Twenty-five years ago, the Fifth Circuit appointed a
former Lutheran minister who had been licensed a scant seven years to the
bankruptcy bench in San Antonio. With the retirement of Judge Leif M. Clark on
October 20, 2012, another long-serving Western District judge has moved on to a
new stage of life. While Judge Clark may be departing the bench, he leaves
practitioners with a body of work which can be characterized as thoughtful,
controversial and occasionally irreverent but never dull.
To do justice to Judge Clark would require me to quit my
job and write for at least a year. Since I have a family to feed, I will focus
on just a few highlights here. I am sure that others can add to what I have
written and I encourage them to respond in the comments section.
Personal History
Leif Clark (pronounced "Lâfe" not "Leaf") earned a
Masters of Divinity degree from Evangelical Lutheran Theological Seminary in
Columbus, Ohio and served in specialized ministries for the American Lutheran
Church. He graduated from the University of Houston School of Law (where he
graduated with honors and was an editor on the law review). He went to work for
Cox & Smith in San Antonio.
In 1987, the Fifth Circuit appointed Judge Clark to the
Bankruptcy Court for the Western District of Texas. Over the course of his
judicial career, he sat in San Antonio, Austin, Waco and El Paso. Judge Clark
has written approximately 400 opinions according to LEXIS, but the total is
probably higher. He helped to design and administer a judicial training program
for USAID, training judges in Ukraine, Poland, Latvia and Romania. For sixteen
years, he taught American constitutional law to foreign students as part of the
International Masters of Laws Program for McGeorge School of Law in Salzburg,
Austria. He was actively involved in helping to develop international
insolvency law. Judge Clark also served as an adjunct professor teaching
bankruptcy at the University of Texas Law School.
Judge Clark sang in Judge Richard Schmidt's band,
including such hits as "I Can't Get to Confirmation" and a song about the
1111(b) election.
Although Rule 9037 would not allow me to say this in a
document filed with the Bankruptcy Court, according to his biography for the
National Bankruptcy Conference:
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Judge Clark takes special pride in what he deems his
most important accomplishments - his son, Harrison (born in 2003) and his
daughter, Carson Renee (born in early 2006).
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Since leaving the bench, Judge Clark has opened a solo
practice for mediation and arbitration. He can be reached at moenson@me.com.
Sun Country Development
One of Judge Clark's earliest contributions to Bankruptcy
jurisprudence came while he was still a practicing attorney. In Matter of
Sun Country Development, Inc., 764 F.2d 406 (5th Cir. 1985), the
Fifth Circuit made the rather unremarkable statements that good faith depends
on "the totality of circumstances" and that it is satisfied when a plan is
proposed "with the legitimate and honest purpose to reorganize and has a
reasonable hope of success." However, the seminal line in the opinion, one
which effectively put an end to the doctrine of artificial impairment in the
Fifth Circuit was:
Congress made the cram down available to debtors; use of
it to carry out a reorganization cannot be bad faith.
Id. at
408. I am told that this line came from Judge Clark's brief and it has been
cited by numerous cases over the years.
Judge Clark's Love of Colorful Analogies
Judge Clark had a love for the colorful analogy which he
used to great effect in his opinions. In Mahoney v. Washington Mutual, Inc.
(In re Mahoney), 368 B.R. 579 (Bankr. W.D. Tex. 2007), Judge Clark gave an
extended dissertation on whether sacrificing a goat to Mercury could be an act
to collect a debt which would violate the discharge. He wrote:
A creditor, smarting from the write-off of his loan,
privately sacrifices a goat to Mercury, the Roman god of merchants, believing
devoutly that Mercury will see to it that the debtor repays the creditor in
full. The creditor takes no actions to publicize his sacrifice. He has no
reason to believe that the debtor believes in Mercury, or cares about goats.
Certainly, the sacrifice is an intentional act, and it was subjectively intended
to collect the debt. Indeed, it might be easy to show that the creditor,
"with malice aforethought," had every intent to violate the dickens
out of the bankruptcy discharge. But so what? All the intention in the world
would not convert the creditor's sacrifice into "an act to collect,
recover, or offset" the debt in question. Intentionally performing a
useless and ineffective act cannot violate section 524(a) because a useless and
ineffective act will not count as a proscribed act within the meaning of the
statute -- regardless of the avowed "intent to violate the discharge
injunction."
***
Our goat sacrificing example above is a helpful, if
fanciful, illustration of this principle. Most reasonable people will readily
agree that goat sacrificing is not an act likely to be effective in collecting,
recovering or offsetting the debt in question. But let's suppose that, before
the fated sacrifice, the creditor first sends a photo of the unfortunate goat
to the debtor with a note saying "Pay me or the goat is cabrito!"
These additional facts are enlightening, but we still do not know whether they
are sufficient to count as an act to collect, recover, or offset the debt,
because we cannot yet gauge the likely impact of this threat on the debtor. If,
however, the facts also showed that the debtor is also a devout believer in
Mercury -- or a deeply committed animal rights activist -- then we might have
enough facts to suggest that the note and the photo count as an act to collect
on a debt -- even without the actual sacrifice. This final fact shows the
coercive impact of the missive, sufficient to fairly describe the act as likely
to be effective to collect a debt. We can now say, on these facts, that sending
such a missive to such a debtor could work as a collection device. On the other
hand, if the evidence showed that the debtor believes that all Mercury
worshipers are idiots, and couldn't care less about killing goats, then the
creditor's threatened sacrifice, and its publication of that threat to the debtor
still lack coercive impact, and so would not likely count as an act to collect
a debt.
Id. at 587, 588.
In another opinion, Judge Clark used a personal example
to demonstrate the lack of utility of multi-part tests.
A person is sent into a crowded room with directions to
find Judge Clark by applying the following multi-factor test: (1) tall, (2)
blond hair, (3) angular features, (4) dressed stylishly, and (5) having a
resonant voice. The person returns with David Bowie in tow. If the person had
simply been given a recent picture of Judge Clark (which would have been worth
far more than all the factors one could write down on a piece of paper),
chances are he would have quickly returned with the judge, not the singer.
Official Committee of Unsecured Creditors v.
Grant Thornton (In re Schlotzky's, Inc.), 351 B.R. 430, 435, n. 9
(Bankr. W.D. Tex. 2006). I don't know. When Judge Clark wasn't wearing a robe,
I might have had trouble distinguishing him from David Bowie.
On another occasion, Judge Clark used the Brooklyn Bridge
to explain why claiming an exemption is not sufficient to grant title to the
object claimed, even in the absence of a timely objection.
Just in case there is any confusion, let's suppose I
claim an exemption on the Brooklyn Bridge, and you fail to timely object to my
exemption claim. Is the sainted bridge thus exempt? Technically, section 522(l)
says it is. But of course, what difference does my exemption claim make if
Hizzoner, Mayor Bloomberg, comes to court and successfully establishes that, in
fact, the Brooklyn Bridge is not my bridge to claim, but is safely still the
property of the City of New York, safely untarnished by my exercise in hubris?
None at all you correctly reply, none whatsoever.
In re Rendon,
No. 06-52501 (Bankr. W.D. Tex. 2006) (available here).
Finally, although Judge Clark insists that he does not
want this to be his legacy, he once cited an Adam Sandler movie in denying a pro
se motion "for being incomprehensible."
Or, in the words of the competition judge to Adam
Sandler's title character in the movie, "Billy Madison," after Billy Madison
had responded to a question with an answer that sounded superficially
reasonable but lacked any substance,
Mr. Madison, what you've just said is one of the most
insanely idiotic things I've ever heard. At no point in your rambling,
incoherent response was there anything that could even be considered a rational
thought. Everyone in this room is now dumber for having listened to it. I award
you no points, and may God have mercy on your soul.
Deciphering motions like the one presented here wastes
valuable chamber staff time, and invites this sort of footnote.
Factac v. King (In re King),
No. 05-5171 (Bankr. W.D. Tex. 2006) (available here).
In Part Two, I will focus on some of Judge Clark's more
substantive opinions.
Lexis.com
subscribers can access enhanced versions of some of the opinions cited in this
article:
Matter of Sun Country Development, Inc.,
764 F.2d 406 (5th Cir. 1985)
Mahoney v. Washington Mutual, Inc. (In re Mahoney),
368 B.R. 579 (Bankr. W.D. Tex. 2007)
Official Committee of Unsecured Creditors v. Grant Thornton (In
re Schlotzky's, Inc.), 351 B.R. 430 (Bankr. W.D. Tex. 2006)
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