Northern Law Blog

Who really owns that car?

2012-05-21T17:21:00.000-05:00

Did you know that the Illinois Secretary of State will perform a vehicle title search for $5.00? Neither did I.

Dawn Weekly pointed this out on the ISBA email list today. Another attorney wanted to know who to subpoena to ascertain ownership of a car. Dawn pointed out that the Secretary of State has a standard procedure for this and that no subpoena was necessary.

HERE is a link to the Information Request Form, which has also been added to the Forms Archive on this site.

Please note that you must have a permissible purpose under the Driver Privacy Protection Act (18 U.S.C. 2721, et seq.). Section E on page 2 of the form, however, gives broad leeway to attorneys who request this information in anticipation of litigation, in connection with litigation, or to enforce any judgment or order.

Thanks for the info Dawn!

Side note: If you haven't subscribed to the ISBA email lists yet, they are an invaluable resource. Almost as good as this blog!!

Lenders must respond to short sale offers within 90 days.

2012-05-18T15:58:00.000-05:00

Short sales are one of the more frustrating areas in today's real estate industry. Countless legitimate short sale offers are withdrawn because the banks just do not respond for months at a time. I have clients right now whose lease is expiring at the end of June. We submitted a short sale offer in March. I don't think we'll hear back from the bank, much less close the deal, before they're going to have to vacate their apartment.

A recent amendment to the Mortgage Foreclosure Act seeks to remedy this situation.  The Act now requires the bank to respond to a written short sale offer within 90 days, if the property is the subject of a residential foreclosure case.

It is a relatively short section, so I have copied the entire text of the new statute below:

    (a) For purposes of this Section, "short sale" means the sale of real estate that is subject to a mortgage for an amount that is less than the amount owed to the mortgagee on the outstanding mortgage note.

    (b) In a foreclosure of residential real estate, if (i) the mortgagor presents to the mortgagee a bona fide written offer from a third party to purchase the property that is the subject of the foreclosure proceeding, (ii) the written offer to purchase is for an amount which constitutes a short sale of the property, and (iii) the mortgagor makes a written request to the mortgagee to approve the sale on the terms of the offer to purchase, the mortgagee must respond to the mortgagor within 90 days after receipt of the written offer and written request.

    (c) The mortgagee shall determine whether to accept the mortgagor's short sale offer. Failure to accept the offer shall not impair or abrogate in any way the rights of the mortgagee or affect the status of the foreclosure proceedings. The 90-day period shall not operate as a stay of the proceedings.

(735 ILCS 5/15-1401.1)

People v. Salgado clarifies defendant's right to confront witnesses

2012-05-01T13:59:00.001-05:00

The case of People v. Salgado 2012 IL App (2d) 100945 (March 15^th, 2012) has shed some light on the rights of defendants to be present when witnesses are testifying. The second district appellate court held that it was in error to allow the defendants daughter to testify in the judge’s chambers while the defendant remained in the courtroom. While the defendant agreed to let his daughter testify in this fashion, the court did not show that the defendant properly understood his confrontation rights and voluntarily waived that right.

In Salgado, the defendant was charged with 2 counts of Class 4 felony domestic battery and at the time that his daughter was set to testify, the state asked to have the daughter testify in the judge’s chamber outside the presence of the defendant. After a moment with defendant, defense counsel agreed to allow the daughter to testify outside the presence of the defendant. Defendant was convicted of both counts and sentenced to 18 months imprisonment.

The appellate court only addressed one claim of error on appeal, the argument that defendant was denied his confrontation right. The appellate court cited the previous Illinois Supreme Court case of Peoplev. Lofton, 194 Ill. 2d 40 (2000),which held that it was a violation of the confrontation clause when a defendant could not see the alleged victim testify in his sexual assault trial, due to physical barriers being erected in the courtroom. Because the right to confrontation includes the ability to see and hear witnesses testify, any “innovation” that prevents the defendant from hearing and seeing the testimony would impede their ability to help in cross-examination and violates the confrontation clause.

While a violation of confrontation rights does not mean an automatic reversal, the Second District found that defendant was completely deprived of these rights because he was unable to ever hear the daughter’s testimony, and thus the case should be reversed and remanded. Additionally, while state argued that defendant waived his right, the court disagreed, writing that “The waiver plainly was not proper as nothing in the record shows that defendant understood that he had a right to be present.” Salgado at 5.

Under People v. Stroud, 208 Ill. 2d 398, 409 (2004), which is cited by the Salgadoopinion, “a defendant’s appearance at a guilty plea proceeding via closed-circuit television is constitutionally permissible only if the defendant waives the right to physical presence on the record after being advised of his right to be present.” (Emphasis added.) Stroud, 208 Ill. 2d at 409. Because there was nothing on the record showing that defendant understood his confrontation right, let alone voluntarily and knowingly waived it, it was improper for the court to proceed.

The court suggests that it could be allowable for the daughter to testify via closed circuit camera from inside the judge’s chambers or another area, as this would allow defendant to see and hear her testimony, even without wavier, but the court’s solution in the instant case was unacceptable because it deprived the defendant of any ability to see or hear witnesses testimony without a knowing waiver.

Emotional Distress Damages for the Death of a Pet

2012-04-20T17:03:00.000-05:00

Illinois is slowly coming around to the national trend of treating pets as more than personal property. For over 100 years in Illinois, if your dog was killed due to the negligence of another, the courts would only award you damages for the actual value of the dog (a piece of property), or less than $100 in most cases.

In January 2009, I wrote THIS post about an Illinois appellate court case that held that the proper basis for determining the measure of damages for the loss of a pet is to determine the pet's "actual value to the plaintiff." In that case, the plaintiff had spent $5,000 in veterinary bills to try to save his dog, so the court awarded the plaintiff $5,000.

Other states are going way beyond the "actual value to the plaintiff," however. Courts is certain states are starting to award damages for emotional distress for the death of a pet. HERE is an article about a trial court in Denver that awarded a woman $65,000 for the death of her dog. She had hired a maid service to clean her house. While they were cleaning her house, they let the dog run out into the street where it was run over by a car. The maid apparently took the dog back into the house and tried to pretend that nothing happened. When the woman returned home, she found the dog dead beneath a table. Surely the cover-up played into the award, but it is still significant nonetheless. The article also notes that the plaintiff's initial demand was $25,000 and that the cleaning service offered $2,000 to settle.

HERE is another article about an appellate court opinion out of Texas that overturned a lower court's decision to dismiss a lawsuit that sought to recover "sentimental" or "intrinsic" damages when the plaintiff's dog was mistakenly euthanized by the Animal Control Department. The appellate court ruled that when personal property has little or no market value, damages can be awarded on the basis of the property's intrinsic or sentimental value to its owner, similar to the Illinois decision that I referenced above.

And, you will all surely remember THIS post I wrote about special damages being awarded in New Jersey in 1941 for the death of a dog that had been trained to work in a vaudeville act.

So, basically what I am trying to say is that if anybody's dog was recently killed, you should give me a call. Have a nice weekend.

"Turn Every Goddamn Page"

2012-04-18T16:37:00.000-05:00

Today's post at the Litigation and Trial blog is titled "How to Excel at the Basics as a Young Litigator." The post gives several tremendous tips for litigators, young and old alike.

My favorite tip is called "Turn every goddamn page." The author points out that most trials are not won on a "Perry Mason moment" where plaintiff's counsel destroys a key witness on cross-examination and elicits a damning piece of evidence that completely seals the deal. Rather, the lawyers who win really good cases do so long before the trial even starts. Here is my favorite passage of today's advice:

Cases on TV are won through brilliant, impromptu cross-examinations at trial. Real cases are won through dogged investigation and by relentlessly investigating until you have both found and turned every goddamn page.

How do you do that?

First, ask your client to give you every document they have, and to explain what they are. Second, serve the opposing party with custom-tailored interrogatories and requests for documents asking for everything. You won’t get everything so, third, serve requests for admission demanding they admit those documents are all the responsive documents. That will get you more, but still not everything, so, fourth, notice the deposition of the records custodian for the defendant, at their place of business, with custom-tailored document classes identified. Fifth, when there, ask the deponent if they’re the most knowledgeable person about each class and, if not, ask who is, and then get that person to come down (remember, you’re already there and so are they), and ask them, and keep going until you’re confident you have everything you can get.

Did I mention you also need to scour the Internet, and to call other attorneys who litigated similar cases?

It’s a laborious, time-consuming process, and it’s not necessary for every case. But you need to learn how to dig for documents, and then, once you have them, how to develop the patience to “turn every goddamn page.”

Slow Justice

2012-04-12T13:52:00.001-05:00

Most of you will remember that I received a speeding ticket on the way to court several months ago. I wrote THIS blog post about my attempt to have the ticket dismissed. Several people have asked me for updates lately. I still haven't argued my motion to dismiss yet. You can be sure that I will update you once there is a resolution on my ticket.

I just checked the dates as I was writing this post. I was ticketed on January 17th. The first court date was March 2nd. At that time, the Judge wanted to continue the case to read the case law. It was continued to April 13th. I just got a call from the prosecuting attorney who informed me that the Judge was not going to be in court tomorrow, but that another judge would be sitting in his place. So, we just agreed to a continuance to May 4th.

I will let you know what happens on May 4th. Hopefully, it is good news.

Is Swag Admissible in Court?

2012-04-10T16:46:00.004-05:00

Three juveniles in Galveston, Texas allegedly committed a small-time burglary a couple of weeks ago. They broke into an "amphibious vehicle" at a local water park and stole the fire extinguisher, doing some minor damage in the process. They were captured on surveillance video, part of which is linked above.

One of the suspects is apparently known throughout his high school for his "swag," or his "signature dance move," which he "regularly performs in the hall ways," according to the local Police Captain Jeff Heyse. Apparently, someone who knows this kid's swag identified him to police and he was arrested.

So, the question, as presented by Lowering the Bar, the legal humor blog, is whether this video will be admissible to identify him based on his swag, even though his face is not clearly visible. According to Lowering the Bar, it may be admissible under Texas Rule of Evidence 406, which says that "evidence of the habit of a person... is relevant to prove that the conduct of the person... on a particular occasion was in conformity with the habit or routine practice."

The Lowering the Bar blog notes that a creative defense lawyer would probably parade several witnesses through the courtroom and have them all perform this dance move in front of the jury to show that this kid's swag is not so distinctive after all.

I wish I could think of a good catch phrase for the closing argument, similar to the Johnny Cochran classic "if it doesn't fit, you must acquit." Anybody got one for me????????

The Second District Court Continues to Expand the Definition of Resisting/Obstructing in People v. Nasolo

2012-04-10T11:38:00.001-05:00

Earlier this year, the Illinois Supreme Court expanded the Resisting/Obstructing statute to included non-physical acts of obstruction within the purview of 720 ILCS 5/31-1 in People v. Baskerville, 2012 IL 111056. Following suit, the Second District Appellate Court expanded the Resisting/Obstructing statute to included being uncooperative with booking procedures. People v. Nasolo, 2012 IL App. (2d) 101059 is one of the first appellate court decisions since Baskerville, and it represents an uncomfortable shift toward criminalizing uncooperative and belligerant attitudes with police.

In People v. Nasolo, the defendant was charged with obstructing under 720 ILCS 5/31-1 for "refus[ing] to be fingerprinted or photographed." 2012 IL App. (2d) 101059 ¶ 2. At trial, the officer testified that the defendant refused to answer questions during the booking process, refused to be fingerprinted, and refused to be photographed. 2012 IL App. (2d) 101059 ¶ 5. The jury found Nasolo guilty of obstructing a peace officer. On appeal, the defendant contended that refusing to be fingerprinted or photographed was not a violation of the Resisting/Obstructing statute.

For those familiar with the law on section 31-1, this case is very similar to People v. Weathington. In Weathington, the defendant refused to provide "name, address, birth date, birth place, social security number, occupation, and physical description" to officers in lock-up. 76 Ill.App.3d 173, 176 (4th Dist. 1979). The Fourth District Court noted that it would be "incongruent to say that one may remain silent and yet must provide "booking" information." Id. at 177. The Illinois Supreme Court narrowed the Fourth District ruling noting that "[n]o physical act of resistance or obstruction occurred; merely argument coupled with eventual cooperation. 82 Ill.2d 183, 187 (1980); see also People v. Fernandez, 2011 IL App (2d) 100473 ¶ 7 ("Arguably, the supreme court’s affirmance narrowed the appellate court’s holding somewhat. The supreme court seems to have held only that a delay in providing the information is tantamount to argument with the police.")

When dealing with the refusal in Nasolo, the court focused not on any physical act, but rather whether the defendant actually obstructed the performance of the officer's duties. This comports with the recent Illinois Supreme Court case, People v. Baskerville, 2012 IL 111056, in which the Illinois Supreme Court did away with the physical act requirement of the Resisting/Obstructing statute.

This rational, however, has real problems when considering the defendant's right against unreasonable searches and seizures under the Fourth Amendment. U.S Supreme Court precedent subjects fingerprinting to Fourth Amendment protections. See Davis v. Mississippi, 394 U.S. 721, 727 (1969)("Detentions for the sole purpose of obtaining fingerprints are no less subject to the constraints of the Fourth Amendment."); Hayes v. Florida, 470 U.S. 811, 817 (1985)("There is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act . . "). Police officers need at least reasonable suspicion, if not probable cause, to fingerprint a defendant.

Importantly, the defendant in Nosolo was not physically interfering with being fingerprinting. The allegations and testimony simply revolved around the defendant's refusal. Knowing that fingerprinting is a search, has the Second District now criminalized asserting defendant's right to refuse searches under the Fourth Amendment? Even those searches which are authorized, defendant's can still refuse or deny consent. At law, the defendant's consent, or lack thereof, is integral in determining whether a search under the Fourth Amendment was reasonable.People v. Luedemann, 22 Ill.2d 530, 544 (2006)(In Illinois, there are three levels of citizen-police interaction: consensual encounters, brief investigative detentions based on reasonable suspicion, and arrests supported by probable cause.)

Only months after the problematic People v. Baskerville decision was released, the Illinois Appellate Courts are already applying this precedent in problematic ways. The line between defendant's rights to remain free from unreasonable searches and seizures and obstructing police officers' authorized acts has become thinner and more indiscernible.

Westlaw Headnote of the Day

2012-04-05T11:06:00.002-05:00

The legislature is presumed to know the rules of grammar.

State v. DeMarco, 416 A.2d 949 (N.J. Super. Ct. Law Div. 1980)

Pro-Cat or Anti-Cat??

2012-04-04T17:07:00.002-05:00

First, let me say that I am not exactly a cat person. No offense to the cat owners out there, but I really don't understand cats or people's attraction to them. If you're going to the invest the time and money it takes to keep a house pet, why wouldn't you get an animal that actually seems to appreciate your efforts... like a dog??

But, I digress. I really want to talk about a trust department's possible breach of fiduciary duty. Today's Chicago Tribune contained an article about a woman from Berwyn who passed away recently at the age of 76. She had no surviving relatives. In her will, she directed that any cat or cats that she owned at the time of her death be euthanized. Sounds like a reasonable request to me.

The meddling trust officers at the Fifth Third Bank, however, felt differently. They petitioned the Cook County probate court to set aside that provision of the will because they had found a shelter to take Boots, the cat at the center of the controversy. On Monday, the Court granted the request and Boots was spared the eventual death sentence.

My question is this: Doesn't the trust department have a duty to carry out the plain language of the will? What makes them think that they can petition the court to set aside any provision of the will? I ask these questions tongue-in-cheek, of course, because there are plenty of reasons why this would happen and it happens all the time. I'm really just trying to rile up the cat lovers!! Have a good one!!!

The Tribune's article is HERE.

Fullet Rosenlund Anderson PC is Hiring

2012-03-23T10:24:00.002-05:00

Fullett Rosenlund Anderson PC is seeking an associate attorney with 3 to 7 years of civil litigation experience to be a part of their litigation team. The firm concentrates in the representation of condominium and common interest community associations throughout Northern Illinois. They handle a variety of cases, including construction defects, breach of contract, covenant enforcements, declaratory actions, injunctions, breach of fiduciary duty, forcible entry and detainer, among others.

Candidates must have excellent verbal communication skills, legal research and writing skills and analytical skills. Additionally, candidates must be very knowledgeable of the Illinois Code of Civil Procedure and have civil trial experience. Their office is located in Lake Zurich, Illinois, however, they represent associations in 8 different counties. Candidates must be willing and able to travel to their office and various courthouses on a daily basis.

Interested candidates can contact Lara Anderson directly at l.anderson@frapc.com.

Illinois “Dead Light” Law for Motorcycle Riders

2012-03-20T14:09:00.003-05:00

If you ride a motorcycle, this has happened to you. You pull up to a red light and it simply
never turns green. You wait patiently, listening to your bike idle, revving it from time-to-time just because it sounds so darn good, when one of the cars piled up behind you beeps you back into awareness. You wonder how long you’ve been sitting there and realize you have no idea; just that it has been too long. So, you take a right on red just to get moving again and forget all about it until it happens again. And then again.

Why does this happen? It’s because many traffic lights are programmed not to change until a vehicle is present and the sensors used don’t always register a motorcycle. Our legislature decided they needed to do something about this, and they did.

As of January 1st,a rider who stops at a red light “which fails to change to a green signal within a reasonable period of time” can “proceed, after yielding the right of way to oncoming traffic facing a green signal” as if he had stopped at a red light. (625 ILCS 5/11-306(c)3.5: only applicable in “municipalities with less than 2,000,000 inhabitants”)

How long is “reasonable”? Who knows?

But wait. That’s just the tip of the ambiguity iceberg. The law says the rider can only proceed if the reason the light failed to change is either “because of a signal malfunction” or “because the signal has failed to detect the arrival of the motorcycle.”

How can the rider possibly know why the light didn’t change?

And who has the burden of proof? Will the State have to prove in each case that the light was functioning properly and the sensor did detect the bike? Or are these issues for the rider to raise in defense?

Rider Beware.

Submitted by Brian D. Moore, Class of 1992.
brian@moorelawpc.com
www.moorelawpc.com

The Odd Opinion of People v. Thompson: What is an authorized act within the Resist/Obstructing Statute

2012-03-16T10:43:00.001-05:00

On March 12, 2012, the Third District Court published the opinion People v. Thompson, 2012 IL App (3d) 100188. The majority opinion addressed whether Kankakee County state's attorneys had proven Mr. Thompson guilty of resisting a peace officer under 720 ILCS 5/31-1. Being only a review of whether a rational trier of fact could find the elements of the offense proven beyond reasonable doubt, the opinion would have likely been issued without publishing under Illinois Supreme Court Rule 23; however, Justice McDade issued a specially concurring opinion, which addresses the police officer's authority. Justice McDade's concurrance raises a question that is often difficult to answer in the Resist/Obstruct statute and the authority of an officer.

The facts are straightforward. Officers have a civil writ of body attachment for defendant's son. Based on the writ(and mistaken belief that the writ is synonymous with warrant), the officers seek to arrest defendant's son at his residence. Defendant gets in the way, and officers arrest him. They charge, allege, and testify to all kinds of physical acts: thrusting of shoulders, stuggling, swinging of elbows, etc. Defendant's witnesses dispute these acts, and they agree that the officer jumped the defendant.

The majority opinion correctly notes that the jury is there to determine questions of fact. The jury believed the officers' accounts and not the defendant's. The majority opinion concludes that a rational trier of fact could believe officers over the defendant and his witnesses. The majority then affirms the trial court.

Justice McDade issues a concurrence, which also agrees in affirming the trial court; however, she brings the up the question: Did officers have the authority to enter the defendant's home with a writ of body attachment? Justice McDade notes that case law is sparse on the subject, but a writ is not the same as a warrant. Since the defendant did not assert this theory in either the trial court nor the appellate court, Justice McDade affirms.

Her concurrance though asks a tough question: what is an authorized act? Section 31-1 requires that the defendant obstruct or resist an authorized act. 720 ILCS 5/31-1. Arrests supported by probable cause or warrants are authorized. 725 ILCS 5/107-2(a) & (c) Terry stops are authorized. People v. Johnson, 285 Ill.App.3d 307 (2d Dist. 1996). The Fourth District found that the approriate test is whether an officer is doing something he was employed to do or on personal frolic. City of Champaign v. Torres, 346 Ill.App.3d 214, 217 (4th Dist. 2004).

State's attorneys will quickly point to Section 7-7 of the criminal code, which states that private citizens cannot use force to resist even an unlawful arrest. 720 ILCS 5/7-7. Case law agrees that unlawful arrests are actually authorized acts under the statute. See People v. Gilman, 17 Ill.App.3d 827, 829-30 (4th Dist. 1974). In 1968, the First Distict Court limited section 7-7 only to arrests, but not searches. People v. Young, 100 Ill.App.2d 20 (1st Dist. 1968). The defendant in Young struck an officer in the chest as the officer attempted to enter the defendant's apartment. Id. at 21. The officer had erroneously gone to the wrong home to serve a warrant and met with the unwelcoming Young defendant. The court held that reasonable use of force "was necessary to terminate the officer unlawful entry into her dwelling and that her limited use of force was justified." 100 Ill.App.2d at 26.

Other cases have similarly agreed that warrantless, nonconsenual, and forcible entry into a person's home is not an authorized act. City of Champaign v. Torres, 824 N.E.2d 624, 630 (Ill. 2005). See also People v. Swiecz, 104 Ill.App.3d 733 (where defendant refused warrantless, nonconsenual entry into his home by an officer seeking to interview an third party), People v. Hilgenberg, 585 N.E.2d 180 (2d Dist. 1991)(where defendants refused to answer the door for officers investigating a an underage drinking complaint).

In People v. Bohannon, 403 Ill.App.3d 1074 (5th Dist. 2010), the Fifth District addressed whether an authorized act means requesting a driver's license and proof of insurance during a traffic stop. The court notes that drivers have a duty to display these documents under the Illinois Vehicle Code. 625 ILCS 5/6-112 ("Every licensee . . . shall display such license . . . upon demand made . . . by . . . a police officer."). The Court, however, held that failure to display a license was not violating an authorized act. In so holding, the Court noted that failure to display this documentation was already an offense, and the state could not "pyramid" these offenses on each other as it created a "unsound structure."

In People v. Fernandez, the Second District Court noted that officers are "authorized" to ask for identifying information of detainees during a Terry stop (725 ILCS 5/107-14); however, the court noted that the law imposed no duty upon detainees to responded. People v. Fernandez, 2011 IL App. (2d) 100473 ¶ 11. The court went on to determine that refusing to identify oneself is not a violation of the Resisting/Obstructing statute. 2011 IL App. (2d) 100473 ¶ 13.

Perhaps one of the hardest cases to reconcile is People v. Ortiz, 16 Ill.App.3d 13 (1st Dist. 1973). In that case, the officer, without probable cause, reasonable suspicion, nor a warrant, lines several young men in a school yard. The officer then proceeds to search Ortiz, who is uncooperative. Oritz then strikes the officer in the chest and jumps on the officer. The First District Court overturns convictions for both battery and resisting. The Court noted that the search was not authorized because it was not supported by probable cause or reasonable suspicion. 16 Ill.App.3d at 17-18.

When dealing with a Resisting or Obstructing charge, attorneys should look at whether the officer's actions being resisted or obstructed were authorized. Unlawful arrests are solidly recognized as authorized under the statute. Unlawful searchs, however, may not be authorized. In Thompson, Justice McDade's concurrance raises a tough question about police authority, but does not resolve it. Criminal defense attorneys have a murky legal area when addressing police authority in Resisting/Obstructing cases.

Lessons Learned from Vincent L. Gambini

2012-03-13T09:55:00.001-05:00

Today is the 20th anniversary of the release of the movie My Cousin Vinny. This movie is absolutely hilarious and many, many lawyers praise its realistic portrayal of the criminal trial process.

The Abnormal Use blog has written a terrific series commemorating the movie. One of the posts outlined six lessons that lawyers can learn from Vincent L. Gambini. You should check it out. The original post is HERE.

Codilis & Associates is Hiring

2012-03-02T17:12:00.002-06:00

Codilis & Associates, P.C. (located in Burr Ridge) seeks a full time associate attorney. The firm concentrates in representing creditor rights in foreclosure, bankruptcy and Real Estate matters. The position involves appearing in state court approximately 3 days per week. Related experience preferred. Full benefit package available. Interested candidates should e-mail resumes including salary requirements to Lisa.Petruzzi@il.cslegal.com

Slocum for Senate

2012-02-22T10:55:00.001-06:00

If anyone in the 25th District is willing to place a sign in your yard, or otherwise contribute to the campaign, please let me know or contact SlocumforSenate.com directly.

For a map of the 25th District, click HERE.

Illinois Supreme Court Clarifies Obstruction of Peace Officer

2012-02-20T07:23:00.005-06:00

In the recent opinion of People v. Baskerville, 2012 IL 111056, the Illinois Supreme Court found that a husband didn’t commit the crime of obstructing a peace officer (720 ILCS 5/31-1) when he allegedly lied to a police officer about his wife’s whereabouts but where the lie didn’t actually impede the officers’ progress in investigating the crime.

In Baskerville, a La Salle County sheriff’s deputy observed a woman driving whose license he believed to be suspended. He followed her home and initiated a traffic stop, but she went inside the house. Her husband then came to the sheriff’s deputy and told him that his wife was not at home and that he was the one that was driving and offered to show him his driver’s license. The husband then went back into the house and after emerging again, told the officer that he could search the house for the wife if he wanted.

Both the husband and the wife were charged with obstructing the police officer based on the false statements and were convicted. On appeal, the appellate court found that that there was a physical act that was required under the statute to obstruct a peace officer and overturned the husband’s conviction on those grounds. However, while the Illinois Supreme Court reversed the conviction, it did so on separate grounds.

The supreme court held that false statements could be considered to obstruct a peace officer and that a physical act is not required, as “applying the dictionary definition, it is evident that 'obstruct; encompasses physical conduct that literally creates an obstacle, as well as conduct the effect of which impedes or hinders progress. Furnishing false information could thus be included within that definition, as it can undoubtedly interfere with an officer's progress". At Paragraph 19 of People v. Baskerville.

The supreme court found, however, that there was insufficient evidence that there was obstruction of a peace officer because the officer was not actually impeded. While the husband initially falsely denied the wife was in the house, he later gave the officer consent to search the house, though the officer did not do so. The Supreme Court found that because of the consent to search the house, the officer was not actually impeded and overturned the conviction.

Illinois Supreme Court Confirms Squad Car Video from DUI Arrest is Discoverable Under Schmidt

2012-02-14T16:11:00.014-06:00

For attorneys working in misdemeanor courtrooms, discovery is always an amorphous concept. Unlike felony discovery, which follow Illinois Supreme Court Rules 411-417, misdemeanor discovery is limited to a few statutes and due process requirements. In People v. Kladis, 2011 IL 110920, the Illinois Supreme Court directly addressed whether squad car videos are discoverable by the defendant in a DUI proceeding.

In Kladis, the defendant made a written notice five days after her DUI arrest. The request included the squad car video from the related stop. At her first appearance, the defendant also made an oral request for the squad car video. Almost 45 days after the DUI arrest, the state tendered a letter to the defendant noting the squad car video had been destroyed pursuant to departmental policy, which automatically deleted videos 30 days after their creation.

The trial judge sanctioned the state for the destruction of the squad car video. As a sanction, the trial judge would not let the officer testify about the occurrence during which the video was running.

In its ruling, the court looked to People v. Schmidt, 56 Ill.2d 572 (1974) and noted that defendant's are entitled to the following materials:

List of witnesses. 725 ILCS 5/114-9.
Written confessions and witnesses who witnessed written or oral confessions of defendant. 725 ILCS 5/114-10.
Exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963).
Reports prepared by the prosecution's witnesses for impeachment purposes. People v. Cagle, 41 Ill.2d 528 (1969).

In Kladis, the Illinois Supreme Court added squad car videos to discoverable items under Schmidt. 2011 IL 110920 ¶ 28. In so holding, the Court noted that squad car videos further the courts' truth-seeking process. Id. Squad car videos are an "integral part" of traffic arrests, and they "objectively document[] what takes place." 2011 IL 110920 ¶ 29. They both help the state prove their case and help defendants decide to take pleas or litigate their claims of innocence.

For attorneys practicing in these courtrooms, they must make these demands for videos early and often—create a record by filing a motion for discovery, issue a subpoena to the arresting agency, and make a demand on the record for these materials.

Illinois Gets Tough on Wage Theft

2012-02-10T14:02:00.003-06:00

Illinois Gets Tough on Wage Theft

Illinois amended the Wage Payment and Collection Act (“IWPCA”) to give employees new powers and protections when an employer fails to pay an employee her “final compensation” or otherwise violates the IWPCA (other provisions specify when wages must be paid, what deductions are allowed, and what records must be kept).

The IWPCA requires employers to pay a departing employee all final compensation owed no later than the next scheduled payday. “Final Compensation” includes everything the employer owes the employee for “wages, salaries, earned commissions, earned bonuses, and the monetary equivalent of earned vacation and earned holidays, and any other compensation...”

The amendments to the IWPCA give the employee added rights and powers including to:
· Pursue more individuals for personal liability through a broader definition of employer
· Go straight to court without first filing a claim with the Illinois Department of Labor (“IDOL”)
· Bring a case as a class action
· Recover reasonable attorney’s fees if she prevails
· Obtain additional damages of 2% per month of the amount not paid
· Receive a penalty from the employer of 1% per day if the employer fails to pay the court ordered amount within 35 days of the order
· Sue for retaliation if an employer discriminates against an employee for making an IWPCA complaint and recover her damages, costs, and reasonable attorney’s fees.

The amending act – known as the Illinois Wage Theft Enforcement Act – is available here:
http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=096-1407&GA=96

Submitted by Brian D. Moore, Class of ‘92
brian@moorelawpc.com
www.moorelawpc.com

Westlaw Headnote of the Day

2012-02-09T07:27:00.004-06:00

Neither witness fees nor mileage will be allowed a witness who was too drunk to answer cross-examination. Fritz v. Fritz, 1894 WL 3292 (Pa. Com. Pl. 1894)

Probable Cause in Drug and Alcohol Testing

2012-02-07T09:20:00.003-06:00

A recent decision from the Second District highlights the importance of refusing any blood, breath and urine tests when one is suspected of driving under the influence of alcohol or drugs. In the case of People v. Miranda 2012 IL App (2d) 100769, No. 2-10-0769, the Second District held that the results of a urinalysis test which showed that a driver arrested for drunk driving had traces of cannabis and cocaine in his system was invalid because there was no probable cause to allow for the search warrant after he refused testing.

In Miranda, an Elmhurst police officer pulled over Miranda because he believed that he was intoxicated. The officer noticed an open beer bottle and after some investigation, arrested the defendant for driving under the influence of alcohol. Miranda refused the breathalyzer as well as the blood and urine test. The officer applied for a search warrant in which he said that in “his professional opinion... [defendant was] under the influence of alcohol and/or drugs.” After a search warrant was acquired, Miranda’s blood was taken to be tested for alcohol and a urine sample was taken for drug testing.

The results came back positive for metabolites of cannabis and cocaine. The trial court granted defendant's motion to suppress the evidence as it was taken based on a warrant that lacked probable cause, specifically, that the officer only had probable cause to suspect that driver may have been drunk but there was no mention in the warrant or his affidavit concerning drugs. On appeal, the Second District upheld the trial courts decision to suppress the evidence.

The state additionally argued that the implied consent statute meant that the defendant had no right to have the evidence suppressed. However, the appellate court found that because defendant had refused a drug testing, the state had no right to use the implied consent statute to force the withdrawal of the blood and urine, as he was revoking the implied consent.

This is an important case for any attorney defending a driving under the influence of drugs case because it reiterates the importance of probable cause for the type of testing (alcohol as opposed to drugs) as well as the importance of refusing consent.

Additionally, other drug metabolites can stay in a persons system for days longer than the effect of the drug has lasted. For example, metabolites from cannabis can stay in the system for up to 30 days, sometimes even more, depending on the weight of the individual as well as the quantity of cannabis they are smoking. This means that many people who might have had a joint a week ago would be considered under the influence of drugs, as a positive test result would be considered proof of influence in Illinois because of its strict per se DUI law, even if there is no indication that they were otherwise impaired. The only way for a person who may have drug metabolites in their system to avoid a conviction when a test is likely is to do as Miranda did and refuse the test, then challenge on probable cause grounds if it proceeds anyways.

Most of the public doesn’t realize these rules, as they seem counterintuitive, and may give the police a blood or urine sample when they might test positive. Just as you would advise your clients never to perform field sobriety tests or give a breath sample, they should avoid giving a blood or urine sample when suspected of driving under the influence of drugs and Miranda shows how it can be challenged.

He adopted his adult girlfriend!!

2012-02-01T08:08:00.002-06:00

Check this story out! This is one way to shield assets. I'd be nervous that the girlfriend would take off with the money after the litigation! http://www.sun-sentinel.com/news/palm-beach/wellington/pb-john-goodman-adopts-girlfriend-20120131,0,3385741.story

NIU Networking Party: Feb 1st 5:30 to 7:30

2012-01-25T14:05:00.002-06:00

The DuPage County Bar Association is hosting a networking event with NIU-COL Students at Pizza Villa in DeKalb! Please come out and share your professional experiences and help these students see the possibilities. Contact Sue Makovec of the DCBA to register. smakovec@dcba.org, or by phone at 630-653-7779.

Submitted by Brian D. Moore, Class of '92
www.moorelawpc.com

Defining Fraud in Litigation

2012-01-21T17:13:00.002-06:00

I have been working on several cases involving fraud over the last couple of months. Fraud takes many shapes. There are an endless number of ways to cheat someone out of money. The facts of two cases are never really the same. But they all end in the same way -- someone loses money.

There are also an endless number of ways to sue for fraud, or so it seems. The first question is what type of relief does the plaintiff want. Of course, the plaintiff wants money. Lots of it and punitive damages. But will money be enough to compensate for the fraud? And is there enough money available, or are you dealing with a judgment proof defendant?

Depending on the specific facts of the case, there are dozens of remedies other than money damages that are available to victims of fraud. Contracts can be rescinded or reformed. Fraudulent transfers of property can be set aside. The court can grant preliminary or permanent injunctions. The court can prevent a bankruptcy discharge. The court can impose a constructive trust on assets in the hands of third parties.

No matter what relief you seek, you will then have to prove that fraud occurred. For that, you need a definition of fraud. The case law interpreting fraud takes many different paths because of all of the remedies available, so there are dozens of definitions and elements in the case law. The defendant will want to define fraud as strictly as possible. But don't let the defendant frame the case in terms of the five-part test for a preliminary injunction or the four-part test for a constructive trust, for example.

It is best to keep it simple. Defining fraud as broadly as possible allows you to keep your options open regarding your damages. I came across two good definitions recently. Here they are:

Fraud is a generic term, which embraces all the multifarious means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false suggestions or by the suppression of truth. No definite and invariable rule can be laid down as a general proposition defining fraud, and it includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated. McClellan v. Cantrell, 217 F.3d 890, 894 (7th Cir. 2000);

and,

There is no general rule for determining what constitutes fraud. The existence of fraud depends on the particular facts of each case. Generally, fraud has been held to mean "anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another." Carey Electric Contracting, Inc. v. First National Bank of Elgin, 74 Ill.App.3d 233 (2d Dist. 1979).

If you have a fraud case, I would try working one of these into either your response to defendant's motion to dismiss, or your motion for summary judgment. Most cases would be easy to prove if either of those were the standards.

The Village of Plainfield v. Michael W. Huseman

2012-01-19T16:06:00.004-06:00

A couple of days ago, I was pulled over for speeding while I was on my way to court. Considering that anything I say on this blog can and will be used against me in a court of law, I don't think that I was actually speeding.

Anyway, as soon as the officer asked me for my license and registration, I politely informed him that I was an attorney and that I was on my way to the courthouse. He was not impressed. Nor was he aware, apparently, of my privilege from arrest in these situations.

I knew, however, that I had just invoked my privilege so I did not argue any further with the officer. I just waited patiently in my car while he walked back to his car. I was actually hoping that he would write me a ticket, which he did. He then came back to my car, handed me my ticket, and explained my options regarding paying the ticket by mail or appearing in court. I didn't mention it to him, but I knew at that time that I would choose the later as opposed to the former.

When I got back to the office, I dusted off the old Illinois Criminal Code of 1961. Just as I remembered, there is a statute titled "Persons Exempt from Arrest." This law applies to electors during their attendance at election, senators and representatives during the session of the General Assembly, members of the militia during their attendance at musters (wtf?), and judges, attorneys, clerks, sheriffs, and other court officers while attending court and while going to and returning from court. 725 ILCS 5/107-7.

Normally, an officer faced with an attorney's or judicial officer's timely assertion of the privilege from arrest should obtain the requisite information from the one asserting the privilege, make arrangements for the complaint to be issued later against the accused, and promptly permit the accused to go on his way. People v, Lynch, 266 Ill.App.3d 294, 297 (2nd Dist. 1994).

A further review of the case law interpreting the statute shows that if the privilege is violated, a motion to dismiss is the proper way to invoke the privilege. So, if anyone wants to see a copy of my motion, HERE it is. Just don't ask me how much billable time I have into this already. I'm pretty sure just paying the ticket would have cost thousands less. But, as one of my good friends told me a couple of nights ago, I may be "too much of a lawyer."

I will keep you apprised of any developments.