Arizona Legal Brief

ARIZONA IMMIGRATION LAW – from FOXNEWS.COM

JamesCork — Fri, 30 Apr 2010 02:31:57 +0000

“From Minnesota to Georgia, Politicians Lend Support to Arizona Immigration Law”

If it’s good enough for the desert, it’s good enough for 10,000 lakes. That’s what a group in Minnesota is saying as it calls for an Arizona-style crackdown on immigration in the North Star State.

And more than a thousand miles away, in Georgia, a Republican candidate for governor says he’s all for it.

Ruthie Hendrycks, president and founder of Minnesotans Seeking Immigration Reform, says Arizona’s new immigration law should be mirrored in Minnesota, where roughly 125,000 illegal immigrants lived as of 2007, according to some estimates.

"This issue of illegal immigration and addressing it is long overdue," Hendrycks told FoxNews.com. "The situation is out of control, and until the federal government steps up to the plate to enforce our laws, the states have no other choice than to enforce federal law through state law."

Hendrycks, a Republican who will announce her candidacy for state Senate later this week, said she plans to contact Minnesota Gov. Tim Pawlenty regarding her proposal. Hendrycks anticipates widespread support among the state’s residents.

"Although there are voices on both sides of the issue, Minnesotans are not blind to what’s happening across the nation and how it is affecting them on a state level," she said. "I believe that the majority of Minnesotans understand the issue and would be in favor of enforcing our laws."

Arizona’s law, which allows police to question anyone about their immigration status and to request to see documentation if they suspect they are in the country illegally, has been described as "poorly conceived" by President Obama. Homeland Security Secretary Janet Napolitano, Arizona’s former governor, has also been critical of the law, as has Attorney General Eric Holder, who has indicated the federal government may challenge it.

But Hendrycks rejected critics’ claims that the law will lead to racial profiling.

"This is not about race, it is about the law," she said. "It comes down to enforcing our law. We are a nation of laws and it’s high time that officials at both federal and state levels start enforcing our laws and not reward those who are breaking the laws."

According to Department of Homeland Security figures, Minnesota is not among the top 10 states with unauthorized immigrant populations. California and Texas topped that list last year, with 2.6 million and 1.68 million, respectively. A total of 10.8 million unauthorized immigrants were identified nationwide in January 2009, compared to 11.6 million in January 2008 and 8.5 million in 2000.

Roughly 125,000 illegal immigrants lived in Minnesota as of 2007, according to an estimate by the Federation for American Immigration Reform, and in 2005 the estimated cost of illegal immigrants to the state was between $148 and $188 million, a report by Minnesota’s Department of Administration estimated.

A spokesman for Pawlenty did not return repeated requests for comment on Wednesday. In January 2008, Pawlenty proposed measures to counter illegal immigration, including a ban on so-called "sanctuary cities" and new penalties for employers who hire illegal immigrants, but those proposals languished in the state’s Legislature.

Meanwhile, in Georgia, which had 480,000 illegal immigrants last year — sixth in the nation –Republican candidate for governor Nathan Deal said he supports Arizona’s new law and would like to see it in the Peach State.

"As governor of Georgia, I’d work to pass and sign similar legislation," Deal said in a statement released Tuesday. "The new Arizona law is called ‘controversial,’ but 70 percent of Arizonans approve of it. I think there would be similar support in Georgia for such legislation. Our public services are stretched beyond their limits during these tough economic times, and our open borders result in our states and counties importing poverty. Local taxpayers foot the bill for these significant additional costs."

In Illinois, local activists chanted "Illinois is not Arizona" on Tuesday as they tried to block the deportation of 67 Mexican nationals from a federal deportation center in Broadview, a suburb of Chicago, the Chicago Tribune reported. Two dozen protesters were arrested on disorderly conduct charges as part of a movement energized by the passage of Arizona’s law last week.

According to DHS figures, Illinois had the fifth-highest number of unauthorized immigrants among U.S. states in January 2009 with 540,000 immigrants identified — 440,000 in 2000.

Despite that 24 percent increase, some activists said the newly passed law in Arizona is a dangerous precedent likely to translate to resentment against Latino immigrants in other parts of the country.

"There is now a racial reign of terror spreading across the country and it has to be stopped," Joshua Hoyt, director of the Illinois Coalition for Immigrant and Refugee Rights and one of those arrested, told the Chicago Tribune.

Arizona Court of Appeals – RETROACTIVE CHILD SUPPORT – from ELEGAL

JamesCork — Fri, 30 Apr 2010 02:28:34 +0000

April 22, 2010 CV 09-0376 Simpson v. Simpson
If the trial court awards child support pursuant to Arizona Revised Statutes section 25-320(A) at the time of a family court proceeding, must it also award child support pursuant to Arizona Revised Statutes section 25-320(B) for the time period from the date of petition to the time of the proceeding? Read opinion.

December 24, 2009 . . . . . CV 08-0818 . . . . . . . . . . . . . . . . . . Pullen v. Pullen – From Arizona Court of Appeals Division One

JamesCork — Tue, 12 Jan 2010 17:22:39 +0000

1. Does the reasoning of Little v. Little, on what test to apply to attribute greater
income to a parent for support purposes, apply to attributing income to a spouse
for maintenance purposes?

2. What factors should a court consider in determining whether to attribute greater
income to a spouse for maintenance purposes?

This case gives a good overview of what factors courts will consider regarding spousal maintenance and child support amounts relative to obligor and obligee’s income. FOR MORE INFORMATION ON CHILD SUPPORT AND SPOUSAL MAINTENANCE OBLIGATIONS CONTACT THE LAW OFFICE OF JAMES CORK PLLC – 480-626-4881.

SEE OPINION

Property Division – Classification Gersten v. Gersten Arizona Court of Appeals, Division 1, Department B, Nov. 17, 2009 -from ABA Journal

JamesCork — Tue, 22 Dec 2009 21:06:12 +0000

Husband’s Federal Employees’ Compensation Act (FECA) income was community property during the marriage, for purposes of determining whether firearms husband purchased with his FECA proceeds were community assets subject to division in marriage dissolution action; husband became disabled shortly after the marriage while working as a United States postal employee, FECA benefits compensated claimants for lost wages, loss of earning capacity and medical expenses, and husband did not demonstrate what portion of his FECA benefits, if any, constituted compensation for injury to his personal well-being.

Further, a trial court in a marriage dissolution can order child support for a disabled adult child even if a support order has not been issued prior to the child’s emancipation, as statute authorizes a court to make a child support award for a disabled adult child even if a child is over the age of majority when a petition is filed.

Read Opinion

Recent Arizona Court of Appeals Decision regarding 1099c debt forgiveness tax– from elegal

JamesCork — Tue, 22 Dec 2009 20:35:11 +0000

Does a lender discharge a debt, within the meaning of Arizona law, by issuing an Internal Revenue Service Form 1099-C to a borrower in default? Read opinion.

This case raises the issue of the dreaded 1099c which is an IRS form that is issued by a lender when they forgive a debt. Outside the realm of bankruptcy forgiven debt is considered income by the Federal Government and you are taxed on it as income. Where this becomes most relevant in bankruptcy is in trying to decide to file bankruptcy before or after a home is foreclosed on. If the bank forgives the deficiency (difference between what you owe and what the home is sold for at the Trustee Sale) then you may open your mailbox to find a 1099c from the lender that has been submitted to the IRS and the deficiency is taxed as income. A similar occurrence may involve the short sale process. Debt which is discharged through bankruptcy is not subject to the “forgiven debt” income tax. This case does not involve bankruptcy but it does give some useful information on the 1099c.

In this case I think the court of appeals made the right decision by denying the moving party’s summary judgment and also reversing the lender’s summary judgment. It just seems too unjust that these people would be required to include the forgiven debt for income tax purpose and also be required later to repay the debt (along with interest and penalties).

November 6, 2009 – Arizona Court of Appeals CA-CR 2009-0047 – State of Arizona v. Adam Scott King – “Self Defense” as a Defense (from elegal)

JamesCork — Tue, 10 Nov 2009 23:38:13 +0000

Technorati Tags: Arizona Criminal Defense,Self Defense in Arizona,Arizona Revised Statutes

November 6, 2009 – 2 CA-CR 2009-0047 – State of Arizona v. Adam Scott King
Must a defendant establish he had acted solely out of fear of imminent danger in order to obtain a self-defense instruction, a requirement imposed by case law but not Arizona’s self-defense statute, A.R.S. § 13-404; and if so, what is the quantum of evidence required to obtain such an instruction? Did the trial court abuse its discretion by granting the defendant’s motion for new trial on the ground the court had denied a requested self-defense instruction after finding the defendant had failed to produce "sufficient evidence" he had acted solely out of fear of imminent danger? Read Opinion

July 28, 2009 – From Arizona Court of Appeals, Division 1 – State v. Childress – Unreasonable search and seizure

JamesCork — Mon, 09 Nov 2009 22:22:37 +0000

Click the link to read the case opinion: State v. Childress

The issue presented is as follows:

Did the order to Childress to move his truck and then to talk to Childress
when the officer made a traffic stop of another driver violate the Fourth
Amendment?

Technorati Tags: DUI,Search and Seizure,Constitution,Unreasonable search and seizure,Arizona Court of Appeals,Arizona DUI,4th Amendment

This case is a good contrast to the previously posted DUI search and seizure case (State v. Canales) This case provides a detailed description of when a 4th amendment search and seizure is reasonable based on balancing the defendant’s constitutional rights against the general interest of crime prevention and the officer’s concern for his own safety (as cited in the case from Terry v. Ohio).

Here again the “devil is in the details” had Childress initially stopped and parked in the parking lot in front of the officers then this case may have come out differently for Childress. The Court found that there was a “search and seizure” (seizure occurs when the objective individual would not reasonably feel free to decline the officer’s requests or otherwise terminate the encounter) under the fourth amendment by the officers instructing Childress to move his vehicle to where they could see it.

However, the court also found that the search and seizure was reasonable (remember the Fourth Amendment protects us from unreasonable search and seizure). In most cases the State claims the search and seizure is reasonable because the officer has a reasonable, articulable suspicion a person is involved in criminal activity. I.E. (for DUI) did not stop at stop sign, failure to stay in one lane, speeding, etc… Those are generally their “reasonable suspicion” to detain. The subsequent portable breath test, Field Sobriety Tests, HGN Tests are their probable cause to arrest. In addition you almost always see in the police report “officer observed driver had watery and bloodshot eyes and officer detected the faint scent of alcohol coming from the vehicle.”

Here, the Court found the seizure was reasonable based not on the fact that officers had a reasonable, articulable suspicion that Childress was involved in criminal activity but instead based on the fact that an officer may conduct a protective stop or seizure on officer safety grounds when justified by a reasonable, articulable suspicion that a third person poses a danger to those on the arrest scene combined with the fact that an officer may stop a person who appears to have firsthand material information about a recently committed crime.

In my opinion this case was handled well by both law enforcement on the scene and the State in presenting its case. However, it does make me a little wary in that it seems to broaden what is considered a reasonable seizure under the fourth amendment. Although on the flip side, this case would only be relevant under a particular set of circumstances.

For more on

Technorati Tags: DUI,Search and Seizure,Fourth Amendment,Constitutionn,Arizona DUI law

See our website www.phoenixarizonalaw.com

If you or someone you know is charged with DUI contact our office 480-626-4881

James Cork

Attorney at Law

RECENT ARIZONA & 9TH CIRCUIT COURT OF APPEALS DECISIONS – FROM ELEGAL.

JamesCork — Tue, 27 Oct 2009 23:49:04 +0000

Technorati Tags: dui Arizona,dui cases,Opinions,Arizona Court of Appeals,dui law Arizona

Arizona Court of Appeals

October 22, 2009 – CR 08-0517 – State v. Lychwick
An injunction against harassment is effective for "one year." In calculating that time, is the date of service included? Read opinion.

October 13, 2009 – 2 CA-CR 2009-0023 – State of Arizona v. Marcos Adrian Canales
(REASONABLE SUSPICION/PROBABLE CAUSE ISSUE IN DUI CASE) When a police officer blocks in another vehicle with his patrol car, does this constitute a detention for Fourth Amendment purposes? Is an anonymous tip about "possible" criminal activity sufficiently reliable to support reasonable suspicion to make such a detention? Read opinion.

This is an interesting case in that it provides several case cites and useful information for attorneys regarding reasonable suspicion to detain based on anonymous tips. The Court does not address the issue of probable cause to arrest as they find the reasonable suspicion issue dispositive in determining the case. Personally, I think that if they had gotten past the reasonable suspicion issue there would have been probable cause for the arrest based on the facts and Mr. Canales would have faced a very different outcome.

I also think Mr. Canales got very lucky (and had an extremely competent attorney). Something else I found interesting is, that if you look at the footnotes, the State never filed a response on the reasonable suspicion issue and never attempted to identify the anonymous caller. Frankly, I am surprised by that. In my experience, the State doesn’t drag their feet on DUI cases especially when you are talking about a possible aggravated/felony DUI (A.R.S. 28-1383(A)(1) and/or (A)(2) suspended license and priors).

If you have questions about Arizona DUI Laws or are in need of DUI/DWI Defense representation feel free to visit our website at www.phoenixarizonalaw.com or www.dui.phoenixarizonalaw.com

Law Office of James Cork PLLC

James Cork

Attorney at Law

9th Circuit Court of Appeals

October 26, 2009 – No. 08-10081 – US v. Rivera-Alonzo
Defendant’s conviction and sentence for assaulting a federal officer with a dangerous weapon is affirmed where: 1) a district court does not abuse its discretion in refusing to give an instruction on a lesser included offense, where, as here, a rational jury could not have convicted the defendant of the lesser-included offense without finding the element that would convert the lesser offense into the greater offense; and 2) the district court did not commit clear error in finding on sentencing that defendant’s conduct was motivated by the victim’s official status. Read opinion.

October 22, 2009 – No. 07-50105 – US v. Van Alstyne
Defendant’s mail fraud and money laundering convictions are affirmed in part where returning certain victims’ investment in defendant’s scheme was intended to "promote the carrying on," of the "scheme" at the heart of the mail fraud counts, by discouraging detection of that scheme. However, they are reversed in part where another transaction that fully refunded one investor’s outlay could not be regarded as a crucial element of the "scheme to defraud." Defendant’s sentence is vacated where the district court erred in calculating the enhancement to the money laundering sentence under U.S.S.G. section 2S1.1, in determining defendant’s fraud offense level under U.S.S.G. section 2F1.1(b)(1), and in imposing the restitution requirement. Read opinion.

In this economy, bankruptcy may be an answer for many – from ChicagoTribune.com

JamesCork — Mon, 19 Oct 2009 22:16:45 +0000

Chapter 7 and Chapter 13 each have their trade-offs.

for information on arizona bankruptcy lawyers or arizona general attorney see www.phoenixarizonalaw.com

By Mike Hughlett
March 15, 2009

You can’t make your mortgage payment. Or maybe you’ve lost your job and are faced with a mountain of credit card debt. Either way, you’re a casualty in the nation’s economic avalanche and you find yourself contemplating the last resort—bankruptcy.

It’s a solution Americans are increasingly choosing these days, a way to declare a financial fresh start, but one with risks.

Bankruptcies hit a peak in 2005, when more than 2 million Americans and businesses rushed to file before a more creditor-friendly federal law went into effect, according to AACER, a bankruptcy data firm. Filings fell considerably in 2006 and 2007, but last year climbed back up to 1.1 million. The vast majority of filings are personal bankruptcies.

By 2008, bankruptcy filings had begun reverting to a more natural rate, not the “artificial” rate just before and after the law change, said Robert Lawless, a bankruptcy expert at the University of Illinois’ College of Law.

And then there’s the economy. “There’s no question that people are hurting and it’s showing up in the bankruptcy courts,” Lawless said. Indeed, AACER reported that in February, personal bankruptcies experienced their biggest year-over-year jump—37 percent—since the bankruptcy law changed.

The growing tide of mortgage foreclosures is taking its toll. “There is a significant increase in real estate bankruptcies,” said Xiaoming Wu, a Chicago-based bankruptcy attorney.

Although bankruptcy can offer something of a fresh start, a filing will be on your credit record for at least seven years, which usually makes it harder to obtain competitive interest rates on loans. Several bankruptcy lawyers, however, said many of their clients already have poor credit records when they file.

So, how do you know when it’s time to file? Bankruptcy experts say there are no hard and fast formulas, but there are some rules of thumb:
•If you are regularly dipping into your retirement savings.
•If your wages are being garnisheed by creditors.
•If you see no possibility of repaying your debts (being able to muster only minimum credit card payments is a sign).
•If your house is in foreclosure proceedings.

Bankruptcy at least temporarily halts a foreclosure, but it doesn’t get you off the hook for missed mortgage payments. Your status as a homeowner, as well as your income, will likely determine whether you file a Chapter 7 bankruptcy or a Chapter 13.

Chapter 7 is cheaper, and gives you a quicker, more robust discharge of your debts,” Lawless said. In a Chapter 7, within six months, many if not all of your debts can be canceled, with exceptions including unpaid child support, student loans and taxes owed within the last three years.

But if your income is above a certain limit, you must file Chapter 13, which entails paying back some or all of your debts over three to five years. The Chapter 13 income threshold is determined by your state’s median family income, coupled with a complicated “means test” calculation, according to the FindLaw Web site.

Still, Chapter 13 can be the preferred route if you want to permanently fend off a foreclosure, and if you have significant equity in your home or car. In a Chapter 7 case, you are at risk of foreclosure if you can’t pay back past-due mortgage payments.

In Chapter 13, you can spread out repayment of back-due mortgage debt over three to five years. Also, Chapter 13 allows you to keep “non-exempt” property you may have to give up in Chapter 7, including equity in your home and car.

Exemptions vary widely by state. In Illinois, a home owned by one person would qualify for an exemption of up to $15,000 in equity; a home owned by two people, $30,000. (In Arizona the Home Equity Exemption is $150,000). That means you could lose equity above those ceilings in a Chapter 7 filing, money that could go to creditors. There is also an equity limit for cars. (In Arizona the limit is generally $5,000 for individuals and $10,000 for couples)

But in Chapter 13, you can keep non-exempt equity—that is, you don’t have to give up any property. “Chapter 13 is designed to be a trade-off,” said bankruptcy attorney Wu. “You keep assets you would lose in a Chapter 7, but creditors get money.”

Still, less than half of those who opt for Chapter 13 successfully complete their debt repayment plans, bankruptcy experts said. Many end up converting to Chapter 7, sometimes losing the houses and cars they were trying to keep.

Mike Hughlett is a staff reporter at the Chicago Tribune.

Sometimes, Filing For Bankruptcy Is Best – from MSNMoney

JamesCork — Mon, 19 Oct 2009 22:12:16 +0000

When bankruptcy is best

The fact that most people don’t rush into bankruptcy many, if anything, wait too long to file — doesn’t answer the question of whether it’s right in your particular circumstance. Because beyond the financial and legal aspects is the fact that you’re reneging on debt that you promised to repay.