Pro Se Chicago's Weblog

September 18, 2017

Complaint for mandamus & civil rights relief from incompetent judges


When judges or officials are incompetent, malicious, or plain mean and violate your civil rights there are two other means that the public usually doesn’t realize by which they can obtain relief even during the case. The judge or official must have a mandatory (non-discretionary) duty under the law or constitution to do a particular act, must have failed to do it, and must be able to do it if ordered to do so in order to use a mandamus complaint. Civil rights law is very complicated.  Both types of complaints should be handled by an attorney, but as a starting place if you are interested in such complaints then this is an example that was filed by me, a non-attorney pro se. Look up the  case law and look up cases regarding mandamus or civil rights in the circuit courts and under your states’ laws.

  1. Mandamus – this is where you ask a court to order an official (including a judge) to perform a task that is mandatory and not discretionary like set a bail when no bail was set in violation of the law – in Illinois no bail is allowed only on murder cases, cases where the sentence may be life, or cases where a due process hearing was held and the defendant is proven to be a danger to the public or himself.
  2. Civil rights complaint for declaratory and injunctive relief. Suppose a court refuses to allow you to put any witnesses on the stand, refuses to allow you to subpoena documents or refuses to accommodate your disabilities, even when you discussed them with the disability coordinator and followed the court procedures. Under the federal civil rights act section 1983 you can ask a different court (either state or federal) under federal law to declare the judge’s acts or orders in violation of law or the constitution (declaratory relief) and order the judge to follow the law and allow you compulsory process or force the judge to accommodate your disabilities (injunctive relief).
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August 25, 2015

Sample appeal – Illinois small claims court – landlord steals items


Small claims court can be frustrating when judges look down on pro se plaintiffs and simply rubber stamp everything the defendant’s lawyer states.  This is a sample appeal of such an unjust ruling where the plaintiff lost due to I believe purposeful misconduct of an attorney and a judge. Read the Appellant’s brief here.

Note that appeals are not like trials. The Appellate Court may ONLY consider information on the record on appeal and in the transcripts. YOU CAN NOT ADD new evidence or information. Therefore, at trial in the local court, make a list and make sure you have all your witnesses and evidence or you won’t be able to add it later.  If the judge refuses to hear a witness or allow you to introduce evidence, then ask the judge to “make an offer of proof” (i.e. to have the  person testify or admit the evidence without it being considered just so that it is on the record). If you anticipate this will be a problem, then file the evidence or affidavit instead of as a motion, label it an “offer of proof” and file it in your case attached to this “offer of proof” where you state you are filing this offer of proof and why you are doing so.

The litigants names and case number were changed so they remain anonymous, except for the name of the corrupt landlord’s corporation and the judge.

Remember, in small claims, Illinois Supreme Court Rules 286(b) allows a small claims court to hear and view all relevant evidence, admit evidence with more relaxed rules of procedure and rules of evidence upon order of the court. This means the court may allow affidavits as evidence and not require the presence of a witness and may allow documents to be admitted without strict rules of authentication.

You must follow strictly all appeal rules, so don’t forget to read Illinois Supreme Court Rules for civil appeals and your local court rules also. Illinois Supreme Court Rules are here. If you don’t follow them, your appeal will be rejected.

Note strict rules such as:

  • 1 1/2 inch margin on left
  • requirement of certification page stating you followed the rules as to page limits
  • you use an appendix and not exhibits
  • the appendix must include an index to the record on appeal and the transcripts (if any), that the page number of testimony of specific witnesses must be indexed and that if you did not have a court reporter and made a “bystander’s report” instead that it is also in index, a copy of the order appealed from, and a copy of the notice of appeal
  • notice of filing and service and filing of record on appeal or record of proceedings (transcripts)
  • don’t forget to include your $50 filing fee or a petition for indigency (see Illinois Supreme Court web site and your local appellate court division’s rules)
  • bind the appeal brief securely on the left side (three staples is OK)

Note that you can not just make conclusory statements (“They ripped me off”).  You must back up all your statements, documents, testimony with evidence (testimony by witnesses, documents and reference to “authorities”), with case law (where a court has interpreted a law and said this is how the rules or statutes work and what they mean), or back it up with reference to other authorities (statutes, supreme court rule, administrative rules – note statutes are sent to administrative rules committee and then an administrative rule is made – many pro se litigants are not aware of this – see here; there are similar administrative rules in federal law and all state laws).

November 25, 2014

How confirmatory bias taints the law – a must read for all attorneys


There is a concept in psychology and psychiatry termed confirmatory bias, which often adversely influences the judgment of officers, attorneys, judges, and juries, resulting in biased, unfair or unlawful arrests, decisions and convictions. It is the unfortunate human tendency for each individual to become part of a position, to hold that position regardless and to hear only that which supports that position, a phenomenon known as “confirmatory bias”. Dr. Richard Rappaport, a nationally renowned member of the American Academy of Psychiatry and the Law concluded in an editorial in a leading Journal for the American Academy of Psychiatry and the Law, in 2006, that AZ, a civil rights activist, had been abused by the courts and police due to this principle, when they falsely labeled her as psychotic and treated her as an escaped mental patient, disregarding everything she said, withholding medication needed for medical illnesses that threatened her life, and even beat her.[1] In the 2013 murder trial of David Camm, the defense argued that Camm was charged for the murders of his wife and two children solely because of confirmation bias within the investigation.[2] Confirmatory bias is pervasive in law. It is an area which is ripe for increased efforts to recognize it, as well as for legislation and rules that incorporate methods to reduce it.  To see the rest of this article click here: HOW CONFIRMATORY BIAS TAINTS THE LAW

[1] Editorial:  Losing Your Rights: Complications of Misdiagnosis,  written by Dr. Richard Rappaport, J Am Acad Psychiatry Law 34:436-8, 2006

[2] “David Camm Blog: Investigation under fire”. WDRB. October 10, 2013.

 

August 1, 2014

Federal Petiton proving corrupt judges, sheriff, & state’s attorney in Cook County


SIC color_edited-1

PLEASE come to court and show support for Shelton at the next court date on Jan 13, 2016, 10am, 2600 S California, Chicago IL, courtroom 506. Write letters to the U.S. Attorney, Sen. Durbin, Sen. Kirk, your senator, Rep. Lipinsky or your representative, and the press. Some addresses are at end of post. Spread the word through social media that Shelton needs public support to continue these blogs and fight unlawful attacks against her in retaliation for them and for helping so many with pro se litigation and defense.

This is a petition for writ of habeas corpus to the federal district court in Chicago. The Cook County Sheriff in retaliation for Shelton filing civil rights suits has been falsely arresting Shelton repeatedly and maliciously prosecuting her for battery to officers. Of NOTE: She is never charged with battering anyone else and has a lifelong history of non-violent pacifism.  For more information go here.  Also read Shelton’s other blogs: http://cookcountyjudges.wordpress.com  http://chicagofbi.wordpress.com   http://cookcountysheriffdeputies.wordpress.com   http://illinoiscorruption.blogspot.com and search them for posts about Madigan in particular. They have beaten her so many times and so viciously that she now has post-traumatic-stress disorder and when aggressively approached by officers goes into a flashback where she cries, screams, tries to protect herself from imagined blows swinging her arms randomly (as she is reliving attacks) and cowers. If she is pushed, carried, or dragged, due to disabilities and severe balance problems she grabs at things to steady herself – all the while being out of touch with reality during these brief PTSD flashbacks. She has been arrested and charged with FELONY battery to an officer with a possible sentence of 3-14 years for “touching an officers ear and pulling her hair until her hand slipped off”. She has been held in jail one year on no bail and only recently released on $300,000 bail. This is unconstitutional excessive bail She has been denied notice, counsel of choice, discovery of evidence, and has been fraudulently accussed of being psychotic and unfit for trial, illegally without notice or jury trial, without any professional saying she was psychotic or unfit, sent to a secure mental health facility who after a few months said in court she was never unfit and is not psychotic and sent her back to jail. As a result of this lawlessness Shelton has now filed at Petition for Writ of Habeas Corpus to the Federal District Court asking for relief and presentment of the criminal conduct of judges, sheriff staff, state’s attorney, court clerk, and other corrupt persons to the U.S. Attorney for  prosecution. You can read it here: (download will be 24 pages) fed habeas 6-12-14 final Full Petition with evidence (download will be 400+ pages) Habeas Petition Asst. US Attorney Zachary T. Fardon United States Attorney’s Office Northern District of Illinois, Eastern Division 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Phone: (312) 353-5300 ______________________ FBI,Special Agent in Charge – Chicago Robert J. Holley 2111 W. Roosevelt Road Chicago, IL 60608 Phone: (312) 421-6700 Fax: (312) 829-5732/38 E-mail: Chicago@ic.fbi.gov _________________________ Senator Durbin WASHINGTON, D.C. 711 Hart Senate Bldg. Washington, DC 20510 9 am to 6 pm ET (202) 224-2152 – phone (202) 228-0400 – fax ____________________ Senator Kirk Washington, DC 524 Hart Senate Office Building Washington DC, 20510 Phone: 202-224-2854 Fax: 202-228-4611 ___________________ Congressman Lipinsky Washington, D.C. Office 1717 Longworth HOB Washington, DC 20515 P (202) 225 – 5701 P (866) 822 – 5701 F (202) 225 – 1012

July 31, 2014

When opposing counsel lie to the court


You can file a Petition for adjudiction of criminal contempt against the attorney whether the case is in the local court or the appellate court. You should attach an affidavit stating that you have reviewed the transcripts or motion wherein the false statement was made. You should swear that the statement was false and how it was false You can ask the court to hold the attorney in contempt for fraud upon the court and sentence him for criminal contempt after a trial. If the court holds the attorney in contempt for fraud, then you can file with the ARDC and ask for the attorney to be disbarred. ARDC = Attorney Regulatory and Disciplinary Commission.

A petition is written just like a motion, but it is a collateral proceeding and not part of the case. It should be given a separate case number by the clerk.

Opposing counsel is an officer of the court. Attorneys have a code of conduct under IL Supreme Court Rules that prevent them from making false statements. They can be disbarred and should be.

Criminal contempt is when someone makes  false statements or commits fraud upon the court. Criminal contempt cannot be purged. As those charged with crimes have a 5th Amendment right to remain silent they can not be ordered to show cause as in a civil contempt case where someone refuses to obey an order.  Therefore you must file a Petition for Adjudication of Criminal Contempt instead of a Motion for Rule to Show Cause as you would with civil contempt. Criminal contempt is an act that

Civil  contempt is when you disobey an order and you hold the keys to the jail as you can expunge the order to jail you if you comply with the order such as pay child support or perform an act ordered by the judge. This is not an attempt to embarrass the court or bring the court into disrepute.

The following contains extensive important case law relevant to above and your cases.

CONTEMPT OF COURT (CIVIL V CRIMINAL) 

Circle Management, LLC., v. Olivier, 378 Ill.App.3d 601, 317 Ill.Dec. 555, 882 N.E.2d 129 (2007) [Ill.App. 1st Dist]

Major controlling case with amici including Legal Assistance Foundation of Metropolitan Chicago (LAF), the Lawyer’s Committee for Better housing (LCBH), Cabrini-Green legal Aid (CGLA) and the Northwestern University School of Law Bluhm Legal Clinic (Bluhm Clinic).

         

Courts have inherent authority to punish a party for contempt. See People v. Warren, 173 Ill.2d 348, 370, 219 Ill.Dec. 533, 671 N.E.2d 700 (1996) (“The power to punish for contempt does not depend on constitutional or legislative grant”) [further citations omitted]

“Contempt of court has been defined as any act that is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or that is calculated to lessen its authority or dignity.” Levaccare v. Levaccare, 376 Ill.App.3d 503, 508, 315 Ill.Dec. 280, 876 N.E.2d 280 (2007), quoting People v. Budzynski, 333 Ill.App.3d 433, 438, 266 Ill.Dec. 713, 775 N.E.2d 275 (2002).

Criminal contempt sanctions are punitive in nature and require a finding that the contemptuous conduct was willful. People v. Minor, 281 Ill.App.3d 568, 574, 217 Ill.Dec. 449, 667 N.E.2d 538 (1996); People v. Ernest, 141 Ill.2d 412, 422, 152 Ill.Dec. 544, 566 N.E.2d 231 (1990).

Civil contempt is prospective in nature, and is “designed to compel future compliance with a court order.” Emery, 374 Ill.App.3d at 977, 313 Ill.Dec. 502, 872 N.E.2d 485, quoting In re Marriage of Sharp, 369 Ill.App.3d 271, 279, 307 Ill.Dec. 885, 869 N.E.2d 539 (2006).

Although a court may enforce an order to pay money through contempt, this power is “limited to cases of willful refusal to obey the court’s order.” In re Marriage of Logston, 103 Ill.2d 266, 285, 82 Ill.Dec. 633, 469 N.E.2d 167 (1984).

“’It is not a contempt of court to fail to pay money which one neither has nor can obtain and which he has not causelessly either put out of his hands or failed to receive.’” Shapiro v. Shapiro, 113 Ill.App.2d 374, 388, 252 N.E.2d 93 (1969), quoting White v. Adolph, 305 Ill.App.76, 79, 26 N.E.2d 993 (1940)

Trial courts have inherent authority to impose sanctions against a party that fails to abide by valid court orders. Sander v. Dow Chemical Co., 166 Ill.2d 48, 67, 209 Ill.Dec. 623, 651 N.E.2d 1071 (1995); Smith v. City of Chicago, 299 Ill.App.3d 1048, 1054, 234 Ill.Dec. 108, 702 N.E.2d 274 (1998).

FRAUD – NOT JUST FALSE STATEMENT, BUT ALSO SUPPRESSION OF THE TRUTH

It is also clear and well-settled Illinois law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); Moore v. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) (“The maxim that fraud vitiates every transaction into which it enters …”); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).

Fraud maybe inferred from nature of acts complained of, individual and collective interest of alleged conspirators, situation, intimacy, and relation of parties at time of commission of acts, and generally all circumstances preceding and attending culmination of claimed conspiracy Illinois Rockford Corp. V. Kulp, 1968, 242 N.E. 2d 228, 41 ILL. 2d 215. “The Court has broadly defined fraud as any conduct calculated to deceive, whether it be by direct falsehood or by innuendo, by speech or silence, by word of mouth, by look, or by gesture. Fraud includes the suppression of the truth, as well as the presentation of false information. (In re Witt (1991) 145 Ill.2d 380, 583 N.E.2d 526, 531, 164 Ill. Dec. 610).” See also In re Frederick Edward Strufe, Disciplinary case no. 93 SH 100 where the Court stated that “Fraud has been broadly defined as anything calculated to deceive.” “Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”

Fraud does not always divest court of jurisdiction and cause orders to be void. They however would be voidable.

 

Misrepresentation of neglect in petition for wardship did not void jurisdiction.

 

An order is rendered void only by lack of jurisdiction, not by error or impropriety. (p. 377)

 

Only fraud that confers only colorable jurisdiction upon court renders judgment void; fraud that occurs after court’s valid

 

Fraud can render a judgment void, but not all fraud can do so. (Johnson v. Hawkins (1972), 4 Ill.App.3d 29, 32, 280 N.E.2d 291.) There is a difference between fraud that confers only colorable jurisdiction upon the court, and fraud that occurs after the court’s valid acquisition of jurisdiction; only the former type of fraud will render a judgment void. (Schwarz v. Schwarz (1963), 27 Ill.2d 140, 144-45, 188 N.E.2d 673.) The latter type of fraud, fraud that occurs after jurisdiction has been acquired, will render the court’s  order voidable, but not void for lack of jurisdiction. (Vulcan Materials Co.  v. Bee Construction, 96 Ill.2d at 165, 70 Ill.Dec. 465, 449 N.E.2d 812; In re Marriage of Noble (1989), 192 Ill.App.3d 501, 509, 139 Ill.Dec. 133, 548 N.E.2d 518; James v. Chicago Transit Authority (1976), 42 Ill.App.3d 1033, 1034-35, 1 Ill.Dec. 552, 356 N.E.2d 834; Johnson v. Hawkins, 4 Ill.App.3d at 32, 280 N.E.2d 291.) Fraudulent concealment, for example, renders a court’s orders voidable, not void. In re Application of County Treasurer (1990), 194 Ill.App.3d 721, 726, 141 Ill.Dec. 350, 551 N.E.2d 343.

 

Can file civil rights suit against lawyer when they lie to the court and harm you

In ?  Vigus v. O’Bannon, 1886 N.E. 788, 118 Ill. 334; Hazelton v. Carolus, 1907 132 Ill. App. 512; Carter v. Mueller 457 N.E. 2d 1335 Ill. App. 1 Dist. 1983, The Supreme court has held that: “The elements of a cause of action for fraudulent misrepresentation (sometimes referred to as “(fraud and deceit)”are: (1) False statement of material fact; (2) known or believed to be false by the party making it; (3) intent to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. ______________, ____ U.S. _____ (_?_)

_____? citation_______Scott, 377 Mass. 364, 386 N.E. 2d 218, 220 (1979) See Lopez-Alexander, Unreported Order No. 85-279 (Colo. May 3, 1985) (Judge removed for, inter alia, a persistent pattern of abuse of the contempt power. The Mayor of Denver accepted the findings of the Denver County Court Judicial Qualification Commission that the judge’s conduct could not be characterized as mere mistakes or errors of law and that the conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute). Canon Ethics where there is a pattern of disregard or indifference, which warrant discipline.

Section 1983 of U.S.C.S. contemplates the depravation of Civil Rights through the Unconstitutional Application of a Law by conspiracy or otherwise. Mansell v. Saunders (CA 5 F 1A) 372 F 573, especially if the conspiracy was actually carried into effect, where an action is for a conspiracy to interfere with Civil Rights under 42 U.S.C.S. 1985 (3), or for the depravation of such rights under 42 U.S.C.S. 1983, if the conspiracy was actually carried into effect and plaintiff was thereby deprived of any rights, privileges, or immunities secured by the United States Constitution and Laws, the gist of the action maybe treated as one for the depravation of rights under 42 U.S.C.S. 1983, Lewis v. Brautigam (CA 5 F 1a) 227 F 2d 124, 55 ALR 2d 505, John W. Strong, 185, 777-78 (4 th ed. 1992).

Properly alleged facts within an affidavit that are not contradicted by counter affidavit are taken as true, despite the existence of contrary averments in the adverse party’s pleadings. Professional Group Travel, Ltd. v. Professional Seminar Consultants Inc., 136 ILL App 3d 1084, 483 N.E. 2d 1291; Buzzard v. Bolger, 117 ILL App 3d 887, 453 N.E. 2d 1129 et al.

i.e. even if false statements, unless you have affidavits that they are false, the statement is taken as true

FRAUD BY STATE IN CRIMINAL CASE – FALSE STATEMENTS TO CRIMINAL COURT

 

Where the public policy of the State of Illinois is violated, the order is void, Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).

“Fraud upon the court” makes void the orders and judgments of that court. It is clear and well-settled law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. People v. Sterling, 357 Ill. 354, 192 N.E. 229 (1934)

To apprehend a person on a sham or pretextual charge is so dangerous to interest of privacy and personal security as to call into play the exclusionary rule … The officer’s subjective intent and beliefs are quite crucial … If sham arrest operating under the impression that an arrest for offense count not stand up – use exclusionary rule …arrest must have a good faith probable cause  Carroll v. United States 267 U.S. 132, 156, 69 L.Ed. 543, 45 S.Ct 280 (1925); Moss v. Cox, 311 F.Supp. 1245, 1252 (ED VA 1970)

Due Process Defense 97 ALR Fed. 273

Inability to pay child support, court fee, & court-appointed counselor or examiner


A COURT MAY AWARD THE NONCUSTODIAL PARENT CHILD SUPPORT IF THE CUSTODIAL PARENT IS MUCH WEALTHIER THAN NONCUSTODIAL PARENT. THIS IS SO THAT CHILD CAN LIVE SAME LIFESTYLE WITH BOTH PARENTS.

In re Marriage of Turk 2014 IL 116730

 

Appellate citation: 2013 IL App (1st) 122486.

 

      JUSTICE KARMEIER delivered the judgment of the court, with opinion.

            Chief Justice Garman and Justices Freeman, Kilbride, and Burke concurred in the judgment and opinion.

      Justice Theis specially concurred, with opinion, joined by Justice Thomas.

 

            The parties to this Cook County child support dispute divorced in 2005 and have two sons, now ages 17 and 15. In 2012, the circuit court entered an agreed order establishing the father as custodial parent and setting up a visitation schedule for the mother under which she had regular visitation with the older boy once a week, for dinner on Wednesdays, and regular visitation with the younger boy, with weekly visits from Monday to Wednesday mornings, plus alternating weekends. This system gave her nearly equal time with him. At this time it was determined that the father earned approximately $150,000 per year and that the mother was earning less than $10,000. The father asked for termination of his obligation to pay support based on his custodial status, but the circuit court’s order required him to pay $600 per month in child support and to fund medical expenses not covered by insurance. The father’s claim that his designation as custodial parent meant that statute precluded requiring him to pay child support to a noncustodial parent was rejected by the circuit court, and the father appealed.

            The appellate court, like the circuit court, rejected the father’s claim of no obligation to pay child support, and it affirmed this aspect of the trial court’s ruling. However, it remanded for an evidentiary hearing for reconsideration as to the support amount. It did not, however, interfere with the circuit court’s ruling as to medical expenses.

            In this decision, the Illinois Supreme Court said that the Illinois Marriage and Dissolution of Marriage Act expressly confers on courts the option to order either or both parents to pay an amount that is reasonable and necessary for the support of the child, and, in its discretion, to order payment of various expenses determined to be reasonable, including health needs not covered by insurance. The supreme court explained that a parent who is technically noncustodial may have visitation rights which place the child in that parent’s care for periods of time which involve commensurate cost. This can be problematic if the noncustodial parent has fewer resources to meet the substantial support costs of an extensive visitation schedule. This would not only be unfair, but would leave the poorer parent with insufficient resources to care for the child in a manner even minimally comparable to that of the wealthier parent. A child should not end up living commensurate with the wealthier custodial parent’s income only half the time, when staying with the wealthier custodial parent. This could be detrimental to the child. Therefore, a trial court may order a custodial parent to pay child support where the circumstances and the best interests of the child warrant it.

            While rejecting the custodial father’s claims as to the meaning of the statute, the appellate court had remanded for an evidentiary hearing, with directions for the circuit court to clearly explain the basis for any support awarded. It was correct in this regard, but the supreme court held that, on remand, the circuit court should also revisit with specificity the issue of what portion of uninsured medical expenses the father should be required to pay.

            The appellate court was, thus, affirmed in part and reversed in part.

________________________________________________________________

THE U.S. SUPREME COURT HAS HELD THAT BEFORE A PERSON CAN BE JAILED FOR NONPAYMENT OF CHILD SUPPORT HE MUST BE GIVEN DUE PROCESS AND IN SOME CASES AN ATTORNEY – IF THE COURT DOES NOT PROVIDE THAT DUE PROCESS AS DEFINED IN THIS CASE

Turner v. Rogers, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011) [2011 BL 161240]

If incarcerated for failing to pay child support must have been given due process – notice, due process evidentiary hearing where it must be proven that defendant has ability to pay child support, and counsel. In a civil case, due process does not always involve appointment of counsel.

This is true only if there are procedural safeguards:

These include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay,

and the opposing counsel (parent) is pro se, then the court is not required to appoint counsel.

 

June 17, 2014

Offers of Proof – Preserving barred evidence & testimony for appeal


OFFERS OF PROOF

These are used to preserve evidence or testimony for the record when the court bars its introduction during the trial or during an evidentiary hearing. During a trial, if an offer of proof is formally made, the jury will be excluded and the witness is put on the stand so that the testimony will be on the transcript or the attorney/pro se counsel may put the evidence on the record or state what they expect a witness would have said in detail, just to get it on the record for purposes of appeal.  Anything not on the record cannot be considered for appeal.  If the judge won’t let you do this, you can file an offer of proof with an attached affidavit as to what the witness would have said or attached evidentiary document. This memorandum explains offers of proof a little more clearly. Everything I write uses Illinois and federal case law. 

MEMORADUM OF LAW – OFFERS OF PROOF

NOW COMES, Linda Shelton who respectfully presents to the court this memorandum of law.

  1. The refusal to allow an offer of proof in a trial denies due process and is reason for overturning the verdict. Every defendant has a Sixth Amendment right to present a defense. People v. Manion, 67 Ill.2d 564, 10 Ill.Dec. 547, 367  N.E.2d 1313 (1977) It is a fundamental error to deny the right to present a defense that requires the verdict be overturned. (Ibid)  Refusing to allow a person to place an offer of proof on the record, de facto denies defendant the right to present a defense.
  2. “When a party claims she has not been given the opportunity to prove her case because the trial court improperly barred certain evidence, she “must provide [the] reviewing court with an adequate offer of proof as to what the excluded evidence would have been.” In re Estate of Romanowski, 329 Ill. App. 3d 769, 773, 771 N.E.2d 966, 970 (2002). An offer of proof serves two primary functions: (1) it discloses to the trial court and opposing counsel the nature of the offered evidence, thus enabling the court to take appropriate action, and (2) it provides the reviewing court with an adequate record to determine whether the trial court’s action was erroneous. People v. Thompkins, 181 Ill. 2d 1, 10, 690 N.E.2d 984, 989 (1998).
  3. The traditional way of making an offer of proof is the “formal” offer, in which counsel offers the proposed evidence or testimony by placing a witness on the stand, outside the jury’s presence, and asking him questions to elicit with particularity what the witness would testify to if permitted to do so. People v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785, 794 (2002); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7, at 22 (8th ed. 2004).
  4. In lieu of a formal offer of proof, counsel may ask the trial court for permission to make representations regarding the proffered testimony. If counsel so requests, the court may–within its discretion–allow counsel to make such an informal offer of proof.
  5. A trial court may deem an informal offer of proof sufficient if counsel informs the court, with particularity, (1) what the offered evidence is or what the expected testimony will be, (2) by whom it will be presented, and (3) its purpose. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 451, 818 N.E.2d 713, 719 (2004). However, an informal offer is inadequate if counsel (1) “merely summarizes the witness’ testimony in a conclusory manner” (Snelson v. Kamm, 204 Ill. 2d 1, 23, 787 N.E.2d 796, 808 (2003)) or (2) offers unsupported speculation as to what the witness would say (People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126, 1132 (1992)). In deciding whether to permit an informal offer of proof, the court should ask itself the following questions: (1) Are counsel’s representations accurate and complete? and (2) Would a better record be made by requiring counsel to make a formal offer of proof, even though doing so might be inconvenient and require more time?
  6. In addition, before deciding whether to accept counsel’s representations in lieu of a formal offer, the trial court should ask opposing counsel if he objects to proceeding in that fashion, even though counsel’s response in no way limits the court in exercising its discretion on this matter. If opposing counsel concedes the sufficiency of the offer or has no objection to proceeding by counsel’s representations, then opposing counsel’s client may not later challenge the court’s decision to proceed by counsel’s representations, rather than a formal offer. See In re Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283, 287 (2004) (“Simply stated, a party cannot complain of error which that party induced the court to make or to which that party consented”); In re Marriage of Sobol, 342 Ill. App. 3d 623, 630, 796 N.E.2d 183, 188 (2003) (a party forfeits the right to complain of an alleged error when to do so is inconsistent with the position the party took in the trial court).
  7. We emphasize that a trial court is never required to settle for less than a formal offer of proof, whatever the positions of the parties at trial may be. Whether to do so is left entirely to the court’s discretion. Thus, if the trial court is not satisfied that counsel’s representations alone are sufficient, the court may require counsel to place his witnesses on the stand and make a formal offer of proof.”  Miller v. Miller, 2004 Ill. App. 4th Dist.

 

QUOTED FROM ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION  9 — 35

EVIDENTIARY MOTIONS AT TRIAL §9.48

 

 

  1. “Offers of proof are technically not evidentiary motions but rather serve as a sort of narrative insurance policy for appeal. Offers of proof are designed to preserve the record and guarantee that testimony that is not allowed is at least previewed for the appellate court. The purpose of offers of proof is discussed in Lagestee v. Days Inn Management Co., 303 Ill.App.3d 935, 709 N.E.2d 270, 237 Ill.Dec. 284 (1st Dist. 1999). Lagestee followed previous holdings that offers of proof are made to disclose to opposing counsel and the trial court the substance of excluded evidence and to enable the reviewing court to determine whether the trial court committed error thereon. It should be noted that unlike most of the motions made at trial, a motion to make an offer of proof is not subject to the discretion of the court. It has been held in People v. Richmond, 201 Ill.App.3d 130, 559 N.E.2d 302, 147 Ill.Dec. 302 (4th Dist. 1990), that trial courts are required to permit counsel to make offers of proof. Refusal to permit an offer may constitute error. However, refusal of an offer is not error if the suggested testimony is not relevant.

 

  1. Because offers of proof are essential to make and preserve a viable record, the offers should be as accurate as possible. In Snelson v. Kamm, 319 Ill.App.3d 116, 745 N.E.2d 128, 253 Ill.Dec. 354 (4th Dist. 2001), aff’d in part, rev’d in part, 204 Ill.2d 1 (2003), an offer was held adequate if it informed the court of the particular answer that would have been given. Note that Snelson also holds that a summary or synopsis will not suffice. The offer must be as accurate as possible.

 

  1. To insure that the offer is as accurate as possible, the author would urge that counsel write out, or at least loosely outline, the offer in advance so that it can be read carefully into the record. Obviously, the offer cannot always be written out; but in most instances, the opponent’s objection and the court’s possible denial can be anticipated. A written statement or an outline helps to ensure that all necessary evidentiary elements are included and clearly and artfully set forth. If the need for an offer has not been anticipated, counsel may ask the court’s indulgence for a short break to gather his or her thoughts and compose or outline the offer. If the evidence has been excluded during the testimony of a witness, the questions and proposed answers should be set so as to show the reviewing court what has been excluded. The traditional or classic method of making the offer involves posing the question and eliciting the answers from the witness. The alternative to the questions-and-answers format is for counsel to read the offer into the record. Presenting an offer of proof by orally reciting the substance of the expected testimony was specifically approved in Wright v. Stokes, 167 Ill.App.3d 887, 522 N.E.2d 308 (5th Dist. 1988). Although it runs counter to the conventional method of putting the witness on the stand, the narrative by counsel is the most effective and safest method. The narrative avoids an inarticulate or nervous witness who is very likely to be shocked and concerned by the exclusion of his or her testimony, insures that the testimony is on point, and should provide the optimum voice in setting forth the reasons why the evidence has been improperly excluded. An offer read into the record by counsel is generally more orderly and better understood.

 

  1. In making the offer, specificity is the goal. Conclusory or summary statements as to what the testimony or evidence would have shown will not preserve the record. Snelson, supra. Any offer of proof should be made out of the presence of the jury, and it is suggested that at the close of the offer counsel renew the request that the testimony be allowed into evidence. Restatement of the request gives continuity to the record, ties up loose ends, and ensures that the offer and the ruling of the court are tied together and understood by the reviewing court.

 

  1. Various texts and cases reflect a further relaxation in the method of making an offer and go as far as to suggest that it is not needed at all when the court clearly understands the objection and the nature of the evidence being offered. See People v. Foster, 81 Ill.App.3d 915, 401 N.E.2d 1221, 37 Ill.Dec. 128 (1st Dist. 1980). Notwithstanding Foster, it is strongly suggested that the offer of proof be made outside the presence of the jury in a formal manner whenever testimony has been circumscribed in whole or in part.

 

  1. From a purely practical standpoint, there is generally little likelihood that the offer of proof will have an immediate impact on the trial court. The fact that the offer is being made is indicative of the trial court’s position. The offer is primarily directed toward compiling and preserving an accurate record for appeal. Since the offer entails the refusal of testimony during the case in chief, it properly should be viewed as a very serious motion deserving careful attention.

 

  1. Thus, the offer of proof satisfies two critical needs in preserving the record on appeal: it demonstrates (1) that an error has been committed in excluding evidence and (2) that that error was harmful to the presentation of counsel’s case in chief. The author believes that the only way the above defects can be lucidly conveyed to an appellate court is through a disciplined, formal recitation on the record, as in the following sample: Your Honor, at this time I would like to make an offer of proof in connection with the testimony of [witness]. [Witness], if allowed to testify under oath in these proceedings, would testify as follows: [foundation establishing background and competency, and then a specific narrative of the substantive testimony that would have been adduced.]

 

  1. Again, the offer of proof should be as specific as possible, at all times avoiding summaries or vague conclusions.” [emphasis added]

 

Dated: April 29, 2014

Respectfully submitted,

 

 

Linda L. Shelton

Pro Se Defendant

 

May 27, 2014

Right to present a defense


Add your case’s caption, add the standard ending to a court pleading (Respectfully submitted by _______, and the litigants name address and phone), as well as a notice of service and filing.

Look up the case law in your state as Illinois case law has no precedent in another state which is true of all case law. Substitute your state’s case law for case law here, but you may be able to obtain search terms as sell as Shephardize the U.S. Supreme Court cases to find your state’s case law by using the following:

_____________________________________________________________________________________________________

MEMORADUM OF LAW – RIGHT TO PRESENT A DEFENSE

NOW COMES Linda Shelton who respectfully presents to the court this memorandum of law.

  1. A defendant has a right to present a defense, as in In re Marriage of A’Hearn, 408 Ill.App.3d 1091, 947 N.E.2d 333, 349 Ill.Dec.696 (2011), where the court ruled that it was too harsh a sanction as well as it ignored the best interest of the child, when in a post-trial motion to change custody was dismissed due to the litigant violating discovery. The court ruled that the best interests of the child were so important that a discovery violation was not extreme enough to deny a hearing on the merits.
  2. Every defendant has a Sixth Amendment right to present a defense. People v. Manion, 67 Ill.2d 564, 10 Ill.Dec. 547, 367  N.E.2d 1313 (1977) [It is a fundamental error to deny the right to present a defense that requires the decision be overturned. Striking Manion’s response was a denial of a right to present a defense as was the court’s decision to hold the trial and deny a continuance so Manion could obtain discovery and plan a defense.  The decision of the court was overturned.]
  3. It is a fundamental doctrine of law that a party to be affected by a personal judgment must have his day in court, and an opportunity to be heard. Renaud v. Abbott, 116 US 277, 29 L Ed 629, 6 S Ct 1194 (1886). Every person is entitled to an opportunity to be heard in a court of law upon every question involving his rights or interests, before he is affected by any judicial decision on the question. Earle v McVeigh, 91 US 503, 23 L Ed 398 (1875).
  4. Per the U.S. Supreme Court, a judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights. Sabariego v Maverick, 124 US 261, 31 L Ed 430, 8 S Ct 461 (1888), and is not entitled to respect in any other tribunal.

December 19, 2012

Discovery in misdemeanor cases in Illinois


Discovery in misdeemanor cases in Illinois do NOT follow the Illinois Supreme Court Rules on discovery which only apply to felony cases.

The rules in misdemeanor cases are described in a case called People v. Schmidt, 56 Ill.2d 572 (1974). They required the states attorney to give the defense a 1) witness list, 2) copy of confessions, and 3) any exculpatory evidence (evidence that proves the defendant or suggests the defendant is not guilty).

The defendant is NOT obliged to provide the state anything including witness lists in misdemeanor discovery.  The defendant’s witnesses can decide to refuse to speak to the state’s attorney’s investigators.

There are exceptions, but the state or defendant must ask for additional discovery by motion and have a hearing before the court about this issue.

The only change in the law was in a case called People v. Kladis,  2011 IL 110920 ¶ 23, 355 Ill.Dec. 933, 960 N.E.2d 1104    [#110920, 2011 IL 110920, 2011 Ill. Lexis 2236, 2011 IL 110920] where the court ruled that the state must also provide videos from police cars capturing the incident in discovery.

See this page describing all this in more detail.

https://prosechicago.wordpress.com/criminal-defense-procedures-in-misdemeanor-court/

August 9, 2012

Family Law – U.S. Consumer Protection Act limits amount of garnishment for child support


The consumer protection act REQUIRES that no more than 65 % of you income go towards paying back child support (this 65% includes  payment of taxes first, then child support, then any other garnishment of wages – total garnishment can be no more than 65 % if in arrears and 60 % of wages if not in arrears for child support).

From “Big Divorce Book” I Compiled:

11. “Title III, Consumer Protection Act”  Summary of authority and purpose of 15 USC § 1671 et seq. and 29 CFR Part 870 regarding maximum payments that may Be withheld under federal law from Obligor …………………………………………….  50-51

12. 15 USC § 1671 et seq. Federal Wage Garnishment Law (Title III of the Consumer Protection Act) & corresponding 29 CFR Part 870 …………………………………….  51-56

Mandates that when child support is an issue that federal and State taxes have priority over child support or other debts. Provides that child support has priority over other debts except for taxes. Provides that if the Obligor is not living with and supporting a spouse or child that no more than a total of 60% of net wages may be withheld from a paycheck and no more than 65% of net wages may be withheld from a paycheck if Obligor is more than 12 weeks in arrears ………………………………..   52-54

TITLE 15 > CHAPTER 41 > SUBCHAPTER II > § 1671. = 15 U.S.C. § 1671      Congressional findings and declaration of purpose

(a) Disadvantages of garnishment The Congress finds:

(1) The unrestricted garnishment of compensation due for personal services encourages the making of predatory extensions of credit. Such extensions of credit divert money into excessive credit payments and thereby hinder the production and flow of goods in interstate commerce.

(2) The application of garnishment as a creditors’ remedy frequently results in loss of employment by the debtor, and the resulting disruption of employment, production, and consumption constitutes a substantial burden on interstate commerce.

(3) The great disparities among the laws of the several States relating to garnishment have, in effect, destroyed the uniformity of the bankruptcy laws and frustrated the purposes thereof in many areas of the country.

(b) Necessity for regulation On the basis of the findings stated in subsection (a) of this section, the Congress determines that the provisions of this subchapter are necessary and proper for the purpose of carrying into execution the powers of the Congress to regulate commerce and to establish uniform bankruptcy laws.

15 U.S.C. § 1672. Definitions

For the purposes of this subchapter:

(a) The term “earnings” means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.

(b) The term “disposable earnings” means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.

(c) The term “garnishment” means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.

15 U.S.C. § 1673. Restriction on garnishment

(a) Maximum allowable garnishment Except as provided in subsection (b) of this section and in section 1675 of this title, the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed

(1) 25 per centum of his disposable earnings for that week, or

(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 206 (a)(1) of title 29 in effect at the time the earnings are payable,

whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2).

(b) Exceptions (1) The restrictions of subsection (a) of this section do not apply in the case of (A) any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure, which is established by State law, which affords substantial due process, and which is subject to judicial review.

(B) any order of any court of the United States having jurisdiction over cases under chapter 13 of title 11.

(C) any debt due for any State or Federal tax.

(2) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed— (A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual’s disposable earnings for that week; and

(B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week;

except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.

(c) Execution or enforcement of garnishment order or process prohibited No court of the United States or any State, and no State (or officer or agency thereof), may make, execute, or enforce any order or process in violation of this section.

15 U.S.C. § 1674. Restriction on discharge from employment by reason of garnishment

(a) Termination of employment No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.

(b) Penalties Whoever willfully violates subsection (a) of this section shall be fined not more than $1,000, or imprisoned not more than one year, or both.

15 U.S.C. § 1676. Enforcement by Secretary of Labor

(If someone violates this law you should complain to the U.S. Dept of Labor)

The Secretary of Labor, acting through the Wage and Hour Division of the Department of Labor, shall enforce the provisions of this subchapter.

29 C.F.R. 870 et seq.

Title 29: Labor

PART 870—RESTRICTION ON GARNISHMENT Section Contents

Subpart A—General

29 U.S.C. § 870.1   Purpose and scope. § 870.2   Amendments to this part. Subpart B—Determinations and Interpretations

29 U.S.C. § 870.10   Maximum part of aggregate disposable earnings subject to garnishment under section 303(a). § 870.11   Exceptions to the restrictions provided by section 303(a) of the CCPA and priorities among garnishments.

Subpart A—General § 870.1   Purpose and scope. (a) This part sets forth the procedures and any policies, determinations, and interpretations of general application whereby the Secretary of Labor carries out his duties under section 303 of the CCPA dealing with restrictions on garnishment of earnings, and section 305 permitting exemptions for State-regulated garnishments in certain situations. While the Secretary’s duties under section 303 include insuring that certain amounts of earnings are protected, such duties do not include establishing priorities among multiple garnishments, as such priorities are determined by other Federal statutes or by State law.

(b) Functions of the Secretary under the CCPA to be performed as provided in this part are assigned to the Administrator of the Wage and Hour Division (hereinafter referred to as the Administrator), who, under the general direction and control of the Assistant Secretary, Wage and Labor Standards Administration, shall be empowered to take final and binding actions in administering the provisions of this part. The Administrator is empowered to subdelegate any of his duties under this part. Any legal advice and assistance required for administration of this part shall be provided by the Solicitor of Labor.

29 U.S.C. § 870.2   Amendments to this part. The Administrator may, at any time upon his own motion or upon written request of any interested person setting forth reasonable grounds therefor, amend any rules in this part.

Subpart B—Determinations and Interpretations § 870.10   Maximum part of aggregate disposable earnings subject to garnishment under section 303(a). (a) Statutory provision. Section 303 (a) of the CCPA provides that, with some exceptions,

the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment may not exceed

(1) 25 per centum of his disposable earnings for that week, or

(2) the amount by which his disposable earnings for that week exceed thirty times the Federal minimum hourly wage prescribed by section 6(a)(1) of the Fair Labor Standards Act of 1938, in effect at the time the earnings are payable.

whichever is less. In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2).

(b) Weekly pay period. The statutory exemption formula applies directly to the aggregate disposable earnings paid or payable for a pay period of 1 workweek, or a lesser period. Its intent is to protect from garnishment and save to an individual earner the specified amount of compensation for his personal services rendered in the workweek, or a lesser period. Thus:

(1) The amount of an individual’s disposable earnings for a workweek or lesser period which may not be garnished is 30 times the Fair Labor Standards Act minimum wage. If an individual’s disposable earnings for such a period are equal to or less than 30 times the minimum wage, the individual’s earnings may not be garnished in any amount. (When the minimum wage increases, the proportionate amount of earnings which may not be garnished also increases.) On April 1, 1991, the minimum wage increased to $4.25. Accordingly, the amount of disposable weekly earnings which may not be garnished is $127.50 effective April 1, 1991. (For the period April 1, 1990 through March 31, 1991, the amount that may not be garnished is $114 (30×$3.80).)

(2) For earnings payable on or after April 1, 1991, if an individual’s disposable earnings for a workweek or lesser period are more than $127.50, but less than $170.00, only the amount above $127.50 is subject to garnishment. (For earnings payable during the period April 1, 1990, through March 31, 1991, when the Fair Labor Standards Act minimum wage was $3.80, this range computes to more than $114.00, but less than $152.00.)

(3) For earnings payable on or after April 1, 1991, if an individual’s disposable earnings for a workweek or lesser period are $170.00 or more, 25 percent of his/her disposable earnings is subject to garnishment. (The weekly figure was $152.00 (40×$3.80) for the period April 1, 1990 through March 31, 1991.)

(c) Pay for a period longer than 1 week. In the case of disposable earnings which compensate for personal services rendered in a pay period longer than 1 workweek, the weekly statutory exemption formula must be transformed to a formula applicable to such earnings providing equivalent restrictions on wage garnishment.

(1) The 25 percent part of the formula would apply to the aggregate disposable earnings for all the workweeks or fractions thereof compensated by the pay for such pay period.

(2) The following formula should be used to calculate the dollar amount of disposable earnings which would not be subject to garnishment: The number of workweeks, or fractions thereof, should be multiplied times the applicable Federal minimum wage and that amount should be multiplied by 30. For example, for the period April 1, 1990 through March 31, 1991 when the Federal minimum wage was $3.80 per hour, the formula should be calculated based on a minimum wage of $3.80 ($3.80 multiplied by 30 equals $114; $114 multiplied by the number of workweeks (or fractions thereof) equals the amount that cannot be garnished). As of April 1, 1991, the $4.25 Federal minimum wage replaces $3.80 in the formula (and the amount which cannot be garnished would then be $127.50 multiplied by the number of workweeks (or fractions thereof)). For purposes of this formula, a calendar month is considered to consist of 41/3workweeks. Thus, during the period April 1, 1990 through March 31, 1991 when the Federal minimum hourly wage was $3.80 an hour, the amount of disposable earnings for a 2-week period is $228.00 (2×30×$3.80); for a monthly period, $494.00 (41/3×30×$3.80). Effective April 1, 1991, such amounts increased as follows: for a two-week period, $255.00 (2×30×$4.25); for a monthly period, $552.50 (41/3×30×$4.25). The amount of disposable earnings for any other pay period longer than 1 week shall be computed in a manner consistent with section 303(a) of the act and with this paragraph.

(3) Absent any changes to the rate set forth in section 6(a)(1) of the Fair Labor Standards Act, disposable earnings for individuals paid weekly, biweekly, semimonthly, and monthly may not be garnished unless they are in excess of the following amounts:

Date Minimum amount Weekly amount Biweekly amount Semi-monthly amount Monthly rate Jan. 1, 1981 $3.35 $100.50 $201.00 $217.75 $435.50 Apr. 1, 1990 3.80 114.00 228.00 247.00 494.00 Apr. 1, 1991 4.25 127.50 255.00 276.25 552.50

(4) Absent any changes to the rate set forth in section 6(a)(1) of the Fair Labor Standards Act, if the disposable earnings are less than the following figures, only the difference between the appropriate figures set forth in paragraph (c)(3) of this section and the individual’s disposable earnings may be garnished.

Date Minimum amount Weekly amount Biweekly amount Semi-monthly amount Monthly rate Jan. 1, 1981 $3.35 $134.00 $268.00 $290.33 $580.67 Apr. 1, 1990 3.80 152.00 304.00 329.33 658.67 Apr. 1, 1991 4.25 170.00 340.00 368.33 736.67

For example, in April of 1990, if an individual’s disposable earnings for a biweekly pay period are $274.00, the difference between $228.00 and $274.00 (i.e., $46.00) may be garnished.

(5) If disposable earnings are in excess of the figures stated in paragraph (c)(4) of this section, 25% of the disposable earnings may be garnished.

(d) Date wages paid or payable controlling. The date that disposable earnings are paid or payable, and not the date the Court issues the garnishment order, is controlling in determining the amount of disposable earnings that may be garnished. Thus, a garnishment order in November 1990, providing for withholding from wages over a period of time, based on exemptions computed at the $3.80 per hour minimum wage then in effect, would be modified by operation of the change in the law so that wages paid after April 1, 1991, are subject to garnishment to the extent described in paragraphs (b) and (c) of this section on the basis of a minimum rate of $4.25 per hour. This principle is applicable at the time of the enactment of any further increase in the minimum wage.

29 U.S.C. § 870.11   Exceptions to the restrictions provided by section 303(a) of the CCPA and priorities among garnishments. top (a)(1) Section 303(b) of the Consumer Credit Protection Act provides that the restrictions in section 303(a) do not apply to:

(i) Any debt due for any State or Federal tax, or

(ii) Any order of any court of bankruptcy under Chapter XIII of the Bankruptcy Act.

(2) Accordingly the Consumer Credit Protection Act does not restrict in any way the amount which may be withheld for State or Federal taxes or in Chapter XIII Bankruptcy Act proceedings.

(b)(1) Section 303(b) provides the following restrictions on the amount that may be withheld for the support of any person (e.g. alimony or child support):

(A) Where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is issued), 50 per centum of such individual’s disposable earnings for that week; and

(B) Where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual’s disposable earnings for that week; except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve week period which ends with the beginning of such workweek.

(2) Compliance with the provisions of section 303(a) and (b) may offer problems when there is more than one garnishment. In that event the priority is determined by State law or other Federal laws as the CCPA contains no provisions controlling the priorities of garnishments. However, in no event may the amount of any individual’s disposable earnings which may be garnished exceed the percentages specified in section 303. To illustrate:

(i) If 45% of an individual’s disposable earnings were garnished for taxes, and this garnishment has priority, the Consumer Credit Protection Act permits garnishment for the support of any person of only the difference between 45% and the applicable percentage (50 to 65%) in the above quoted section 303(b).

(ii) If 70% of an individual’s disposable earnings were garnished for taxes and/or a Title XIII Bankruptcy debt, and these garnishments have priority, the Consumer Credit Protection Act does not permit garnishment either for the support of any person or for other debts.

(iii) If 25% of an individual’s disposable earnings were withheld pursuant to an ordinary garnishment which is subject to the restrictions of section 303(a), and the garnishment has priority in accordance with State law, the Consumer Credit Protection Act permits the additional garnishment for the support of any person of only the difference between 25% and the applicable percentage (50–65%) in the above quoted section 303(b).

(iv) If 25% or more of an individual’s disposable earnings were withheld pursuant to a garnishment for support, and the support garnishment has priority in accordance with State law, the Consumer Credit Protection Act does not permit the withholding of any additional amounts pursuant to an ordinary garnishment which is subject to the restrictions of section 303(a).

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