Monday, December 1, 2014

Mutual and Correlative Orders of Protection

Section 215 of the Illinois Domestic Violence Act (here) flatly prohibits a judge from entering mutual orders of protection. While discouraging the entry of correlative orders of protection, Section 215 allows for the entry of such orders if the statutory requisites are met. In re Marriage of Kiferbaum, (here) provided the appellate court with its first opportunity to discuss the difference between the two types of orders of protection.

Two years after an acrimonious divorce including allegation of threats, sexual abuse, and damaging automobiles with urine, feces, and vomit, Judith and Hanan Kiferbaum filed petitions seeking orders of protection against each other. The trial judge set the “cross-petitions” for hearing on January 30, 2013. The judge conducted a hearing on Hanan’s petition first because he filed it two weeks earlier than Judith. After granting Hanan’s petition, the judge dismissed Judith’s petition considering it a request for mutual orders of protection which were barred by Section 215. On appeal, Judith claimed that she requested a “correlative” order of protection, not a “mutual” order of protection.

In siding with Judith, the appellate court first noted that no court had previously considered the difference between mutual and correlative orders and that neither term was defined in the Illinois Domestic Violence Act. The court when on to characterize mutual orders as typically appearing in a single document, based on a single petition, and entered even if one party did not seek an order of protection. The court found good reason for strictly prohibiting mutual orders because they tend to violate due process, exacerbate violence, and are difficult for the police to enforce.

The court did not find the same drawbacks with correlative orders because under the statute they can only be obtained when separate written petitions are filed, both parties prove past abuse,  both parties give prior notice (unless excused), and  the trial court enters separate orders justifying each  remedy granted. The court concluded by stating that if the “clear roadmap” set out by Section 215 is followed, correlative orders of protection, while disfavored, remain an available remedy.

Sunday, November 16, 2014

Deposition Tweeting

Everyone knows that Illinois prohibits tweeting while operating a motor vehicle. 625 ILCS 5/12-610.2 (here) bans the use of any electronic communication device when driving. Avid cyclists also know that a Chicago ordinance (here) prohibits tweeting while operating a bicycle. Going a step further, one judge believes that lawyers should not tweet while conducting a deposition.

According to an ABA Journal article (here), a Texas state court judge has barred live tweets during the deposition of a former county sheriff who is being sued for allegedly receiving illegal campaign contributions. Lamenting the lack of guidance on the live-tweeting issue, the judge accurately observed that “[o]ur technology is far out pacing our ability to formulate rules.”

If an Illinois judge allowed the tweeting of deposition testimony, Illinois Rule of Professional Conduct 1.6(a) would require that the tweeting lawyer first obtain her client’s informed consent. Rule 1.6(a) prohibits an attorney from revealing information relating to the representation of a client without the client’s informed consent. That prohibition applies to all information regarding the representation and is not limited to secret or confidential information, or information received from the client.  And even if an Illinois judge does permit deposition tweeting and a client is willing to consent, hopefully counsel will devote his time and energy at the deposition to adequately representing his client rather than to keeping his “followers” updated or entertained.

Monday, November 3, 2014

Election Ballot "Selfies"

In the late 1800s, New Hampshire enacted legislation prohibiting voters from showing their completed ballots to anyone for the purpose of proving how they voted. The statute sought to address the apparently widespread problem of politicians purchasing votes for their candidates. Effective September 1, 2014, the New Hampshire legislature updated the law to specifically prohibit persons from “taking a digital image or photograph of his or her marked ballot and distributing or showing the image via social media or by any other means.” The American Civil Liberties Union has filed suit claiming that the law violates the First Amendment.

Illinois does not have a similar statute. Section 29-9 of the Illinois Election Code makes it a Class 4 felony for a person to “knowingly mark[] his ballot or cast[] his vote on a voting machine or voting device so that it can be observed by another person.” Section 29-9 also prohibits anyone from knowingly observing a voter marking a ballot. And while a Peoria Journal Star article  indicates that it might be a violation of this statute to take a photograph of a completed ballot and then post it on social media, that interpretation seems strained.  The statute is clearly intended to prevent a person from standing in such proximity to a voter in the polling place so as to allow observation of the actual act of voting. The law does not mention displaying a completed ballot after the fact. Even a New York law that specifically prohibits showing a marked ballot to another has reportedly been interpreted by lawyers of the New York State Board of Elections as not prohibiting the posting of a ballot photograph on Facebook.

Whether legal or illegal under the Election Code, people might consider the advisability of displaying their voting record on the internet in perpetuity.

Friday, October 24, 2014

Don't get hit in the head with a brick!

I just signed up for my park district 35+ basketball league. All participants must sign a "Waiver and Release of all Claims and Assumption of Risk." The form contains the following language, under the heading "Warning of Risk":
"Basketball is intended to challenge and engage the physical, mental and emotional resources of each participant. Despite careful and proper preparation, instruction, medical advice, conditioning and equipment, there is still a risk of serious injury. All hazards and dangers cannot be foreseen. Certain risks include, but are not limited to, the acts of shooting, passing, and catching the ball, being struck by errant balls, being struck by another player's body, running, jumping, stretching, sliding, diving, collisions with other players and with stationary objects, acts of God, horseplay, unsportsmanlike conduct, dangerous playing conditions, poor floor conditions, defective equipment, equipment failure, premises defects, slips and falls, failure in supervision and officiating, and all other circumstances inherent to the sport of basketball. In this regard, it is impossible for the Naperville Park District to guarantee absolute safety."
Shooting?! I have been playing basketball since before I could walk, but I never knew there was such a huge risk from shooting the basketball. Now, when OTHER people shoot the basketball, there is a huge risk of being hit in the head with a brick, such as Ryan Holmes, Andy Honaker, Brian Moore, Dexter Evans, etc., but I never knew that shooting the ball by oneself was such a risk.  (Just kidding guys....just checking to see who's reading!!)

Friday, October 17, 2014

No Immunity for Lawyer Who Prepared Order at Judge’s Request

Every day lawyers prepare orders reflecting a judge’s ruling.  Lawyers simply do not worry about potential liability for preparing an order that the judge lacked authority to enter. Quasi-judicial immunity should protect a lawyer who drafts an order at a judge’s express or implied request.

But not so fast. In Burton v. Infinity Capital Management, the Ninth Circuit Court of Appeals refused to  apply the doctrine of absolute quasi-judicial immunity to insulate a private lawyer from a claim that the order he drafted at the judge’s direction violated the automatic stay provisions of 11 U.S.C. § 362(a).

This is what happened. A Nevada state court judge ordered that a rule to show cause issue against attorney Koch when he learned that Koch deposited a personal injury award with the bankruptcy court rather than the Nevada state court. Attorney Gugino, in court representing a party asserting a lien against the settlement funds, was directed by the judge to prepare the show cause order.

Koch sued Gugino for preparing the order. The Ninth Circuit found that quasi-judicial immunity did not protect Gugino because he did not exercise judicial discretion in drafting the order. He merely acted as the judge’s scribe. The Court of Appeals further found that Gugino had “volunteered” to prepare the order. But the transcript hardly supported such a finding. During the hearing, the state judge declared, “I’m going to issue an order to show cause.” After dictating the details of the order, he asked, “Who wants to prepare the order?” The judge then said, “Mr. Gugino?” who responded, “I’ll prepare it, Your Honor.” This exchange could only be deemed to have secured a “volunteer” in the Ninth Circuit, in the military, or possibly in the marital relationship.

In dissent, Judge Gilman noted the unfairness of holding an attorney liable for carrying out the order of an immunized judge. He also lamented that the majority opinion “puts at risk the common practice of private attorneys drafting proposed orders on behalf of a judge.” Hopefully, Judge Gilman’s view will ultimately prevail since it is difficult to envision a trial court operating efficiently without orders drafted by attorneys.

Friday, October 3, 2014

Seeking Leave to Prosecute or Defend a Civil Lawsuit Under a Fictitious Name

Last month, the Illinois Appellate Court issued one of the few opinions interpreting section 2-401(e) of the Code of Civil Procedure. Section 2-401(e) allows a litigant to appear under a fictitious name upon a showing of “good cause.” In  Doe v Northwestern Memorial Hospital, 2014 IL App (1st) 140212, a group of plaintiffs filed complaints against Northwestern Memorial Hospital and Northwestern Medical Faculty Foundation alleging that the defendants negligently allowed a cryogenic tank to fail causing damage to semen and testicular tissue stored in the tank. Most plaintiffs suffered from cancers which were likely to significantly interfere with their ability to engage in ordinary reproductive activities.

In affirming the trial court’s order allowing the use of pseudonyms, the appellate court noted the dearth of authority addressing what constitutes “good cause” to avoid the general rule that the public has the right to know who is utilizing tax supported courts. Doe at ¶ 35. The court recognized that the use of pseudonyms is disfavored and reserved for “exceptional circumstances” involving “highly personal” matters such as abortion, adoption, sexual orientation, and religion. Doe at ¶ 35, 39. Applying a balancing test, the court found that plaintiffs’ reproductive health and medical treatments were “extremely private and sensitive topics” and that individual privacy concerns outweighed the public’s interest in open court proceedings. Doe at ¶39.

Like most courts that break new ground, the justices tried to limit the impact of their decision by describing the circumstances as “exceptional, the result of a confluence of factors that might never recur.” Doe at ¶ 43. But the ramifications of the opinion should not be underestimated. Reproductive health and potentially a litigant’s privacy interest in treatment for any serious illness might justify invoking section 2-401(e). Indeed, it appears that “good cause” might be established whenever any type of privacy interest outweighs the public’s interest in open judicial proceedings. Doe v. Northwestern Memorial Hospital is necessary reading before seeking leave for a client to appear under a fictitious name.

Monday, September 29, 2014

Formatting an Appellate Brief in Microsoft Word

I just came across a Lawyerist post from last year that gives very detailed, step-by-step instructions on how to format a brief in Microsoft Word.

I have been using Microsoft Word for nearly 20 years with frustrating results, so I finally decided to learn the intricacies in order to become more efficient. It was just a coincidence that I saw this post a week or so ago. It deals with section breaks, fields, citations, headings, tables of contents, etc.

I'm simply linking to the original post HERE so that I can find it again the next time that I need it. If anyone has a brief coming due, you might want to check it out.

Friday, September 12, 2014

Could Adrian Peterson have used a switch if he was in Illinois?

News broke this afternoon that Adrian Peterson, one of the greatest running backs of all time, was indicted for “reckless or negligent injury to a child.” Multiple media outlets report that the indictment stems from an incident in which Adrian Peterson disciplined his 11 year-old-son by smacking him with a switch. 

Adrian Peterson has already retained prominent Houston attorney Rusty Hardin, who I have written about before, to defend this case. This case will surely make headlines for months to come, especially with this indictment coming so quickly after the release of the Ray Rice video.

Rusty and Adrian certainly have their work cut for them because of the allegation that Adrian used a switch to hit his son. Ordinarily, parents are granted broad leeway when disciplining their own children. A parent's "right" to corporally punish his or her child is derived from the right to privacy, which is viewed as implicit in the United States Constitution. This right to privacy encompasses the right to care for, control, and discipline one's own children. In Illinois, "discipline" had been interpreted by the courts to extend to reasonable corporal punishment. People v. West (In re F.W.), 261 Ill. App. 3d 894, 898 (4th Dist. 1994). 

However, what is "reasonable" is always subject to debate and may eventually be left to a jury to determine. In Illinois, the use of switches, belts, or other objects to corporally punish a child have been found to constitute neglect or abuse, depending on the severity of the punishment. Factors that the court will consider are whether any physical injury resulted from the use of the object, the psychological effects of the discipline on the child, and the circumstances surrounding the discipline, including whether the parent was calmly attempting to discipline the child or whether he was lashing out in anger.  In re F.W. at 903.

In fact, the odds may be against Rusty and Adrian due to the use of the switch. Here is a quote from a leading case in Illinois:
“Corporal punishment as a method of discipline remains a controversial issue. It is not our function in an abuse or neglect proceeding to determine whether parents measure up to an ideal, but to determine whether the child's welfare has been compromised. Whether to employ corporal punishment as a means of discipline is a decision each parent must make for himself or herself. However, parents should understand a swat on a child's buttocks with an open hand and the "paddling" of a child with belts, boards, cords, or ropes are intrinsically distinct exercises of corporal punishment. The cases reviewed above, and the dearth of cases finding striking with objects to be "reasonable," should put parents on notice. When allegations of neglect or abuse are levelled, parents using boards, belts, cords, or ropes as weapons to inflict corporal punishment may encounter an unwillingness on the part of DCFS and the courts to regard their conduct as reasonable.” Id. at 903.
So, Adrian will get extra scrutiny due to the use of the switch. If he had simply used the back of his hand, things may be have been different. However, please keep in mind that I am completely speculating about the facts of this case because the news just broke about 30 minutes ago. If it turns out that Adrian Peterson's son did in fact suffer serious injuries, I apologize in advance for anyone that I may have offended and I will be back here in short order to delete this post and scrub any evidence of it from the interwebs. Have a nice weekend.

Tuesday, September 9, 2014

This law firm should subscribe to the Northern Law Blog.

A law firm from Chicago was hired to appeal the property tax assessments for 71 different parcels of real estate located in Aurora Township, Kane County, Illinois. The tax appeals were due by October 4, 2013, the thirtieth day after the publication of the tax assessments. On October 4, 2013, the law firm sent its petitions to the Kane County Board via FedEx. The Board received the petitions on October 7, 2013 and rejected them as untimely.  

The petitioner appealed, arguing that the "mailbox rule" should apply. The mailbox rule, which is contained in the Statute on Statutes, 5 ILCS 70/1.25, provides that a document is deemed "filed" as of the date of mailing via United States mail, regardless of when the document is actually received. However, petitioner's argument was unsuccessful because multiple Illinois appellate courts have previously held that the mailbox rule does not apply to private carriers such as UPS or FedEx, but rather only applies to documents placed in the U.S. mail. Here is a link to the 2d District's opinion.

It's too bad that the petitioner's law firm does not subscribe to this Blog because I wrote about one of those cases more than five years ago. See Mailbox Rule Does Not Apply to UPS, Northern Law Blog (February 10, 2009). I don't know how much money was at stake in those 71 tax appeals, but I do know that a subscription to the Northern Law Blog would have been much, much cheaper than the malpractice case that will most certainly follow this decision.