Friday, October 16, 2009

Halloween-Vampires, Slayers, and the Law

Halloween is just around the corner. I have received a number of calls from vampires concerning potential liability both civil and criminal for their actions. I have also received calls conversely from vampire slayers concerning civil and/or criminal penalties for killing vampires.

If a vampire does not kill the victim but instead turns them into a vampire is this illegal?

Illinois has had a law in the books since the late eighties that makes the knowing transmission of HIV a crime. Although, the vampire transmits his curse through the blood, no state has yet passed a law similar to the HIV statute related to vampires. I suspect this has to do with the large number of vampires who are elected members of the legislative branch of state and federal government. I should also note the impact of the well funded and powerful vampire lobby groups.

In addition those in the House and Senate of the werewolf persuasion are likely to vote against any legislation perceived as anti-vampire. Historically they are concerned that a similar statute could impact them in the future. I should note in the early 80's that both Republican and Democratic lycanthropes voted against funding for research involving miniature suns as a source of energy production. They did so out of respect for vampiric concerns.
Vampire Attacks that result in death or injuries.

Does this mean the vampires are free to act as they like? The answer is no. Battery is an unwanted touching. Under Illinois criminal law, "A person commits battery if he intentionally or knowingly without legal justification and by any means, causes bodily harm to an individual or makes physical contact of an insulting or provoking nature with an an individual." 720 ILCS 5/12-3. A battery can be charged criminally in the form of a misdemeanor battery (720 ILCS 5/12-3) or a felony battery (720 ILCS 5/12-4). Battery can also result in a civil suit. Meaning a vampire can be sued for monetary damages. If a person is killed in relation to a vampire attack the vampire can even be charged with murder (720 ILCS 5/9-1). A life sentence to a vampire is substantially longer then the same sentence to a human being and is thus a serious deterrent.

In 2002 The United States Supreme Court rejected the necessity defense as it relates to the undead in the case of Illinois v. Tepes. Illinois v. Tepes, 666 U.S. 327 (U.S. Supreme 2002). In that case the vampire argued he would die if he did not feed and thus his actions were necessary for survival. The majority opinion with Vlad Dracul as the sole justice in decent stated that a person or vampire can not choose one life for another. The Court further points to the possibility of feeding on animal blood or going to a blood bank. In the Illinois case of People v. Nosferatu, two arguments were made as affirmative defenses to a murder charge. The first was akin to an insanity defense alleging that the "blood lust" made the vampire unable to control his actions. The second argument was that the "blood lust" negated the ability for the vampire to act rationally and thus negated the "mental state" or "mens rea" that was a prerequisite to conviction of the crime. These arguments were rejected by the court. People v. Nosferatu, 232 Ill. Dec. 744, 623 N.E, 2d 666 (4th Dist. IL. 2003) Justice White speaking for the majority states, "Experts for the defense were able to establish the existence of the 'blood lust'. That being said there was no evidence this 'blood lust' was any different then a drug addicts desire for cocaine. To except this argument would open the flood gates to all addicts to justify any crime no matter how heinous." People v. Nosferatu, 232 Ill. Dec. 744 at 750, 623 N.E. 2d. 666 at 700 (4th Dist. Ill. 2003)

Thus, a vampire may be subject to both criminal and civil liability for battery. The courts have consistently found blood sucking to be an unwanted touching. Further, flying or floating through windows may result in a conviction for home invasion and/or residential burglary.

Potential Slayer Liability

The next issue relates to vampire slaying. In the landmark case of United States vs. Buffy S., the court held that slaying was not murder because the victim was not alive. United States vs. Buffy S., 23 U.S. 872 (U.S. Supreme 2007). As of yet I have not read any published cases relating to civil liability from the families of slain vampires.


In conclusion, the law is certainly not settled in regards to all aspects of this field. Garlic and/or a religious symbol may provide better protection overall then seeking protection from the courts. That being said I'm willing to make appointments in the evening if the sunlight would prevent your coming in for a free consultation.

Wednesday, October 7, 2009

How much do you charge?

Perhaps the most common question I'm asked is, "How much do you charge?". This seems like it is a very simple question and one that can be answered directly. If I call up my local fast food establishment and ask how much is a hamburger they should be able to provide a direct answer. If they didn't I would be suspicious. If I am preparing a person to testify in court I would always warn them to answer a direct question with a direct answer or it sounds like the person is hiding something. Yet, in the case of attorney's fees there are good reasons you wont be given a direct answer, as to price, over the telephone.
An attorney should be able to provide his or her hourly rate in advance. Ordinarily, the retainer in each case is based on what issues that individual case will involve. Thus, more information is needed to quote a rate of retainer. It is my policy not to charge for the initial consultation. This initial meeting will allow me to provide and obtain information needed to quote a retainer amount. I will explain in detail what and how I charge for my services. I always attempt to make an appointment for potential clients to come and see me within a couple days. This is true even if the time has to be outside of working hours.

Some factors that must be considered in hiring an attorney :

1. Do you like the attorney and feel comfortable with him or her. You will have to work closely together and share personal information. If you are not comfortable with the attorney you shouldn't hire that person. This is true even if their retainer is the lowest.

2. Does your attorney feel feel comfortable with you. I have been an assistant public defender and have worked for the Cook County Public Guardian's Office. In those jobs I had to take whatever case was assigned to me. I work for myself now. If I don't think I can help you or simply don't feel we can work together I wont take your money or the case.

3. Cases can involve more then attorney's fees. In a divorce there are filing fee's, the cost of service, costs for depositions, costs of mediation and costs to pay for the Guardian ad Litem not to mention the costs for expert testimony. I have had divorce cases where the fee for a home and background investigation was greater then the attorney's fees for the entire case. It is up to the client what they want to spend for experts and discovery.

4. Retainers and hourly rates don't tell the whole story. If someone bills you each time they think of your case you may end up with a higher bill then you would with a lawyer who charges a lower hourly rate. Also, A lawyer with greater experience and thus may charge a higher hourly rate may take less time to do the same thing because they don't need to research as much.

5. Who are you getting. If I hire a lawyer who will do the work? It is reasonable to ask a lawyer, "Who will do the work on my case?". Will the work be done by a paralegal, another lawyer in the firm or the lawyer you hired. This is a very common problem. You may hear great things about a lawyer but if someone else in the law firm does the work then it does not matter.

6. Criminal cases my be different. I usually do not charge by the hour in criminal cases but instead charge a flat rate. It may be divided in two parts. One fee up front and another if the case goes to a jury trial. I often hear someone complain that they want to hire a "real attorney" because a public defender was appointed to their case. A public defender is a "real attorney" and may indeed do a very good job on your case. Generally, the problem with a public defender is that person may have so many cases that it's not be possible to devote as much time to your case as you may want. Thus, if you hire an attorney in private practice you need to make sure that lawyer will devote the time needed to your case. The cheapest attorney my not be the best. After all if their rates are low due to the volume of cases they take on then they also may not have the time to devote to your case.

The second most common question I'm asked that relates to the first is, "Have you handled a case like mine before?". I have been an practicing law since 1992. Most of my case work involves family law and criminal law. So it is rare to run into an issue I have never seen or considered before. Yet, each case is also different. Your family and thus your situation is unique. What is unique to your situation is what the court needs to consider in making an informed decision.

My rates are low given my level of experience. The reason why is that I try and keep my expenses down where possible. Yet, price should not be the major factor in hiring a lawyer. I would not go to the hospital and ask for the cheapest brain surgeon. I would meet the individuals involved and pick the best person for my problem. Don't ignore the price but don't forget what is most important. Your freedom and your children are priceless.

Friday, October 2, 2009

higher education and divorce

In a dissolution of marriage case the court can order one or both parents to contribute towards the higher education costs and expenses for the benefit of their children. This article discusses some of the constitutional implications of this statute. It further addresses some practical advice in addressing agreements to contribute to higher education.

In a divorce proceeding the court can order the parents to contribute towards the Higher Education of their child. 750 ILCS 5/513. Such a request for contribution can be made before or after the child has reached the age of majority. 750 ILCS 5/513 (a)(2). The statute points out “The educational expenses may include, but shall not be limited to, room, board, dues, tuition, transportation, books, fees, registration and application costs, medical expenses including medical insurance, dental expenses, and living expenses during the school year and periods of recess, which sums may be ordered payable to the child, to either parent, or to the educational institution, directly or through a special account or trust created for that purpose, as the court sees fit.”750 ILCS 5/513 (a)(2). The court can consider all relevant factors before ordering the contribution to higher education costs including “1) The financial resources of both parents. (2) The standard of living the child would have enjoyed had the marriage not been dissolved. (3) The financial resources of the child. (4) The child's academic performance.” 750 ILCS 5/513 (b). In this article I will discuss the constitutionality of this statute. I will also make some suggestions on addressing higher education funding in divorce proceedings.

The constitutionality of this statute has been unsuccessfully challenged based on the claim it violates the “equal protection” clause of the Fourteenth Amendment to the United States Constitution.The 14th Amendment to the United States Constitution. The Fourteenth Amendment states “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”. The 14th Amendment to the United States Constitution.

Married parents have no legal obligation to pay for their children’s higher education. Yet, under Illinois law, divorced parents can be compelled to pay for their children’s college education. Thus, it has been argued that by treating two similarly situated people dissimilarly it violates the equal protection clause of the Fourteenth Amendment. The 14th Amendment to the United States Constitution. In the case of In re Marriage of Kujawinski, the court upheld the constitutionality of the statute based on an equal protection challenge. In re Marriage of Kujawinski, 71 Ill. 2d. 563, 376 N.E. 2d. 1382 (Ill. Supreme 1978). This argument was again unsuccessfully made in the case of In re Marriage of Kuhn. In re Marriage of Kuhn 221 Ill. App. 3d. 1, 163 Ill. Dec. 429, 581 N.E. 3d. 380 (2nd Dist. 1991).

Although, this statute has survived constitutional challenges based on “equal protection”, it may be vulnerable to attack based on other constitutional grounds. The 14th Amendment to the United States Constitution. It can be argued the statute deprives a parent of his or her “liberty” raising their child as they see fit. The 14th Amendment to the United States Constitution. There are parents who believe struggling through college helps turn a child into a well rounded adult. There are those wealthy individuals who attribute their later success in life to working their way through college. Not to mention some of the most successful people in the world never completed college. Abraham Lincoln only had a year of formal education. Billionaires such as Bill Gates (Microsoft®) and Steve Jobs (Apple®) never finished college.

In the movie Soul Man a student is accepted to attend Harvard University but his rich parents will not pay the tuition. When he approaches the University concerning financial aid he is informed, “...they have support for parents who are poor, but not for those whose parents are assholes.” Soul Man, New World Pictures 1986. I believe parents should try and pay as much as they can afford towards their children’s education. That being said the opposite opinion is not inherently unreasonable.

Contribution hearings also show a likelihood for becoming even more contentious in the future. As people have children later in life and the economy gets worse this will add to the problems associated with paying for higher education. Parents may have a legitimate concern for their own well being. As a parent nears the retirement age she may take the position that the children will have time to pay back student loans but she needs her savings to retire. It is easier to obtain loans and grants for higher education then for adults to obtain money for retirement and medical care. A student has far more time and less obligations in order to pay back debt. The Illinois Supreme Court has discussed how one of the fundamental rights a parent has is the right to raise their children as they see fit. The Illinois Supreme Court in finding the Illinois Grandparents visitation statute unconstitutional discusses how it is presumed a fit parent will do what is best for his children. Lula v. Lula 193 Ill.2d 455, 739 N.E.2d 521 (Ill. Supreme 2000); Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002) . Thus, if a parent does not want to send their child to college, isn’t that decision constitutionally protected? Isn’t such a decision presumed to be in the child’s best interest?

In the case of Wickham v. Byrne the Illinois Supreme Court states “One of the fundamental rights protected under the Fourteenth Amendment is the right of parents to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion.” Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002). The court goes on to say, “Decisions concerning care, custody, and control include, for example, decisions about a child's education, religion, and general upbringing.”Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002). These decisions are not based on equal protection but based on the fundamental right to “liberty” also provided under the 14th Amendment of the United State’s Constitution. The 14th Amendment to the United State’s Constitution.

The statute may also be vulnerable to a claim based on religious freedom under the “establishment’ and “free exercise” clauses of the First Amendment. The 1st Amendment to the United State’s Constitution. There may also be a challenge based on “freedom of speech”. The First Amendment to the United States Constitution states “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The 1st Amendment to the United State’s Constitution.

In Wisconsin v. Yoder, the United States Supreme Court held that Amish children could be exempt from compulsory education requirements. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). The court found a statute allowing the government to require parents to make their children obtain a certain level of education despite the wishes of the parents was unconstitutional. This decision was clearly based on some unique characteristics of the Amish. These included not only their religious beliefs, but also how they have been self-sufficient and require little government involvement. It could still be argued the state does not have a compelling interest to force an unwilling parent to pay for college.

Unless there are extraordinary circumstances, it would be very difficult to convince a judge a child should not go to college for religious reasons. A better argument would be that a parent should be allowed to reject a specific school for religious reasons. If the court were to order a parent to pay money to a school that holds views fundamentally opposed to his or her religious beliefs, doesn’t it violate the parent’s First Amendment rights? The 1st Amendment to the United State’s Constitution. Isn’t the judge and thus the government endorsing whatever religion with which the school is affiliated?

Why should a fundamentalist Christian be forced to pay for his or her child to attend a college that teaches evolution? Why should a person who is not Christian pay for their child to attend a school that encourages prayer and fundamentalist doctrines? In the case of In re Marriage of Spear, the court upholds the trial court decision that the father need not contribute to college expenses at an unaccredited bible college. In re Marriage of Spear, 244 Ill.App.3d 626, 613 N.E.2d 358 Ill.App. 4 Dist.,1993. The court, however, does not base its decision on the First Amendment and specifically states “We make no attempt to compare the benefits of Bible college and secular schools; we focus instead on the propriety of the school for the particular student based on ‘all relevant factors.’” In re Marriage of Spear, 244 Ill.App.3d 626, 613 N.E.2d 358 Ill.App. 4 Dist.,1993. The court goes on to state, “Here, if Patience had expressed a strong desire to pursue a religious vocation such as working as a missionary or a pastor, her choice to attend a bible college might be a logical one, and the focus would then shift to other relevant factors such as the financial resources of her parents.” In re Marriage of Spear, 244 Ill.App.3d 626, 613 N.E.2d 358 Ill.App. 4 Dist.,1993. The court seems more interested in what is in the student’s best interests then what the parent wanted.

There are various Supreme Court cases where government funds are used to pay for a religious education that have been upheld against First Amendment challenges. Witters v. Washington Department of Services for the Blind, 474 U.S. 481(U.S. Supreme 1986). Zelman, v. Simmons Harris, 536 U.S. 639 (U.S. Supreme 2002). Yet in these cases the money was provided to individuals to use as they saw fit. It was the individual and not the government who choose a religious school. If the court orders a parent to pay for tuition to a specific college with a religious affiliation that judge is ordering a parent to support directly that religious institution and thus that religion.

If a parent is forced to pay for a particular school it also impacts their freedom of speech. In Buckley v. Valeo the Supreme Court, in the context of political campaign reform, discusses how money is a form of speech. Buckley v. Valeo, 424 U.S. 1 (Supreme 1976). In America money does talk and paying money to a school says a parent supports that school. It may make a religious statement if a student attends a religious institution such as Notre Dame or Wheaton College.

A student’s choice of schools may also make a make a statement of defiance. A parent who attended the University of Illinois may not want their child to go to the University of Michigan or the University of North Carolina based on memories of past sporting events. A parent with conservative political views may not want their child to go to a liberal college. Does it violate the First Amendment to order a parent to pay for a college of which they don’t approve. If money talks then that speech is protected by the constitution. Gloria Steinem said, “We can tell our values by looking at our checkbook stubs”.

As a general rule Illinois courts have shown a preference towards public schools vs. private schools. In re Support of Pearson, 111 Ill. 2d 545. 490 N.E. 2d. 1274 (Ill. Supreme 1986). That being said, courts have supported sending children to private schools as well. Gibb v. Troezemberg, 188 Ill. App. 3d. 695, 135 Ill. Sec. 948, 544 N.E.2d. 444 (4th Dist. 1989). These cases appear to be decided based on financial circumstances and resources of the parents and the child rather then on politics or religious reasons.

In terms of practical advice, most judges will order a parent to contribute to college if they can afford it. This is due in part to the fact that college has become a necessity in a modern world. A college degree is equivalent to a high school diploma in the past. Also, judges and lawyers all have college degrees as well as law degrees, so most believe that higher education is a necessity.

That being said where the child goes to obtain higher education is a matter a parent has some room about which to argue. This is particularly true when a parent has a good faith argument that a particular institution is not appropriate. That could be based on money, religion or simply an honest belief as to what is best for the child.

It also makes good sense to think about higher education during the time of the divorce decree to avoid conflict later on. People change as time goes on. People’s values grow apart after a divorce. Thus, at the time of the divorce it may be easier to agree on how best to address higher education costs.

Addressing higher education at the time of the divorce allows parents an opportunity to save for college appropriately. A responsible parent may put money away for the child’s education each month. During the same period of time the other parent may not save any money for education. Then at the time the responsible parent petitions for higher education support, the judge may consider the financial resources of the child and point out that the child already has plenty of money. Thus, the financially responsible parent is punished for their sacrifice. If both parents know in advance how college is to be paid for, they will be better prepared to save.

If at the time of the divorce, a child is very young and the parents have no idea of his or her talents, it may be more difficult to plan for higher education at the time of the divorce. Obviously, a child’s grades, talents and desires are not yet possible to determine. Thus, in certain circumstances it may benefit the parties to wait.

It is also advisable in coming to an agreement to pay for higher education that expenses be as specific as possible. How is higher education defined? Should it be a private or public institution? Must the school be accredited? Does it include only four year universities or colleges or is a trade school or junior college appropriate. What does college include? Does it include transportation, food, clothes, insurance and gasoline? Are there geographic restrictions? Is it appropriate to go a University in Hawaii or in Malibu? Does it include a lap-top computer books and supplies. Does it matter if the college requires a computer?

What is the responsibility of the student? Does the student need to first apply for student loans, grants and scholarships? Does the student need to obtain certain grades? Can the student leave school and then come back? If the student gets married should the parents continue to pay for school? Must the student provide a class schedule to the parents and a copy of his or her grades?

Are there financial limitations? There are culinary schools in New York City and Paris France far more expensive then the most expensive private colleges. How many years of college must a parent contribute towards? Must the student graduate in four years? Are the parents willing to pay for graduate school?

Parents tend to want to be ambiguous when it comes to agreements concerning higher education. Parents tend to assume their child will make a reasonable and prudent decision. This is often a mistake. I would argue this is one area of the law where being detailed and specific can benefit your client a great deal in the end. If one parent is to pay the entire cost of higher education, there is a greater likelihood for problems down the road as only one person has a real incentive to keep costs down. Thus, in such cases it is important to be particularly detailed.

In conclusion, the contribution towards higher education is an area of the law that has interesting constitutional implications. It can help to avoid problems by agreeing to higher education expenses at the time of the divorce. Finally, the more detailed and specific any agreement is concerning higher education, the greater the likelihood you wont have to come back to court for this topic in the future.