Google Scholar

As most of you know, Westlaw is expensive. Really expensive. I suspect that most firms only maintain subscriptions to certain local databases, as my firm does.

Thankfully, Westlaw alerts you when you are about to be charged for accessing documents outside of your plan. You are then given the option to click through and incur the charge or exit. Last year, I was up against a deadline and I needed some information relating to a UCC Article 9 sale, my client authorized the charges and I wound up spending close to $200 in about 15 minutes.

Over the past couple of weeks, there have been two or three occasions where I needed to access bankruptcy cases and other federal cases outside of our subscription. I found everything I needed on Google Scholar for free in about 30 seconds.

To find caselaw on Google, go to Google Scholar. There will be two choices directly beneath the search box. One is for articles and the other is for legal opinions and journals. Click legal opinions and journals and search away.

I haven't tried any searches just based on search terms, so I don't know how well that works. I always have the citation. This is a really convenient service when a case has been cited to you, and you want to grab a copy of it for free.

I don't think I would rely on Google for all of my research, however, because it doesn't Shepardize cases.

Job Opening

I just saw a job posting on the bulletin board at the Will County Courthouse (and I took a picture of it with my cell phone).

The Will County State's Attorrney is looking to hire an assistant. The application deadline is May 3, 2010. They require a one page letter of application, resume, a copy of your current ARDC card, and three references. Writing samples and law school transcripts are optional.

Send applications to Kenneth A. Grey, Chief Deputy State's Attorney, Will County State's Attorney's Office, 57 N. Ottawa St., 7th Floor, Joliet, IL 60432. No fax or emailed applications will be considered.

Another Settlement Received.

Just about two weeks ago I wrote about a lawn mower class action settlement. I have filed my claim in that case and I suggest that you do the same, if you qualify. Claims must be filed by August 31, 2010. Here is a link to the lawn mower post for more information. Here is a link to another post I wrote about filing claims in class action cases.

Well, all of these claims are finally paying off for me. I just looked back through the archives of the Northern Law Blog and I don't believe that I didn't write about this case previously.

After Carmel and I bought our current house, we went furniture shopping. We ended up buying at Ashley Furniture. They were offering this great rebate program where we could get up to $500 cash back if we sent in gasoline receipts for 12 months after the purchase. I downloaded the forms, started saving all of my gas receipts, and then submitted my claim in a timely manner.

The rebate checks never came. Then I heard about the class action lawsuit against Ashley Furniture. So, I filed my claim. Sorry for not alerting you guys about it at the time.

Well, here is the result. Not too bad.

Keep checking back to this blog, or better yet subscribe via email. I will start alerting everybody of these claims that I file so that you can try to cash in as well.

NIU Grad Successful on Appeal

Erika Rahden, NIU-COL Class of 2003, recently prevailed on appeal before the Second District in the case In Re Marriage of Holtorf, 02-09-0872 (January 19, 2010).

Erika represented Mr. Holtorf. Mr. Holtorf petitioned for emergency and plenary orders of protection against Mrs. Holtorf on behalf of their children. He alleged that his wife suffered from an "addiction and compulsion to shoplifting" and that she "routinely" shoplifted while the children were with her.

The central inquiry in any proceeding to obtain an order of protection is whether the protected party has been abused. After a contested hearing, the court entered a plenary order of protection against Mrs. Holtorf. The court found that the children had been abused due to the "neglect" of Mrs. Holtorf.

After some discussion of whether an order of protection can issue based solely on allegations of neglect, the appellate court actually found that the trial court erred in ruling that neglect was a proper basis for the issuance of the plenary order of protection in this case.

However, the court noted that it was not limited by either the trial court's rationale or by the parties' arguments and that it could affirm the trial court on any basis supported by the record. After a review of the facts, the appellate court found that the allegations of repeated shoplifting actually rose to the level of physical abuse as defined by the Domestic Violence Act. Physical abuse includes any "knowing or reckless conduct which creates an immediate risk of physical harm." The court noted that the potential for immediate physical harm, in either bringing the children into the store while shoplifting or leaving them in a running car while committing a theft, is manifest.

Good win Erika! I'm sure your client was pleased.

Is a criminal bond subject to garnishment?

I am a member of the Illinois Creditors Bar Association. One of the benefits of membership in that association is the email list serve where questions are asked and answered back and forth all day long.

The question of whether a creditor can garnish a criminal bond came up last week. Several of my learned colleagues responded with their opinions. (Let me know if you would like the contact information of the lawyers who gave these opinions; I did not know if it was proper to name them in this post.)

The short answer, as usual, is that it depends. First, let's get our terminology straight. Garnishment is a specific statutory process governed by 735 ILCS 5/12-701, et seq. The answer to whether a criminal bond can be garnished is actually "No."

One response on the email list directed us to the case of A-1 Lithoplate, Inc., v. AFS Publishing Co., 66 Ill.App.3d 560 (1st Dist. 1998). In that case, the court held that garnishment of bail bond funds held by a court clerk was not permissible. The court reasoned that bail bond money held by a circuit court clerk, like any money held by any judicial officer in his official capacity, is in the custody of the law. The clerk who holds that money retains it under the authority of the court, and keeps the money solely to be disposed of as directed by the statute or court order.

So, you can't 'garnish' the funds, but another response indicated that it may be possible to file a third-party citation against the circuit clerk.

The distinction is that a garnishment requires that the property held by a third party be available to the debtor at the time of service of the garnishment, while a citation may place a lien upon property that may become due the debtor at a later time.

Because the bond is not available to the debtor at the time of service of the garnishment summons, the clerks would have to answer that it held no funds on behalf of the debtor. On the other hand, the citation becomes a continuing lien which can be extended until the conclusion of the criminal case. In that case, if money did become available to the debtor after paying his court fines, etc., the judgment creditor would still have a lien on the remaining funds.

It is also likely that the defendant's criminal attorney would try to assert his lien on the funds. It is then possible that it would turn into a question of priority, if the criminal attorney had perfected his lien pursuant to statute.

Let me know if anyone tries this.

Student Expulsion Hearing

I represented a middle school student this week at an expulsion hearing. The hearing was held before five members of a local school board. The allegation was that my client and several other eighth graders were involved in the sale of marijuana at the middle school. The evidence against my client was extremely weak. The evidence was based on hearsay statements by another eighth grader. Aside from the hearsay, the school's attorney introduced statements allegedly made by my client. Yet my client denied he ever made the statements. In the end, all six eighth graders, including my client, were expelled for the remainder of the school year.

I had to get up to speed in a hurry on the evidence and procedural rules applicable to school board disciplinary hearings. I now share with you the current law as I understand it. If anyone gets involved in a school board hearing I'd be happy to either consult with you by telephone or send you the citations for the cases and statutes. Statutory and case law itations omitted below. Needless to say, I'm a bit bitter at this point about school board proceedings. As you'll see below, they are a kangaroo court, heavily stacked in the school's favor.

In Illinois, school board hearings are distinctly different from hearings in a court of law. School board disciplinary hearings fall under Administrative Law, not Criminal Law, but the stakes are just as high. The allegations facing students are oftentimes very similar to allegations they would face in the criminal courts if they were criminally charged for the same alleged acts of misconduct. In school board cases a hearing officer, usually a lawyer for the school district, conducts the hearing, and the school board members hear all the evidence and vote on the outcome in a closed session school board meeting. An unfavorable outcome of the administrative hearing can lead to expulsion from school as well as other administrative sanctions imposed by the school district, but does not include possible jail time or the creation of a criminal record. Any potential criminal case would be brought separately, by the State's Attorney's Office or a village prosecutor, either in adult or juvenile court, and would be an entirely separate proceeding from the school board hearing.

The Due Process standards that exist to protect the parties and ensure the integrity of civil and criminal court proceeds are virtually non-existent in the school board setting. The Illinois School Code provides the bare minimum guidelines concerning the protection of a student's constitutional right to Due Process. The School Code requires that a written notice containing a description the charges, providing the date, time, and location of the hearing, and informing the student and parent of their right to be heard, be sent to the student and/or parent/guardian. However, the School Code does not provide specific guidance on what constitutes sufficient notice. Frequently the notices are sent out just days before the expulsion hearing, forcing students and their parents to scramble to hire a lawyer and to determine how to answer the charges. In a published, opinion an Illinois Appellate Court has ruled that notice received as little as two days before the school board hearing was sufficient notice. Suffice it to say that the deck is stacked steeply against the student and their parent/guardian virtually from the beginning.

The procedural and evidentiary rules that exist in a judicial court are also virtually non-existent in the school board setting. In a courtroom setting, attorneys for both sides can make trial objections based on the rules of criminal procedure or civil procedure, and the rules of evidence. However, in Suspension and Expulsion Hearings before a school board, this is not the case. The statutory and common law rules that have been in place for hundreds of years in courtrooms in Western Europe as well as the United States are thrown virtually out the window. Hearsay evidence frequently comes in during school board proceedings, and the right of the accused to confront and cross-examine the witnesses against them is blatantly violated time after time. The rights and protections that exist to protect the accused in a courtroom setting don't apply in school board hearings because they fall under Administrative Law and they are only Quasi-Judicial in nature.

The unique character of school board hearings, because they take place in a school setting, and due to the fact that frequently the material witnesses happen to be minors, provides some explanation and helps to somewhat justify why these proceedings are so procedurally different than hearings or trials in the judicial setting. However, the differences are so great that the rights of the accused student, unfortunately, are grossly infringed upon, both through the admission of hearsay evidence, and due to the fact that the accused is not provided the opportunity to cross-examine juvenile witnesses. Other students' out of court statements are introduced anonymously at these hearings and are given weight, without affording the accused an opportunity to cross examine the school's witness to verify the witness' credibility and to probe for bias, motivation, and prejudice. This treatment stands contrary to some of the fundamental founding principles of our judicial system, yet it is legal because these hearings take place before a school board and the proceedings comply with the bare minimum requirements as outlined in the Illinois School Code.

While an Illinois school board's decision to expel a student is final, a process does exist for judicial review. Depending on which legal theory the case is based on, civil law suits against the school district and the school board members can be initiated in Federal and State courts. Federal "Section 1983" civil rights lawsuits brought in the U.S. District Court can challenge a deprivation of the accused student's Due Process Rights under the U.S. Constitution. Alternatively, a civil law suit filed in State court can challenge the sufficiency of the evidence in the school district's case or raise Due Process concerns predicated on the admission of hearsay evidence and/or deprivation of the opportunity to confront and cross-examine the school's juvenile witnesses. Decisions by school boards to expel students have been reversed in Illinois at the trial court level through the judicial review process based on each of these legal theories. Due to the fact that there is no judicial review procedure of a school board decision that exists in any Illinois statute, the judicial review process in Illinois State courts is initiated by filing a common law Writ of Certiorari. If either the student and student's parent/guardian or the school district are unsatisfied with the outcome in the Circuit Court, further appeal can then be made to the Illinois Appellate Courts.

Any student facing school board disciplinary proceedings should immediately consult with an attorney. The consequences of student expulsion can be serious and long-lasting.

Posted by Matthew Kooperman
The Law Office of Matthew I. Kooperman
Wheaton, Illinois

Welcome Matt Kooperman!

The Northern Law Blog is pleased to announce the addition of Matt Kooperman as a contributing writer. Matt is a 2006 graduate of the NIU College of Law.

Matt completed his undergraduate studies at the University of Iowa. After completing his bachelor's degree, Matt completed 27 months of volunteer service in the Peace Corps in El Salvador, Central America, with the Agro-forestry program. Upon returning from the Peace Corps and just prior to attending law school, Matt spent two years in Washington, D.C. as a capitol hill staffer for U.S. Senator Jim Jeffords, serving on the Environment and Public Works Committee.

Following law school, Matt spent nearly three years as an Assistant State's Attorney in DuPage County. He now maintains a solo office in Wheaton, Illinois.

Welcome aboard Matt! We look forward to learning from your worldly expertise!

Lawn Mower Class Action

If you purchased a lawn mower with a gas engine up to 30 horsepower, you could receive benefits from a class action settlement. At least that is what a post card said that I received in the mail this week.

Seriously though, I have already filed my claim. You will recall that I am an active participant in class action settlements. This one seems like a pretty good deal. The settlement applies to all purchases of gas mowers up to 30 horsepower made between January 1, 1994 and April 12, 2010. That could be about 90% of the people who read this blog.

The lawsuit alleges that the defendants, nearly every lawn mower manufacturer in the country, sold mowers with false or misleading horsepower ratings. It has nothing to do with the safety of the machines. Depending on what type of lawnmower you purchased, you can receive up to $35 for a push mower and $75 for a riding mower. You can also receive an extended warranty. The claim must be filed by August 31, 2010.

You can file your claim online at LawnMowerClass.com. To file your claim you will need to know your lawnmower brand and model number along with the engine brand and engine model number. That information will be found on your lawnmower or you can look it up right from the website. You don't need to know when or where you bought the lawnmower, how much you paid for it, or anything else. It took me about 5 minutes.

Then you just wait for that sweet cash to roll in, big spender.

Use and Occupancy Payments

The forcible entry and detainer act allows the plaintiff to recover use and occupancy payments during the pendency of an eviction lawsuit. 735 ILCS 5/9-201. Use and occupancy payments are typically requested when the defendant requests a jury trial, requests written discovery or depositions, or otherwise seeks to delay the case for a significant period of time.

This would allow the landlord to pay the mortgage until the case gets to trial. The thinking is that there may be a legitimate dispute as to the amount of back rent that is due, but there can be no dispute that some payments should be made for current rent while the case is pending.

On a side note, the first circuit recently held that a condo association can collect use and occupancy payments to be applied towards the monthly assessments. Warren Boulevard Condominium Assoc. v. Milton, 1-09-1235 (March 31, 2010).

But, what fascinates me is that there is no remedy for the plaintiff if the defendant doesn't make the payments. The use and occupancy order is completely worthless unless you have a defendant who is dumb enough to pay voluntarily.

The most common response that I have seen when the use and occupancy payments are not made is for the plaintiff to move for immediate possession. Then the trial can still be held on the amount of damages, but the plaintiff can re-lease the unit.

However, the court in Circle Management, LLC v. Oliver, 378 Ill.App.3d 601 (1st Dist. 2007), has held that "there is no language in section 9-201, however, that expressly permits a trial court to award a landlord possession following a lessee's failure to pay the statutorily authorized use and occupancy charges. Moreover, [defendant] is correct that there is no provision anywhere in the Act that authorizes sanctions for non-payment of rent pending trial.”

The court went on to say "In so finding, we are sensitive to the plight faced by landlords in Circle Management's situation that have filed a complaint pursuant to the Act following a tenant's nonpayment of rent and are unable to collect use and occupancy payments during the pendency of their actions due to the tenant's inability to pay. We realize that landlords depend upon rental payments to satisfy their mortgage payments and other monetary obligations. These valid concerns notwithstanding, it is incumbent upon a landlord that brings an action under the Act to prove that it is entitled to possession. The trial court may not grant possession under the Act merely because a tenant is unable to comply with a use and occupancy order."

The only other way, that I can think of, to collect use and occupancy would be to file a petition for rule to show cause. But then you have to show that the failure to pay is wilful, which is usually pretty hard to do in these types of cases.

Follow-Up -- Red Light Photo Tickets.

A couple of weeks ago, I went over the defenses to red light photo tickets. Today I saw an interesting post from a lawyer on the ISBA traffic and criminal email listserve. Here it is:

Red Light ticket with no effect on license (unless you have 5 unpaid ones)- $100

Fee of Attorney to challenge Red Light Ticket and spend 5 hours waiting for trial - $500

Finding client to pay fee instead of ticket - PRICELESS