethinking.

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