Tuesday, March 23, 2010

Splitting Hairs.

Or, alternatively titled, "When is a postjudgment motion not a proper postjudgment motion?"

A notice of appeal must be filed no more than 30 days after the entry of the final order, or the appeal will not stand. It is a jurisdictional requirement. However, Rule 303(a)(1) states that the timely filing of a post-judgment motion defers the running of the 30 days, and the deadline for filing a notice of appeal is then 30 days from the resolution of the last timely and proper post-judgment motion.

In Heiden v. DNA Diagnostics Center, Inc., 2-07-0620 (November 13, 2009), the plaintiff filed suit against the DNA center for allegedly mishandling a blood vial as part of a paternity test. The trial court granted summary judgment in favor of the defendant.

The plaintiff filed a "Motion to Reconsider Court Order and for Clarification of said Order" within 30 days. The plaintiff was concerned about a third party complaint for contribution that had been filed by the DNA Center. The court's order granting summary judgment did not specifically address what happened to that third party complaint. The plaintiff wanted language in that order specifically dismissing the third party complaint.

At hearing on the post-judgment motion, the court explained that because it was a third party complaint for contribution, it "fell on its own because there was nothing independent, no independent cause of action that would stand along against [the third parties]." There was some discussion on the record as to whether the plaintiff was asking the court to reconsider, modify, or clarify its prior order. The plaintiff's lawyer stated that he wanted clarification only, which the court did not feel was necessary, and the motion was denied. Within 30 days of that order, the plaintiff appealed.

The appellate court dismissed the appeal as not being timely. The court found that plaintiff's post-judgment motion was not of the proper format to extend the timeline. The court explained that a post-judgment motion extends the time for filing a notice of appeal only when it seeks rehearing, retrial, modification, or vacation of the judgement. Simply asking for clarification was not enough to extend the deadline to appeal.

Thursday, March 18, 2010

March Madness!!!!!!

A University Of Washington law student named James, who seems to love March Madness almost as much as I do, attempted to move his Taxation LL.M. final to March 22 so he could watch the tournament. Here is a copy of his request, and the administration's cold, heartless response:

The following exam reschedule request has been submitted.
Name: James ***
Student ID: ****
Phone: 208-***-****
Email: ****@yahoo.com

Current class exams and professors:
Sat. March 13 - 1:00 PMT511B Partnership Tax (Donaldson), Mon. March 16 - 6:00 PM T516B Int'l Taxation II (Gianni), Tue. Mar 17, 1:00 PM T510 Estate & Gift Tax (Drake) [24Hr Take-Home], Fri. March 19 - 6:00 PM T521B Comp & Benefits (Thorson)
Reschedule reason(s):

* Other. (Non-automatic, subject to Associate Dean approval)

The first weekend of the NCAA Division 1 basketball tournament occurs on March 18-21 this year. This is, by far, my favorite weekend of the year, specifically Thursday and Friday, in which the first round takes place. I am not a member of any church and have no children, so I consider this my "holiday," the most important day of the year. For the past several years, a couple of friends of mine, who are in similar position in life, and I have spent the weekend enjoying this "holiday" in Reno, NV. It is a central location for the gathering and meeting there for this weekend has become a tradition that has become very important and dear to me.

I understand that this is not a typical request, but I'd like to move my Compensation and Benefits final to the following Monday (3/22) or earlier in finals week. This is so important to me that I wouldn't even mind it if it were rescheduled during a day that I already have a final.

Please give my request ample consideration. I appreciate your time.

Reschedule class:
Fri. March 19 - 6:00 PM T521B Comp & Benefits (Thorson)
Requested date: Wednesday, March 17
Requested time: 1:00 PM

And then the cold, unfeeling registrar named "Pontus" shatters his dreams...

From: Lawnews
Subject: RE: Exam Reschedule Request
To: ****@yahoo.com
Cc: "'lawnews'"
Date: Wednesday, March 3, 2010, 3:10 PM

This reschedule request is denied; this request does not in any way meet the exam rescheduling guidelines.

Variation from the original exam date/time will be permitted only for an automatic reason (options above), severe mental or physical illness, or very unusual or demanding circumstances that make it unreasonably difficult or burdensome to meet the scheduled time. Rescheduling exam is not done generally for activities such as travel, field research, interviews (personal or school related) and other personal events such as weddings, reunions, etc.

Considering the importance of this event to you, you may have wanted to make different course selections based on the exam schedule, which was available ahead of the start of Winter classes.


Pontus Niklasson

Registrar & Director

Academic Services

University of Washington School of Law
William H. Gates Hall, Room 361

Tuesday, March 16, 2010

Lock Him Up.

Last year, I wrote about Sheriff Tom Dart disobeying eviction orders. It appears that the courts are finally taking notice.

The Sun-Times reports that Sheriff Dart has been fined $1,400 for a six month delay in carrying out an eviction order. That fine is not nearly enough. The fine should have been equal to or greater than the lost rent suffered by the landlord during that time period. Or, it should not have been a fine at all. Take a hint from this post's title.

By the way, the article also notes that the Sheriff plans to appeal. Why not?? He's spending the taxpayers' money. He'll probably spend hundreds of thousands of dollars appealing this $1,400 fine. Anything to keep his name in the papers!

Monday, March 15, 2010

Welcome Heather Darsie!

The Northern Law Blog is pleased to announce the addition of Heather Darsie as a contributor to the blog. Heather is a 2L at NIU. She clerks at the DeKalb office of the Cosentino Law Firm. Heather also works as a representative for Themis Bar Review.

We heard from Heather yesterday with her post concerning the criminal accountablity of United Nations officials. We look forward to hearing more from Heather in the coming months on this and other topics.

Glad to have you Heather!!

Sunday, March 14, 2010

Criminal Accountability of United Nations Officials and Experts on Mission

United Nations (UN) officials and experts are increasingly being accused of crimes, particularly sex crimes, in the Member States where they have been assigned. The primary concern is that often, a Member State lacks the jurisdiction or means to prosecute the offender. To remedy this, the UN turned to the Group of Legal Experts (Group) for a report on this situation. The Group submitted document A/60/980, which sought to ensure the accountability of UN staff and experts on mission with respect to criminal acts committed by peacekeeping operations. Subsequently, the General Assembly (GA) decided to establish an Ad Hoc committee. The committee is open to Member States and members of specialized agencies, such as the International Atomic Energy Agency (IAEA). At this point, the UN continues to face reports of crime committed by its officials.

Currently, the Secretariat cannot hold a person criminally accountable; nor can the Secretariat conduct an investigation or enforce extraditing offenders. However, administrative investigations conducted by the UN may offer some help in providing evidence for criminal proceedings. The administrative investigators must be aware that any evidence collected is used not only for disciplinary actions, but potentially for criminal investigations as well.

The UN is attempting to facilitate international cooperation between all Member States to prosecute offenders. One of the biggest hurdles the UN faces is that many Member States lack jurisdiction over foreign nationals. Further, there is no type of international statute or code stating what crimes are punishable. On top of this, sexual crimes committed by UN officials are often not reported due to the fear victims face. In fact, from January 2006 to December 2006, a total of 357 allegations of sexual exploitation and abuse were reported to the Office of Internal Oversight Services (OIOS). These statistics were reported in A/61/957.

Other difficulties that the UN faces are that offenses often occur in conflict or post-conflict environments, where the criminal justice system may be impaired. Further, not all Member States observe due process, nor do Member States penalize criminals in a manner that all would see as just. Also, an executive mandate is just not practical, as few Member States are willing to give the UN that type of executive power.

The Secretariat wishes to hold a convention to further discuss the matter. The Secretariat does not wish to specify crimes, but rather find avenues for a State to exercise jurisdiction. Also, the Secretariat would like to see the crimes be punishable by two to three years’ imprisonment. The UN favors the advantages of a host State when it comes to investigating, trying, and prosecuting a case. The UN has offered to incorporate the United Nations Police to facilitate trials in the host State.

The UN would like to encourage implementing hybrid tribunals, such as the United Nations Transitional Administration in East Timor. The UN would hope to facilitate a type of jurisdiction in the host state. These types of tribunals are more likely to meet international standards of human rights, and to promote confidence in the potential legal system.

The international community recognizes the need for holding UN officials and experts liable for their actions in the field. Now it is up to the Member States to propose a multilateral approach to the problem, via a hybrid tribunal, or modifying their own jurisdictional boundaries.

Food for thought on this issue:
• What can a Member State do independently of the UN to hold peacekeepers liable for their actions?
• Should the Secretariat attempt to define crimes or criminal activity for the sake of uniformity?
• If so, what should be the guidelines?
• What avenue should a Member State take to gain jurisdiction over criminals? I.e., should they write a code or statute, or amend their constitution?
• Who should fund the trials, investigations, and imprisonment of offenders; the UN or the Member State?
• What defenses should be available for alleged criminals who are nationals of other States?
• Does Protocol I of the Geneva Conventions provide any sort of jurisdiction or benefits for civilian victims in regards to protecting them from UN representatives?
• Should the UN provide for an appellate court of review?
• Should this court be based on common law or civil law?
• Should the Member States be responsible for appeals in their State?

Thursday, March 11, 2010

Red Light Photo Tickets

Victor Puscas, a partner at Camic Johnson, Ltd. in Aurora, wrote an excellent article in the Kane County Bar Briefs regarding red light photo enforcement in Illinois. If you want to read the whole article, you'll have to join the KCBA, but I wanted to share a list that he gave of the defenses available to a red light photo enforcement violation. I think I had only thought of one or two of these before I read this article.

The defenses include: actually stopping; vehicle or plates stolen or sold; yielding to an emergency vehicle; participating in a funeral procession; or receiving two tickets for the same violation (i.e., from both a police officer on the scene and from the red light camera company).

Otherwise, there is a presumption that the camera equipment was working properly, the video establishes a prima facie violation, and the owner of the vehicle is responsible for the fine, even if he was not the driver. Is anyone aware of any other possible defenses?

Monday, March 1, 2010

Job Announcement: Illinois IP Firm Seeks Patent Attorney (Electrical Engineering, Organic Chemistry background)

Top IP firm is currently seeking attorneys with an Electrical Engineering background and 3+ years of patent litigation experience to join its Patent Litigation Group. The firm is also seeking attorneys with an Organic Chemistry background and 3+ years of pharmaceutical patent litigation experience to join its team as well. Qualified candidates must also have excellent academic credentials.

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