How the Ever-Expanding Privacy Clause of the Illinois Constitution Can Help Defendants

The language in state constitutions usually track, often verbatim, the language of the Federal Constitution. Cf. Ill. Const. 1970, art. I, §2 (“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws”); U.S. Const. amend. XIV, §2 (“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws"). State Constitutions cannot remove rights or privileges granted by the Federal Constitution, but, as is illustrated in People v. Nesbitt, No. 2-09-0976, slip op. (Ill. App. 2d. November 8, 2010), States can grant additional rights and privileges not contained in the Federal Constitution.

In Nesbitt, defendant was charged with theft of property valued at over $10,000, with the State alleging that she stole $40,200 from the bank at which she worked. Nesbitt, No. 2-09-0976, slip op. at 2. During its in investigation, the police department obtained 250 pages of bank records from the bank by merely requesting them from the bank. Id. The defendant filed a motion to suppress the bank records, arguing that "the State violated her right to privacy under article I, section 6, of the Illinois Constitution when it procured bank records pertaining to her and her husband...without first obtaining a subpoena," which the court granted. Id. at 1 (citations omitted). The State appealed. Id.

Article 1, Section 6, of the Illinois Constitution says, in pertinent part, that "The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." Ill. Const. 1970, art. I, §6. On appeal the State argued, inter alia, that the defendant did not have a right to privacy in its bank records under this Illinois constitutional provision. Nesbitt, No. 2-09-0976, slip op. at 1. The State cited People v. Caballes, 221 Ill.2d 282 (2006), for the proposition that Illinois courts use a "lockstep" approach when interpreting the search and seizure provision of Article 1, Section 6. Id. at 4. The lock step approach requires Illinois courts to interpret state constitutional provisions in "lockstep" with the way in which the Supreme Court has construed similar provisions, as long as the Supreme Court has so construed such provisions. Id. at 4-5. In U.S. v. Miller, 425 U.S. 435, 442-43 (1976), the U.S. Supreme Court held that one does not have an expectation of privacy in one's bank records, and that one therefore has no Fourth Amendment rights against searching or seizing the records. The State in Nesbitt therefore argued that because the U.S. Supreme Court has held that bank records fall outside of the protection of the Fourth Amendment, the Illinois Supreme Court, which uses the lockstep approach, should hold that the defendant's constitutional right to privacy was not violated by the State when they obtained her bank records without a warrant. Id. at 5.

The Appellate Court, however, was unpersuaded by this argument. Id. In Miller, the Court held that the bank records were not protected by the "search and seizure" provision of the Fourth Amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated") See Miller, 425 U.S. 435, 442-43 (1976); U.S. Const. amend. IV. If the Nesbitt court were to apply the Miller holding to the search and seizure provision of Article 1, Section 6, as Caballes did, the court would have likely held that there was no constitutional violation. However, the Nesbitt court noted that the Miller holding only applied to the search and seizure language, and not the "invasion of privacy" language, of Article 1, Section 6, and that, therefore, defendant still had a constitutional expectation of privacy in her bank records that was violated by the police. Nesbitt, No. 2-09-0976, slip op. at 5.

At first blush, this seems to be a case that could be easily decided by Miller. However, Miller does not apply because it did not contemplate an "invasion of privacy" provision in the Federal Constitution, which does not exist. Nor does the Federal Constitution protect against "interceptions of communications by eavesdropping devices or other means." Therefore, it would behoove defendants to invoke Illinois Constitutional provisions like the "invasions of privacy" provision to argue that certain areas of privacy are still protected by state law, even when they are not protected by federal constitutional law. The privacy clause of the Illinois Constitution, after all, is "broadly written, with no definition limiting the types of privacy intended to be protected." Id. at 6 (citing Caballes, 221 Ill.2d at 317). Because the privacy clause was inserted in the 1970 Illinois Constitution "for the purpose of creating an additional right applicable to situations not covered by the search and seizure provision [of same]," id. (citing Caballes, 221 Ill.2d at 318-19), Illinois courts, through this provision, could create areas of privacy that previously were unrecognized by federal constitutional law.

Federal Cases Citing the HAMP and an Illinois Judge's Power to Stay Foreclosure Proceedings

*** As an introductory note, the information below was drafted by me for work. I have removed all identifying information to maintain confidentiality. The memo below covers the effect of legislation passed in Illinois in July 2010 that closes the loop hole that the HAMP created. Please note that no Illinois cases dealing with the HAMP were cited because at the time this was drafted, I could not find any. Enjoy!

Federal Cases Citing the HAMP and an Illinois Judge’s Power to Stay Foreclosure Proceedings

You have asked me to find federal cases that specifically cite the Home Affordable Modification Program (HAMP) and to determine whether a judge has the power to stay foreclosure proceedings while a mortgagor is in the process of loan modification. I have reviewed case law in California and Florida, and have consulted the Illinois Compiled Statutes.


In the case of Phu Van Nguyen v. Bac Home Loan Servs., L.P., 2010 U.S. Dist. Lexis 105704 (N.D. Cal., Oct. 1, 2010), the judge cited the HAMP and laid out what qualifies an individual for the program in detail. Id. at 6. The plaintiff in Phu Van Nguyen alleged that the mortgagee had breached its implied covenant of good faith by not notifying the plaintiff of the plaintiff’s HAMP eligibilities or HAMP guidelines. Id. at 11-12. The court went on to say that, “…numerous courts have considered claims…and concluded that mortgage loan borrowers do not have standing as ‘intended beneficiaries’ of HAMP [Servicer Participation Agreement, or] SPAs.” Id. at 13, citing Escobedo v. Countrywide, 2009 WL 4981618 (S.D. Cal. Dec. 15, 2009) at 3. The Escobedo court went on to say that, "…a qualified borrower would not be reasonable in relying on the [HAMP] Agreement as manifesting an intention to confer a right on him or her because the [HAMP] Agreement does not [mandate] that a [loan servicer] modify eligible loans." Escobedo, 2009 WL at 3. What this means for the client is that he has no guaranteed protection under the HAMP and is not guaranteed a loan modification under HAMP, so the bank can proceed with the foreclosure if it wishes.


Florida federal courts have ruled similarly. For example, in Zoher v. Chase Home Fin., 2010 U.S. Dist. Lexis 109936 (S.D. Flo., Oct. 15, 2010), where the court found that, “[t]he purpose of the program is to delay or avoid foreclosures by offering incentives to servicers to modify home loans…” and that,” [f]inding an implied private right of action for mortgagors would discourage servicers from participating in the program because they would be exposed to significant litigation expenses.” Id, at 9 -10. Under Florida precedent, the client has no redress available to him under federal law if Countrywide does not approve his loan modification.


Turning to Illinois law, a client may have relief under 735 ILCS 5/15-1508(d-5), effective as of July 23, 2010, which provides in pertinent part that, “ …the court that entered the judgment shall set aside a sale … upon motion of the mortgagor at any time prior to the confirmation of the sale, if the mortgagor proves by a preponderance of the evidence that (i) the mortgagor has applied for assistance under the Making Home Affordable Program … and (ii) the mortgaged real estate was sold in material violation of the program's requirements for proceeding to a judicial sale.” What this means for the client is that if the bank does go through with the foreclosure proceeding to where the judge orders a judicial sale, the client can go back to court and stop the sale from going through.


While a judge does not specifically have the power to stay a foreclosure proceeding, the client may file a Motion to Stay Judicial Sale, but he must be in the process of refinancing his home with a loan modification that will cover the existing mortgage and costs and be able to provide sufficient proof when the judge orders a judicial sale. In the end, the client will most likely have to continue with the foreclosure proceeding before he can take action to prevent the sale of his home.

Warm Holiday Wishes*

*The wishes provided herein represent the sentiment of the sender as of the date written and may not reflect the sender’s sentiments on the date this is first received or anytime hereafter. The sender reserves the right to deny the sender ever wished the recipient wishes, whether warm, cold or any temperature whatsoever. Also, the wishes are not dependent on the warmth and may be just wishes, with all the privileges accorded to the state of wishing, including grandiosity but not excluding practicality. The wish, whether warm, neutral or cold, is under no obligation to come true, but does not exclude the possibility that it may come true.

Controversial Arizona-like Immigration Bill Comes to Illinois

On April 23, 2010, Arizona Governor, Jan Brewer signed SB1070 into law, sparking national outrage and debate. The most controversial provision in the law is contained in Sec. 11-1051(B), which reads, in pertinent part, that:

"For any lawful stop, detention or arrest made by a law enforcement official...in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status of the person before the person is released."

SB1070 outraged the hispanic community because they perceived the law as unfairly and disproportionately targeting lawful hispanic residents and aliens from Mexico. The Federal government was outraged by SB1070 because it perceived the law as impinging upon its constitutional right to regulate immigration law. It was the Supremacy Clause argument by the Federal Government, and not the equal protection argument made by angry citizens, that persuaded District Court Judge Susan Bolton to issue a preliminary injunction on July 28, 2010, enjoining certain provisions of SB1070, such as the 11-1051(B) provision above. The state of Arizona filed an interlocutory appeal in the U.S. C.O.A. 9th Circuit, which is still pending. Meanwhile, SB1070 has found its way to Illinois in the form of HB6937.

HB6937, unlike SB1070, has not yet been signed into law. The First Reading of HB6937 was on November, 10, 2010, after which it was referred to the House Rules Committee, where it is now under review. HB6937, which contains language almost identical to 11-1051(B) above, also criminalizes willful failure to complete or carry an alien registration document; soliciting employment, applying for employment, or working as an unauthorized alien; stopping a vehicle to hire a worker; and transporting, concealing, or harboring an unauthorized alien.

The most controversial provision of HB6937, like SB1070, is the 11-1051(B)-like provision requiring officers to ascertain a driver's immigration status "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States." Even though 11-1051(B) also contains the provisio that "A law enforcement official or agency of this State or a political subdivision of this State may not consider race, color, or national origin in implementing the requirements of this subsection (b) except to the extent permitted by the United States or Illinois Constitution," civil liberties advocates are nonetheless concerned that officers will actually use these factors to form their "reasonable suspicion" and that hispanics will therefore disproportionately be affected by this provision.

Though an equal protection argument like this would seem to carry the day on this issue, I believe that even if HB6937 survives the immense political opposition that it is sure to receive in Democrat-dominated Illinois, it will suffer the same fate as SB1070 in Federal Court. Though the District Court chose not to enjoin SB1070 in its entirety, it did enjoin 11-1051(B) on Supremacy Clause grounds. The Supremacy Clause in Article VI, makes federal law the "supreme law of the land." Furthermore, the "the Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers." Bolton Order at 10. The U.S. government argued that 11-1051(B) is preempted because it will result in the harassment of lawfully present aliens and will burden federal resources and impede federal enforcement and policy priorities." Bolton Order at 14. The court agreed, enjoining 11-501(B) because, among other reasons, 11-1051(B) subjecting legally present aliens to "'the possibility of inquisitorial practices and police surveillance," in contravention of Supreme Court case law." Bolton Order at 17.

Even if HB6937 makes it through the legislative gauntlet it will surely enter, the law will probably be struck down as unconstitutional on Supremacy Clause grounds. I don't envision courts allowing states to enact their own immigration legislation when the federal government's exclusive power over immigration laws is rooted in the Constitution.

When Does Someone Have Apparent Authority to Consent to a Search?

On September 9th, the Seventh Circuit (which geographically embraces Illinois) issued an interesting decision illustrating the "apparent authority" exception to the Fourth Amendment. In U.S. v. King, No. 09-1974, slip op. (7th Cir. September 9, 2010), the defendant, a high-ranking member of the Latin Kings street gang, was charged with and convicted of "conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and attempted possession with intent intent to distribute 500 grams or more of cocaine." King, No. 09-1974, slip op. at 1-2. Jesse Guajardo, a low-ranking Latin King who was also a secret government informant, contracted with defendant and defendant's superior to provide protection for Guajardo's cocaine business in exchange for money and cocaine. Id. at 2. Guajardo told defendant that he had received 10 kilos of cocaine and that he would soon be receiving more, for which he would need protection. Id. at 3-4. For protection of the cocaine, Guajardo paid defendant $2,000 and promised to pay him a kilo of cocaine at a later time. Id. at 4. Guajardo later delivered a "sham" kilo of cocaine to a small taco restaurant which defendant and another gang member owned. Id. Defendant accepted the kilo of cocaine and hid it above a refrigerator in the back of the restaurant. Id. Defendant was arrested the next day. Id. at 5.

At 9:00 am on the day of defendant's arrest, plain clothes officers arrived at the restaurant, which was not scheduled to open until 11:00 am. At around 9:45, a cook in the restaurant opened the door and allowed the officers in. King, No. 09-1974, slip op. at 5. An alarm went off, and the cook disabled it by entering the code. Id. The cook told the officers that he was not the owner, but just the cook. Id. The cook orally consented to a search of the premises, which yielded the sham kilo of cocaine above the refrigerator Id. at 6. After he was indicted, the defendant moved to suppress the sham kilo seized from the restaurant, which was denied. Id.

At issue was "whether Cabrera-Lopez [the cook] had authority to consent to the search and whether his consent was voluntary." Id. The Fourth Amendment generally protects against warrantless searches (with several exceptions). However, "'A warrantless search does not violate the Fourth Amendment if a person possessing, or reasonably believed to possess, authority over the premises voluntarily consents to the search.'" King, No. 09-197, slip op. at 9 [citations omitted]. "Apparent authority" turns on "whether the facts available to the officer at the time would allow a person of reasonable caution to believe that the consenting party had authority over the premises." Id. [citations omitted]. On the issue of apparent authority, the court found that the cook had apparent authority to consent to the search because he "had keys to the restaurant and the code to deactivate the alarm" and "He also opened the restaurant alone," which lead the officers to reasonable believe that "he had full control over the premises, including the authority to grant access to others." Id. at 10.

King is distinguishable from the seminal apparent authority case of Stoner v. California, 376 U.S. 483 (1964). In Stoner, police officers in search of an armed robber found a checkbook containing stubs for checks that had been written to a local hotel. Id. at 484. The officers went to the hotel and asked the hotel night clerk if anyone by defendant's name was staying there. Id. at 484-85. The night clerk responded in the affirmative, gave the officers permission to enter defendant's hotel room, led the officers to the room, and opened the room, wherein evidence from the robberies was discovered. Id. at 485-86. At issue was whether the night clerk had "apparent authority" to consent to the search. The Court held that the clerk did not have apparent authority to consent to the search of the defendant's hotel room because the defendant's Fourth Amendment rights belonged to him and not the clerk nor the hotel, and that, therefore, he was the only person who "could waive [his Fourth Amendment] rights by word or deed, either directly or through an agent," which he did not do. Id. at 489. Because the defendant did not directly waive his Fourth Amendment right directly or through an agency relationship with the hotel or its employees, the hotel clerk did not possess apparent authority to consent to the search. Id.

The facts of King and Stoner are similar. Police officers entered a business hoping to ultimately discover evidence linked to defendant. Defendant was not present, but another person on the premises was. The person on the premises allowed the officers behind locked doors, where they eventually found the evidence from defendant that they were looking for. So why did the King court rule opposite of the Stoner court? Apparent authority is loosely modeled on a principal-agent relationship. In a principal-agent relationship, the principal gives the agent the authority to act on its behalf. The principal is therefore generally liable for the actions of the agent. In an apparent authority situation, a police officer determines that the agent has authority to consent to the search of the principle's property because the principle has given him the authority to do so. In King, the police officers formed this belief because the cook had the security code, the keys to the restaurant, and he opened it himself. The cook in King (the agent) was given control over the restaurant by the defendant (the principle). Therefore, the agent-cook could consent to the search of the restaurant on the behalf of the principal-defendant. In Stoner, however, there was no agency relationship between the defendant and the clerk. The defendant consented to cleaning staff entering his room, but he did not give the clerk any authority to allow people into his room. Therefore, there was no apparent authority.

A question of apparent authority will depend on the facts. If the person allowing the police entry to the area was given control of that area by one with superior rights to the area, they probably have apparent authority to consent to a search of the area. If that person was not given control of the area by one with superior rights to the area, they probably do not have apparent authority to consent to a search of the area.

The Economic Argument For Abolishing the Death Penalty in Illinois

Death penalty debates, whether in scholarly literature or over the dinner table, are usually divisive, pitting one group, who believes that the death penalty is cruel and unusual punishment, against another group, who believes in taking an eye for an eye. These debates typically revolve around themes of morality and ethics, with economics usually taking a back seat. In a recent article over at the WSJ Law Blog, however, Ashby Jones discusses how, in these difficult economic times, the costs of the death penalty are beginning to take center stage in the death penalty debate.

The article cites California as an example, where the costs of death row has lawmakers considering whether the enormous expense of maintaining the death penalty is justifiable when the state is in economic crisis. According to the article, The California penal system costs the state $137M per year, which would drop to $11M per year if the death penalty was abolished. In July of 2009, the California state prison system housed 170,000 inmates, only 648 of whom where on death row. If you take the amount it currently costs to run the California penal system ($137M) and subtract what it would cost without a death row ($11M), you would reach $126M, which would be the cost of death row. $126M/$170M would give you the percentage of the budget dedicated to death row, which is 74%. Now, if you take the number of death row inmates (648) and divide them by the total number of inmates (170,000), you will arrive at .0038%. This means that 74% of California's prison budget goes to pay for only .0038% of prisoners. This works out to $194,444 per death row inmate, per year.

The WSJ article was posted on Dec. 8th, just nine days after the Illinois House Judiciary Committee voted 4-3 for SB3539, which would abolish capital punishment in Illinois. The WSJ article cites Illinois as having spent $100M on death row since 2000, when Gov. George Ryan declared a moratorium on the death penalty in Illinois. If Illinois spent $100M on death row inmates in the last ten years, that means that it spends, on average, roughly $10M per year on death row inmates. As of November 2010, there were fifteen inmates on death row in Illinois. If Illinois, as it has in the past, spent an average of $10M per year on death row inmates, it would have cost $10M to house 15 inmates this year, which works out to $666,666 per inmate, which is $472,222 more per inmate than California spends on its death row inmates.

Morality considerations aside, the economic argument against the death penalty is impossible to ignore. Even as taxes in the state continue to rise, Illinois, like California is struggling to pay its bills. The last time that death penalty abolishment legislation passed the House Judiciary Committee was in 2003, when HB213 passed by a vote of 8-4 but ultimately died in the House. SB3539, however, might succeed where HB213 failed. Not necessarily because the political climate surrounding the death penalty has changed, but because Illinois' budgetary system has significantly changed for the worse from 2003 to 2010. Illinois could very well follow cash-strapped California's lead by taking a hard look at the economic costs of maintaining the death penalty, especially when nobody has been executed in Illinois for the past ten years. Even though it is irresponsible to spend $194,444 per inmate per year, it is downright absurd to spend over triple that per year to incarcerate a death row inmate for one year in Illinois. In this challenging economic climate, it might be this very compelling economic argument that pushes death penalty supporters aside and pushes SB3539 through the legislature and into law.

Plainfield Passes New Business Registration Ordinance.

In October, Plainfield, IL adopted a new business registration ordinance. Here is the complete text of the ordinance.  The ordinance amends the Village Code in several ways. The most significant new section outlines a process by which a business owner can challenge the suspension or revocation of his business license.

Section 4-431 provides that a business license can be revoked or suspended for a number of different reasons. For instance:

(1) Fraud, misrepresentation or an incorrect statement contained in the initial or renewal application.
(2) Conviction of any misdemeanor or felony.
(3) Conducting the business as to constitute a breach of the peace, or a menace to the health, safety or welfare of the public or a disturbance of the peace or comfort of residents of the village.
(4) Expiration or cancellation of any required bond or insurance.
(5) Actions unauthorized or beyond the scope of the license granted.
(6) Violation of any provisions of the village’s Building Code, Zoning Ordinance, Fire Protection Code or any other provision of the village’s Code or local Fire Protection Codes.
(8) Refusal of the owner to cooperate with Village inspections.

Once the village learns that a business owner has violated any of the provisions outlined above, the village president shall immediately suspend the owner's license. Notice of the suspension must be served personally or by certified mail.

The notice shall contain a statement of facts upon which the village president has acted in suspending the license. Upon service of the notice of suspension the licensee shall cease all business related activity at the location that is the subject of the license. The licensee shall have the right to make demand upon the village clerk for a hearing to be held within five (5) business days of the village’s receipt of the licensee’s demand for hearing.

Upon the filing of such a demand with the village clerk, the village president shall set a date and time for the hearing. All such hearings shall be held at the village’s principal place of business, or at such other public location designated by the village president. At the hearing the licensee, and any other interested person, shall have the right to present evidence as to the facts upon which the village president based the suspension of the license, and any other facts which may aid the village president in determining whether this article has been violated.

If after such hearing the village president finds this article has been violated, he shall within three (3) business days after the hearing file with the village clerk for public inspection and serve upon the licensee and all interested persons participating in the hearing, a written statement of the facts upon which he bases such findings and shall affirm or vacate the suspension and/or issue an order of revocation of the license. If after such hearing the village president finds this article has not been violated, he shall immediately reinstate the license.

New Grounds for Challenging Red Light Camera Tickets in Illinois

A recent amendment to Section 11-208.3 of the Illinois Vehicle Code (625 ILCS 5/11-208.3), which becomes effective 1/1/11, will provide new grounds for defendants to challenge red light infractions captured by red light cameras. Section 11-208.3, which concerns "Administrative adjudication of violations of traffic regulations concerning the standing, parking, or condition of vehicles and automated traffic law violations," covers, among other infractions, red light camera tickets. Public Act 096-1016 amends 11-208.3 to provide drivers with more due process rights when issued a red light camera ticket. Here are the changes to the Code that will impact Illinois drivers:

• Section 5/11-208.3(b)(3) is amended to require that in municipalities with less than 1 million inhabitants or in counties with less than 3 million inhabitants, a retired or current police officer must review the camera technician's determination that the driver in the photo actually committed an infraction under the Illinois Vehicle Code. The same is true for municipalities with 1 million or more inhabitants or in counties with 3 million or more inhabitants, except that in addition to a retired or current police officer, an unaffiliated technician can also be used to review the first technician's determination of an ordinance violation.

• Section 5/11-208.3(b)(3) is also amended to require that municipalities and counties must not charge an extra fee for the driver exercising her right to an administrative hearing in order to challenge the ticket. This section is also amended to require that municipalities and counties give defendants 25 days following the hearing date to pay any civil penalties resulting from a guilty finding at the hearing.

• Section 5/11-208.6(b-5) is amended to require municipalities and counties to produce the image captured by the red light camera and to make that image accessible to the driver online.

• Section 5/11-208.6(c-5) is amended to prohibit municipalities and counties from issuing red light tickets when the driver comes to a complete stop beyond the stop line or in the crosswalk but fails to enter the intersection, unless pedestrians or bicyclists are crossing the road when the vehicle comes to a stop.

• Section 5/11-208.6(k-3) is amended to require municipalities and counties with one or more red light cameras to provide notice to drivers of the location of the cameras via the municipality or county website.

It should be noted that 5/11-208.3 only applies to "the counties of Cook, DuPage, Kane, Lake, Madison, McHenry, St. Clair, and Will and to municipalities located within those counties." So if a driver receives a red light camera ticket outside of Cook County or the collar counties, these new amendments to the Code will not apply. These new amendments should restore some added creditability to use of red light cameras, which have angered many drivers because the automated nature of a camera system is too rigid to account for the myriad factual scenarios where drivers lacked criminal intent when running the red light (i.e., the driver was following a slow-moving stream of traffic through an intersection; traffic stalls; and the driver was stuck in the intersection, technically running a red light even though the driver did not intend to).

Now, the amendments to 5/11-208.3 will provide defendants with an opportunity to make additional procedural challenges to red light tickets. Defendants will be able to challenge the tickets on the grounds that 1) the technician's determination was not reviewed by another officer or technician 2) the image of the infraction was not accessible to the defendant online 3) that, even though defendant stopped in the cross walk, he did not enter the intersection 4) and that the municipality or county failed to properly notice defendant of the locations of red light cameras by not posting their locations online. Drivers, and their defense lawyers, will likely welcome these amendments because they add an extra layer of fairness and due process which was not available before 5/11-208.3 was amended.

A small claims fiasco

Although small claims cases may seem easy to manage, attorney's would be wise not to underestimate the challenges that can arise in such cases. So many things can go wrong with a small claims case. First, the fact that a low dollar amount is at stake sometimes tends to give one a false sense of ease. When you have lawsuits with high dollar potentials sitting on your desk and screaming for you attention, you tend to put small claims on the back burner. Second, in many cases you are not even getting paid or getting paid very little. Some of the small claims cases that I handled were on a pro bono basis for friends. Basically, I felt bad charging for cases where the dollar amount was merely in the hundreds. But, as my friend Steve always says, "you get what you pay for." Third, a pro se party is often involved, and judges tend to be sympathetic. And, if the pro se party happens to be the Plaintiff, you may not even know by examining the complaint or even after the party presents its case in court what exactly the suit is all about. And, if you don't know what the party is suing for, you don't know how to defend it. Fourth, judges have discretion per Supreme Court Rule 286b to conduct an informal hearing. And, just how they conduct this informal hearing is anyone's guess. Every small claims judge I have been in front of, handled the situation differently.

Recently, I had a case where a pro se Plaintiff handed my client cash to bail her son out of jail. My client got a receipt and put his name on the slip for the check to be returned to his address. The check didn't come back to his house for three months. In the meantime the individual who was bailed out of jail borrowed substantial sums of money from my client. My client apparently lent the individual all this money because he was promised he could keep the check that was coming back from the bail money. The Plaintiff, of course, insisted the money was hers and that her son had no authority to use this money to secure loans from friends.

My initial impression of the case was that we were gonna lose big time. Every small claims hearing that I had attended was conducted very informally with Rule 286b being invoked by the judge himself. And, every time this happened the judge focused less on procedure and rules and more on getting to the truth of the matter. This meant as 286b says "At the informal hearing all relevant evidence shall be admissible and the court may relax the rules of procedure and the rules of evidence." Furthermore, the Plaintiff had a cancelled check from an account that was clearly hers made out to cash in the bail amount and that was dated from the day that bail was posted. Also, my client was going to have to stipulate that she handed him the money. I assumed this because I believe the judge was going to ask him this question regardless of whether the Plaintiff knew how to cross-ex him or not. This was how my other experiences had been.

So, with all that in mind, I took the approach that I was going to have to invoke Rule 286b if the judge didn't do so himself and try to get hearsay evidence in to demonstrate that representations were made to my client by the individual who was bailed out of jail. To my surprise the judge did not invoke the rule. This was the first time this happened to me in small claims with a pro se defendant. I was worried that the Plaintiff could win her case because I didn't think she had to prove that much to prevail and I figured that the judge would still go easy on her. My thought was that the only way I could win was if I could raise doubt over the source of the money that was handed to my client. And, the only way I could adequately do that was to bring in hearsay evidence. So, I invoked the Rule. The judge looked surprised and asked "Counsel, are you sure you want to do that?" I said I was sure. Looking back, that was probably a mistake but I couldn't have known that at the time. As things turned out, the judge was pretty hard on her. He limited her testimony significantly. She did manage to get the bail receipt and cancelled check in to evidence. I didn't object for reasons explained above. And, I stipulated that my client received cash from her.

When I cross examined her, I tried to raise doubt about the source of the funds handed to my client and I tried to ask questions that would make it look like my client could have legitimately believed that the money belonged to the individual bailed out jail and not the Plaintiff. Finally, I questioned my client about hearsay statements made by the individual bailed out jail. The judge stopped me instantly. "Mr. Krause, what is the relevance of all this." I tried to explain the probative value of my questions. "Mr. Krause, I don't want to get into these hearsay conversations that your client participated in." I responed, "your honor, I invoked Rule 286b?" The judge said, "I said I would relax the rules of evidence, not throw them out." So, it became clear to me that hearsay wasn't neccesarily welcome even in 286b situations. I thought "all relevant evidence" was allowed. That is not neccessarily the case. In fact, I am still not sure what the law on this matter is but I know I can't take it for granted in the future. After that, I thought I was going to lose. To my surprise, the judge found in favor of my client. He said the Plaintiff didn't meet her burden of proof. I actually still don't know what kind of case it was. Was it a conversion or trover case? The judge didn't mention what elements she had to meet or that she failed to meet. Whatever it was, I completely failed to spot the issue but still managed to prevail. In any event, I know small claims is nothing to take lightly.

Can Ineffective Assistance Claims be Heard by Courts Prior to Trial?

In People v. Jocko, No. 108465, slip op. (Ill. November 18, 2010), the Illinois Supreme Court decided "whether a circuit court is required to conduct an inquiry, prior to trial, into allegations of ineffective assistance of counsel that are raised by the defendant pro se." Jocko, No. 108465, slip op. at 1. The defendant in Jocko was charged with burglary and thereafter appointed a public defender (Public Defender 1), who entered a "not guilty" plea and filed a discovery motion. Id. at 2. Another public defender (Public Defender 2) took over the representation, filing a motion to quash arrest and suppress evidence, which was heard and denied. Id. Soon after the motion was denied, defendant filed a pro se "Motion to Dismiss Based on Due Process Violation," arguing that he was not provided with counsel for the arraignment and bail hearing. Id. Another public defender (Public Defender 3) was ultimately appointed to represent defendant at trial. Id.

In the record was an affidavit from defendant in support of a motion to suppress, stating that defendant was brought before the alleged victim without having a lawyer present and a letter stating that defendant had requested that certain evidence be introduced by his attorney but that his attorney failed to do so. Id. at 2-3. In addition to counsel's failure to enter defendant's evidence, defendant claimed that Public Defender 3 was "not 'fighting my case to the best of intrest [sic]." Jocko, No. 108465, slip op. at 3. The defendant was thereafter convicted and sentenced, and he appealed. Id. at 3.

On appeal, defendant argued that the court erred by not hearing his ineffective assistance claims before trial Id. Relying on People v. Krankel, 102 Ill. 2d 181 (1984), which "adopted a procedure that encourages the circuit court to fully address a defendant's claim of ineffective assistance" after trial, Id. at 4, defendant argued that the post-trial ineffective assistance inquiry should be applied to pro se pre-trial ineffective claims. Id. at 3. The Appellate Court agreed, and the cause was remanded for the purpose of inquiring into defendant's pre-trial ineffective assistance claims. Id. at 3. The State appealed the decision, arguing that Krankel was inapposite to the facts in Jocko.

Ineffective assistance of counsel claims are analyzed under the test announced in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to prove ineffective assistance of counsel, the defendant must demonstrate that 1) counsel's performance was deficient, and 2) that there was a reasonable probability that but-for counsel's deficient performance, the results of the proceeding would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The Jocko court did not address whether counsel's performance was deficient because it determined that "until the proceedings have concluded, there is no way to determine if counsel's errors affected the outcome and, therefore, no way of establishing prejudice under Strickland..." Jocko, No. 108465, slip op. at 4-5. In other words, it did not matter whether counsel's performance was deficient because without conducting the trial, there was no way of determining whether that deficiency affected the the outcome of defendant's case.

I agree with the Court's decision not to apply Krankel to pre-trial ineffective assistance claims. It is possible that defense counsel will make errors prior to trial that may or may not affect the final outcome of the defendant's case. Without reaching that outcome, the defendant will never know how counsel's pre-trial error affected the outcome. If the error was minor and would not end up affecting the outcome, then the court's time would be wasted by hearing numerous ineffective assistance claims made my defendants who perhaps do not agree with or understand their attorney's legal strategies. If the error is major, it can still be argued after trial in post-trial motions. In either case, it is in the interest of judicial economy to just "wait and see what happens."

ABA Journal Top 100 Blogs

Once again, the Northern Law Blog did not make the Top 100 legal blogs in America as chosen by the ABA Journal. I didn't know that blogs had to submit themselves for consideration, which we have now done.

We are now recognized by the ABA Blog Directory:

http://www.abajournal.com/blawg/Northern_Law_Blog

Let's start a year-long push for inclusion in next year’s Top 100 rankings. I don't know exactly what that should entail, but I believe that it all starts with quality content. We need to increase the number of contributing writers and increase the number of submissions from each contributor.  Next, I believe that we need to increase our subscription base.

If anyone else has any suggestions, please let me know. Also, if you have not already subscribed to receive new posts via email, please do so now. And, tell your friends. Thanks!

Lawsuit Lenders Targeting Divorce Litigants: Conflict of Interest?

A few weeks ago, I wrote about the emerging trend of lawsuit lending in class action suits. There, private lenders would offer a class of plaintiffs a line of credit to fund complex class action suits which law firms otherwise could not afford to finance themselves. I voiced some concern about whether this could potentially pose a conflict of interest where the lender's interests were not aligned with the class' interests. After reading a new article about divorce lending in Saturday's edition of the NY Times, I am also convinced that divorce lending could present a conflict of interest between the divorce litigant and the lender, though for different reasons.

The Times article details a different twist on the class action lawsuit lending concept, whereby private lenders, instead of advancing funds to a class for litigation expenses, are lending funds to individuals who are seeking a divorce. The article profiles a private divorce lending firm called Balance Point Divorce Funding, which "offers to cover the cost of breaking up—paying a lawyer searching for hidden assets, maintaining a lifestyle—in exchange for a share of the winnings." The article describes that divorce lending, in comparison to lending in other areas such as mass tort or securities, satisfies a niche because "state laws uniformly require plaintiffs [in divorces] to pay lawyers upfront, rather than promising them a contingency fee." However, lenders like Balance Point do collect a contingency fee from the judgment to cover the advanced funds and provide the lender with a profit. This, compared to lenders who finance class actions and securities suits, where an agreed upon amount of interest is paid on the advanced funds. In other words, the divorce lenders can do what divorce lawyers cannot.

The Illinois Rules of Professional Conduct Rule 1.5(d)(1) says that "A lawyer shall not enter into an arrangement for, charge, or collect...any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof..." An ethics opinion from the Louisiana Bar Association provides the public policy rationale for Louisiana Rule 1.5(d)(1), which is identical to Illinois': "If the contingency fee were allowed prior to the divorce or prior to setting the amount of child or spousal support, the lawyer’s interest in obtaining the fee could influence his advice on reconciliation issues, promoting divorce and hindering reconciliation, and his advice on setting the amount of support, thus creating a conflict of interest with a vulnerable client." PUBLIC Opinion 05-RPCC-002. In other words, lawyers are not allowed to collect contingency fees on divorce cases because it could lead to a lawyer acting self-interestedly by trying to obtain the highest judgment amount through protracted litigation instead of acting in the best interests of the client and expeditiously settling the divorce. Most would agree that this policy consideration is a sound way of ensuring that the client's interests are served before the lawyer's interests are served.

There is a danger that allowing private lenders like Balance Point to do what divorce lawyers cannot—that is, collect a contingency fee on a divorce judgement in exchange for advancing litigation costs—can lead to the same conflict of interest that Rule 1.5(d)(1) aims to prohibit. When lenders loan money to a class of plaintiffs, there are some potential conflicts that may arise when the lender is adverse to defendants. See my prior post. However, in that case, the lender is arguably just providing capital that a law firm would not have in order for the lawsuit to proceed as it would had the law firm been as well-capitalized as the lender. See Rule 1.8(e)(1) ("a lawyer may advance court costs and expenses of litigation"). Because it is not operating on a contingency fee, the lender in that case is uninterested in the amount of the final judgment against the defendant, so long as it receives repayment of the principal, plus interest. With divorce lenders, it is different. Their profit comes not from an agreed upon amount of interest (Balance Point does not charge interest on its loans), but from the difference between the loan and the percentage it receives from the final divorce judgment. Unlike the class action lender who is uninterested in the final judgment amount, the divorce lender is interested in the final judgment amount because the lender's profit ultimately derives from it.

The Louisiana Bar was concerned that allowing divorce lawyers to collect contingency fees would lead to lawyers drawing out cases to obtain larger judgments instead of expeditiously settling the matter. Divorce attorneys are therefore only allowed to be paid hourly, which encourages parties to reconcile early. But when a lender comes along who is willing to fund the lawsuit "until victory," suddenly there is a stream of money flowing into the lawyer's hands, which he may now use to protract the litigation (the articles describes a woman who was about to enter a divorce settlement because she was running out of money, when her lawyer suggested that she contact Balance Point). What we have then is a situation where the attorney and the lender, working together, are "promoting divorce and hindering reconciliation." In this instance, the promotion of the divorce enriches both the lender (through a larger divorce settlement) and the attorney (through more hours billed), at the cost of the plaintiff's interest in settling the matter expeditiously, which undermines the public policy reasons for creating a rule like Rule 1.5(d)(1).

The Plainfield Village Code Specifically Authorizes Texting While Driving.

I live in Plainfield, IL. I just read in the winter newsletter that the Village Board passed a negligent driving ordinance last month. The ordinance amends the Village Code to make it unlawful for any person to "negligently operate" a motor vehicle upon any roadway or public way--certainly an honorable intention. But I pulled it up online to check it out and I believe it specifically authorizes me to text while driving.

Negligently is defined as, among other things, engaging in inattentive actions. Inattentive actions include, among other things, the use of an electronic communication device. Electronic communications devices include, among other things, cell phones and PDAs capable of being used for the purpose of composing, reading or sending an electronic message. Here is the full text of the ordinance.

Then the ordinance declares that "This section is not intended to prohibit the use of an electronic communication device during the safe operation of a motor vehicle."

Cool. So, when I am driving through downtown Plainfield, as long as I am safely operating my car, I can text, watch youtube videos, tweet, and compete in online poker tournaments.

The argument is that you could never operate your car safely while doing any of those things. But keep in mind that police can pull you over if they see you texting, even if you have not made any other traffic infractions. If that happened, I believe you could at least argue this defense to the village prosecutor with a straight face. Of course, I can argue anything with a straight face, as you can tell from the preceding paragraphs. ;)

Police Creating The Exigent Circumstance: A Preview of Kentucky v. King

On January 12, 2011, the court will hear oral arguments in Kentucky v. King, No. 09-1272. The case will decide the very interesting question of whether the exigent circumstances exception to the warrant requirement applies when police officers, not suspects, create the exigency. Under the Fourth Amendment, police may not conduct a warrantless search of a private home unless there exists 1) probable cause and 2) exigent circumstances. See Kirk v. Louisiana, 536 U.S. 635, 638 (2002). Exigent circumstances, in a nutshell, are circumstances in which someone could potentially be harmed or someone could potentially destroy evidence. This could occur when officers hear a woman screaming and must enter the home to prevent injury to the woman or where, as in King, officers heard what they thought was the sound of evidence being destroyed after knocking and announcing themselves.

Kentucky v. King is an appeal from Kentucky Supreme Court case, King v. Commonwealth, 302 S.W.3d 649 (Ken. 2010). In King, officers were facilitating an undercover drug bust. Id. at 651. An informant purchased crack cocaine from a drug dealer, while officers awaited nearby to arrest the dealer. Id. After the purchase was made, the dealer walked into a breezeway of an apartment building and disappeared into one of two apartments in the breezeway. Id. Officers, in pursuit of the drug dealer, thereafter entered the breezeway. Id. The officers did not know which of the two apartments the dealer had entered. However, they smelled burning marijuana in the breezeway, and thinking that the scent had been released by opening the door to an apartment, the officers knocked on the door of "apartment A," where the marijuana scent seemed to be emanating from, and announced "police." Id. The officers then heard movement inside the apartment, and thinking that the occupant was destroying evidence, they made a forced entry into the apartment. King, 302 S.W.3d at 651-52. In the apartment, they discovered three individuals smoking marijuana with a large quantity of cocaine and drug dealing paraphilia. Id. at 652. But they did not discover the drug dealer, who was later located in "apartment B." Id. The three individuals were arrested and later convicted on drug charges. Id.

One of the co-defendants filed a motion to suppress the drug evidence, arguing that the warrantless entry into the apartment did not fall into the exigent circumstances exception to the warrant requirement because the officers created the exigency themselves. Id. The trial court denied the motion, and its decision was appealed and later affirmed by the appellate court. Id. The Kentucky Supreme Court, however, reversed the appellate court's decision, reasoning that knocking on the door and announcing "police" prompted the defendants to make the movement, whereas the defendants would have had no motivation to do so absent the knock and announce. King, 302 S.W.3d at 656.

After a survey of tests formulated by federal circuit courts, the Kentucky court adopted a two-part test to decide whether an exigency is officer-created:

First, courts must determine "whether the officers deliberately created the exigent circumstances with the bad faith intent to avoid the warrant requirement." Gould, 364 F.3d at 590. If so, then police cannot rely on the resulting exigency. Second, where police have not acted in bad faith, courts must determine "[w]hether, regardless of good faith, it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances relied upon to justify a warrantless entry." Mann, 161 S.W.3d at 834. If so, then the exigent circumstances cannot justify the warrantless entry. Id.

Applying this test, the court found that the officers who entered the breezeway were not acting with bad faith when they knocked and announced on apartment A because they did not know which apartment defendant had gone into. Id. But on the second prong, the court held that it was reasonably foreseeable to the officers that knocking and announcing would prompt the occupants of the apartment to make the movement, and therefore the movement could not justify the warrantless entry that followed. Id.

The U.S. Supreme court granted certiorari on the issue of whether an officer-created exigency is a valid exigency that would allow a warrantless entry. The Court probably granted cert to resolve the competing tests of Circuit and state appellate courts below. The King test, which draws elements from the competing Circuit tests, seems perfectly reasonable and in line with established Fourth Amendment case law protecting the sanctity of the home from the intrusion of the government. I think the liberal justices will vote to affirm, but it will be interesting to see how the "law and order" conservative justices will vote. In reaching their vote, they will need to decide whether the sanctity of the home outweighs the needs of police to do perform their duties. For the sake of preserving what little is left of Fourth Amendment protections, I am hopeful that at least one conservative justice will decide that police cannot create the exigency that justifies busting someone's front door down.

Illinois Civil Union Law

On Wednesday, December 1, 2010, the Illinois Senate passed the Illinois Religious Freedom Protection and Civil Union Act, which, when signed by the Governor, will become effective June 1, 2011. The law allows both homosexual and heterosexual couples ages 18 and older to enter into a "Civil Union."

I have been following this law for some time and it, in a nutshell, gives a "Party to a civil union" (I would have used "domestic partner") all of the legal rights of a spouse in Illinois. A non-exclusive list of the big changes:

A "Party to a civil union" gains legal rights to:

• Make medical decisions without a Healthcare POA;
• Have hospital visitation when visitation is limited to family;
• Share nursing home rooms;
• Spousal coverage under employer based health insurance plans;
• Share in state pensions;
• Receive inheritance without estate planning documents;
• File suit over a wrongful death;
• Invoke privilege to not have to testify against a partner.

What the law does not and cannot allow (because of the federal Defense of Marriage Act):

• receiving a Social Security survivor's benefit;
• filing joint federal tax returns;
• receiving any other federal benefits reserved for a spouse.

Keep in mind that the value of partner benefits is treated as income and taxed by the federal government for income tax purposes. Further, a partner would not automatically have an interest in the other partner's 401(k), so a beneficiary designation form would have to be updated to pass the assets to the surviving partner. Last, any religious body, Indian Nation or Tribe or Native group is free to decide whether or not to solemnize or officiate a civil union.

A full text version of the act can be found here. Next year should be a stellar year for wedding planners, photographers, caterers, and anyone else in the wedding industry!

When is a Rule a Law, and When is a Rule just a Rule?

The defendant in People v. Williams, No. 108947, slip op. (Ill. November 18, 2010) was a police dispatcher who was convicted of criminal drug conspiracy and official misconduct under 720 ILCS 5/33-3(b) (West 1998). Id. at 1-2. The official misconduct count alleged that defendant “in her official capacity as a police dispatcher knowingly performed an act which she knew she is forbidden by law to perform, to wit: she notified Greg Stroud about police activity near his residence…in order to facilitate illegal drug-dealing by Greg Stround. Id. at 2. The defendant was using the phone at the police department to call her child’s father to tip him off regarding police activity in the father’s vicinity. Id. at 2-4. According to the official misconduct statute, "A public officer or employee or special government agent commits misconduct when, in his official capacity or capacity as a special government agent, he...Knowingly performs an act which he knows he is forbidden by law to perform..." 720 ILCS 5/33-3(b). The state argued (and the trial court agreed) that the dispatcher committed official misconduct by placing the calls because she did so in violation of a confidentiality rule contained in the police department’s rules and regulations. The defendant appealed the official misconduct conviction, arguing that the department’s rules and regulations did not constitute a “law” within the meaning of the statute, and therefore she did not violate 5/33-3(b) because she did not satisfy the condition predicate of breaking any “law.” Id. at 5. The appellate court reversed the defendant’s conviction, holding that the departmental rules and regulations were not “laws,” and the State appealed to the Ill. Supreme Court. Id.

On appeal, the State argued that the departmental rules were ordinances (and therefore laws) because they were “adopted” by the City Council. Id. at 8. The Supreme Court rejected this argument because the State failed to prove that the rules were codified into an ordinance. Id. at 8-9. The Supreme Court instead affirmed the appellate court’s holding that the rules were not “laws,” reasoning that “law” in the official misconduct statute could not be construed so broadly that “it includes rules promulgated solely by a person in authority of a governmental department or the administrative staff” (in this case, the police chief). Id. at 11-12.

Context determines whether rules are laws or whether rules are just rules. Rules in a departmental handbook differ from administrative rules because departmental rules are promulgated by employers for employees, whereas administrative rules are promulgated by administrative bodies and codified into statute. Therefore, to tell a rule from a “law” within the context of the official misconduct statute, one needs to determine 1) who drafted it and 2) whether or not it has been codified. If a rule is drafted by a legislative body or an administrative agency for everyone to follow, it is probably a law. If it is drafted by a department head for only employees to follow, it is probably just a rule. If the rule has been codified, it is probably a law. If the rule only exists in an employee handbook, it is probably just a rule.

Target the Dog - Part II

I wrote a post about Target the dog a couple of weeks ago. You will recall that Target the dog was living the good life as a national hero until she was mistakenly euthanized by a county animal control officer.

A commenter suggested that the attorney who filed suit on behalf of Target's owners would run into tort immunity problems. Governmental tort immunity would certainly be raised as a defense in that case, but I think the plaintiff would ultimately prevail. Keep in mind that complete text books have been written on this subject and I am certainly no expert, so I would welcome any feedback in the comments section. Even though Target was killed in Arizona, I will analyze the situation by applying Illinois law.

At issue would be the Local Government and Governmental Employees Tort Immunity Act. 745 ILCS 10/1 et seq. The Act provides different immunities for public entities and public employees. If I had more time, I could probably come up with a theory why the public entity should not enjoy immunity, but the easier case is the one against the employee who killed the wrong dog. Once liability is proven against the employee, I believe that the employer/entity would be obligated to indemnify the employee. Section 2-303 of the Act specifically says that nothing in the Act shall relieve a local public entity of its duty to indemnify its employees.

With respect to employees, immunity is granted to those who serve in a position involving the determination of policy or the exercise of discretion. See Section 2-201. Immunity is not granted to employees for ministerial acts. A governmental employee acts judicially or exercises discretion when he selects and adopts a plan in his official capacity, but as soon as he begins to carry out that plan, he acts ministerially and is bound to see that the work is done in a reasonably safe manner. See Greene v. City of Chicago, 73 Ill.2d 100 (1978).

Without a doubt, the Animal Control office had a policy in place dictating which dogs would be put down, how it would be done, how long they would be kept before it happened, etc. They don't automatically kill every dog that comes through the door. The original article even referenced a procedure whereby the County tried to reach the dogs' owners by posting pictures of stray dogs on their website and giving owners time to claim their dogs.

It is my position that the employee, and possibly the County, owed a duty to follow the procedures in place. If protocol would have been followed, Target would not have been killed. Because the employee was acting ministerially and was not exercising discretion, I believe he or she is liable for negligence.

Again, there are probably exceptions to the exceptions with regard to the Tort Immunity Act, so please let me know if my analysis is faulty.