Friday, August 25, 2017

Complaining About Judges

Effective January 1, 2018, House Bill 3054 becomes law. As enacted, the law requires the clerk of every county to post in common areas of the courthouse, a notice “that a person may file a complaint against the judge that includes contact information for the Judicial Inquiry Board.” To my knowledge, Illinois is the only state with such a requirement. The Tennessee legislature rejected a similar proposal.

It seems that a natural corollary to HB 3054 would be legislation requiring legislators to post notices in common areas of the State Capital Building and in their offices advising constituents how to file a complaint against them. Down the road, lawyers might be appropriate subjects of parallel legislation.

Friday, August 11, 2017

Are facebook posts admissible in court?

A Rockford, Illinois man was murdered in his driveway. A guy named Lorenzo Kent was arrested for the murder. At trial, the State introduced a screenshot of a facebook post from a profile under the name "Lorenzo Luckii Santos." The screenshot showed a photograph of a person who resembled Lorenzo Kent and the status update read "it's my way or the highway... leave em dead n his driveway."  

The trial court admitted the screenshot into evidence over the defendant's objection. The State argued that the facebook status was essentially a confession to murder. After reviewing the facebook status, along with other circumstantial evidence indicating that Mr. Kent had a tumultuous relationship with the decedent, the Jury convicted Mr. Kent of first-degree murder. 

On appeal, Mr. Kent challenged the admissibility of the facebook post. The Appellate Court explained that in order to be admissible at trial, evidence must be relevant and authentic. A confession would certainly be relevant to a murder trial, so the real issue was whether the facebook post could be authenticated.

Under Illinois Rule of Evidence 901, documentary evidence is authenticated if there is evidence sufficient to support a finding that the matter in question is what its proponent claims. Essentially, the State had to prove that the facebook status was actually posted by Mr. Kent. Authentication of documentary evidence may be made by direct or circumstantial evidence, which is routinely the testimony of a witness who has sufficient personal knowledge that the item is, in fact what it is claimed to be. 

In this case, the State did not properly authenticate the facebook post. The State did not offer any evidence that Mr. Kent actually posted the status update. Instead, the only foundation for the facebook status was that a detective set up a false facebook account under the name Daquan Rogers using a fake picture. He then searched for people named Lorenzo. He found this profile for "Lorenzo Luckii Santos," whose picture appeared similar to Lorenzo Kent. Based upon the "leave em dead n his driveway" quote, the Detective concluded that this was a confession to murder because the victim was found dead in his driveway. 

The appellate court overturned the murder conviction. The Court did not say this specifically, but if the Detective could fabricate a fake facebook account using a fake picture, then why didn't he believe that anyone else could create a fake facebook account in an attempt to frame Lorenzo Kent? But then I guess that police officers play by their own rules.

Monday, March 6, 2017

A Toast to House Bill 0494

House Bill 0494 would amend the Liquor Control Act to permit restaurants to serve alcohol to 18, 19, and 20 year olds as long as the underage drinker was “under the direct supervision and approval of his or her parents or parent or those persons standing in loco parentis.”

The primary sponsor of the bill is quoted as saying that if parents “want to let [their children] have a small glass of wine or a taste of wine, and I don’t think it’s a concept that a lot of parents would have too much concern with.” Of course, nothing in the proposed legislation limits the alcohol served to wine or a small glass of wine. An 18 year old could order a scotch on the rocks (make that a double), and then another, and maybe one more for the road. Unfortunately, not all parents, or those standing in the place of parents, have the good sense presumed by House Bill 0494. And let’s hope that “persons standing in loco parentis” does not include the 21 year old brother of the 18 year old bellying up to the restaurant table.

Maybe there is some overriding need to encourage the use of alcohol by those under 21, but I don’t see it. 

Wednesday, January 18, 2017

KCBA Seminar Materials

I am speaking at the KCBA Commercial Law Seminar this afternoon on citations to discover assets. I just received late notice that my materials were not copied for the attendees. HERE is a PDF of my handout. It is also embedded below. Thanks.

Thursday, January 5, 2017

Seventh Circuit Hangs Up on Robocalls

On January 3, 2017, the Seventh Circuit Court of Appeals struck a blow for telephone tranquility. In Patriotic Veterans v. Zoellerthe court upheld an Indiana law forbidding recorded phone messages placed by dialing machines unless the subscriber has consented to receiving robocalls or the recorded message is preceded by a live operator who obtains the subscriber’s consent to transmit the message.
The court found that the law was a valid time, place, and manner restriction and did not disfavor political speech or otherwise violate the First Amendment. The opinion appears to reflect the judges’ personal familiarity with prerecorded telephone calls:

No one can deny the legitimacy of the state’s goal: Preventing the phone (at home or in one’s pocket) from frequently ringing with unwanted calls. Every call uses some of the phone owner’s time and mental energy, both of which are precious. Most members of the public want to limit calls, especially cellphone calls, to family and acquaintances, and to get their political information (not to mention their advertisements) in other ways.

Illinois has a much less restrictive statute governing automated telephone calls.

Monday, December 19, 2016

Can the Government Make a Band Change its Name?

Simon Shioa Tam has been described as an "Asian-American musician, lecturer, and political activist." He also performs in a bank known as The Slants. In his own words, the band, by using that name, is "following in the long tradition of reappropriation, in which members of minority groups have reclaimed terms that were once directed at them as insults and redirected the terms outward as badges of pride."

As any savvy bandleader hoping to hit the big time would do, Mr. Tam filed a trademark registration for his band's name. However, the U.S. Patent and Trade Office denied his application due to the "disparagement clause" in the federal trademark statute, which bars the registration of "matter which may ... disparage person, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute." 

Mr. Tam appealed the denial of his trademark application -- several times. His case is currently schedule for argument before the U.S. Supreme Court on January 18, 2017. The case has drawn considerable attention, especially considering the political climate over the past year and the President-elect's propensity to make broad generalizations based on people's race.

The Cato Institute and a "basket of deplorable people and organizations," including Ralph Steadman and the Flying Dog Brewery, have filed an amicus curiae brief arguing in favor of The Slant's trademark application. The "friends of the court" make several compelling arguments against governmental involvement, including that disparaging language serves an important role in our society, that rock music has a long tradition of pushing the boundaries of expression, and that the First Amendment prevents the Government from dictating what is or is not an offensive slur.

I wanted to share the brief for several reasons. First, it is not every day that you see citations to the U.S. Supreme Court from works by South Park, Seinfeld, Chris Rock, Dr. Dre, N.W.A., Cypress Hill, and the Geto Boys. Also, I wonder how many Supreme Court Justices have songs on their iPods by the Queers, Hillbilly Hellcats, Rapeman, Snatch and the Poontangs, Dying Fetus, or some of the other offensively-named bands listed in the brief.

Lastly, for my practicing lawyers out there, the brief is beautifully written. From the simple question presented to the plain-spoken summary of the argument, the brief is a persuasive, direct, and well-organized gem of legal writing. HERE is a link to brief and it is embedded below. 

Thursday, November 3, 2016

Utah Supreme Court Allows Woman to Sue Herself

Barbara Bagley was the common law wife of Bradley Vom Baur. (Common law marriages are recognized in Utah, but not in Illinois.) In December 2011, Ms. Bagley and Mr. Vom Baur were travelling together in their vehicle. Ms. Bagley was driving. She lost control of the vehicle and it flipped over. Mr. Vom Baur was severely injured and eventually died from the injuries he sustained in the accident. 

Ms. Bagley had automobile insurance at the time, but there was a dispute as to the amount that the insurance company would pay. In order to resolve the disputed claim, Ms. Bagley had to file a lawsuit. The only problem was that Ms. Bagley was the proper plaintiff because she was her husband's sole heir. However, she was also the proper defendant because she was the driver of the car that caused his death and the insured under the policy in question. 

As a result, Ms. Bagley had to sue herself...twice. As her husband's sole heir, Ms. Bagley sued herself, individually, under Utah's wrongful death statute in order to recover damages that she incurred as a result of her husband's death for loss of companionship, comfort, care, financial support, etc. As the personal representative of her husband's estate, Ms. Bagley also sued herself, individually, under Utah's survival action statute in order to recover damages that her husband incurred for pain and suffering, medical bills, funeral expenses, etc. 

So, what do you think Ms. Bagley did after she sued herself? She filed a motion to dismiss the lawsuit! The trial court granted the motion to dismiss. (I was going to say that she won the motion to dismiss, but she lost it too so this is getting very confusing.) The trial court ruled that a person causing someone's death cannot bring a survival action against himself or herself for damages.

So, what do you think Ms. Bagley did after the lawsuit against herself was dismissed? She appealed! The appellate court reversed the trial court. The appellate court ruled that neither the wrongful death statute nor the survival statute prevented someone from suing himself or herself for damages.

So, what do you think Ms. Bagley did after the appellate court said that she could sue herself? She appealed to the Utah Supreme Court! In the supreme court, Ms. Bagley, the plaintiff, raised the absurd consequences canon, while Ms. Bagley, the defendant, raised the absurdity doctrine. After a review of the absurd consequences canon and the absurdity doctrine, both of which seem entirely appropriate in this case, the supreme court eventually found in favor of Ms. Bagley, the plaintiff, and ruled that neither the wrongful death statute nor the survival statute prevented someone from suing himself or herself for damages.

Bagley v. Bagley, 2016 UT 48.

Thursday, October 6, 2016

Drug Dealers Can't Win the Lottery

Illinois law allows the Government to seize your property even if you have not been convicted of a crime. This heavy-handed system is generally known as civil asset forfeiture. The Government only has show by a preponderance of the evidence (51% likely) that the assets in question are traceable to violations of certain laws. This relaxed burden of proof is much lower than that needed to convict someone of a crime, which is beyond a reasonable doubt. As a result, millions of dollars of property are seized every year from people who are never convicted of any crimes, including $190,000 from two brothers in Aurora several years ago, neither of whom had a criminal record at the time

Even if a person admits to committing a crime, or is eventually convicted, the question then becomes what assets can be traced back to the criminal activity? Or put another way, how creative can the Government get in trying to squeeze someone for every penny? They got pretty creative recently when police officers in Macon County, Illinois raided a house and seized marijuana, cocaine, a digital scale, and a $3 scratch-off lottery ticket, which turned out to be a $50,000 winner. 

Predictably, the Government instituted civil forfeiture proceedings against the lump sum payout, or $35,315. The Government reasoned that the defendant was unemployed and had no source of income other than drug sales, so the $3 must be attributed to drug sales. The Government further reasoned that the $3 was actually worth $35,315 because it was in the form of a winning lottery ticket, so the whole amount should be for forfeited.  

Following trial, the trial court very logically ruled in favor of the drug suspect. The court ruled that the $3 probably came from the sale of drugs, but that the civil asset forfeiture laws were not intended to capture a windfall. The court stated "What if, for instance, some cannabis dealer had earned $10,000 selling cannabis, and he decided to he was going to put himself through medical school, earned a medical degree, and was out successfully working? Is his income then forfeitable? At some point, the connection has to stop."

Predictably, the Government appealed. The appellate court reversed the trial court. The appellate court found that the purpose of the forfeiture law was to deter people from drug trafficking and should be "liberally construed so as to effect their remedial purpose." The court then ruled that "all proceeds" traceable drug trafficking are subject to forfeiture, even if they are increased due to a windfall.

Wednesday, August 10, 2016

Presidential Candidates’ Views on Jury Service

Thanks to Jur-E Bulletin (National Center for State Courts) for finding two articles shedding some light on the presidential candidates’ views on jury service. A Time magazine article from August 2015, reported that Mr. Trump was “one for six for fulfilling his jury duty summonses. A judge fined him $250 earlier this year for ignoring every summons for nearly a decade.”

Politico reported the following e-mail exchange between Secretary Clinton and a staff member:

In one exchange from August 2011, Clinton gives a thumbs up to aide Jake Sullivan’s apparent attempt to not get picked for a trial when called for jury duty. “Look and sound eager--you'll be viewed as too crazy for either side to pick, according to Kurt,” Clinton emails Sullivan. He then replies with his own approach: “My prosecutor friend told me I simply have to say I trust cops.” Clinton seemed to approve. “Perfect!” she replied.