October - Lake County Bar Association

The Official Publication of the Lake County Bar Association
October 2007 • Vol. XIV, No. 10
Included in this issue:
• Immigration Law: What's Love Got to Do With It?
• Immigration and Ineffective Assistance of CounselDeportation as a Collateral Consequence
• Electronically Transmitted Driving Abstracts
May be Used at Trial and at Sentencing
• Tips for Persuasive Brief Writing
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INC.
The Lake County Bar
Association exists in
order to advance the
highest standards of
excellence in the legal
profession, to promote
the professional
development, integrity
and civility of its
members, to foster
reform in the law, and to
facilitate access to the
justice system for all
residents of Lake
County.
We are excited to offer
you the opportunity to
join us in our mission.
LC
~
Questions regarding
program benefits may be
directed
to:
,
Amy D. Darling
Executive Director
Lake County Bar Association
7 North County Street, 2nd Floor
VVaukegan , IL 60085
Phone (847) 244-3143
Fax (847) 244-8259
www.lakebar.org
Lake County
Bar Association
Friends of the
Program
Partnership
Opportunities
Supporting Your Business
Through the Unity of
Our Profession
Individual Sponsorships
• Lunch Meeting - $500.00
•
Four (4) full page sized ads in
the LCBA monthly publication,
The Docket
•
Four (4) half page sized ads in
the LCBA monthly publication,
The Docket
•
12 month subscription to The
Docket
•
12 month subscription to The
Docket
•
Your Website Link featured on
the LCBA Homepage
•
Your Website Link featured on
the LCBA Website Links page
•
One (1) foursome at annual
LCBA Golf Outing
•
Hole Sponsorship at annual
LCBA Golf Outing
•
Hole Sponsorship at annual
LCBA GolfO~ting
•
Two(2) tickets to the LCBA
Annual Installation of Officers
Gala
•
Electronic Copy of LCBA
Membership List (excluding
email addresses and for Friends
of the Program use only)
•
Two (2) sets of LCBA
Membership Mailing Labels
•
Insertion of your promotional
materials in all LCBA
Continuing Legal Education
Seminars
•
GRIDIRON PLAYBILL AD
• Social Meeting - $700.00
• Y2 Day MCLE Program
$750.00
• Full Day MCLE Program
$\,000
Premium Plus
Advantage
•
Insertion of your promotional
materials in all LCBA
Continuing Legal Education
Seminars
•
(I) Brown Bag Seminar
(excluding cost of room &
lunch) Content Subject to
MCLE Apprdval
•
GRIDIRON PLAYBILL AD
$3,250.00
$2,500.00
If~THE DOCKET
The Official Publication of the Lake County Bar Association
OCTOBER 2007
3
President's Page ................... ... ................................ ...................... Fredric Bryan Lesser, President
7
Chief Judge's Page ......................................................... Han. Christopher C. Starck, Chief Judge
9
Immigration Law:
What's Love Got to Do With It? ........................................... Andrew Sagartz & Christine Contreras
21
Immigration and Ineffective Assistance of CounselDeportation as a Collateral Consequence .................................................................. Michaei Bekesha
27
Electronically Transmitted Driving Abstracts
May be Used at Trial and at Sentencing .. .. .......................................................... ......... Scott Turk
33
Tips for Persuasive Brief Writing ........................... Han. Mitchell L. Hoffman, Associate Judge
37
Executive Board Meeting Minutes ......................... ........... Amy D. Darling, Executive Director
39
Wills, Trusts, and Probate Committee Minutes ............................................ Liz Rochford, Chair
The Lake County Bar Association
7 North County Street • Waukegan, Illinois 60085
(847) 244·3143 • (847) 244-8259 FAX
2007/2008 Executive Board
Fredric Bryan Lesser-Presidellt
Bryan Winter-1st Vice-Presidetll
Scott B. Gibson-2nd Vice-President
Perry S. Smith, Jr.-Treasurer
Hon. Daniel B. Shanes-Secretary
Rohert S. Smith, Jr. -Immediate Past Pres.
Marjorie Sher-Member-at-LArge
Editorial
Coordinator
ASM, Inc.
Staff
Amy D. Darling
Executive Director
Melissa E. Brown
Executive Assistant
2007/2008 Editorial Board
Hon. Mitchell Hoffman & Stephen j . Rice-Editors
Ann Buche Conroy • James DeSanto
James Simonian • Neal Simon
Hon. Raymond McKoski
Hon. Daniel Shanes • Han. Stephen Walter
Daniel Jasica • Rebecca Whitcombe
Adv~disinG
On,
Six
Twelve
Rates
l»w:
l»lI<>
l»lI<>
8yll~tin
Eighth Page
$65
$60
$55
Up to 5 lines
$25
Quarter Page
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6 to 10 lines
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Half Page
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11 to 15 lines $40
Full Page
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16 to 20 lines $45
I!M
8Qam
To place an ad or for information on advertising rates, call (847) 244-3143.
Submission deadline: First day of month preceding the month of publication. All
submissions must be milde in electronic format accompanied by a hard copy.
Diskettes are returned to 7 N. County Street, Waukegan, and if not retrieved by
the author/ owner within thirty (30) days of publication, become property of the
Lake County Bar Association.
The Docket is the official publication of the Lake County Bar Association, 7
N. County Street, Waukegan, IL 60085 (847) 244-3143, and is published monthly.
Subscriptions for non-members are $45.00 per year.
Reproduction in whole or part without permission is prohibited. The opinions and positiOns stated in signed material are those of the authors and not
necessarily those of the Association or its members. All submitted manuscripts
are considered by the Editorial Board. All letters to the editor and articles are
subject to editing. ~ublication of advertisements is not to be construed as an
endorsement of any product or service advertised unless otherwise stated.
Cover photo, "Immigrant Inspection at Ellis Island," from http://www.nps.gov / elis/.
~~
-~~
~~
v.
~ -~
~~
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October 2007
The Docket
Page 1
President's Page
by Fredric Bryan Lesser, President
]
Y
our Bar Association has
money problems. No,
we haven't been spending the rent money on wine,
women and song, although that
wouldn't necessarily be a bad
idea. We run a lean, but not
mean, Bar Machine. Of our 850
members, only Docket CoEditor Steve Rice would be getting a raise if he worked for
what we pay Amy and or
Melissa. (Now who's laughing,
Photoshop Boy?)
Last year, we ran a deficit of
$24,500. We have only $17,500
as a reserve. Our annual opera ting expenses are a bou t
$180,000. Half of that is spent
on salaries. The other half is
spent on rent, telephones, and
other office uses. We picked up
a new expense last year:
charges from the Illinois Supreme Court to be an approved
MCLE provider. I think we can
all agree that's a worthwhile
expense.
We have a series of activities for which we charge attendees: Seminars, Golf Outing
(thank you, Scott and Rich),
Gridiron, Installation Dinner,
and Medical/Legal Dinner.
Then we have The Docket,
which you are reading now.
We charge advertisers, but not
enough. We have just raised
advertising rates by 25%, but
the truth is we have not raised
the rates in many years, and
our charges are about half of
what comparable bar magazines are charging. By the time
all of these activities are netted
out, they are a break-even
proposition. The money we
make on the fund raisers equals
the shortfall from The Docket.
No, I don't want to eliminate The Docket. This magazine
is a good and reliable tool for
communication within our Bar,
an important forum for debate,
substantive information and
events. The better solution is to
make The Docket profitable, like
other bar magazines. We have
simply been asleep for too long.
We have not aggressively
sought out advertisers, and we
have not raised advertising
rates to keep pace with inflation.
We have another initiative
to raise funds. The Friends of
the Program is an opportunity
for vendors to market to us. We
currently have two Friends:
Darn, Snell & Taveirne
(accounting firm par excellence)
and Westlaw. In exchange for a
couple of grand, they get to set
up a booth at our seminars,
host Brown Bag seminars of
their choice, place ads in The
Docket and send you stuff.
Please patronize our Friends!
When you only have two
friends, you may want to be
nice to them.
The LCBA is a dues-based
enterprise. Last year, our annual dues raised $146,000,
about 80% of our annual operating expenses. But, we have
not raised dues in eight years.
While expenses have inevitably
crept up, we have tried to find
other alternatives to raising
dues, such as the Friends of the
Program. But so far, at least, we
have not been sufficiently successful, and so it is now time to
bite the bullet. If we had raised
dues by 3% a year for the last
eight years, dues for lawyers
with more than seven years experience would now be $260
per year, more than 30%
higher. That's the compounding effect of annual increases.
The failure to annually address the appropriate level for
dues is not the fault of my
predecessors. Before last year's
wholesale revision of the bylaws, a dues increase required
The Docket
Page 4
an amendment of the by-laws,
which is a cumbersome and difficult process. Requiring a bylaws amendment to raise dues
guaranteed this crisis. If dues
increases are difficult to approve, they will be large, painful and irregular. No one wants
to raise dues. Making the process more difficult has only led
to the budget deficit we face today.
Instead of small annual increases, we now need to make a
large raise in one painful gulp. I
must tell you that we have no
choice. In order to balance the
budget, we have to raise dues
by about 25%. This means that
the dues for a member with
seven or more years of practice
experience will increase from
$200 to $250. We have no
(budgetary) fat to trim.
I'm sure that I will hear
from some of you that this is
too much, and I fear that some
will leave the organization over
this increase. I hope not. The
truth is that this increase is just
keeping pace with inflation.
Looking to the future, we
need to do everything we can
to promote alternative revenue
sources. The Friends of the Program method has promise, but
needs to be marketed. The ads
in The Docket are an equally potential income stream.
Within the LCBA, there has
been a history of antipathy
against commercials. We have
looked down our collective
nose at our vendors and allied
professionals. We need to stop
that now. We need to rename
the organization into "The
LeBA Presented By Tostitos,"
and we need to start eating the
chips. This is the alternative to
dues increases. You can emulate King Canute and order the
tide to stop rising, or be like
President Nixon and command
inflation to stop, but you will
have equal success with those
worthies. Prices keep rising.
We could be doing much
more for you and our community if we had a little more
money. If we had a new staff
member, even part-time, devoted to fundraising, we could
be a much more effective
group. But we can't afford an
additional staff member until
we have more money. Is it the
chicken or the egg? This dues
increase will not provide
enough seed money to hire
more staff. Instead, the staff
and our members will need to
market the Friends of the Program and Docket ads.
Won't you help? You know
restaurant owners, bankers, car
dealers, court reporters, stock
brokers, accountants and other
businesses that market to the
legal community. Show them a
copy of The Docket and the ad
rates. Ask them to give us a try.
When you patronize an advertiser, tell them that you saw
their ad in The Docket. You need
your help.
..............
On other fronts, we are pursuing many exciting new initiatives:
1. Corporate Counsel Committee.
October 2007
We have formed a new
committee for corporate, inhouse attorneys. For too
long, the LCBA and the lawyers working for large corporations in Lake County
have been ships passing in
the night. Now with the advent of MCLE, we have
something that we can offer
them . Judge Charles Johnson, Jeff Thut and Rob Holt
of JP Morgan have agreed to
spearhead organizing this
new committee. If we can
provide value to the inhouse attorneys, and communicate with them, we
could have a large new
source for members (and
dues). If any of you know
corpora te a ttomeys or if
you are interested in helping with this effort, please
contact m e at Lesser®LLMLegal.com.
2. The LeBA Foundation. We
have a not-for-profit, 501(c)
(3) charitable foundation.
Mark Peavey has agreed to
Chair the Foundation. He is
working on fund raising
ideas. One idea with great
promise is a proposal by Joy
Fitzgerald to raise funds in
support of our troops in
Iraq. I hope that you will
hear more about this effort
in the coming months.
3. Lawyers Assistance Program.
We have formed a new
committee to provide assistance to our members suffering from substance
abuse, illness and other per-
October 2007
Page 5
The Docket
sonal challenges. Keith West
and Marjorie Sher have
been organizing this group
and they will be receiving
formal training from the
statewide LAP. This program has been successfu.l in
Cook County, and it is time
to bring these services
north.
4. Small Claims Mediation. Case
Ellis has agreed to chair a
new committee to provide
mediators for small claims
cases. The goal is to promote voluntary resolutions
and reduce the number of
small claims trials. Mike Betar leapt forward to vol un-
teer his good efforts. They
will work closely with
Judges Rozenberg and Hall
to fashion an effective and
litigant-friendly program.
news about our members
internally, within the LCBA,
through the Docket Grapevine. Please give Shyama
any news tidbits you can.
Her email address is
[email protected] .
She's looking for weddings,
grandkids, or personal
achievements.
5. Public Relations Committee.
Our strategic plan and anyone with common sense can
see that we need to be providing better PRo Shyama
Parikh is chairing our PR
Committee. Shyama and
her committee have two
goals; (a) enable our staff to
send out regular, timely
press releases to the local
papers announcing our appointments, events and initiatives; and (b) publicize
We on your Executive Committee and the staff are striving
to make the LCBA a better Bar.
We need your help. Please let
me know what you can do.
This is a fun and vibrant group.
And yes, I do know how busy
you are!
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October 2007
The Docket
Page 7
Chief Judge's Page
by Chief Judge Christopher C. Starck
A
I
s attorneys, we have
chosen to do our life's
work in the most noble,
but also one of the most misunderstood, professions. As we go
about doing our utmost to protect the rights, liberty and fortunes of our clients, they may
consider us the greatest pessimists that they have ever encountered. It seems that as we
dispense advice and provide
insight into the best alternatives
in any situation, we always tend
to focus on the worst case scenario.
By training, we are compelled to anticipate our client's
greatest disasters, and then plan
accordingly. I sometimes wondered if a client would want to
reach for some Prozac after an
office consulta tion during
which we discussed the terrible
things that he would have to
plan for in preparing his will, or
in negotiating a settlement in
his case. Our clients wouldn't
really need our services if the
future was always going to be
bright and the outcomes invariably positive for them in
any situation. We might be accused of never thinking that
"the glass is half full."
In the Laurel and Hardy
movie "Men O'War" (1929),
Stan and Ollie are, as usual, out
of money and in desperate
straits. They finally scrape together enough change to buy
one soda at the local fountain
and are forced to share it. After
the drink arrives the following
dialogue takes place:
Ollie: Go ahead and drink your
half.
[Stanley drinks the entire soda ]
Ollie: Do you know what
you've done?
[Stan/etl nods]
Ollie: What made you do it?
Stan: I couldn't help it.
Ollie: Why?
Stan: My half was on the
bottom.
While it is important that we
point out potential perils to our
clients, we do need to remember
that there is often a good side
that they should know we are
considering as well. Hopefully,
though, it isn't on the bottom.
Planning, to be effective,
must always take into account
the potential downside of any
situation, and the risks involved
in any decisions that we make.
It is critical to always remember
that the failure to plan and act
contains some inherent risks.
Sometimes these risks can be
monumental.
Unfortunately,
some of the possibilities tha t
were pure fantasy in past years
are all too real for us today. As
we have just commemorated
another anniversary of 9/11, we
recall that the possibility of both
global and domestic terrorism
impacting us here at the local
level is an unfortunate reality as
we look to our future needs.
The experts also tell us that pandemic illness is not a matter of
"if," but a question of IIwhen"
we are going to be affected.
Lake County has now begun
the process of formulating a
thorough, intense and workable
plan to deal with the immediate
needs of our citizens in the
event of an occurrence that
would impact our business operations in all areas of government. The plan will set forth
methods in which we can deal
with a variety of disaster situations, and then set in place
mechanisms which will allow
us to maintain our operational
levels so that we can continue to
cond uct our vital business. The
necessity of a viable and complete Continuation of Operation
Plan (COOP) should be obvious
to all of us. While all of the
various departments of the
County and the Courts have
Page 8
October 2007
The Docket
had their own plans, this new
initiative will allow the Courts
and the County Departments to
work in unison should we face
an incident that could interrupt
our operations.
While we often think about
terrorism and other acts of violence when we consider disasters, we are also mindful of the
tornado season here in Illinois,
and the risk that we have every
year from severe storms. Certainly we are all aware of the
severe snow storms that paralyze us every few years. Did
you know that the New Madrid
fault runs right through Illinois?
There is a significant likelihood
that we will experience a quake
of 7.5 magnitude or greater before 2040, with resulting damage most certainly to be experienced here in Lake County.
We are all in this together,
so we will be ensuring that as
the County develops its plans
and procedures, the Court will
be a high priority for resources,
including alternative sites
should we ever need to conduct
our operations in a different locale. As we have seen in areas
hit by other natural disasters,
the operation of the courts and
the continuation of the rule of
law is vital to the preservation
of individual rights, and of society as a whole.
The ultimate goal is to avoid
being caught unprepared. After
one of their countless foibles in
the movie "The Laurel-Hardy
Murder Case," Ollie, the master
of the after-the-fact observation
says: "Well, that's another nice
mess that you have gotten us
into!" We will work diligently
on our planning so that we can
be well-equipped to keep the
glass completely full around
here, or at least make sure that
our half is on the top!
Save the Date!
Campaign for Legal Services
Thank You and Kick-Off Celebration
Thursday, November 15, 2007
Noon-Waukegan City Hall
With remarks by the Honorable David Hall
Entertainment by John Quinn
Complimentary Light Lunch
Door Prizes
William Y. Franks and Scott J. Sinton,
Campaign Co-Chairs
October 2007
The Docket
Page 9
Immigration Law:
What's Love Got
to Do With It?
by Andrew Sagartz, MBA, /0,
& Christine Contreras, /0
I
mmigration law is highly
complex. When marriage,
divorce, and other legal issues intertwine with immigration law, it becomes even more
complicated. It is important to
understand how marriage/
divorce/separation could impact immigration statu s, and
because immigration is governed by fed e ral law, clients ca n
hail from various states. Knowing how immigration law may
impact your clients can allow
you to more fully assist them
with their family law issues.
Dispelling Myths
There are many common
my ths about immigration. For
example:
Myth #1: I arrived ill the U.S.
withollt a legal visa, bllt married a U.S. citizell. Therefore, I
am already a citizell. An alien
does not automatically derive
citizenshi p by marrying a U.s.
citizen. Except in unusual circumstances in which citizenship
is trans mitted by one or more
U.s. citizen parents, permanent
residency (a "green card") is a
required precursor to becoming
a citizen. Generally, an alien
who receives permanent residency based on marriage to a
U.S. citizen is eligible to apply
for citizenship afte r three years.
Myth #2: I am married to a U.S.
citizell, so I am Ilot deportable.
Being unlawfully present in the
U.s. and / or having other immigration violations can result in
initiation of removal (formerly
"deportation") proceedings.
Myth #3: If I divorce, I will lose
my green card. If someone has
obtained their permanent residency without conditions, being
divorced usually will not affect
that status. If the person has
conditional resident status, being
divorced may complicate-but
does not automatically prohibit- maintaining lawful
status.
Research or consultation
with a qualified immigration
attorney can help distinguish
truth from myth.
Overview of Immigratioll Law
The current immigration
system includes a numerical cap
Page 10
for immigrants 1 and a separation of immigrants into subcategories to ensure that immigration within one category will
not affect the availability of visa
numbers under the other categories. These categories include
family-based, employmentbased, and diversity immigrants.' Seeking to promote
family unity, U.5. immigration
policy has traditionally conferred certain advantages upon
family-sponsored immigrants.
For example, there is no restriction on the number of
"immediate relatives" of U.S.
citizens permitted to immigrate
each year. Immediate relatives
are spouses of U.5. ci tizens
(hereinafter "USC"), minor unmarried children (under 21) of
USCs, parents of USCs (if the
petitioner is 21 years of age),
and spouses of deceased USCs
who were married for two years
at the time of their citizen
spouse's death .3
If someone is not an immediate relative, they may still be
eligible for sponsorship by a
family member under the family-based quota system. The difference between processing as
an immediate relative or under
the quota system is that there is
no limit to the number of immediate relative visas in the federal
fiscal year, but there are annual
caps for the four family-based
I.
2.
3.
4.
S.
October 2007
The Docket
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preference categories.' This article concentrates on immediate
relatives.
Under the system of family
sponsorship, either a USC or an
alien who is a lawful permanent
resident ("LPR") may start the
process with U.s. Citizenship &
Immigration Services ("USCIS")
for his or her spouse. There are
two basic steps to obtaining perman ent residency based on a
spousal relationship . The first is
the filing of a relative petition
on behalf of the alien by the
USC or LPR petitioner. 5 The petition certifies that there is a
qualifying relationship based
upon which the alien is eligible
to file for a green card. After approval of the relative petition
and the priority date (the date
the petition was filed) becoming
current (a visa number becoming available), the second step is
for the alien to apply for the
green card.
Spring Grove, IL
Still, there are barriers between the two steps. Some barriers prevent the alien from filing for adjustment of status to
permanent residency while remaining inside of the United
States. For instance, a person
who has accrued 180 days or
more of unlawful presence (i.e.
did not maintain lawful status,
or was not inspected and admitted or paroled into the United
States) is ineligible for a green
card without a waiver or being
grand fathered by a special
statutory provision. However, it
may be possible for a person to
apply outside of the United
States at a U.s. consular post.
Moreover, the grandfathering
provision under Section 24S(i)
of the Immigration & Nationality Act ("INA") allows a person
to apply to adjust statusnotwithstanding entry without
inspection, overstaying or working witho:.tt authorization-if
Exceptions include the admission of refugees and the adjustment of asylees, the adjustment of legalized aliens to permanent residents, and the
recording of legal permnnent resident aliens whose removal is suspended or canceled or who qualify for registry. immigration and Nationality
Act, hereinafter "INA" §§ 201, 240A (e), 249.
INA § 201 (a).
INA § 201 (b)(2)(A)(i).
INA § 201(c)(1 )(B)(ii).
A priority date is established on the dale that a Petition for Alien Relative, Form 1·130, is accepted fo r processing by USCIS. Because immediate
re latives are not subject to quota restrictions, priority dates are not normally relevant, but priority dates detennine the availability of visas for pref-
erence applicants in chronological order according to the dates established for them .
October 2007
Page t t
The Docket
Walter • Ellis
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may benefit from a break in the cost, stress and time burdens of litigation, call us about mediation or amitration. To
schedule a mediation or amitration, or to obtain information about us and the process, call Jeannie or Carolyn at 815/459·
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they pay a penalty of $1,000 and
a petition or labor certifica tion
was filed on their behalf on or
before April 30, 2001. There are
other §245(i) eligibility concerns
which may also come into play.
Complicating things, the Illegal Immigration Reform and
Immigrant Responsibility Act of
1996 ("IIRAIRA"), established
new and far-reaching grounds
of inadmissibility, including a
bar of three years if a person is
unlawfully present in the
United States for 180 days but
less than one year and voluntarily departs;6 a bar of ten years if
a person is unlawfully present
for a year or more who again
seeks admission after their de-
parture or removal from the
United States;7 and a permanent
bar if a person is unlawfully
present for more than one year
or he or she has been ordered
removed and then enters or attempts to re-enter. 8 According
to II RA IRA, unlawful presence
starts to accrue after April 1,
1997.
Waivers of the three- and
ten-year bars to inadmissibility
are available if the alien is the
spouse or son or daughter of a
USC or LPR and can show extreme hardship to their spouse
or parent.9 The factors to prove
extreme hardship to the USC /
LPR relative include: the presence of LPR or family ties in the
United States; a spouse's ties
outside the United States; country conditions; the financial impact of departure and significant health conditions.lO There
are numerous important issues
to address to evaluate your client's eligibility for a green card.
Is marriage the solution to your
client's immigration problem?
Under the system of family
sponsorship, marriage may confer immigration benefits to
aliens who marry LPRs or
USCs. There is no specific definition of "spouse" set forth in
the INA. However, the validity
of a marriage is generally deter-
INA § 212(a)(9)(8)(i)(I).
INA § 212(a)(9)(8)(i)(II).
INA § 212(a)(9)(C)(i)(l) and (II).
INA § 212(a)(9)(8)(v).
10. See Matler af Cervantes, 22 J&N Dec. 560, S66 (BIA 1999), affd Cervantes-Gonzales v. INS, 244 F.3d 1001, 1005-06 (9th Gr. 2001).
6.
7.
8.
9.
Page 12
The Docket
mined by the law where the
marriage occurred,11 although
there are some types of marriages that are valid and recognized where contracted but may
not be recognized for immigration purposes, For instance, a
common law marriage recognized in the state where it occurs is valid for immigration
purposes,12 and a religious marriage is considered a valid marriage for immigration purposes
if it is recognized as a valid marriage by the sovereign in tha t
country or state_ l3 However,
same-sex marriages," polygamous marriages,' 5 and proxy
marriages 16 are not recognized
for immigration purposes because these marriages are considered contrary to public policy,l7
October 2007
Bona Fide Marriages
If parties to a marriage enter
into the marriage with no intention of residing together or having a husband-wife relationship,
bu t for the sole purposes of obtaining an immigration benefit,
the marriage is not valid for immigration purposes ,18 As part of
the filing requirements for the
petition for alien relative and
the application to adjust status,
users requests that the couple
prove that their marriage is bona
fide. Evidence of bona fides includes such things as showing
joint assets, joint bank accounts,
joint credit established, joint
residency, photos of family,
birth certificates of children, fil ing of joint income ta xes, joint
in suranc e (medical, auto,
horne), and joint utility bills.
If a married couple is not
living together, the situation becomes more complex, If there is
no legal separation or dissolution at the time the petition is
filed, users cannot deny a petition because the parties are not
living together or solely because
the marriage is not viable,19 The
marriage need only be viable at
its inception to be valid. likewise, an adjustment of status
application may not be denied
solely because the marriage is
no longer viable and the parties
are not living together if the
marriage was not fraudulent or
a sham at its inception and the
parties are not legally separated
or divorced_ 2o Non-legal separation is only relevant to determine whether the marriage was
fraudulent at its inception,21 As
long as the marriage was entered into in good faith, a peti-
111 re Tijal1l, 22 I&N Dec. 408 (BIA 1998).
12. U.S. 11. Gomez-Orozco, 28 F.Supp.2d 1092, 1095-98 (CD. III. 1998) rl,,{ ,'d 0 11 olher SrolllltiS, U.S. 11. Gomez-Orozco, 188 F.3d 422 (7th Cir. 1999).
13. Matter ofCt'ballo;:., 16 I&N Dec. 765 (BIA 1979); Malia of A"V/r(';: -Qllill/allfl, 14 I&N Dec . 255 (BIA 1973).
14. Adams 1'. Hawerlon, 673 F.2d 1036 (9th Cir. 1')82), notli'S tho t the IlnmigrCltion Service hits interpreted spouse to excl ude a person entering a homo-
11.
scx ui'l i marriilge.
15.
16.
17.
18.
19.
20.
Mattero! Danl1ish, 14 J&N Dec. 307 (BIA 1973).
If the parties to iI m arri Clgc iH l' not in cach o ther's presence <It the rnarrii'lge ceremony, there must be proof of consumma tion. INA §101 (a)(35); Malt" of 8 -, 5 1&N Dec, 698, 699 (BIA 1954 ).
Matter of H, 9 I&N Dec. 640 (BIA J962), established
that polygamy, though \'alid under foreign IClw ,
is ClgClinst U.s. public policy and will not be rec*
ognized.
403 Grand Ave, Sle, 100
Matter oj LAureano, 19 I&N Dec. 1 (BIA 1983).
MatterojM cKee, 171&N Dec. 332 (BIA 1980);
FINANCIAL SERVICES Waukegan, I L 60085
Matter vj Pierce, 171&N Dec. 456 (BIA 1980).
Mattero! Boramand, 17 I&N Dec. 450 (B IA 1980)
(" in the absence of evidence to support CI finding
Financial Planning
Individual Investments
Insurance
of a fraudulent or sham marriage or evidence
Retirement
P1anrnng
Mutual
Funds
life
showing the legal dissolution of the marriage at
ESIate Planning
Fee-8ased Accounts
LTC
the time of the adj ustment, the denial of an ad*
Education Analysis
Separale Accounts
Ilisabitily
justment o f status application or the subsequent
hlsorance Needs & Policy Analysis
variable Annuities
Health
recession of such grant CCllUlot be based so lely on
Investment Analysis
Real Estate Investment Trusts
Group
the nonviabilily of the marriage at the time of the
cash Flow Analysis
SlocksIBonds
Cldjustment application:'); Matter of McKee, 17
1"'"---------------------------...,
.
~r
-
I&N Dec. 332 (BIA 1980) (Visa p etition could not
be denied solely because the parties to the ma r*
riage were no longer living together); Hemandez
v. Ashcroft, 345 F. 3d 824, 845-49 (9th Cir. 2003)
(The nonviability of a marriClge cannol alone be
the basis to deny adjustment even if immigration
characterizes ils d ecision 10 deny as discrelion
RESSLER
-
John Ressler, Jr., CFp®
(847) 263-8888
4
ary.)
21 . Matter oj McKee, 17 I&N Dec. 332 (BIA 1980).
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services offered through Mutual Service Corporation. Registered !n\'estmenl Ad"isor.
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October 2007
tion remains approvable even if
the parties are no longer in
love.» The key is whether the
parties intended "to establish a
life together at the time of their
marriage. "23 Subsequent conduct after the marriage, no matter how unconventional, does
not prove lack of marital intent. 24 The U.s. Ninth Circuit
has recognized that "marriages
for green cards [may be] genuine. Intent to obtain something
other than or in addition to love
and companionship does not
make a marriage a sham.
Ra ther, the sham arises from the
intent not to establish a life together. "25
Conditional Residence
With the Immigration Marriage Fraud Amendments Act of
1986 ("IMFA"), Congress began
focusing on spouses and sham
marriages because of the vast
increase in immigration fraud
through marriage. Congress
passed [MFA to counter the perceived problem of immigrants
entering into sham marriages
solely to receive priority immigration treatment. Congress's
Page 13
The Docket
intent was to balance the competing policies of promoting
family reunification and preventing marriage fraud. Among
other things, IMFA established
conditional resident status based
on marriage to a USC or LPR if
the marriage is less than 2 years
old at the time of approving the
green card. 26 This conditional
status is contingent upon the
ability to maintain a valid twoyear marriage,27 but USCIS has
the power to terminate the conditional resident status before
the completion of the two-year
period if the marriage is determined a sham used solely to
confer immigration benefits
upon the alien. 28
To initiate removal of the
conditional status, both the
alien spouse and the USC or
LPR must file a petition to remove the condition 29 within
ninety days before the second
anniversa ry that the alien
spouse's conditional residency
was approved. 3D Submission of
this petition must also include
evidence of the bona fides of the
marriage, such as: (1) joint ownership of property; (2) lease
showing joint tenancy; (3) commingling of finances; (4) birth
certificates of children; (5) affidavits of third parties; and (6)
other documentation.3! Unless
the alien has filed the petition
seeking a waiver of the joint filing requirement,32 an alien
spouse's status can be terminated. This can occur if the
marriage is judicially annulled
or terminated other than through
the death of a spouse,33 if they
do not file the petition in time or
if the couple fails to jointly appear at a users interview
(unless good cause is shown).
An exception alJows the couple
to demonstrate "good cause"
for a late filing of the petition. 34
Normally, after a petition to
remove the condition on residence is filed, USCIS interviews
the couple to determine if the
marriage is bona fide. 35 If the petition is granted, the conditional
status is removed and the alien
becomes an LPR on the second
anniversary of the marriage.36 If
USCIS determines the marriage
was "entered into for the purpose of procuring an alien's entry as an immigrant,"37 "has
22. Agyeman v. INS, 296 F.3d 871,883 (9th Cir. 2(02) (Where IJ told respondent
that he was ineligible to adjust if his wife was no longer in love, court of
appeals reversed.)
23.
24 .
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
Ba,kl'. INS, 511 F. 32d 1200, 1202 (9th Cir. 1975).
Id.
U.S. v. Orellana-Blanco, 294 F.3d 1143, 1151 (9th Cir. 2002).
INA § 216. The two year period is meilsured from the time reSidency is
gra nted .
INA §216(a)(I).
INA § 216(b)(1)(A)(;) .
INA § 216(c)(I)(A).
INA § 216(d)(2)(A).
8 eFR 216.4(a)(5).
INA § 216(c)(2)(A)(;) and (;;).
INA § 216(b)(1)(A)(;;).
INA § 216(d)(2)(B).
INA § 216(c)(I)(B).
INA § 216(c)(3)(B).
INA § 216(b)(I)(A)(;).
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Page 14
been judicially annulled or terminated,"38 or was the result of
a consideration paid to the resident to file the petition to gain a
beneficial immigration status
for the alien,39 users must terminate the resident status of the
alien, upon which the alien becomes subject to removal proceedings. 4o
If parties cannot file jointly
to remove the condition, the
alien spouse may file for a
waiver from the joint filing re38.
39.
40.
41.
42.
43.
...
45.
46.
October 2007
The Docket
quirement. 41 For instance, if a
spouse dies, the waiver should
be submitted because a joint petition cannot be filed. Similarly,
a waiver may be filed if the parties are divorced. A waiver may
be filed before, during, or after
the 90-day filing window that
applies to jointly filed petitions.42
Even if the parties are not
divorced, USCIS has discretionary power to grant a waiver if
certain conditions are met 43 The
alien spouse must prove that
extreme hardship would result
from deportation," that the
marriage was entered into in
good faith and was terminated
for good cause,45 that they were
not at fault in failing to meet the
requirements to file the petition
to remove the conditional
status,46 and / or that the qualifying marriage was entered into
in good faith and that during
the marriage the alien spouse or
a child was "battered by or was
INA § 21 6(b)( I )(A)(ii).
IN A § 21 6(b)(I )(B).
INA § 21 6(b)(2).
8 C FR 21 6.5.
Matter oIS/owers, 22 J&N Dec . 605 (BIA 1'J99).
INA § 216(c)(4).
IN A § 216(c)(4)(A).
O ropeza-Wong v. GOr/wi!!:>, 406 F.3ct 1 J35, 11 41-49 (lJ th Ci r . 2(05)
INA § 21 6(c)(4)(B)
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October 2007
the subject of extreme cruelty
perpetrated by his or her spouse
and the beneficiary was not at
fault in failing to meet the petitioning requirements. "47 USCIS
has defined the latter to include
"being the victim of any act or
threatened act of violence, including any forceful detention
which results or threatens to result in physical or mental injury.
Psychological or sexual abuse or
exploitation ... shall be considered acts of violence. 48 A waiver
application may and should be
supported by any credible evidence. 49
Sham (Fraudulent! Marriages
Immigration laws contain
strict provlslOns relating to
sham (fraudulent) marriages. If
a person is found guilty of marriage fraud, they face possible
imprisonment for up to five
years and a $250,000 fine.5o To
convict a person under the statute, the government generally
must prove that the person
knowingly entered into a marriage; that the marriage was entered into for the purpose of
evading a provision of the immigration laws; and that the
person knew or had reason to
know of the immigration laws.51
The Docket
A marriage is presumed to be
fraudulent and the alien subject
to removal proceedings under
INA §237(a)(1)(G)(i) if the alien
married within two years before
obtaining LPR status and the
marriage is judicially annulled
or terminated within two years
after the grant of LPR status. If
USCIS determines that there
was in fact a sham marriage,
removal under INA §212(a)(6)
(c) and INA §§237(a)(1) and (2)
is possible. If USCIS is satisfied
that the alien "has failed or refused to fulfill a marital agreement, which marriage was
made to procure LPR status,"
USCIS may institute removal
proceedings. In addition, INA
§204(c) now punishes an applicant for attempt or conspiracy
to enter into a marriage for the
purpose of evading the immigration laws if it can be shown
that the alien spouse attempted
or conspired to enter into a
fraudulent marriage 52 There are
even situations in which some
applicants attempt sham divorces, rather than sham marriages, to obtain preferable immigration treatment; however,
the Board of Immigration Appeals will not recognize such
divorce as valid if entered into
Page 1S
solely to obtain an immigration
benefit. 53
Support Obligation of the
Sponsor
Every beneficiary, in order
to obtain LPR status, must submit an affidavit of support by a
sponsor. 54 The sponsor for family-based petitions must be the
petitioning family member. 55 If
the sponsor cannot show an income level of at least 125% of
federal poverty guidelines for a
household of the size of that of
the sponsor, the alien may also
seek a joint sponsor. The joint
sponsor must separately be able
to meet the minimum income
requirements apart from the
sponsor. 56
The affidavit of support is
an enforceable contract against
the affiant57 to reimburse the
government if the alien requires
public aid. The affidavit is enforceable by the sponsored person until he or she naturalizes,
has earned or been credited
with 40 qualifying quarters under Title 11 of the Social Security
Act (approximately 10 years)
without including periods he or
she received means-tested benefits, or dies. Divorce or separation does not terminate the
47. INA § 216(c)(4)(C).
48. 8 CFR 216.5(e)(3)(i).
49.
[d.
50.
51.
INA § 275(c).
U.S. v. Islam, 418 F.3d 1125, 1128 (10 th Cir. 2(05) (Upheld convic tion on grou nd S a reasonable jury could have found that miUriage was entered into
to evade immigration iClws and thai defendant knew he WilS violi'lting the immigration laws).
INA § 204(c)(2).
Matter of A/decanola/ora, 181&N Dec. 430 (B1A 1983).
8 CFR 213a.2(b). An affidavit of suppo rt is not required if, althe time the applicant seeks adjustment of status, he or she has already worked or can
be credited with working 40 qualifying quarters of coverage. Working 40 quarters is calculated based on the amount of income earned during the
course of the year, rather than the actual number of days worked within a given quarter. To ptove 40 quarters of earnings, an applicant may request certified ea rnings reco rds from the Social Security Ad ministra tion.
The sponsor must be il USC or LPR; 18 years of ilge; domiciled in the Uni ted Slates and have an income 125% above the poverty guidelines, INA §
213A(f)(1), and petitioning for the person's admission. rd.
8 CFR 2I3a.2(c)(2)(iv)(B).
INA § 213A(a).
52.
53.
54.
55.
56.
57.
Page 16
sponsor's obligation.
Obtaining Citizenship
To qualify for naturalization,
an applicant must: 1) be an
LPR;58 2) be 18 years 01d;59 3)
normally be a resident continuously for 5 years subsequent to
LPR status;60 4) have resided for
at least three months within the
state in which the petition was
filed;6! 5) be physically present
in the United States for at least
one-half of the 5 years (or onehalf of 3 years if the applicant is
the spouse of a USC);62 6) have
resided continuously in the
United States from the date the
application is filed up to time of
admission to citizenship;63 7)
not be absent from the United
States for a continuous period of
more than one year during the
peviods for which continuous
residence is required;64 8) be a
person of good moral character
for the requisite five years (or in
the case of a spouse of a USC,
three years);65 9) be attached to
the principles of the Constitu-
October 2007
The Docket
tion and well disposed to the
good order of the United States,
while swearing an oath of allegiance to the United States;66 10)
be willing to bear arms, perform
noncombatant service or perform work of national importance;67 11) not otherwise be
barred;68 and 12) demonstrate a
reading, writing and understanding of the English language and a knowledge and understanding of the fundamentals of the history and government of the United States. 69
These requirements debunk the
myth that it is easy to become a
USc.
If married to a USC, an LPR
may apply for citizenship in
only three years, instead of five
years if: 1) the USC spouse is a
USC for three years, 2) the parties have been married for at
least three years; and 3) the LPR
spouse is "living in marital union" with their USC spouse. A
divorce, legal separation, or
even an informal separation
may be considered to break the
58. INA § 318, 8 USC 1429.
59. !NA § 334(b); 8 usc 1445(b).
60. INA § 316(.); 8 usc 1427(.)(1); 8 CFR 3165.
61. INA §§ 316(.)(1), 319(.); 8 usc §§1427(.)(l). 1430(.).
62. INA § 316(.); 8 usc 1427(.).
63. INA § 316(a)(2); 8 usc 1427(a)(2); 8 CFR 316.2(.)(6).
64. 8 CFR 3165(c)(I)(ii).
65. INA §§ 316(.)(3), 319(a)(1); 8 usc §§ 1427(.)(3), 143O(a)(1); 8 CFR
§§ 316.2(.)(7), 316.10, 329.2(d).
66. INA § 316(.)(3); 8 usc 1427(.)(3); 8 CFR 316.11.
67. INA § 337(a)(5)(A)·(C); 8 usc 1448(a)(5)(A)·(C).
68. Must not be barred as a subversive, INA §§ 313, 316(f); member of
communist party, INA § 313(a); deserter during war time, INA § 314;
have removal proceedings pending or who has an outstanding and
final order or deportation, IN A § 318 etc.
69. INA § 312(.)(1), 312(a).
70. 8 CFR 319.1 (b)(2)(ii)(B).
71. U.S. v. Moses, 94 F.3d 182 (5th Cif. 1996).
72. 8 USC 143O(a).
73. Ali v. Smith, 39 F.5upp.2d 1254 (W.D. Wash. 1999).
74. U.S. v. Onabanjo, 351 F.3d 1064 (11 th Cir. 2003) (Reversing loss of citizenship where district court failed to consider exceptions to 3-year
residence requirement under 8 CFR 319.l(b)(2)(ii).)
marital union.?o Living in marital union has been interpreted
to mean actually residing together.?' A spouse is only statutorily required to be living in a
marital union for the three years
"immediately preceding the
date of filing of the application,"n not after filing the application, although they still must
still be married at the time of
naturalization.73 There are also
exceptions to the requirement
that the applicant live with his
or her USC spouse for three
years.74
Applying for
Pennanent Residency
for "Children"
Filing for permanent residency for a child is generally the
same process as applying for a
spouse-i.e. an alien relative
petition and green card application must be filed. For purposes
of immigration law, a "child" is
defined in INA §101(b)(1) as an
unmarried person under 21
years of age who is a: 1) child
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born in wedlock;75 2) step-child,
whether legitimate or not, as
long as the child was under age
18 at the time the steprelationship was created;76 3)
child adopted before age 16,
and having two years legal custody and residence with the
adopting parents;77 4) child legally legitimated before age 18
if in custody of the father at
time of legitirnating/8 5) child
born out-of-wedlock where the
relationship is either with the
mother or with the father, if, in
the case of the father, a bona
fide parent-child relationship
exists;79 or 6) certain orphans. so
Problems relating to stepchildren may arise when a stepparent divorce occurs. Generally, however, if the steprelationship continues, the petition is valid, notwithstanding
the divorce. 81 A USC may petition for a natural parent and a
step-parent. 82
Furthermore, marriage or
divorce of a "child" may impact
retention of a person's status as
such and their classification for
a relative petition. Certain petitions automatically convert to
others but retain, if relevant,
their original priority date.83 For
instance, a first preference peti-
The Docket
tion will convert to a third preference petition upon marriage
of the son or daughter. Meanwhile, if a child of a USC marries, their classification as an
immediate relative will be converted to a third preference petition. Also, the divorce of a child
or son or daughter in the third
preference category will convert
them to an immediate relative
or first preference category
(whether the beneficiary is
trea ted as a child or son or
daughter is based on his or her
age on the date of the termination of the marriage). Under
INA §201(f)(I), a child beneficiary of an immediate relative,
upon reaching 21, converts to a
first preference unless he was
under 21 on the date that the
immediate relative petition was
filed. Moreover, naturalization
of a petitioner can change a second preference child or son/
daughter to an immediate relative or first preference (to determine whether the beneficiary
will be treated as a child or son
or daughter, his or her age on
the date of naturalization is controlling).84 However, a child accorded 2A status derivatively
loses entitlement to such status
upon reaching 21, and the peti-
Page 17
tioner must file a new petition
for 2B preference to keep the
initial priority date. The scenarios are many, so careful analysis
is needed as to how marriage
and divorce of the child or the
child's parents can impact immigration status.
Other Options
Other options may exist for
aliens to obtain permanent residency. For instance, selfpetitioning as a battered spouse
is now an option for victims of
domestic violence, and other
forms of relief exist if the alien is
put into removal proceedings
before the Immigration Court.
VA WA - Because of the rampant abuse of immigrants, Congress has enacted various remedial provisions over the past 15
years (collectively, "Violence
Against Women Act" or
"VAW A"). Despite its common
name, VAW A applies to both
women and men. It allows a
ba ttered spouse / child who is
subject to extreme cruelty or
battered to file a self-petition
independently of the abusive
USC/LPR spouse.85 The abuser
must be a USC or LPR, so a battered spouse who is married to
a spouse with no lawful immi-
INA § 101(b)(1)(A). If born in wedlock, parent need only prove bona fid e relationship. Mntter of Kubicka, 14 I&N Dec. 303 (BlA 1972).
INA § lOl(b)(l }(B). A literal reading of the statute requ ires only that the step·parent relationship be formed before the child reaches 18, MedinaMorales v. Ashcroft, 371 F.3d 520, 531-32 (9th eif. 2004), and that the parents have a real marriage. Matter of Awwal, 19 I & N Dec. 617 (BIA 1988). The
Significance of this is whe re the natural mother and/or fath e r is an LPR but step-parent is USC, child can avoid family second preference backlog
by step-parent's petition.
77. INA § IOJ(b)(J)(E); Matler of Rep"yan, J91&N Dec. J J9 (BIA 1984).
78. INA § IOJ(b)(J)(C).
79. INA § IOJ(b)(J)(A), (D).
BO. INA § IOJ(b)(J)(F).
81. Matter of Pagnerre, 13 I&N Dec. 688 (BlA 1971); Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981). The same is true (or step-Siblings. Matter ofMourillon,
J8 I&N Dec. J22 (BIA J98J).
82. MlJtlerojFong, J7 I&N Dec. 2J2 (BIA J9BO).
83. 8 CFR 204.2(i).
84. INA § 20J(I)(2).
85. INA § 204(a)(J)(A)(iii)-(vii), §204(a)(J )(B)(ii)-(iii); 8 CFR 204.2(c), (e).
75.
76.
Page 18
October 2007
The Docket
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gration status or with a temporary visa is not eligible to selfpetition under VA W A. Battered
spouses must demonstrate that
they resided with the USC/LPR
spouse; that they were battered
or subject to extreme cruelty
during the marriage to the
USC/LPR; that the marriage
was entered into in good faith;
that they are eligible for immediate relative or preference
status; and that they are a person possessing good moral
character. 86
A spouse need not remain
married to the abuser at the
time the petition is filed because
86.
87.
88.
89.
8 CFR 204.2(c)(2).
AFM at 21.14(q).
INA § 204(a)(1)(8)(v)(I).
INA § 204(h).
a battered spouse now includes
1) someone who in good faith
believed that they were married
but was subject to bigamy, 2)
someone who was married but
the abusing USC spouse died
within the two years immediately preceding the filing of the
self petition, 3) the abusing
spouse renounced his USC/LPR
status or lost his status within
the two years immediately preceding the filing of the selfpetition, and the loss was related to or due to an incident of
domestic violence, or 4) the
abused spouse can demonstrate
a connection between the legal
termination of the marriage
wi thin the past two years and
the battering/extreme cruelty
by the USC/LPR spouse. S7 A
person can be divorced after the
petition is filed without the
need to demonstrate a connection between the battering/
extreme cruelty and the divorce. BB A battered spouse may
even remarry after the selfpetition is approved without the
self-petition being invalidated. 89
Finally, a spouse who obtained
LPR status because of battering
or extreme cruelty may also apply for citizenship within a
three-year period under INA
October 2007
The Docket
§319(a).90
Thankfully, many provisions of immigration law provide exceptions or waivers for
battered spouses and provide
alternative forms of relief for
those battered spouses and victims of domestic violence.
Cancellation of RemovalA person seeking relief from
removal may have several
forms of relief available, including cancellation of removal
("COR") and/or adjustment of
status. COR may be available to
LPRs and non-LPR aliens who
are put into removal proceedings. The Attorney General
(now the Secretary of Homeland
Security) may cancel the removal of all LPR from the
United States if he or she has
been an LPR for 5 years; has resided in the United States continuously for 7 years; and has
not been convicted of an aggravated felony. 91 COR for an LPR
also requires the LPR to show
"extreme hardship" to his or her
USC / LPR immediate relative. If
cancellation is granted, it is
granted indefinitely92 and returns the person to the same
90.
91.
92.
93 .
94.
95.
Page 19
LPR status he or she previously
had. 93
COR and adjustment of
status for non-LPRs may also be
avaiIable94 if non-LPRs have
been physically present in the
United States for a continuous
period of not less than 10 years;
they have been a person of good
moral character for 10 years;
they have not been convicted of
an offense under INA §§212(a),
237(a)(2) or 237(a)(3); and they
establish that removal would
result in "exceptional and extremely unusual hardship" to
their USC / LPR relative (spouse,
parent or child)95 This standard
is obviously more stringent than
for an LPR.
Andrew Sagartz is founder
and Firm Manager of CAIMEC
Global Law Group, a firm with
offices in Libertyville, Waukegan,
and Chicago. He graduated with
honors from Ohio State University
(JD) and with distinction from
Thunderbird: The American
Graduate School of International
Management (MBA), after
obtaining his Bachelor degree
in Asian Studies from Lesley
College in Boston.
Christine Contreras is an
Associate with CALMEC and has
many years of experience with
immigration law. She graduated
from DePaul University (JD) after
obtaining a Bachelor in Political
Science from DePaul.
Conclusion
Immigration law is a highly
complex field. When dealing
with family law issues that may
hav e immigration consequences, it is important to consult with a qualified, experienced immigration attorney to
thoroughly explore potential
issues and solutions.
Both Sagartz and Contreras are
active members in the American
Immigration Lawyers Association.
They may be reached at
CALMEC Global Law Group
at 847-996-0888.
This article is not intended
as legal ad vice and should not
be relied upon as such.
The req uirement that the spouse live with his or her USC spouse for the three-year period is waived .
INA § 240A(a); 8 USC 1229b(a); 8 CFR §§1240.11 (a), 1240.20.
8 CFR 212.3(d); 8 CFR 1212.3(d).
Matt" of P"'ygocki, 17 l&N Dec. 361 (BIA 1980).
INA § 24OA(b); 8 USC 1229a(b); 8 CFR §§1240.11(a), 1240.20.
8 USC 1229b(b)(l )( D); Matt" of Red"a, et ai, 231&N Dec. 467 (BIA 2002) .
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October 2007
Page 21
The Docket
Immigration and Ineffective
Assistance of Counsel
Deportation as a Collateral Consequence
by Michael Bekesha
A
ccording to the Department of Justice, the
government currently
deports almost ninety thousand
legal immigrants every year due
to criminal convictions.' Under
the "Illegal Immigration Reform
and Immigrant Responsibility
Act of 1996" ("URIRA") and the
"Antiterrorism and Effective
Death Penalty Act of
1996" (" AEDPA"), numerous
offenses warrant automatic deportation. Such offenses include
crimes of moral turpitude, aggravated fel onies, firearm offenses, crimes of domestic violence, and all drug crimes except possession of thirty grams
or less of marijuana.2 Prior to
1996, an immigration judge was
able to waive deportation of a
convicted offender. However,
IJRIRA & AEDPA eliminated all
discretion, and deportation is
now inevitable.' Of those deportations, over eighty thousand
1.
2.
3.
4.
result from a guilty plea. 4 In
other words, almost ninety percent of the legal aliens deported
every year for criminal convictions are deemed to have
"knowingly" and "voluntarily"
chosen their fate.
Exactly how knowingly and
voluntarily this choice is is generally unknown. The issue is
only exami ned when a convicted alien petitions a court
and seeks to avoid deportation.
In Illinois, an individual may
file a post-conviction petition if
"in the proceed ings which resulted in his ... conviction there
was a substantial denial of his
... rights under the Constitution
of the United States or of the
Sta te of Illinois."5 It is wellestablished that effective assistance of counsel is one of these
rights.6 Since 1985, the Illinois
appellate courts have decided
twenty-two cases involving an
alien's right to effective assis-
tance of counsel after pleading
guilty and subsequently facing
deportation.? In these cases, the
defendant typically alleges that
his attorney did not fully advise
the defendant of the consequences of a conviction with
respect to his or her immigration status. On those numbers
alone, it appears that aliens are
not being adequately advised
about the consequences of their
guilty pleas.
This article examines
whether the failure of an attorney to advise his client of potential immigration consequences
when entering a guilty plea
rises to the level of ineffective
assistance of counsel in Illinois.
The quick answer, generally, is
no. Today in Illinois, courts continue to view deportation as a
collateral consequence rather
than as a direct consequence.
Court opinions have established
the following principles:
Sarah Keefe Molina, Rejecting the Collateral Consequences Doctrine: Silence about D~ortation Mayor May Not Violate Strickland's Perjomumce Prong, 51
Sl. Louis U. L.J. 267 (2006).
Id.
Id.
Id.
5.
725 ILCS 5/122-1(0)(1).
6.
Str;ckla,uI v. Washington, 466 U.S. 668, 685-686 (1984) ("The Sixth Amendment recognizes the right to the assistance of counsel because it envisions
counsel's playing a role that is critical to the ability of the ad versa rial system to produce just results .. .. (T]he Court has recognized that "the right
to counsel is the right to the effective assistance of counseL ").
Running the fo llowing sea rch in Westlaw returns twenty·tv.ro cases: "(postconviction "post conviction" posl-conviction) &. guilty /3 plea! &. depor.
tation ."
7.
Page 22
1. A defendant must be advised of direct consequences of a guilty plea.
2. A defendant need not be
advised about collateral
consequences of a guilty
plea.
3. If counsel does advise
the defendant of a collateral consequence, tha t
advice must not be erroneous. B
In other words, defendants
will generally be unable to prevail on a post-conviction petition alleging ineffective assistance of counsel if their attorney
fails to advise them of the immigration consequences of a conviction.
The issue has been frequently litigated in recent years
on post-conviction petitions in
which defendants have argued
that they were denied effective
assistance of counsel. In People
v. Huante, the defendant pled
guilty to three counts of delivery of a controlled substance.9
After being released from
prison, he found himself subject
to deportation and filed a postconviction petition. The defendant asked the court to set aside
his guilty plea because "he
would not have pleaded guilty
had his attorney first determined his alien status and advised him that he would be subject to deportation as a result of
CALMECSM Global Law Group
Representing the World
IMMIGRATION
Permanent Residency ("Green Cards")
Employment and Family Visas
Defense from Deportation / Removal
Consequences of Arrests/Crimes
847-996-0888
his conviction."!O
Following an evidentiary
hearing, the trial judge found
that the defendant did not have
a valid claim for ineffective assistance of counsel. Unaware of
his client's alien status, the attorney never discussed the topic
of immigration with the defendan!. !! But the appellate court
reversed . The court held tha t the
attorney should have known the
defendant was an alien and
"that the attorney's failure to
advise defendant of the possible
deportation consequences of his
convictions constituted ineffective assistance of counsel."!2
The State appealed, and the
Illinois Supreme Court reviewed the issue under the standard set forth in Strickland v.
Washington: "To show that he
was deprived of the effective
assistance of counsel, defendant
must establish both that his attorney's performance was defi-
People v. Mannillg. 371 Ill. App. 3d 457, 460 (2d Dist. 2(07).
People v. Huanle, 143111. 2d 61 , 65 (1991).
10.
Id. al66
Id. al 67.
Id.
Id. at 67-68 (citing Strickland tl. Washington, 466 U.S. 668, 687 (1 984» .
Id. a169.
Id. al 70-71.
Td. at 71·72 (internal citations omitted).
13.
14.
15.
16.
Andrew Sagartz, MBA, JD
American immigration Llwyers Association (Members since 1997)
8.
9.
II.
12.
October 2007
The Docket
cient, and that defendant suffered prejudice as a result."13
Specifically with regard to
guilty pleas, the Court held that
an attorney is ineffective if "he
failed to ensure that the defendant entered the plea voluntarily and intelligently."!' Under
Illinois Supreme Court Rule 402,
a defendan t does not need to be
advised or be aware of the collateral consequences of his plea
for the plea to be entered knowingly and voluntarily.!S Since
both state and federal precedent
classified deportation as a collateral consequence, the Court
held that the attorney's failure
"to volunteer to his client advice
concerning the deportation consequences of a criminal conviction did not fall below an objective standard of reasonableness. " 16
When the Court decided
Huante in 1991, immigration
laws were not as harsh as they
October 2007
became with the passage of
IIRIR and AEDPA in 1996. In
2003, the appellate court reexamined the issue in light of
the new mandatory deportation
provisions.J7 In People v. Pequeno, the defendant pled guilty
to unlawful possession of a controlled substance with the intent
to deliver, aggravated criminal
sexual abuse, and domestic battery.IS The defendant was deported and, subsequently, fil ed
a post-conviction petition asking for his guilty plea to be set
aside. 19
The defendant argued that
his counsel was ineffective for
failing to properly advise him
that he would be deported as a
result of his pleas 20 During the
evidentiary hearing, the circuit
court heard that the attorney
"never consulted with an immigration attorney and ... never
actually told defendant that he
would not be deported; he told
defendant only that he did not
think defendant would be de17.
lB.
19.
The Docket
ported."21 Following the precedent established in Huante, the
court held that under the Strickland test, the defendant failed to
show that his attorney's performance was deficient.n
The defendant also argued
that the court was obligated to
inform him of deporta tion
"because deportation was mandatory . . . and was actually a
direct consequence of his
pleas."23 The court found this
reasoning to be flawed, explaining, "A direct consequence of a
plea ... represents a definite,
immediate and largely automatic effect on the range of the
defendant's punishment."24 A
direct consequence is only a resu lt that the judge can impose.
On the other hand, a collateral
consequ ence "is not related to
Prop!!' I!, PCI/UCI10, 337111. App. 3d 537 (2d Oisl.
2003).
Id. il l 539.
Itl. ("De fendant was deported as iI result of the
convictions. Thereafter, dcfendimt filed a postconviction petition to set aside his guilty picas on
groundS that his pleas were involuntary. ")
20.
21.
22.
23.
Page 23
IJ.
Id. aI 540.
Id. at 544.
Id. at 545. Since Peqll£'llo, Section 5/ 113-8 went into
effect on January t, 2004: "Before the acceptance of
the length or nature of the sentence imposed ... and generally
results from an action taken by
an agency that the trial court
does not control."25 The most
common collateral consequences are the loss of employment, voting rights, auto license
suspension, dishonorable discharge from the military, and
the loss of public benefits.26 In
each of these instances, the
courts have no control over the
governmental agency-usually
the administrative branch-that
imposes the sanction. Therefore,
the court held:
[Rlegardless of whether defendant's deportation was a
mandatory result of his
guilty pleas, because it had
no bearing on his sentences
or the nature of bis punish-
l\lE1L til, GOOD
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Neil Good has successfully settled cases Originally
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The 12 month disability requirement states that the impairment must
last for at least 12 consecutive months, and the application for disability
benefits can be filed during or after recovery from the disability.
a plea of guilty, guilty but mentally ill, or nolo
24.
25.
26.
contendere to iI misdemeanor or felony offense, the
court sha ll give the following advlsemenllo the
defendant in open court: 'If you are not a citizen of
the United Stales, you are hereby advised that conviction of the offense fo r which you have been
cha rged may have the consequences of deportation,
excl usion from admission to the United States, or
denial of naturalization under the laws of the
United States.'" 725 ILCS 5/113-8.
Id.
Id.
Id.
Neil Good has 20 years of e xper ience in
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Page 24
ment for the commission of
his crimes, it was a collateral
matter, which the trial court
was not required to explain
before it accepted defendant's guilty pleasP
The passage of IIRIR and
AEDP A had no effect on how
the courts viewed deportation
due to criminal convictions.
Most recently, the appellate
court reiterated that there is a
limited exception to the collateral consequence doctrine. In
People v. Mrugalla, the court held
that the defendant could not
bring his post-conviction petition because he was no longer
"imprisoned in the penitentiary."28 Nevertheless, the court
briefly examined the issue of
ineffective assistance of counsel.
Similar to prior cases, the court
stated, " Any effect defendant's
Illinois criminal conviction may
have had on his immigration
status is a collateral effect and is
just one of the innumerable residual effects accompanying all
felony convictions. "'. However,
unlike prior cases, the court examined the second prong of
Strickland: whether the deficiency prejudiced the defendant. 30 Although not explicitly
stated, the court found the attorney's assistance was deficient
under prevailing professional
norms because the attorney
27.
28.
The Docket
"incorrectly informed [the defendant] that the plea would not
adversely affect his immigration
status."31 (Based on the overwhelming facts indicating guilt,
however, the court found that
the defendant suffered no prejudice).32
In People v. Manning, the defendant sought to withdraw his
guilty plea.33 He argued that his
attorney should have investigated and advised the defendant regarding the possibility of
pleading guilty but mentally
ill. 34 The court held, "the additional consequences of a plea of
guilty but mentally ill as opposed to a simple guilty plea are
collateral and that therefore
counsel need not advise a defendant of the possibility of
pleading guilty but mentally ill
prior to the entry of a plea of
guilty."35 Although Manning did
not involve immigration consequences, the court examined the
guilty plea and deportation
precedent to determine the responsibility of an attorney when
advising a client of plea consequences. The court summarized
the relevant case law:
[C]ourts distinguish between cases where attorneys
provide erroneous advice
and cases where attorneys
fail to provide any advice. In
Correa, our supreme court
October 2007
considered whether an attorney who advised his clienta legal alien-that a guilty
plea would not lead to deportation rendered ineffective assistance. The court
held that the defendant was
entitled to withdraw his
guilty plea because of the
erroneous advice actually
given by the attorney.... [In
Huanie, the] defendant and
his attorney did not discuss
the defendant's status as a
legal alien, and the attorney
provided no advice whatsoever on how the plea could
affect that status. The supreme court determined that
the attorney's failure to add ress the rna tter did not constitute ineffective assistance
of counsel. Thus, Correa and
Huante draw a distinction
between an attorney giving
a client bad advice and an
attorney failing to give a client any advice. 36
This is where the law stands today in Illinois. A defendant can
only satisfy the Strickland standard of ineffective assistance of
counsel if he can show that his
attorney gave him wrong advice
and the error was prejudicial, i.e.
the defendant would have had a
reasonable probability of prevailing at trial.
Generally, the national stan-
/d . 337111. App.3d. 537, at 545.
People 1I. Mrugnfln, 371 Ill. App. 3d 544 (4th Dis!. 2007).
29.
/d .
30.
/d.
31.
/d .
32.
Id. The courl no led that the defendant had received 168 grams of marijuana in the mail. Officers had seized the package and found additional contraband in the house. The court concluded that even if the defendant had not pled guilty, he 'would have had no reasonable probability of being
successful at trial and would have been subsequently deported.
People v. Manning, 371 III. App. 3d 457, 460 (2d DiS! . 2(07).
/d. at 461.
/d. at 463.
/d . at 460.
33.
34.
35.
36.
October 2007
J
.r
dard is no different than it is in
Illinois: at least sixteen other
courts, both in the federal and
state systems, find deportation
to be a collateral consequence.37
Since deportation is not a direct
consequence of a guilty plea, an
attorney has no affirmative duty
to advise his client on the issue.
However, a few courts have determined that an attorney's duty
should be broader. The Federal
Second Circuit, Maine, and
Utah enforce a standard in
which "an attorney's expressed
ambivalence on what the deportation consequences of pleading
guilty to an aggravated felony
will be consti tu tes ineffecti ve
assistance of counsel."38 If an
attorney is directly asked by his
client if he will face any immigration consequences, the court
may find an answer of "I don't
know" or "I don't think so" to
be deficient representation.
However, one court views
the deportation issue differently. The New Mexico Supreme Court in 2004 determined that many courts, including its own federal circuit, incorrectly interpret the situation. 39 Deportation should be
viewed as more than just a collateral consequence, because it
is often "the harshest consequence of a non-citizen criminal
defendant's guilty plea."40 After
analyzing the severity of the
consequence and the gravity of
the decision to plead, the Court
37.
The Docket
held:
[Cjriminal defense attorneys
are obligated to determine
the immigration status of
their clients. If a client is a
non-citizen, the attorney
must advise that client of the
specific immigration consequences of pleading guilty,
including whether deportation would be virtually certain. Proper advice will allow the defendant to make a
knowing and voluntary decision to plead guilty .... An
attorney's failure to provide
the required advice regarding immigra tion consequences will be ineffective
assistance of counsel if the
defendant suffers prejudice
by the attorney's omission. 4!
Nevertheless, only New Mexico
has adopted this view. The majority of the courts do not believe that an attorney has such a
duty. When discussing a guilty
pl ea with a defendant, an attorney must only avoid providing
Page 25
erroneous advice. Therefore if
no incorrect advice is given, the
courts presume the defendant pled
guilty knowingly and voluntarily.
Courts have created an almost impenetrable standard for
post-conviction petitioners
based on the collateral consequence doctrine, which provides attorneys with a defense
against ineffective assistance of
counsel claims. Having all necessary and material information
prior to pleading guilty is a defendant's substantial right under the Constitution. Yet an attorney, during plea discussions,
does not have an affirmative
duty to determine and inform
his client of the immigration
consequences--even if the consequence is deportation.
Michael Bekesha is cu rren fly a
second-year law student at the
University of Missouri-Columbia .
This past summer, he interned with
the Staff Attorney's Office of
Nineteenth Judicial Circuit Court.
Rob A. Justman, Student Author, The Effects Of AEDPA And IIRlRA On Ineffective Assistance Of Counsel Claims For Failure To Advise Alien Defendants
Of Deportation Consequences Of Pleading Guilty To An "Aggravated FeloIlY," 2004 Utah L. Rev . 791 (2004) (" In the federal court system, the First, Sixth,
and Ninth Circuits have so held. In the state court system, Alabama. Georgia, Iowa, Illinois, Kansas, Louisiana, Michigan, Nebraska, Nevada,
North Dakota, Rhode Island , Texas, Virginia, and Washington have so held.").
38.
Id.
39. State v. P."dez, 101 P.3d 799 (2004).
40. Id . • t 805.
41.
Id.
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October 2007
Page 27
The Docket
Electronically Transmitted
Driving Abstracts May be Used
at Trial and at Sentencing
by Scott Turk
\
Overview
The Facts
The Trial
A driving abstract with a red
Secretary of State seal is admissible at trial to prove a defendant's license was suspended or
revoked on the date of offense.
It is also admissible at sentencing to prove a defendant's prior
convictions. The abstract is usually printed at the State's Attorney's office using a com pu ter
logged in to the Secretary of
State mainframe. The results of
a driver's license and date-ofoffense query are prin ted on
blank abstract forms with the
red seal already in place. The
abstract contains a list of the
driver's convictions and driving
status on the date of offense.
These are admissible at trial and
sentencing, withou t a raised
gold seal. The Second District
recently ruled on this issue with
regard to sentencing in People v.
Meadows, 371 Ill. App. 3d 259
(2d Dist. 2007). In a Lake
County case, the Appellate
Court upheld the decision by
the trial court allowing the driving abstract printed by the
State's Attorney's Office to be
admitted into evidence at sentencing with only the red Secretary of State seal.
Defendant Steven Meadows
was driving his car on 1-94 on
March 19, 2005. Illinois Sta te Police Sergeant William Severson
saw the defendant's car, which
was proceeding south in the
left-hand lane, drift several
times over the left solid white
fog line and then the right lane
dividing line. Sergeant Severson
stopped and approached the
vehicle. Meadows was not able
to provide a driver's license,
passing it several times in his
wallet, but did provide the Sergeant an Illinois ID card with
his name and date of birth. Sergeant Severson observed Meadows' slurred speech, bloodshot
and glassy eyes, strong odor of
alcohol on his breath, and soiled
pants. Meadows refused all of
the field -sobriety tests except
the finger-to-nose test, which he
failed, and refused a Breathalyzer test. Sergeant Severson put
the defendant's name and date
of birth into the Secretary of
State computer and determined
that Meadows' license was revoked. Meadows was arrested:
for DUI and Driving While License Revoked.
Meadows was charged with
Class 2 felony Driving Under
the Influence, since he had eight
prior DUls, and Class 4 felony
Driving While License Revoked .
At trial, Sergeant Severson testified to all of the facts specified
above. The State laid the foundation for putting an abstract
into evidence by asking the Sergeant about the information he
submitted into the Secretary of
State computer, which included
the defendant's name and date
of birth, and if he received a response, which he did. The State
then presented the witness with
a driver's abstract with a red
seal and established that the
name and date of birth on the
abstract were the same as what
had been submitted to the Secretary of State. The State then
moved to enter the abstract into
evidence. The defense objected
due to lack of foundation. The
objection was overruled by the
court. The defense renewed its
objection, stating that U[tJhis is
simply a printout off of a computer that happens to have preprinted red ink on it that was
there prior to the entry of any
items on that abstract. This
Page 28
again is not even a gold seal
copy from the Secretary of
State." The court overruled the
objection and admitted the abstract into evidence. Sergeant
Severson then read from the abstract that the defendant's driving status on the date of offense
was revoked. The Sergeant also
testified that the defendant was
under the influence of alcohol
based upon his professional experience, personal experience,
and training.
During closing arguments,
the defense stated, "I would
also point out again that the
preprinted certification at the
bottom is exactly that, a preprinted certification, and the
State didn't even bother to get a
certified copy-{)r a gold seal
copy 1 should say. So whether
he is revoked or reinsta ted or
valid, I don't think the State has
carried their burden on that as
well." The Court found the defendant guilty of Driving While
License Revoked based upon
the abstract. The Court also
found the defendant guilty of
DUI.
The defendant, at a later
date, moved for a new trial, stating that "the trial court erred
when it admitted the abstract
without the requisite 'gold seal'
of the Secretary of State." Meadows, 371 Ill. App. 3d at 260. The
State referred to the Illinois Vehicle Code in response, specifically that "[a]ny certified abstract issued by the Secretary of
State or transmitted electronically by the Secretary of State
pursuant to this Section, to a
court or on request of a law enforcement agency, for the record
October 2007
The Docket
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of a named person as to the
status of the person's driver's
license shall be prima facie evidence of the facts therein stated
and if the name appearing in
such abstract is the same as that
of a person named in an information or warrant, such abstract
shall be prima facie evidence
that the person named in such
information or warrant is the
same person as the person
named in such abstract and
shall be admissible for any
prosecution under this Code
and be admitted as proof of any
prior conviction or proof of records, notices, or orders recorded on individual driving
records maintained by the Secretary of State." (625 ILCS 5/2123(g)(6) (West 2004)}. The State
also cited People v. Baer, a case in
which the defense argued that
the abstract was improperly admitted into evidence as it only
"contained a facsimile of the
seal of the State of Illinois and
also a facsimile of the Secretary
of State's signature." (People v.
Baer, 97 Ill. App. 3d 94, 96 (3,d
Dist. 1981)}.
The Third District Appellate
Court in Baer referred to Illinois
Vehicle Code ("IVC") section
118(f), the precursor to the current rvc section 123(g}(6}, "that
such an abstract 'shall be prima
facie evidence of the facts
therein stated'," in holding that
the abstract was properly admitted for sentencing. Baer, 97
Ill. App. 3d at 96. Additionally,
the Court explained the reasoning behind the statute. "In order
to expedite the handling of the
tremendous volume of traffic
violations, the legislature has
provided for the use in court of
these mechanically certified
driving records." Based upon
both the rvc and the Baer case,
the State argued that the abstract was properly admitted in
the case against Meadows, and
that the motion for a new trial
should be denied. Meadows, 371
Ill. App. 3d at 260. Defendant
replied that the '''abstract is sufficient under the law cited by
the State' to establish prior convictions, but [Defendant] contended that, for matters not relevant to this appeal, the authenticity of the abstract was questionable." The motion for new
trial was denied. Additionally,
the State admitted the defendant's abstract for proof of prior
convictions in determining the
October 2007
sentence. Mr. Meadows was
sentenced to 5 years in the Department of Corrections for DUI
and 2 years for Driving While
License Revoked.
The Appeal
Defendant appealed, maintaining his argument that "an
abstract printed on a preprinted
form is not properly certified for
purposes of the Vehicle Code."
The State renewed its argument
that admission was proper since
"the Secretary of State electronically transmitted it to the Lake
County State's Attorney's office." Referring again to Section
2-123(g)(6) of the IVC, the State
argued that an abstract may be
admitted if either the abstract is
certified or the Secretary of State
transmits it electronically to an
authorized official, such as an
employee of the Lake County
State's Attorney's office.
The Court began by reitera ting Section 2-123(g)(6) of the
IVC cited by the State. Also,
"[f)or any [DWLR) prosecution
under this Section, a certified
copy of the driving abstract of
the defendant shall be admitted
as proof of any prior conviction." (625 ILCS 5/6-303(f)
(West 2004)) (emphasis in original). Since the Court had to construe the two statutes mentioned above, it presented some
initial ground rules, such as
"[t)he primary rules of statutory
construction is to ascertain and
give effect to the legislature's
intent" and that "[t)he best indication of the legislature's intent
is the language used in the statute, which must be given its
The Docket
plain and ordinary meaning."
Since the DWLR statute provided specifically for a certified
copy and Section 2-123(g)(6) allowed for an electronically
transmitted copy, the Court
held that under either statute
"the court was free to admit the
electronically transmitted abstract if one condition was
met ... the abstract had to be
certified."
Based upon this holding, the
court dismissed the State's
claim that an abstract could be
admitted if not certified, since
the State had argued that an abstract may be admitted if either
certified or transmitted electronically. " [E)lectronic transmissions raise particular concerns about tampering," thus
the abstract must be certified.
(People v. Hruza , 312 lll. App. 3d
319, 324-25 (2000)). Thus, the
primary issue for the court was
to determine "whether an abstract printed on a preprinted
form, which contains a preprinted certification from the
Secretary of State [and data
transmitted electronically from
the Secretary of State) that the
information on the abstract is
Page 29
true and accurate, is properly
'certified' for purposes of the
Vehicle Code." The court then
referred to the same section of
Baer to provide reasoning as to
why electronically transmitted
abstracts are allowed into evidence-to expedite the handling
of the tremendous volume of
traffic violations. (Baer, 97 Ill.
App. 3d at 96.)
Defendant next argued that
Baer was not controlling
"because the certification requirements present in the relevant sections of the current Vehicle Code were not in effect
when Baer was decided." The
court disagreed, reasoning that
the statutory language was
amended to conform with Baer.
Thus, the court held that Baer,
section 2-123(g)(6), and section
6-303(f) of the Vehicle Code all
allow electronically transmitted
abstracts printed on precertified
forms originating from the Secretary of State's office to be admitted into evidence for proof
of a defendant's prior convictions.
Defendant complained that
anything thus printed on the
precertified form automatically
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Page 30
The Docket
becomes certified, prejudicing
the defense. This argument implied that the defense would be
left with no recourse against the
abstract. However, the court
disagreed. "Once the State submits an abstract, a defendant
always has the opportunity to
present evidence to rebut the
abstract's veracity." That was
not done in the instant case,
since the "defendant never
claimed at trial or on appeal
that the prior convictions on the
abstract were inaccurate." Thus,
the certificate presented by the
State was sufficient to establish
the defendant's prior convictions.
Abstract Admission for Proof
of Defendant's Driving Status
Based upon the analysis
above, it also stands to reason
that the same pre-printed abstract may be used a t trial for
proof of the defendant's driving
status at the time of the traffic
stop. In his appeal, the Defendant never raised this issue,
even though he used a similar
argument at trial against admitting the abstract into evidence
for proof of the defendant's
driving status, i.e. no raised
gold seal. Thus, the court did
not specifically rule on it in its
opinion. The arguments for allowing an abstract transmitted
electronically from the Secretary
of State to the State's Attorney's
Office and printed on the preprinted form are the same for
both sentencing and use at trial
for a defendant's driving status.
Referring back to section 2123(g)(6) of the Vehicle Code,
the focus of the appellate court
was on the statute's plain language allowing the abstract to
be admitted as proof of any
prior conviction. However, it is
also important to note that the
same statute states that "for the
record of the named person as
to the status of the person's
driver's license shall be prima
facie evidence of the facts
therein sta ted . . . and shall be
admissible for any prosecution!.]"
625 ILCS 5 / 2-123(g)(6)
(emphasis added). Based upon
the plain meaning of the statute,
the facts on the abstract for the
person named are admissible
for prosecutorial purposes. Additionally, the reasoning in Baer
for using the pre-printed form
abstract, "to expedite the han-
DEPOSITION REPORTERS
~
COURT REPORTERS
P.O. Box 9275
Waukegan, IL 60079
(847) 356-6834
(847) 356-5354 FAX
Deborah L. Severson, CSR
October 2007
dling of the tremendous volume
of traffic violations," is equally
applicable in allowing the facts
on an abstract to be used during
a trial. See Baer, 97 TIl. App. 3d at
96. A relevant fact on any abstract is the status of a person's
driver's license on the date of
offense. Thus, combining the
reasoning in the Meadows and
Baer cases along with the same
statutory language, an electronically transmitted abstract without the raised gold seal may be
admitted into evidence at trial
for proof of a defendant's driving status on the date of offense.
Conclusion
In Meadows, the Appellate
Court affirmed the judgment of
the Circuit Court of Lake
County. In so doing, it held that
an abstract, electronically transmitted to the State's Attorney's
office by the Secretary of State,
was properly admitted into evidence for sentencing to show
proof of the defendant's priors.
Based upon the same logic and
reasoning, an abstract may be
admitted into evidence during a
trial to show proof of the defendant's driving status on the date
of offense.
Scott Turk is an
Assistant State's Attorney
with the Misdemeanor Division
of the Lake County State's
Attorney's Office. He has worked
there for two years. Before
becoming an attorney,
Mr. Turk worked for eleven
yea rs as a software developer
and computer consultant.
October 2007
The Docket
Page 31
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Page 33
The Docket
Tips for Persuasive
Brief Writing
by Han. Mitchell L. Hoffman, Associate Judge
1,
T
he goal of this article is to
give you a few quick,
easy-to-follow tips for
writing more persuasive legal
briefs, and, just as importantly,
for making sure your brief is
read by the judge prior to your
hearing.
One of the most obvious but
frequently forgotten truths
about brief writing is that good
legal writing must first be good
writing. Think about it. Outside
of our lives as lawyers, we all
read . Whether we read fiction or
non-fiction, newspapers or
magazines, we all know good
writing, or, conversely, bad
writing, when we see it.
Consider what a few famous
literary figures had to say about
the process of writing.
No lesser figure than James
Joyce once observed that,
"[wJriting in English is the most
ingenious torture ever devised
for sins committed in previous
lives." He had a point. We all
learned back in grade school
what a difficult language English is. It's full of irregular verbs
and exceptions to grammatical
rules that seem to swallow up
the rules themselves. Given this
proposition, it's difficult to understand the modem penchant
for relying on computer soft-
ware to review grammar and
spelling. If James Joyce had
trouble writing in English, you
can bet Microsoft Word is not
going to get it right one hundred percent of the time. While
a computer program may be a
helpful aid, it's critical that you
do your own proof-reading.
Samuel Beckett once said
that "nothing matters but the
writing. " In other words, when
you sit down to write, you must
be focused and concentrating
solely on the task at hand. It's
hard to write a good brief when
you're answering telephone
calls, sending text messages or
watching the Cubs' game. If you
can, have your secretary hold
calls while you write. If that's
impractical, the next best thing
may be to sit down to write after office hours or on the weekends.
Finally, Ernest Hemingway,
one of my favorite authors, said,
"It wasn't by accident that the
Gettysburg Address was so
short. The laws of prose writing
are as immutable as those of
flight, mathematics, or physics."
Hemingway, known for hi~
spare prose, always reminds us
of the virtues of brevity.
The three virtues of good
writing that this article will ad-
dress are structure, clarity, and
brevity.
Structure
You can't begin to write a
persuasive brief until you know
what points you're going to argue, and in what order you're
going to argue them. I've always found that setting out a
short skeletal outline of your
brief before you start writing
not only makes the task of writing easier, it also adds overall
form and cogency to your argument. If the structure of your
brief is disorganized, the reader
will likely be confused. I know:
it seems like writing an outline
is a waste of precious time that
you don't have to begin with;
but you can prepare an outline
in less than five minutes, and it
actually saves you time in the
long run.
Clarity
Use sub-headings to let the
reader know what part of your
argument is being discussed.
This is especially important in
cases with complex pleadings
and multiple theories of liability. I like to make notes while
I'm reading briefs, and I jot
Page 34
down which arguments the parties are making on each issue.
Sub-headings make this process
easier.
Use plain language wherever possible, and simplify your
sentence structure. Using plain
language increases the dari ty of
your writing. Watch for run-on
sentences that meander away
from your intended point.
Don't muddy the waters
with insul ting or vindictive remarks about opposing counsel.
Judges understand how frustrating certain attitudes or tactics of opposing counsel can be,
but they want to decide cases on
their merits, not on the basis of
which attorney is aggravating
his opposing counsel more.
Unless counsel's conduct is so
outrageous and prejudicial as to
warrant the imposition of sanctions by the court, jllst argue the
merits of your case.
If you ' re really angry at opposing counsel, a good strategy
is to go ahead and write your
first draft including all the invective and abuse that you
want. That part is really therapeutic. Then put the draft aside
and review it 24 hours later, and
edit out all the unnecessary
comments that don't help your
case.
Of course, your argument is
aided by citation to case law.
Your brief will be too long if
you explain the facts of each
case you cite. However, if you
do have a particularly important case you're relying on, give
a brief factual synopsis of it so
that the judge can determine
how analogous it is to your
case.
October 2007
The Docket
Brevity
Keep in mind that civil division judges have a huge amount
of reading to do each day. So, be
like Hemingway. Don't make
your briefs any longer than necessary to argue your case persuasively ... or else you might
lose your reader along the way.
For example, when writing
reply briefs, many lawyers
spend several pages reiterating
the same points they made in
their motion. Realize that although many weeks may have
elapsed between the time you
wrote your motion and your
reply, more than likely the
judge is reading the motion, the
response and the reply all at one
You
time.
don't need to
remind
the
judge of arguments she just
read a few
minutes ago.
A reply brief is an important
opportunity to summarize your
opponent's arguments, and to
explain why they fail to defeat
your motion. Do it as clearly,
directly and briefly as possible.
Local Rule 2.01 specifies
page limits for motions, responses and replies. Motions
and responses are not to exceed
15 pages, and replies are not to
exceed 5 pages. Requests for
leave to exceed these limits
should be the rare exception.
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Making Sure Your
Brief Gets Read
·
I
Finally, a few tips about
making sure that once you 've
written an excellent brief, it gets
read before your hearing date.
Deliver courtesy copies to
the judge's chambers (not the
clerk's office) at least 5 days in
advance of the hearing (this is,
in fact, required by Local Rule
2.02). In my courtroom I request
courtesy copies a full 7 days in
advance. Again, because judges
usually have a lot to read, the
sooner your brief gets to chambers, the better. It is the
Movant's responsibility to deliver courtesy copies, including
the response of the Non-
movant. It's bad form to send
your motion and reply but omit
the other side's response.
When delivering briefs, the
cover letter should specify the
date of the hearing. Most judges
use a filing system that is keyed
to the date of hearing. If your
brief comes in without a hearing
date on it, it may get lost in the
flood of paper in chambers.
When you send courtesy
copies it is critically important
that you include copies of all
exhibits and attachments, as
well as a copy of any pleading
which is the subject of the motion. There's no point in giving
the judge a courtesy copy of the
brief if he still has to dig
through the file to locate the ex-
hibi ts or a copy of the most recent complaint. While it may
seem like a small thing to expect
the judge to look through the
file to find copies of these documents, it takes quite a bit of time
to search each file on the contested call, not to mention the
time it takes to pull those files
apart in order to make copies.
Judges need to have copies of
the pleadings and other documents so they can take notes on
them while they read.
Also, make sure to cite the
specific section and sub-section
of the Code of Civil Procedure
under which you're proceeding.
Different sections dictate different analyses by the judge. Don't
force the judge to guess which
Page 36
October 2007
The Docket
section you're invoking in your
motion.
Conclusion
Hopefully these few tips will
be of assistance to you in writing your next brief. Keep in
mind that, while oral argument
can change a judge's impression
of your case, it's difficult to
overcome an initial weak showing on the briefs. Try to win
your case before the oral argument even begins. Write a great
brief, and give the judge every
chance to read it in advance.
Here is a shortened version
of the Do's and Don'ts discussed in this article, along with
a few extra hints.
Mitchell L. Hoffman is an
Associate Judge currently
assigned to Chancery.
Do's and Don'ts for Brief Writing Success
DO
• Prepare a short outline before starting to write.
• Use sub-headings to organize your argument.
• Use plain language whenever possible.
• Give a short factual synopsis of important cases.
• Follow the local rule regarding length of briefs: 15 pages for motions and responses, 5 pages
for replies (Rule 2.02).
• As the Movant, deliver courtesy copies of all briefs (including your opponent's) at least 5
days in advance of the hearing.
• Include a cover letter with your courtesy copies indicating the date of the hearing.
• Include copies of all attachments and exhibits to your motion.
• Include a copy of any pleading attacked in your motion.
• When filing a motion to dismiss under Section 2-615 or 2-619, specify which section you're
moving under, including the applicable subsection.
• Use Illinois Appellate Reports citations including a reference to the appellate district.
• Proofread.
DON'T
• Include insulting or vindictive remarks about opposing counsel.
• Write in "stream of consciousness."
• String cite.
• Repeat arguments from your motion in your reply brief.
• Exceed page limitations for briefs without prior leave of court.
• Make a habit of asking for leave of court to exceed page limitations.
• Omit text from a quote without using ellipses (... ) to properly indicate the omission.
• Omit text to cite language in a misleading manner.
• USE ALL CAPS TO EMPHASIZE IMPORTANT TEXT (Text that is merely bolded is much
easier to read).
• Rely solely on your software program to check your spelling and grammar.
• Put yourself and your client at a disadvantage by presenting a poorly written brief.
October 2007
Page 37
The Docket
LC
l@
Executive Board
- Minutes August 16, 2007
Submitted by Amy D, Darling,
Executive Director
M
embers Present: Rick
Lesser, Bryan Winter,
Scott Gibson, Marjorie Sher, Perry Smith (via tel ephone) and Amy Darling.
1. Minutes Approved: The
Board approved the minutes
from the july 19,2007, board
meeting.
2. Treasurer's Report: Perry
Smith reported to the Board
on the current balances in
Lake County Bar Association and Lake County Bar
Founda tion Opera ting accounts. He also reported on
the number of members
with outstanding dues and
that those members would
now incur a $10 late fee to be
included in the next billing.
The Treasurer's report was
approved as presented.
3. Gridiron Committee:
A
th
kickoff da te of October 18 ,
2007, at Hussey's in Waukegan was proposed.
The
board agreed and Scott Gibson will contact Hussey's to
confirm the availability.
Once confirmed, a blast
email/ fax will go out regu-
We Don't
Until They're Served.
No longer do you need to be at the mercy of
law enforcement agencies or unknowns for your
process serving. Lakeside Investigations is a nationwide
public document search and retrieval firm, uniquely
positioned to serve your documents anywhere in the
U.S. and even abroad. Timely and efficiently. And we're
not quitters. As long as we have
a good address, we'll keep going
'til we can say, "Gotcha!" To learn
all the things we can do to make
your job easier, give us a call.
Let's get to know each other.
LAKESIDE
800.636,1511 INVESTIGATIONS
www.lakesideinvestigations.com Lic#117 -001132
larly inviting members to
attend.
4. Corporate Counsel Task
Force: A letter inviting corporate counsel in Lake
County to join the LCBA
will be drafted by Rick and
sent to a mailing list obA
tained by Sullivan's.
meeting with Rick, judge
Chuck johnson, jeff Thut
and Rob Holdt has been
scheduled for September 13,
2007, at Rick Lesser's office
to develop an action plan for
the committee.
5. VLP Donation: A donation
of $500.00 was approved for
the Volunteer Lawyer Program from proceeds of the
2007 LCBA Golf Outing.
6. Docket Advertising Rate
Increase: The proposed 25%
rate increase was approved
by the board and will go
into effect immediately.
7. Campaign for Legal Services Representative: Member at Large Marjorie Sher
volunteered to act as liaison
between the Campaign for
Legal Services and the LCBA
Executive Board.
8. President's Response to
Press Inquiries-The President was given the ongoing
authority to respond to timesensitive press inquiries.
9. Meeting Adjourned: The
meeting was adjourned.
The next Executive Board
meeting is scheduled for
September 18, 2007.
Page 38
The Docket
October 2007
Publish your
Public (legal) Notices with
PIONEER PREss
YOUR
LOCAL
SOURCE
ohn Bieschke, LegaIAdvert;,;ng Managtr
(847) 486-7233 [email protected]
3701 W. Lake Ave. Glenview, IL 60026
Fax (847) 486-7417 (847) 486-9200
iAll]
~~~~~~~~~~~~~~~~~~~~
\ LeBA
~
~
\
~
~
NOVEMBER 16, 2007
~
~
APRIL 10-13, 2008
~
MAY2-3,2008
~
~
l
~
~
~
SAVE!~~DATE
I
I
I
ATTEND THESE PROGRAMS!!
"
THE LAKE COUNTY BAR ASSOCIATION
IS AN ACCREDITED CLE PROVIDER?
WILLS, TRUST & PROBATE SEMINAR
;~;;:':::'p;:;'d;ng
I
FAMILY LAW SEMINAR
"
Washington, D.C.
::::'::::~ClE
Tentatively Planned for Las Vegas
6 Hours Pending
1.0 HOUR OF CREDIT I Held at noon in C201
"
FREE TO MEMBERS
I
II
Dates and Topics to be Announced
\
Watch your e-mail and fax for individual notices.
Check our website calendar at www.lakebar.org.
You may also call the LCBA Office at (847) 244-3143.
~
I
CAN'T MAKE A SEMINAR? ATTEND AN LCBA BROWN BAG
\
~
~I
~~~~~~~~~~~~~~~~~~~~
Page J9
The Docket
October 2007
LfW
Wills, Trusts, and Probate
Committee 2007-2008
- Minutes September 11, 2007
1
Submitted by Liz Rochford, Chair
O
n Tuesday, September
11, 2007, we held our
LCBA Wills, Trusts, and
Probate Committee meeting at
the Lake County Courthouse in
Waukegan. We met at 12:00 p.m.
and the meeting was officially
called to order by committee
chair Liz Rochford . Mark
Chavin, Jennifer Howe, Katie
Hogan, Edmund McGlynn,
David Wright, Stephen Rice,
Rick Lesser, Bob Weber, Bernie
Winter, Ken Suskin, David Lutrey, Kevin Kane, Amy Kasallis,
Dave Charous, Bob Kolassa,
Donna-Jo Vorderstrasse, Perry
Smith, Lucy Dorenfeld, Melanie
Rummel, Sherry Fox, Carrie Lincoln, Amy Weiss, and John Henderson attended the meeting.
SAVE THE DATE:
Wills, Trusts, and Probate
Committee Seminar is Friday,
November 16, at the West Lake
Forest Northern Trust office.
More details to follow!
Wills, Trusts, and Probate
updates are as follows:
1. Attorney AMY KASALLIS
spoke to the committee on
Special Needs Planning.
Amy is extremely enthusiastic as well as knowledgeable
about special needs trusts,
and the seemingly infinite
government regulations surrounding them . While many
practi tioners grasp the basic
concept of special needs
trusts, Amy reminded the
committee of several important points to keep in mind
when creating a special
needs trust as a component
of the client's total estate
plan. Clients may not always
realize the importance of
qualifying a child for government benefits in the future,
and that is why the attorney
must create the plan that will
not prevent eligibility at
whatever point the client ultimately decides to apply for
benefits. Amy is happy to
speak with colleagues who
have questions regarding
drafting special needs trusts
or other questions of eligibil-
ity .•
2. STEPHEN RICE wants to
remind and encourage all
LCBA members to write and
submit articles to The Docket.
Deadline for publishing In
The Docket is the first of each
month'
3. LCBA President RICK
LESSER encouraged all
members to attend the
Monthly Meeting on September 25 at the Waukegan City
Hall. The Volunteer Lawyer
Awards will be presented as
well as a vote on dues increases. Finally, any member
who knows a corporate
counsel attorney working or
living in Lake County, please
extend an invitation to join
the LCBA! The executive
committee has recently created a Corporate Counsel
Committee and wants to encourage current members to
recruit others to participate.
4. Committee Member BOB
WEBER reminded the committee of an upcoming tax
symposium hosted by the
Page 40
Illinois CPA Society this October to discuss anti-money
laundering methods, Circular 230, and taxpayer advocacy issues among IRS agents
and tax accountants and attorneys. Additionally, a Tax
Problem Resolution Center
will be available during the
symposium to discuss solutions to outstanding matters,
or at least point practitioners
in the right direction for additional support. The event
will be held October 23, 2007,
in Rosemon t, IL. Please contact BOB WEBER at (847)
831-0005 to receive the invitation packet.
5. "Adopted woman wants review of will made in 1936."
The testator who drafted the
will in question was a lawyer
and a judge. The language of
the will transfers specific real
property to the testator's son,
"provided that in case he
dies without leaving any
heirs of his body nor descendents of such heirs, the fee
simple title of said lands
shall vest in my daughter."
The son passed away in 2004
leaving one adopted daughter. The trial court found ,
and the appellate court affirmed, that the testator's intent to exclude adopted children from inheriting title to
his real property was clearly
and convincingly demonstrated by the terms of his
will. James L. Watts, et al. v.
Carol Lutz, et al. No. 104918.
Chicago Daily Law Bulletin,
July 6, 2007 .•
6. "No need for serving will
contest on executor within
The Docket
six months." Pro se petitioners sought to file a will contest, filed on the six-month
deadline, but the clerk would
not allow the pleading to be
filed in probate and so it was
filed in chancery. The trial
court subsequently transferred the case to the proba te
division, which ruled that
the failure to complete service before the six-month
deadline terminated the case.
The appellate court reversed,
holding that the jurisdictional aspect was decided
during the six-month time
frame, that the filing of the
pleading completed the jurisdictional aspect, and that ,ervice did not need to be completed prior to the expiration
of the six-month time limitation. Estate of Fred Howell,
No. 5-06-0224 . •
7. III re Estate of Lambrecht, No.
1-06-0287 (July 16, 2007) 1st
div . The trial court's finding
accepting appraisal obtained
by Independent Administrator of estate of real estate,
owned partially by decedent's trust, over appraisal
by 5-year long acquaintance
of objector, is not against the
manifest weight of the evidence. Trial court has wide
discretion in valuation of real
estate; and appraiser whose
testimony it accepted considered value of land and did
not improperly consider effect of long-term leases on
value .•
8. In re Estate of Phelan, No. 106-0820 (August 6, 2007) 1st
div . Affirmed in part reversed in part, remanded .
October 2007
Trial court was correct to
grant 2-1110 motion to dismiss Plaintiff's complaint
seeking to reform revocable
trust executed by her father,
which provided that if he
died within three years of
transferring ownership of life
insurance policy to trust,
proceeds of life insurance
policy should be paid to estate; because plaintiff presented no evidence to prove
that her father was mistaken
when he drafted the trust
proviSIons. However, trial
court erred when it ruled
that pour over provision of
will failed. Even though it
was not signed until after
will, trust was 'in existence'
at time of execution of will,
and qualified for incorporation into will. •
9. "Legislative Update: Section
Success and Opportunity in
the 95 th Session." The Trusts
and Estates section council
monitored 19 proposed
pieces of legislation this session with the council's major
initiative, a will repository,
gaining momentum. This article discusses the bills proposed, and what action has
been taken, including SB 481
and SB 452, which were
passed by the legislature. SB
481 increases the statutory
amount for custodial claims.
SB 452 relates to guardianship fees. A full copy of each
Act is available. ISBA Section
Council Newsletter, June 2007.•
10. "Probate Law - Life Insurance." The appeals court
held that if the parties agree
to change beneficiaries on a
October 2007
1
life insurance policy pursuant to a divorce decree, but
do not do so, equity requires
tha t the proceeds be paid to
the people who should have
been named beneficiaries.
Colleen Allton v. Lisa
Hintzsche, No. 3-05-0771, involved the first wife suing
the second wife, who was
executor of the husband 's
estate. The divorce decree
stated each party agreed to
maintain a life insurance policy on his or her life for the
benefit of their children. The
appeals court stated that the
agreement language was ambiguous as to whether existing coverage should be
changed or if new coverage
must be obtained. Chicago
Daily lAw Bulletil1, June 22,
2007 .•
11. "Adven tures in Dying: The
Journey of a Law Clerk." A
Valparaiso law student recently shared her experiences
from clerking in an estate
planning department, focusing specifically on estate litigation. Ms. Hegenmeyer's
personal experience observing her grandmother's estate
going through litigation
made her realize that while
estate planning often brings
comfort to our clients, many
wills and trusts once litigated
lose the intent of the testator,
and any of those feelings of
comfort following the execution of the documents was
illusory. ISBA Sectioll Council
Newsletter, June 2007.•
12. "Another Health Care Power
of Attorney: Mental Health
Treatment Preference Decla-
The Docket
ration." The living will, and
the power of attorney for
property and for health care
are common advanced directives. Another less common
advanced directive is also
available to capture the mental health treatment preferences of a client. The Mental
Health Treatment Preference
Declaration Act went into
effect in 1996, allowing an
adult to specify the mental
health treatment options he
would have his agent make.
The declaration is only valid
for three years, unless revoked, and unlike the health
care power of attorney, cannot become effective until the
principal is determined
"incapable" by two medical
doctors or the court. ISBA
Trusts & Estates Newsletter,
June 2007 .•
13. " Illinois land trusts: Five
statutes that can compromise
the anonymity of beneficiaries." Land trusts have been
used as estate planning devices for years, offering clients an option to avoid proba te by naming beneficiaries,
and the confidentiality of
ownership. While land trusts
are not as popular as they
once were, especially with
the rise in use of limited liability companies, practitioners should be aware of the
potential ways in which the
secrecy of ownership can be
compromised. Reviewing
these statutes, such as the
Land Trust Successor Trustee
Act or the Building Law Violation Ownership Disclosure
Act, will give several exam-
Page 41
pies of how easily the disclosure can be made. ISBA
Trusts & Estates Newsletter,
June 2007.'
14. "Stranger than fiction: The
Illinois Attorney General
wants trustees to WHAT!"
Under the Charitable Trust
Act, 760 ILCS 55 / 1 et al., the
Attorney General requires an
estate representative or a
trustee of a trust to notify the
AG of charitable bequests in
excess of $4,000. Failure to
comply with the notice requirements could result in a
fine ranging from $500 to
$1,000 to be levied against
the estate or trust. The statutory provisions are difficult
to understand for several
reasons, including key concepts are not adequately defined and the provisions extend beyond the expected
know ledge base of most probate and estate practitioners.
ISBA Trusts & Estates Newsletter, June 2007 .•
15. "What's so special about
Special Needs Trusts?" Today, one in everyone hundred fifty children born has
some form of Autism Spectrum Disorder. Similarly, tort
actions involving children's
injuries is also on the rise,
often resulting in multimillion dollar settlements for
the benefit of the child's care.
The use of a special needs
trust can become imperative
when the choice is between
depleting settlement funds or
obtaining Medicaid supplements and augmenting the
child's care with funds from
other sources. This article
Page 42
describes the three basic options for the creation of a
special needs trust with examples of when each option
works best. The Trusted Advisor, ATG Trust Company,
June 2007 .•
16. "Legal Malpractice - limitation periods." A legal malpractice claim does not accrue until a plaintiff discovers or within a reasonable
time should discover his injury and incurs damages attributable to his attorney's
neglect. The case of Warnock
v. Karm Willand & Patterson,
No. 1-06-0341, involved a
residential real estate closing
in which the Plaintiff/Sellers
argued that their attorney,
Karen Patterson, failed to
properly draft letter agreements during the sale of their
property, specifically with
regard to liquidated damages in case of default under
the contract. The underlying
real estate transaction was
cancelled in August 2000,
and the Plaintiffs filed the
malpractice suit in 2002. The
law firm moved to dismiss
on the basis that the limitations period expired. The
plaintiffs had been involved
in litigation with the contract
purchasers until August
2002, when a settlement was
reached. The appellate court
reasoned, that the statute of
limitations did not begin to
run until the settlement
agreement was reached,
which caused the Plaintiff!
Sellers to incur damages,
specifically due to the erroneously drafted letters by the
The Docket
attorney representing the
Plaintiffs during the sale
transaction. Chicago Daily
LAw Bulletin , July 11, 2007.•
17. "What's Great about
GRA Ts?" The grantor retained annuity trust is becoming a more popular estate-planning device due to
its flexibility and its ability to
minimize gift taxes. The basic objective of the GRATis
to transfer from the grantor's
estate to the remainder beneficiaries the appreciation
generated by the contributed
property during the term of
the GRA T. There are some
downfall s to the use of the
tool, and as with most ta xminimizing strategies, treasury regulations to be mindful
of. lllinois Bar Journal, August
2007.
18. "Heirs can sue over use of
soul singer's image." The estate of James Brown, the late
singer, have filed a lawsuit
alleging tha t an Internet
stock photography library
profited from his likeness
without his consent. Brown's
estate is focusing on the Illinois Right of Publicity Act,
765 ILCS 1075/10, which
provides in part that the
"right to control and to
choose whether and how to
use an individual's identity
for commercial purposes is
recognized as each individual's right of publicity." Chicago Daily LAw Bulletin, August 2, 2007.•
19. "Judges on ABA Panel describe living in fear, years
after unpopular rulings."
These judges' names may not
October 2007
be familiar to the majority of
the population, but the cases
they decided are. The judge
who ordered Terry Schiavo's
feeding tube removed still
faces threats on his life, two
years after entering the order. New Jersey Supreme
Court Justice Roberto RiveraSoto received a letter from a
radio talk show host informing him that his home address and phone number had
been announced on air after
he wrote the opinion tha t
stated that same-sex couples
deserve the same rights as
married couples. These
judges discussed the conseq uences of their actions, bu t
stand firmly behind their decisions. Many feel that public
opinion is skewed by the use
of the term "judicial activism." LAw.com, August 14,
2007.
20. "Family Law - Guardian ad
Litem, Attorney for the child,
Child representative." A year
ago, the Illinois Supreme
Court adopted Article IX of
its rules, which apply to
child custody proceedings.
This article attempts to define the terms and roles of
these various agents within a
child custody proceeding.
Additionally, the companion
article "So You Wanna be a
Child Rep ... " discusses the
qualifications for attorneys to
serve in any of these various
roles and includes steps to
obtain experience in this
area. Illinois Bar Journal, July
2007 .•
21. "Animal Law comes into its
own." While many find the
October 2007
amount of money spent on
pet "day-care" or "spa" treatments ridiculous, the fact is
millions of dollars are spent
each year on pets. Animal
law courses are increasingly
being offered at law schools
around the country. And
practitioners in a variety of
areas of law are facing challenges that touch on animal
law; estate-planning for a
trust to care for a pet after
death; custody hearings on
the care of an animal; tort
actions for nuisance of nontraditional pets to large-scale
nuisance agricultural operations. Illinois Bar Journal, August 2007.
22. Social Security: Costello v. Astrue, No. 06-4083 (8/23/07).
Appeal, N.D. III., E. District
Court erred in finding that
plaintiff could not offset
amount of repayment due to
SSA for benefits received
based on wrong exhusband's earning record
where plaintiff made application for said benefits after
asking SSA employee to
identify which ex-husband
would provide her with
more benefits. "Misinformation" provision of 42 U.s.c.
402 applied so as to require
SSA to calculate offset based
on amount plaintiff would
have received had she filed
application using earnings
record of correct ex-husband.
23. Public Act 95-410 amends the
Attorney Act to create statutory remedies against the unauthorized practice of law.
The bill's proposed remedies
include appropriate equita-
The Docket
ble relief; a civil penalty not
to exceed $5,000 which will
go to the Illinois Equal Justice Foundation; and actual
damages . •
24. "Helmsley leaves $12 million
for her dog." Real estate billionaire Leona Helmsley left
$12 million in her will for her
dog, Trouble, but cut out two
of her four grandchildren
entirely. Helmsley, who was
famously quoted as saying
"only the little people pay
taxes," died August 20 at the
age of 87 .•
25. "Mental Health Law - Involuntary admission." Section 3100 of the Mental Health and
Developmental disabilities
Code specifically provides
that the circuit court has jurisdiction over people not
charged with a felony who
are subject to involuntary
admission. The statute further establishes that the circuit court has no power to
enter an involuntary admission order when the respondent is a person charged
with a felony. In re Alex T.
involved a petition for the
involuntary admission of respondent Alex who had been
charged with aggravated assault. While the charge was
not specifically mentioned
during the hearing, the statute controls and no jurisdiction exists to enter the order.
The Second District Appellate Court vacated the earlier
Kane County ruling. In re
Alex T., No. 2-06-0049. Chicago Daily Law Bulletin, September 7, 2007.•
26. Involuntary Commitment -
Page 43
In re: Lillie M., No. 4-06-0947
(September 5, 2007). The
Fourth District Appellate
Court affirmed the trial court
decision based on a review of
the evidence presented at the
commitment hearing. Evidence, consisting of testimony of the psychiatrist that,
based on her observation of
Respondent and her review
of Respondent's medical records, petition, and examination of Respondent, supported that respondent suffers from mental illness that
makes her unable to care for
her own physical needs. That
evidence was sufficient to
find, by clear and convincing
evidence, that Respondent is
subject to involuntary commitment as the least restrictive acceptable alternative.
Respondent demonstrated
paranoia, which caused her
to cut her hair and bum it
and throw it in a toilet, and
refused to eat; and, although
she has a supportive family,
her family was unable to
adequately control her . •
Our next meeting will be
Tuesday, October 9, 2007, at
noon, in Courtroom C-307. Law
Librarian David E. Bender will
speak on the library as a resource for practitioners.
Please encourage your colleagues to attend the upcoming
meeting!
• The full texts of articles or
documents cited may be obtained by contacting Liz
Rochford at [email protected].
The meeting adjourned at
1:05 p.m.
Page 44
The Docket
October 2007
LeBA Attorneys Acquit
Themselves Well
on the FieldRarely Caught Stealing,
Attorneys Play Clean
by Michael Ori
T
he Lake County Bar Association wrapped up
another successful season of Co-Recreational Softball
with a second place finish in the
Waukegan Co-Rec Softball
League and a second place finish in the Waukegan Co-Rec
Tournament.
The team, featuring the talents of Deanna Bowen,
Gretchen Neddenriep, Amy
Weiss, Krysia Ressler, Ennedy
Rivera, Karen Boyd-Williams,
Maryann Bullion, Rob Bowen,
James Bertucci, Gerald Dietz,
Michael Conway, Jay Orlowski,
Mark Van Donselaar, Michael
Gauthier, Edward Valio, Billy
Williams and Michael Ori, improved from last place in last
year's league to a record of 8
and 2 and second place.
The team then went on to
playa marathon tournament in
which we played four games in
about six hours. LCBA trounced
V-Dubs at 1:00 by a score of 110, and then caught the Silly Rabbits looking past us and defeated them 9-2 at 4:00. In the
third game, LCBA played the #1
seed, Caseys. LCBA pulled off
the upset of the tournament by
beating them 9-7. Casey's only
other loss of the season came via
forfeit.
LCBA then went on to play
the #7 seed Frolic Tavern, which
turned out to be a team of ringers who were only seeded so
low because they forfeited half
of their games while they were
away playing in competitive
tournaments around the state.
We were then presented with
the second place tournament
trophy (which should have been
1st place for all of the normal,
non-steroid abusing teams).
The season was an overall
success and the team had a
great time. Each year, some
players stay and some leave, so
there are always spots for new
talent. If you are interested in
playing next summer, look for a
sign-up sheet to be faxed in the
Spring.
Thank you to our sponsor,
Lake County Bar Association, to
Robert Smith, and to our newest
President Frederic Bryan Lesser.
The team could not have done it
without their support.
The Docket
October 2007
Page 45
LfBA
New Members to the LeBA
- May 2007 to September 2007 Reuben A. Bernick
Kiera Berkley Durgan
Berger Schatz
Bannockburn, Ilinois
College:
University of Chicago
Law School: Harvard Law School
Attorney at Law
Round Lake Beach, Illinois
College:
University of Hawaii
Law School: Pepperdine University
Matthew E. Bing
Christian D. Elenbaas
Busse, Busse & Grasse
Chicago, Illinois
College:
Illinois State University
Law School: DePaul University
Attorney at Law
Waukegan, Illinois
College:
Southern Illinois University
Law School: Thomas Jefferson School of Law
Jean M. Nies-Blackwell
Jessica R. Faber
Attorney at Law
Lake Bluff, Illinois
College:
University of WI-Green Bay
Law School: Indiana University
Attorney at Law
Riverwoods, Illinois
College:
University of Georgia
Law School: Willamette University
Wilfred H. Chan
Robert D. Felker
Leibowitz Law Center
Waukegan, Illinois
College:
Loyola University
Law School: University of PA Law School
The Child & Family Law Center of the
North Shore, Ltd.-Highland Park, Illinois
DePaul University
College:
Law School: DePaul University
John P. Connolly
Michael W. Ford
Brady, Connolly & Masuda, PC
Chicago, Illinois
College:
Loyola University
Law School: DePaul University
Law Offices of Michael W. Ford
Riverwoods, Illinois
College:
University of Chicago
Law School: Loyola University
Michael A. Danforth
Nila R. Grahl
Shaw & Foley
Waukegan, Illinois
College:
Northern Illinois University
Law School: Regent Univ. School of Law
College of Lake County
Grayslake, Illinois
College:
Marquette University
Law School: DePaul University
Page 46
The Docket
October 2007
Patrick E. Halliday
Ira F. Leibsker
Dudley & Lake LLC
Libertyville, Illinois
College:
Northern Illinois University
Law School: DePaul University
Blatt, Hasenmiller, Leibsker & Moore, LLC
Chicago, Illinois
College:
Southern Illinois University
Law School: DePaul University
Kevin W. Hofert
Mark L. Levitt
Keiffer & Company
Lincolnshire, Illinois
College:
University of Michigan
Law School: John Marshall Law School
Cook County Public Defender
Chicago, Illinois
College:
University of Illinois-Urbana
Law School: University of IL College of Law
Amanda D. Howland
Robert J. Lumber
Attorney at Law
Lake Zurich, Illinois
College:
Michigan State University
Law School: Chicago Kent College of Law
Attorney at Law
McHenry, Illinois
College:
Marquette University
Law School: DePaul University
David A. Kahn
John O. Medved
Kahn & Kahn
Libertyville, Illinois
College:
University of Colorado
Law School: John Marshall Law School
Prairie State Legal Services
Waukegan, Illinois
College:
University of WI-Whitewater
Law School: John Marshall Law School
Michael V. Kern
Gene Meltser
Attorney at Law
Wheeling, Illinois
College:
Loyola University
Law School: Chicago Kent College of Law
Birg & Meltser
Deerfield, Illinois
College:
Law School: DePaul University
Beth Ann Laufenberg
Stacy L. Nummerdor
Attorney at Law
Lake Forest, Illinois
College:
University of Illinois
Law School: Chicago Kent College of Law
Attorney at Law
Grayslake, Illinois
College:
Washburn University
Law School: Washburn University
JohnD. Lee
Donald G. Olsen
John D. Lee & Associates
Fox Lake, Illinois
College:
Valparaiso
Law School: Valparaiso
Donald G. Olsen, PC
Lincolnshire, Illinois
College:
University of Illinois
Law School: University of Washington
October 2007
The Docket
Page 47
Avni M. Patel
Martin L. Shaffer
Hewitt
Lincolnshire, Illinois
College:
Boston University
Law School: Northern Illinois University
Lake County Public Defender
Waukegan, Illinois
College:
Yale University
Law School: University of Illinois
Ellen E. Perri
Michelle M. Valiukenas
Attorney at Law
Libertyville, Illinois
College:
Marquette University
Law School: John Marshall Law School
Prairie State Legal Service
Waukegan, Illinois
College:
DePaul University
Law School: John Marshall Law School
Katie E. Pinter
Peter C. Wachowski
Prairie State Legal Service
Waukegan, Illinois
College:
Loyola University
Law School: Indiana University
Bellas & Wachowski
Park Ridge, Illinois
College:
Loyola University
Law School: John Marshall Law School
Julia L. Riemann
Ann E. Walker
O'Halloian, Kosoff, Geitner, & Cook
Northbrook, Illinois
College:
UniverSity of Illinois
Law School: Northwestern University
Attorney at Law
Deerfield, Illinois
College:
University of Arizona
Law School: Capital University Law School
Barry A. Rose
Karen Boyd Williams
Attorney at Law
Round Lake, Illinois
College:
Northern Illinois University
Law School: Chicago Kent College of Law
Attorney at Law
Mundelein, Illinois
College:
Truman State University
Law School: DePaul University
Teri L. Ross
Richard o. Wood
Prairie State Legal Service
Waukegan, Illinois
College:
Northwestern University
Law School: DePaul University
The Wood Burditt Group
Lake Forest, Illinois
College:
Trinity College
Law School: John Marshall Law School
Kevin A. Schummer
Law Offices of Walter Schummer, PC
Libertyville, Illinois
College:
Marquette University
Law School: DePaul University
Page 48
The Docket
October 2007
BAR BULLETIN BOARD
WAUKEGAN-Professional office space available for immediate lease. Upper level office
space across from courthouse at One North
County Street, Waukegan. Reasonable price for
this prime location includes janitorial services
and utilities. Please call (847) 662-4321.
FOR RENT-16 N. West Street, Waukegan, 1
Block From Courthouse. 1-3 Offices. Nice
Space---Cheap. Perfect for Part-timer or Satellite. Off-street Parking. Utilities and janitorial
Included. High Visibility/High Traffic Area.
Call David at (847) 244-5400.
CRIMINAL
DEFENSE
ATTORNEYavailable for referrals and to cover any type of
court appearance. Experienced in traffic, DUI,
misdemeanors, felonies, and juvenile cases.
Available for any courthouse in Cook, DuPage,
Kane, Kendall and Lake counties. Co-counsel
fees provided. Contact Nello P. Gamberdino at
(773) 294-5532 or ngamberdino@yah oo.com.
ONCE IN A LIFETIME OPPORTUNITY TO
OWN A PIECE OF HISTORY AND AN EXCELLENT PIECE OF PROPERTY IN DOWNTOWN WAUKEGAN. Don't let the outside
fool you! Home is full of nooks and crannies.
Fantastic woodwork thru-out and 10 foot ceilings. Wonderful winding staircase to upper
apts. Finished basement w /bath, family room
and office. GREAT BUY! 4000 sq ft. May be
converted to a single family or use as law office.
(847) 623-7868, ex t. 140.
DOWNTOWN WAUKEGAN- Across from
Courthouse, 275-1200 square feet. janitorial
provided. Well maintained. Space available.
33 N. County & 325 Washington . Please call
Ron Pollack at (847) 482-0952.
FOR RENT-Lower level office space across
street from Lake County Courthouse, consisting
of 4 offices and 2 secretarial stations. Can be divided. Reasonable rent. Call Diane at (847)
244-0770.
FOR RENT- 1733 Washington Street, Waukegan. 1200 sq. ft. Beautifully decorated office
space. Plenty of parking. Will divide. Very
reasonable. Call Bob at (847) 561-6050.
FOR SALE WAUKEGAN-611 North Avenue,
walking distance to Courthouse. Zoned business and / or legal non-conforming single family
residence. Air-conditioned, two-story house
with front porch, walk-up attic and full basement (new furnace). First floor: 2 large rooms
and kitchen. Second floor: three rooms and
bathroom. Lots of storage space throughout.
Easy to maintain. Ideal for law offices, court
reporters, or rental property. jean Bailey at
(847) 662-2023.
Wednesday, October 17,2007-6:00 p.m.
Highwood Bocce Courts • 440 Bank Lane-Highwood, Illinois
$5.00 for Justinian Members • $100.00 for Non-Members
Pizza & Pop Provided • Cash Bar
Contact: Michael Ori at (847) 336-2090 or [email protected]
It's the fourth legal seminar
you've attended from
North American Title
and by now you ~an see why The Illinois
Department of Financial Institutions approves our
standards, and since continuing education is all
about enhancing your expertise, die chance to
learn from the leader makes uite a
difference.
..NORTH
"AMERICAN
~TITLE
• • COMPANY
Like Clockwork ®
www.nat.com
Chicago Loop 70 VI' Madison St. 312-853-1191 Crystal Lake 149 N. Virginia St. 815-455-2500
Hoffman Estates 2300 N. Barrington Rd. 847-490-4243 Libertyville IMI N. Milwaukee Ave. 847-367-4400
Palos Hills 9800 S. Roberts Rd. 708-598-6500 Skokie 5750 Old Orchard Rd. 847-581-9438
Waukegan 222 N. County Sr. 847-249-1200 Wheaton 373 S. Count)' Farm Rd. 630-690-9500
Yorkville 803 N. Bridge St. 630-553-9104
This calendar was created on 9/7/2007.
Please call (847) 244·3143 to confirm date, time and location of event before you attend.
OCTOBER 2007
Date
10/04
10/ 05
10/09
10 / 11
10/ 11
10/ 16
10/18
10/18
Event
Criminal Law Seminar Reception
Criminal Law CLE Seminar
Wills, Trust & Probate Committee
Public Relations Committee
Real Estate Committee
Family Law Committee
LCBA Executive Board
Gridiron Kick-Off
Date
11 /07
11 / 14
11 / 15
11 / 15
11/16
11/20
NOVEMBER
Event
Real Estate Committee
Legal Aid Committee
LCBA Executive Board
Member Appreciation Night
Wills, Trust & Probate CLE Seminar
Family Law Committee
Time
TBD
TBD
Noon
Noon
5:00p.m.
Noon
Noon
5:00p.m.
Location
Milwaukee, WI
Milwaukee, WI
C307
CLBAOffice
InLaws, Gurnee
C103
LCBA Office
Hussey's, Waukegan
2007
Time
5:00 p .m.
Noon
Noon
TBD
12:00-4:00 p.m.
Noon
Location
InLaws, Gurnee
Prairie State Office
LCBA Office
TBD
Lake Forest, Illinois
C103
If you aTe a Committee Chair aPJd wish to cJJange a meeting date or time,
please contact the LeBA Office at (847) 244-3143.
LAKE COUNTY BAR ASSOCIATION
7 N. County Street
Waukegan, IL 60085
NON·PRORT
U.s. POSTAGE
PAID
Mailed From
Z;p Code 60031
Permit No. 356