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Re: CIVIL ARREST in California?

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  • Patrick M
    Of course INFRACTIONS are CIVIL. All ACTIONS are either CIVIL or CRIMINAL. CODE OF CIVIL PROCEDURE 24. Actions are of two kinds: 1. Civil; and, 2. Criminal.
    Message 1 of 4 , Nov 11, 2009
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      Of course INFRACTIONS are CIVIL.

       

      All ACTIONS are either CIVIL or CRIMINAL.

       

      CODE OF CIVIL PROCEDURE 24.  Actions are of two kinds:

      1. Civil; and,

      2. Criminal.

      http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=2-33

       

      If an action is NOT CRIMINAL, it is CIVIL.

       

      As many other jurisdictions OPENLY ADMIT.

       

      “If you have received a traffic ticket, it is important to read both sides of the ticket. The ticket will indicate whether you are accused of committing a civil infraction or a misdemeanor…”

      http://courts.co.calhoun.mi.us/ctinf020.htm

       

      7-1-4150. Municipal infractions -- civil offense. (1) A municipal infraction is a civil offense punishable by a civil penalty of not more than $300 for each violation or if the infraction is a repeat offense, a civil penalty not to exceed $500 for each repeat violation.

      http://data.opi.state.mt.us/bills/mca/7/1/7-1-4150.htm

       

      Civil Infractions

      http://www.tucsonaz.gov/courts/Court_Info/Civil_Infractions/civil_infractions.html

       

      Civil Infractions

      http://www.tigard-or.gov/city_hall/departments/municipal_court/civil_infractions.asp

       

      Criminal Justice and Civil Infraction Cases

      http://www2.miami-dadeclerk.com/cjis/  

       

       

      The most common kind of civil cases are traffic violations, or infractions. Because traffic violations are a way of breaking the law, most people would assume traffic violations would be considered criminal. But because people cannot be imprisoned for traffic violations, the legal system considers these infractions civil. The classification of traffic violations as civil is one reason why the number of civil cases is so high.”

      http://www.in.gov/judiciary/about/05-casetypes.html

       

       

      “Some refer to an infraction as quasi-criminal, because conviction for an infraction is generally not associated with the loss of liberty, and are often considered civil cases. Nonetheless, in the United States , most infractions are indeed violations of statutory law, but in differing with criminal law where the burden of proof is Beyond a Reasonable Doubt, the standard for the civil infraction differs from jurisdiction to jurisdiction, some jurisdictions require proof beyond a reasonable doubt while others may only require proof by a preponderance of evidence.”

      http://en.wikipedia.org/wiki/Infraction

       

      And the "fine only" offense in Atwater was a MISDEMEANOR, which is a CRIME, so the police officer had PROBABLE CAUSE.

       

      "The question is whether the Fourth Amendment for b ids a warrantless arrest for a minor criminal offense, such as a misdemeanor seat b elt violation punisha b le only b y a fine. We hold that it does not.

       

       In Texas , if a car is equipped with safety b elts, a front-seat passenger must wear one, Tex. Tran. Code Ann. §545.413(a) (1999), and the driver must secure any small child riding in front, §545.413( b ). Violation of either provision is "a misdemeanor punisha b le b y a fine not less than $25 or more than $50." §545.413(d). Texas law expressly authorizes "[a]ny peace officer [to] arrest without warrant a person found committing a violation" of these seat b elt laws, §543.001, although it permits police to issue citations in lieu of arrest, §§543.003-543.005."  GAIL ATWATER , et al., PETITIONERS v. CITY OF LAGO VISTA et al. (2001)

      http://laws.findlaw.com/us/532/318.html

       

      Patrick in California

       

      "It ain't what ya don't know that hurts ya. What really puts a hurtin' on ya is what ya knows for sure, that just ain't so." -- Uncle Remus

       

      Daniel said:

       

      The Judicial Council didn't need to admit that a stop for a traffic offense is an "arrest."   At least 15 or so years ago, the California courts held that a "fine only" (infraction) ticket is an "arrest" when the cop decides to actually write the ticket. 

      The S.Ct. allows arrests and prosecutions for misdemeanors and infractions under federal law, at the same time claiming they are "not crimes," thus there is no right to jury trial, even though the body of the Constitution says "the trial of all crimes shall be by jury."  The S.Ct. has also held that states are not required to allow the defendant a jury trial in "petty offenses" in state prosecutions.  (I disagree with the S.Ct. because it rationalized away the plain language of the Constitution.)  In the Atwater case, the S.Ct. has even held that the states can make a custodial arrest in a "fine only" offense.

      An infraction is not a "civil" offense.  You can never be stopped and detained for a "civil" offense, but you can be stopped and detained for an infraction.  Cops can't legally stop you to serve a civil summons because you can't be lawfully "arrested" for a civil "offense."  The police don't go around stopping you for breach of contract until you sign a ticket to be released.

      Civil cases have hearings and due process, if you fight the them.  Infractions have hearings and due process, if you fight them.

    • Patrick M
      To me your logic is FLAWED at best. And you have yet to offer any CREDIBLE EVIDENCE to support your “beliefs”, UNLIKE me. The “petty offense”
      Message 2 of 4 , Nov 11, 2009
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        To me your "logic" is FLAWED at best.

         

        And you have yet to offer any CREDIBLE EVIDENCE to support your “beliefs”, UNLIKE me.

         

        The “petty offense” RATIONAL has NOTHING to due with the charge is CIVIL or CRIMINAL, but is used to JUSTIFY the DENIAL of a JURY TRIAL because the courts have ruled that those CONSTITUTIONAL provisions apply to the right to jury trial as it existed at common law and thatany offense for which the maximum statutory penalty is less than six months incarceration is presumptively a petty offense to which the right of trial by jury does not attach”.

         

        A rational WHICH really does NOT address the issue of the nature of INFRACTIONS, does it?

         

        The simple FACT is that this, as well as ALL the other jurisdictions that I have listed, ADMIT that INFRACTIONS are CIVIL.

         

        What is an infraction?

        Previously, many traffic and other charges were crimes.  The Legislature has decriminalized many traffic, parks, wildlife and fisheries offenses.  These offenses are now called infractions and are civil cases.

        http://www.cityoffederalway.com/Page.aspx?page=128#1

         

        So under DUE PROCESS & EQUAL PROTECTION OF THE LAW, HOW can you “believe” California can be any different?

         

        "Further, infractions are not crimes and the rule forbidding successive prosecutions of a defendant is not applicable when an infraction is one of the offenses involved. (People v. Battle (1975) 50 Cal.App.3d Supp. 1 [123 Cal.Rptr. 636].) fn. 1 [1b] Proceedings on infractions are not attended by the same constitutional safeguards as those attending felony or misdemeanor prosecutions. The limitation on an accused's right to jury trial of infractions has withstood constitutional attack upon the rationale the Legislature did not intend to classify infractions as crimes. (See People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4 [116 Cal.Rptr. 795] and People v. Battle, supra, 50 Cal.App.3d Supp. 1.)"  People v. Sava (1987) 190 Cal.App.3d 935 , 235 Cal.Rptr. 694

        http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/190/935.html

         

        WHY is it so hard for you to CONSIDER the POSSIBILITY that the REAL REASON you are NOT provided the ASSISTANCE of COUNSEL & you can NOT be IMPRISONED for an INFRACTION is because it is a CIVIL (and NOT a CRIMINAL) cause?

         

        And to be EXACT, the LEGISLATURE related the APPLICABLE provisions of law to MISDEMEANORS to INFRACTIONS.

         

        PENAL CODE 19.7.  Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions including, but not limited to, powers of peace officers, jurisdiction of courts, periods for commencing action and for bringing a case to trial and burden of proof.

         

        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=2-24

         

        However, the WARRANTLESS ARREST authority is NOT based on MISDEMEANORS, but on PUBLIC OFFENSES and the AUTHORITY for them in California REQUIRES the “peace officer” to have PROBABLE CAUSE to believe that the person to be arrested has committed a PUBLIC OFFENSE in the officer’s presence” or a FELONY.

         

        PENAL CODE 836. (a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur:
        (1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer’s presence.
        (2) The person arrested has committed a felony, although not in the office’s presence. (3) The officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed. (rest omitted). http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=833-851.90

         

        VEHICLE CODE 40300.5.  In addition to the authority to make an arrest without a warrant pursuant to paragraph (1) of subdivision (a) of Section 836 of the Penal Code, a peace officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person had been driving while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug when any of the following exists:

           (a) The person is involved in a traffic accident.

           (b) The person is observed in or about a vehicle that is obstructing a roadway.

           (c) The person will not be apprehended unless immediately arrested.

           (d) The person may cause injury to himself or herself or damage property unless immediately arrested.

           (e) The person may destroy or conceal evidence of the crime unless immediately arrested.

        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=40001-41000&file=40300-40313

         

        PROBABLE CAUSE deals with CRIMES.

         

        "The governing law is well settled. An arrest is valid if supported by probable cause. Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime. (People v. Price, supra, 1 Cal.4th at p. 410.)"  People v. Kraft (2000) 23 Cal.4th 978

        http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/23/978.html

         

        PUBLIC OFFENSE is a synonym for a CRIME.

         

        A "public offense" is synonymous with "a crime" and a crime includes both felonies and misdemeanors. Burks v. U.S. , C.A.9 ( Cal. )1961, 287 F.2d 117, certiorari denied 82 S.Ct. 868, 369 U.S. 841, 7 L.Ed.2d 846, rehearing denied 82S.Ct. 1143, 369 U.S. 882, 8 L.Ed.2d 284.

         

        SYNONYMOUS

        1 : having the character of a synonym; also : alike in meaning or significance

        2 : having the same connotations, implications, or reference <to runners, Boston is synonymous with marathon

        http://www.merriam-webster.com/dictionary/SYNONYMOUS

         

        SYNONYM

        1 : one of two or more words or expressions of the same language that have the same or nearly the same meaning in some or all senses

        2 a : a word or phrase that by association is held to embody something (as a concept or quality) <a tyrant whose name has become a synonym for oppression> b : metonym

        3 : one of two or more scientific names used to designate the same taxonomic group

        http://www.merriam-webster.com/dictionary/synonym

         

        FELONIES & MISDEMEANORS are CRIMES.

         

        PENAL CODE 31.  All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons counseling, advising, or encouraging children under the age of fourteen years, lunatics or idiots, to commit any crime, or who, by fraud, contrivance, or force, occasion the drunkenness of another for the purpose of causing him to commit any crime, or who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.

        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=30-33

         

        INFRACTIONS are NOT CRIMES, so HOW could they be PUBLIC OFFENSES?

         

        And HOW could an INFRACTION give PROBABLE CAUSE to make a WARRANTLESS ARREST?

         

        Or do you “believe” that miraculously an INFRACTION can be a “public offense” for SOME CONSTITUTIONAL PURPOSES but NOT others?

         

        “In summation, it is questionable whether the Legislature considers an infraction to be a "crime." The Legislature enacted section 19c of the Penal Code which deprives a person committing an infraction of the right to a jury trial and the right to counsel at public expense; however, both of these rights are guaranteed to one accused of a crime by sections 15 and 16 of article I of the California Constitution. We must, if we can, construe a statute in such a fashion as to preserve it from unconstitutionality. (In re Kay (1970) 1 Cal.3d 930 [83 Cal.Rptr. 686, 464 P.2d 142].) By construing section 19c of the Penal Code to relate to noncriminal offenses we can avert a clash with the Constitution and achieve our goal, i.e., the continued viability of the statute.

         

        Inconsistency of Sections 19c and 1042.5 vis-a-vis 689 of the Penal Code

         

        [2] Section 16 of the Penal Code declares that "crimes and public offenses" include not only felonies and misdemeanors but also infractions. Sections 19c and 1042.5 of the Penal Code deprive a person accused of an infraction of the right to jury trial. Yet, section 689 of the Penal Code declares that "[n]o person can be convicted of a public offense unless by verdict of a jury." (Italics added.) (The 1968 amendment of section 16 of the Penal Code substituted the words "crimes and public offenses include:" for the words "crimes, how defined. Crimes are divided into.")

         

        If the Legislature intended to treat infractions as public offenses and if the charging of a public offense invokes the right to trial by jury, sections 19c and 1042.5, which deny a jury to one who commits an infraction, conflict with section 689. However, the same (1968) Legislature enacted section 19c, the pertinent amendment of section 16 and section 1042.5. Construing these sections in accordance with the precepts laid down in In re Kay, supra, we must conclude that it was not the intent of the Legislature to enact inconsistent statutes and, further, that when it added the term "public offense" to section 16 it was not so categorizing infractions because if it did so, it would have caused inconsistency between sections 19c and 689 of the Penal Code. Support for this interpretation is found in the language of section 1042.5 which states that a defendant "charged with an infraction and with a public offense for which there is a right to jury trial" (italics added) may be accorded a jury trial. Had the Legislature intended that an infraction be treated as a public offense, it would have worded the statute differently, for example, "an infraction and with some other public offense." [50 Cal.App.3d Supp. 7]

         

        Furthermore, this court has previously held in People v. Oppenheimer (1974) 42 Cal.App.3d Supp. 4, 7, fn. 2 [116 Cal.Rptr. 795], that inasmuch as section 689 of the Penal Code was originally enacted in 1872 and last amended in 1951, and sections 19c and 1042.5 of the Penal Code were enacted in 1968, we must read all the sections together and, in case of conflict, give effect to the latest enacted sections -- sections 19c and 1042.5. We therefore have declared in People v. Oppenheimer, supra, that sections 19c and 1042.5 qualify section 689 insofar as infractions are concerned. Hence, even though we were to treat an infraction as a public offense under section 16, we must nevertheless excise infractions from section 689 in order to effect the objective of the Legislature. (Pen. Code, § 4.)

         

        People v. Battle , 50 Cal.App.3d Supp. 1 (1975)

        http://login.findlaw.com/scripts/callaw?dest=ca/calapp3d/50/supp1.html

         

        Here is HOW the JUDICIAL COUNCIL of CALIFORNIA originally recommended that the LEGISLATURE amend the codes to DECRIMINALIZE the offenses now known as INFRACTIONS.

         

        PENAL CODE 15. A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments:

        1. Death;

        2. Imprisonment;

        3. Fine, except when imposed, for a traffic infraction pursuant to Division 19 (commencing with Section 43000) of the Vehicle Code;

        4. Removal from office; or,

        5. Disqualification to hold and enjoy any office of honor, trust, or profit in this state.

        VEHICLE CODE 43004. Acts defined by law as traffic infractions and committed on or after January 1, 1968, do not constitute crimes or public offenses. Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply, including but not limited to powers of peace officers, jurisdiction of courts, periods for commencing action and, for bring a case to trial and burden of proof.

         

        1967 1967 JUDICIAL COUNCIL of CALIFORNIA REPORT TO THE GOVERNOR AND THE LEGISLATURE, pages 18- 19

         

        In WHAT I believe was an effort to HIDE the TRUE NATURE of INFRACTIONS, the LEGISLATURE OMITTED some information & PARSED the rest out among several sections of the codes when they CREATED INFRACTIONS.

         

        And they used PENAL CODE 17(a) to effectively “excise” INFRACTIONS from the DEFINITION of CRIMES & PUBLIC OFFENSES.

         

        PENAL CODE 17.  (a) A felony is a crime which is punishable with death or by imprisonment in the state prison.  Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.

        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=2-24

          

         Because they KNEW that had NOT changed the MEANING of WHAT is a PUBLIC OFFENSE.

         

        "[1] "It is a well established principle of statutory law that, where a statute adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time [32 Cal.2d 59] of the reference and not as subsequently modified, and that the repeal of the provisions referred to does not affect the adopting statute, in the absence of a clearly expressed intention to the contrary. (Rancho Santa Anita v. City of Arcadia [1942], 20 Cal.2d 319, 322 [125 P.2d 475]; Brock v. Superior Court [1937], 9 Cal.2d 291, 297-298 [71 P.2d 209, 114 A.L.R. 127]; In re Burke [1923], 190 Cal. 326, 327-328 [212 P. 193]; Don v. Pfister [1916], 172 Cal. 25, 28, 31 [155 P. 60]; Ramish v. Hartwell [1899], 126 Cal. 443, 447 [58 P. 920]; Ventura County v. Clay [1896], 112 Cal. 65, 72 [44 P. 488]; People v. Clunie [1886], 70 Cal. 504, 506 [11 P. 775]; People v. Whipple [1874], 47 Cal. 592, 593-594; Spring Valley Water Works v. San Francisco [1863], 22 Cal. 434, 439; 59 C.J. § 548, p. 937.)" Palermo v. Stockton Theatres, Inc. , 32 Cal.2d 53 (1948)

        http://login.findlaw.com/scripts/callaw?dest=ca/cal2d/32/53.html

         

        WHICH was DETIRMINED by the PENAL CODE is it was ENACTED in 1872.

         

        15. "Crime" and "public offense" defined.

        A crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments:

        1. Death;

        2. Imprisonment;

        3. Fine;

        4. Removal from office; or,

        5. Disqualification to hold and enjoy any office of honor, trust, or profit in this state.

         

        16. Crimes, how divided.

        Crimes are divided into:

        1. Felonies; and,

        2. Misdemeanors.

         

        And incidentally, there are SPECIFIC VIOLATIONS which are DESIGNATED as a PUBLIC OFFENSE in both the PENAL & VEHICLE CODES.

         

        PENAL CODE 96.5.  (a) Every judicial officer, court commissioner, or referee who commits any act that he or she knows perverts or obstructs justice, is guilty of a public offense punishable by imprisonment in a county jail for not more than one year.
           (b) Nothing in this section prohibits prosecution under paragraph (5) of subdivision (a) of Section 182 of the Penal Code or any other law.

        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=92-100

         

        VEHICLE CODE 10801.  Any person who knowingly and intentionally owns or operates a chop shop is guilty of a public offense and, upon conviction, shall be punished by imprisonment in the state prison for two, three, or four years, or by a fine of not more than fifty thousand dollars ($50,000), or by both the fine and imprisonment, or by up to one year in the county jail, or by a fine of not more than one thousand dollars ($1,000), or by both the fine and imprisonment.

        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=10001-11000&file=10801-10804

         

        VEHICLE CODE 10851.  (a) Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense and, upon conviction thereof, shall be punished by imprisonment in a county jail for not more than one year or in the state prison or by a fine of not more than five thousand dollars ($5,000), or by both the fine and imprisonment.(REST OMITTED)

        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=veh&group=10001-11000&file=10850-10855

         

        PENAL CODE 19.4.  When an act or omission is declared by a statute to be a public offense and no penalty for the offense is prescribed in any statute, the act or omission is punishable as a misdemeanor.

        http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=2-24

         

        So it appears to me that it could be argued that the only real PUBLIC OFFENSES are those SPECIFIC acts or omissions that the legislature has EXPRESSLY DECLARED as such (as illustrated above).

         

        Expressio unius est exclusio alterius.  A maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another.  Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325; Newblock v. Bowles, 170 Okl. 487, 40 P.2d 1097, 1100.  Mention of one thing implies exclusion of another.  When certain persons or things are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred.  Under this maxim, if statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded.” Black’s Law Dictionary, Sixth Edition, page 581

         

        Inclusio unius est exclusio alterius.  The inclusion of one is the exclusion of another.  The certain designation of one person is an absolute exclusion of all others. ... This doctrine decrees that where law expressly describes [a] particular situation to which it shall apply, an irrefutable inference must be drawn that what is omitted or excluded was intended to be omitted or excluded.  Black's Law Dictionary, 6th Edition

         

        Patrick in California

         

        "Look Rocky, never once do my fingers leave my hand!" – Bullwinkle

         

         

        Daniel said: 

         

        No, infractions in * California * are not "civil."  They are considered petty "offenses," just as the Supreme Court considers federal Class B misdemeanors and infractions as "offenses" rather than crimes, but they are not civil.

        The reason these infractions are not "civil" is because you can be taken into physical custody.  You can never be taken into custody for a "civil" infraction, such as a California parking ticket.  (The only time you can ever be taken into physical custody is for a "civil" contempt.)

        California 's legislature has specifically said that all laws that apply to misdemeanors apply to infractions, except the right to a public pretender or jury trial.  That is why infractions require proof beyond a reasonable doubt and criminal discovery provisions apply to them.

      • Frog Farmer
        ... The arrested person consents to the infraction process by not requiring the hearing before the magistrate ASAP and then promises to appear, granting
        Message 3 of 4 , Nov 13, 2009
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          Patrick M wrote:

          > It looks to me like the JUDICIAL COUNCIL OF CALIFORNIA is finally
          > ADMITTING that you have been ARRESTED for an INFRACTION prior to the
          > issuance of the NOTICE TO APPEAR.
          >
          > Section 1.020. Notice to Appear
          > (a) When a person is arrested for a violation declared to be an
          > infraction or a misdemeanor, or for a violation of a city ordinance,
          > and the person is not immediately taken before a magistrate, the
          > arresting officer must prepare a Notice to Appear form.

          The arrested person consents to the infraction process by not requiring
          the hearing before the magistrate ASAP and then promises to appear,
          granting jurisdiction, by signing the form. Otherwise the statutes
          provide that he can have the case proceed as a misdemeanor with all
          attendant rights. I've posted about that before. I prefer to force them
          down that route after we get the court set right....never mind...

          Regards,

          FF
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