Law Pulse

A new, higher limit for small-estate affidavits

The ceiling for small estate affidavits has doubled from $50,000 to $100,000. But will it make the well-meaning people who serve as affiants more attractive targets for lawsuits?

Public Act 93-877 was signed into law August 6, 2004, to be effective immediately. The new act amends the Probate Act, 755 ILCS 5/25-1, to double the ceiling for small estate affidavits for the first time in years, from $50,000 to $100,000.

Simple and cost-effective

Where the gross value of a decedent's entire personal estate does not exceed $100,000, 755 ILCS 5/25-1 permits that property to be distributed directly to the decedent's heirs, without the necessity of probate or court proceedings. In order for that distribution to occur, someone must be willing and able to execute an affidavit in the form prescribed by 755 ILCS 5/25-1(b).

Once such an affidavit is executed and presented to a holder of the decedent's property, including a transfer agent or a bank controlling the right of access to the decedent's safety deposit box, the statute requires that person to grant access or deliver the property to the persons and in the manner specified in the affidavit. The procedure has proven to be a relatively simple, private, and cost-effective method of distributing assets whose total dollar value is relatively small and whose entitlement is not in dispute, says ISBA Trusts and Estates Section Council former chair Richard Teas of Joliet.

The affidavit required for distribution of a small estate is detailed and comprehensive. The statute requires the affiant to provide pertinent information about the decedent, including the decedent's name, date of death, place of residence, total gross value of estate, and names and places of residence of the decedent's surviving spouse, minor children, and adult dependent children. The affidavit must list each asset and its fair market value.

Additionally, the affidavit must state whether the decedent left a will and the names, places of residence, and relationships of the decedent's heirs or legatees. The affiant must state that he is unaware of any dispute or potential conflict as to the heirship or will of the decedent and must specify how the property should be distributed. And the affiant must state that there is no known unpaid claimant or contested claim against the decedent, except for any funeral expenses that may remain outstanding.

Greater risk for affiants?

ISBA member James Mulvaney, who's now retired but who practiced probate law in private practice and on staff at a large Chicago bank, fears that the person who agrees to serve as the affiant for a small estate under this provision of the Probate Act is assuming significant liability. 755 ILCS 5/25-1(e) provides as follows: "The affiant signing the small estate affidavit…shall indemnify and hold harmless all creditors and heirs of the decedent and other persons relying upon the affidavit who incur loss because of such reliance….Any person recovering under this subsection(e) shall be entitled to reasonable attorney's fees and the expenses of recovery."

To facilitate such litigation, the statute requires the affiant to provide his address and, if he resides out of state, to agree to submit to the jurisdiction of Illinois courts for all matters related to the preparation and use of the affidavit and provide an agent for service of process in Illinois. The affiant must also agree that the clerk of the circuit court in the county in which the decedent was a resident at the time of his death may be the agent of service of process if the affiant does not name an agent, or if service upon his agent cannot be effectuated.

Mulvaney fears that the increase in the dollar ceiling for small estates may encourage litigation against the unwary though well-intentioned affiant, who, he says, is a mere volunteer trying to assist in minimizing the time, expense, and publicity that may accompany estate administration. "Place of residence, heirship, and distribution are subject to an enormous amount of litigation. Families today are often blended and widely dispersed around the nation and even around the world. But affiants under the independent administration provisions are required to summarily dispose of issues that judges adjudicate only after notice, motions, discovery, and hearings."

While Mulvaney approves of independent administration as an appropriate means of streamlining the distribution of small estates, he says that "moving from $50,000 to $100,000 means it's more likely that there will be money to fight about after the payment of first priority claims. This draconian liability is inconsistent with the small estate procedure." Mulvaney would prefer that the Probate Act be further amended to provide affiants and attorneys assisting in small estate administration with the same immunity for actions undertaken in good faith as under the Power of Attorney Act. See 755 ILCS 45/2-7.

Applies to all affidavits executed after August 6

Teas notes that the amendatory act does not expressly state that it applies only to decedents dying after the effective date of the act, so that it should apply to all affidavits executed after August 6, 2004. If an estate of between $50,000 and $100,000 is already open in court administration, it probably does not make economic sense and may not even be possible to attempt to close it and proceed with distribution through the affidavit procedure, Teas says.

Teas also points out that the small estate affidavit procedure applies only to personal property, and not to real estate. And he says that if there are more than two or three assets to be transferred, even if their total value is under $100,000, it's probably more efficient to administer the estate in court than to distribute them through the small estate procedure (which would also eliminate Mulvaney's concerns). Probating an estate through independent administration, if there are no controversies, may not entail much more and perhaps less cost than executing multiple small estates affidavits, says Teas.

For more on small estates and other alternatives to traditional estate administration, see Jane Hartley Pratt's article, "Alternatives in administering a decedent's assets," in the September 2002 issue of ISBA's Trusts and Estates Section newsletter, on line at <http://www.isba.org/sections/trustsestates/9%2D02a.htm>.

Clients not liable for lawyers' intentional torts

The Illinois Supreme Court holds that clients are not liable for lawyers' intentional torts unless they authorized, directed, or ratified the lawyers' conduct.

Should a client be liable for his attorney's intentional tort in the absence of evidence that he authorized, directed, or ratified it? The Illinois Supreme Court said "no" in Horwitz v Holabird & Root, ___ Ill 2d___ 2004 WL 1118511 (May 20, 2004). The opinion, however, included two vigorous dissents airing serious concerns about the possible effect of the opinion on attorney-client relationships.

Trial court finds client not liable, appellate court reverses

The opinion states that Holabird & Root, an architecture firm, retained Sabo & Zahn, a law firm, to collect a debt that Horwitz Matthews, a real estate development firm, had incurred for architectural services. In the course of representing Holabird & Root, Sabo & Zahn obtained a judgment against Horwitz Matthews. In response to a citation to discover assets, Horwitz Matthews provided Sabo & Zahn with various tax returns. Sabo & Zahn agreed not to disclose the tax information to anyone outside its law firm.

Through discovery, Sabo & Zahn also learned the identity of several business associates and investors of Horwitz Matthews. The opinion states that Sabo & Zahn contacted a number of these business associates and investors by letter and informed them that on its tax returns Horwitz Matthews had apportioned itself a greater percentage of the partnership business than it was entitled to. Sabo & Zahn's letters also alleged, according to the court record, that the partnership's tax filing showed the investors' share of the loss was underreported. The letters, written on the firm's stationery, stated "we represent Holabird & Root who have a judgment against Horwitz Matthews."

Horwitz Matthews sued Sabo & Zahn and Holabird & Root in a multicount complaint that included a claim for tortious interference with business relationships solely against Holabird & Root as a principal acting by and through its attorneys. The trial court granted Holabird & Root's motion for summary judgment on that count, ruling that as a matter of law a client couldn't be held liable for its attorneys' actions.

The appellate court reversed and remanded, holding that the attorney-client relationship was governed by the laws of agency, with Holabird & Root as the principal and Sabo & Zahn as the agent, and finding that a genuine issue of material fact existed as to whether Sabo & Zahn acted within the scope of its authority in sending the letters at issue and as to whether Holabird & Root ratified Sabo & Zahn's alleged misconduct.

One appellate justice dissented. His opinion concluded that, in cases involving an attorney pursuing a claim without further direction, the attorney should be held to be an independent contractor. Because, according to this reasoning, the law firm was an independent contractor, its client could not be held vicariously liable for its allegedly tortious conduct, primarily because an employer has no right to control the manner of doing the work performed by the independent contractor.

Additionally, said the dissent, even if the law firm was deemed to be its client's agent, summary judgment in the client's favor was appropriate because there was no evidence that the client had authorized, directed, known of, or ratified its attorneys' alleged tortious conduct. "[T]he general retention of an attorney…should, as a matter of law, be interpreted as authorizing the attorney only to do all things legal and proper to pursue the claim….it should not be presumed that, merely because the parties stand in the relationship of attorney/client, the client intended or authorized the tortious conduct or that the conduct was within the scope of the attorney's duties." 312 Ill App 3d at 199-200, 726 NE2d at 638 (Hoffman dissenting).

Clients not liable unless they direct, authorize, or ratify

The supreme court held that attorneys may be both independent contractors and agents. Regarding specific conduct, however, the court said that an attorney is either one or the other, and not both. The court held that when an attorney is acting pursuant to his independent professional judgment, he is presumptively an independent contractor.

Therefore, the attorney's client may not generally be vicariously liable for the attorney's misconduct, unless the record shows that the client directed, controlled, authorized, or ratified the misconduct. "[W]here a plaintiff seeks to hold a client vicariously liable for the attorney's allegedly intentional tortious conduct, a plaintiff must prove facts demonstrating either that the client specifically directed, controlled, or authorized the attorney's precise method of performing the work or that the client subsequently ratified acts performed in the exercise of the attorney's independent judgment." 2004 WL 1118511 at *6.

Because the record didn't contain such evidence, said the majority, no question of fact was raised as to whether Holabird & Root authorized, directed, controlled, or ratified the content of the letters, and summary judgment was properly granted in its favor.

Two justices wrote vigorous, separate dissents, each opining that the record presented genuine issues of material fact sufficient to withstand summary judgment. Justice Freeman opined that the majority was creating a rule that would "encourag[e] the retention of attorneys who operate at or beyond the boundaries of law and ethics." Id at *29. Justice McMorrow opined that the majority's decision was "aimed at achieving a particular result: the nonliability of a client, in virtually every instance, for the intentional torts of the client's attorney." Id at *16; emphasis in original.

In addition, Justice McMorrow felt that the majority's opinion "calls into question the ability of attorneys to bind their clients in any legal or business dealings conducted by the attorney on behalf of the client." Illustrating her concern, she said, "It is foreseeable that a client, unhappy with a transaction, would rely upon the majority's holding to argue that because his or her attorney was merely an independent contractor, the client is not bound by any actions that the attorney performed during the course of the legal representation." Id at *15.

But, said the majority, "Were we to hold otherwise, we would in effect compel clients…to oversee or micromanage every action taken by their attorneys….Such close monitoring would be impossible for most clients," nor, continued the majority, are most clients even qualified to undertake such monitoring. Id at *9.

Contrary ruling would be unjust to clients, ethics authority opines

While time will tell whether the dissenting justices' fears will prove meritorious, ISBA member Warren Lupel, a laureate of the Academy of Illinois Lawyers who's been active for years on ethics issues, thinks that the majority correctly ruled that a plaintiff should have to prove that a client authorized his attorney to commit an intentional tort or ratified the action in order to hold the client vicariously liable.

To hold otherwise, says Lupel, would expand existing law on agency and apparent authority to the detriment of the attorney-client relationship. What if a client hires an attorney to collect a debt, and the attorney goes to the debtor's offices, steals the amount of the sum due, and gives it to the client, telling the client he's collected the debt owed? Unless the client directed, authorized, or ratified the attorney's wrongful act, says Lupel, it would be manifestly unjust to hold the client responsible for it.

As to whether "buyer's remorse" on the part of clients may impede the ability of attorneys to agree to continue trials or enter into settlement agreements, Lupel is skeptical. "Continuing a trial is obviously implicitly within an attorney's scope of representation. As to settlements, an attorney presumptively has the authority to negotiate with an adversary. The attorney-client agency relationship is still reliant on the authority given by the client. The ruling in Horwitz doesn't change the law on agency or apparent authority."

Higher standard for challenging special use permits applies prospectively, court says

A second district case says the higher due process requirements do not apply retroactively.

In a case involving the denial of a special use permit, the Illinois Appellate Court, Second District held that the more exacting due process requirements for seeking such permits announced by the Illinois Supreme Court in People ex rel. Klaeren v Village of Lisle, 202 Ill 2d 164, 781 NE2d 223 (2002), apply prospectively, not retroactively. This effectively gave the plaintiff church standing to challenge the village's denial of the permit.

The case, which also provokes interesting questions about whether non-lawyers can represent parties at a special use hearing, is Oak Grove Jubilee Center, Inc. v City of Genoa, 347 Ill App 3d 973, 808 NE2d 576 (2d D 2004).

Special-use hearings are administrative, not legislative

In Klaeren, the supreme court overruled years of precedent to hold that municipal bodies act in administrative or quasi-judicial capacities when they conduct zoning hearings concerning a special use petition. Prior to Klaeren, it was well settled that municipal bodies acted in their legislative capacity when holding such hearings. In Klaeren, the court held that due process required that interested parties, including neighboring landowners, be afforded the right to cross-examine witnesses in a joint hearing on a special use petition before a village board of trustees, village plan commission, and zoning board of appeals.

Klaeren is significant in part because the standards of review for legislative and administrative decisions are very unlike one another. In reviewing a legislative decision of a municipal body, courts are limited to considering whether the action is arbitrary, capricious, or unrelated to the public health, safety, and morals. Klaeren at 182, 781 NE2d at 233, citing La Salle National Bank of Chicago v County of Cook, 12 Ill 2d 40, 46, 145 NE2d 65, 68 (1957). The standard for that review is de novo, and the reviewing court may consider new or additional evidence outside the record.

An administrative decision, in contrast, is quasi-judicial and subject to the more stringent standard of review for violations of procedural due process. Under administrative review, the reviewing court will not consider any evidence outside the record made before the local governmental unit.

At issue in Oak Grove Jubilee Center was the denial of a special use permit to a church that was organized as a nonprofit corporation. Through its minister, the church submitted an application for a special use permit. The village denied the application.

Through counsel, the church then filed a complaint in circuit court for administrative review. The circuit court dismissed the action on standing issues. The court ruled that the application for the special use permit failed to indicate either that the plaintiff was a corporation or other entity with capacity to sue or that the minister had the authority to represent the church in any capacity. The trial court also held that any document the minister filed on behalf of the church in the special use proceedings was void ab initio because he was not licensed to practice law.

The second district appellate court initially reversed and remanded the case before the supreme court issued the Klaeren opinion. The defendant sought leave to appeal to the supreme court. Though the court denied the defendant's petition, it exercised its supervisory authority to remand the matter to the appellate court with directions that it reconsider its decision in light of Klaeren.

The court did, vacated its original opinion, and issued another, reported at 338 Ill App 3d 967, 789 NE2d 836 (2d D 2003), determining that Klaeren should not apply retroactively. On the defendant's second petition for leave to appeal, the supreme court again remanded the case, directing the court to vacate its opinion and to more fully reconsider whether the supreme court's decision would be subject to retroactive or prospective application. The new opinion, which makes the same determination, is the result of that reconsideration.

"Insightful discussion" of prospective application

ISBA Real Estate Law Section Council member Gary Gehlbach characterizes the court's opinion as "an insightful discussion of when a court decision is given prospective application." The appellate court recognized that, in the civil context, opinions are usually presumed to apply both retroactively and prospectively. However, the court also pointed out that "Klaeren overruled clear past precedent," since "[i]t had long been the law of this state that a legislative body's action on a special-use permit was a legislative, rather than administrative, act." The court found that the particular facts before it made it inequitable to apply Klaeren retroactively. Refusing to do so in that case, said the appellate court, would have no impact on the rule announced in Klaeren.

The court then discussed the bases on which the trial court dismissed the case. The appellate court first criticized the trial court for dismissing the complaint based on the absence of any showing in the permit application that the church was a corporation or other entity with capacity to sue, finding no authority imposing such a requirement on an entity petitioning for a legislative enactment and noting that, in any event, the church had now been shown to be in fact a nonprofit corporation.

The court also rejected the trial court's dismissal on the basis that the record did not show that the minister, a non-attorney, had any authority to represent the plaintiff, repeating that there was no authority imposing that requirement on an entity seeking a legislative enactment. Finally, the court said that the minister's failure to be licensed to practice law presented no impediment to petitioning on his church's behalf for a legislative enactment because doing so was akin to lobbying, not practicing law. The court expressly did not decide whether any of these arguments would have been meritorious had it applied Klaeren and considered the proceeding to have been administrative or quasi-judicial.

Gehlbach finds the court's discussion of these bases to contain some very interesting implications for legal capacity and the practice of law. He notes that in Hawthorne v Village of Olympia Fields, 204 Ill 2d 243, 790 NE2d 832 (2003), the supreme court held that Klaeren doesn't apply to applications for zoning variances – a procedure that he says isn't much different from a petition for a special use permit – because those proceedings are legislative, not administrative or quasi-judicial.

It's an open question, then, says Gehlbach, whether a non-lawyer may file an action for a zoning variance (because that's a legislative action), but only a lawyer may file a petition for a special use permit (because that's an administrative or quasi-judicial action). Gehlbach, who frequently advises petitioners in zoning matters, says he's waiting to see whether local governmental units in his area will now require attorneys to file applications for special use permits.

Two Illinois Bar Journal articles have discussed Klaeren and its progeny: Ronald S. Cope, Due Process in Zoning Hearings: Guidelines for Complying with the Supreme Court's Mandate, 92 Ill Bar J 88 (February 2004); and John J. Lawlor, Recent Rulings Could Make Illinois Zoning Hearings More Contentious and Costly, 91 Ill Bar J 340 (July 2003).

Other ISBA members have also weighed in on Klaeren. In the August 2003 issue of ISBA's Real Property newsletter, Jack H. Tibbetts compared and contrasted the supreme court's decisions in Klaeren and Hawthorne. For a lengthy critique of Klaeren and its progeny, see Victor A. Filippini, Jr.'s article, "A year later: Klaeren v. Lisle and the troubles it has wrought" in the March 2004 issue of ISBA's Local Government Law Section newsletter.

When is "special service" good enough?

How hard must you try to accomplish personal service before you can resort to service by publication? A recent first district case tackles the question.

You've tried and tried to effectuate personal service on the defendant in your case without any luck. To what lengths must you go before you can invoke the special service statute, 735 ILCS 5/2-203.1, and serve him by publication?

That's the issue the second district appellate court faced in People ex rel. Waller v Harrison, 348 Ill App 3d 976, 810 NE2d 589 (2d D 2004). The majority ruled against the defendant; the dissent and some observers worry that the case threatens due process, while the prevailing party says that it lets defendants know they can't duck service forever.

The facts and holding

Lake County Assistant State's Attorney and ISBA Assembly member Lisle Stalter was presented with the county's need to remediate a property that, according to her complaint, appeared to be abandoned and contained tires, drums of petroleum products, and other waste in violation of the Illinois Environmental Protection Act, 415 ILCS 5/5 et seq and regulations promulgated under it, including administrative regulations of the Pollution Control Board. The case also presented Stalter with a dilemma, however: how to accomplish this remediation when she was unable, after several tries, to effectuate either personal or abode service on the owner.

Public records showed that the property at issue was owned by a privately held trust, says Stalter. Such a trust, of course, isn't required to be registered. Additionally, the trust's address, as shown by the county recorder's and tax assessor's offices, was a post office box. The trustee was listed with only a first initial, as "J. Harrison." The property couldn't have been completely abandoned, however, Stalter knew, since county records showed that the taxes had been paid.

Stalter detailed her efforts to find a good address for the trustee in an affidavit that she filed with the trial court. First, she reviewed county records to learn who purchased the property. She traced the trust's post office box to a street address in Mundelein, but summons directed to that address was returned unserved. A colleague who also had a case against the trustee gave Stalter an address for the defendant in Wisconsin, but service directed to that address was also unsuccessful. Stalter found yet another address in Tower Lakes/Barrington at which to serve the defendant, but that summons was returned unserved because no such address existed.

Stalter then moved for an order authorizing alternative service under 735 ILCS 5/2-203.1, filing an affidavit detailing her investigation and attempts at service in support of her motion as that statute requires. Stalter also averred in her affidavit that "[a]lthough a diligent effort has been made, no other information has been found as to where J. Harrison can be personally served." That statute provides that "[t]he court may order service to be made in any manner consistent with due process."

The trial court found that the prosecution had shown due diligence in attempting to obtain personal service and granted her motion. In doing so, the court ordered that Stalter serve the defendant by regular mail. The appellate opinion reflects that the state provided publication notice and mailed copies of the complaint to each address at which it had attempted service. Only the envelope sent to the Tower Lakes address was returned.

The defendant didn't appear, and the trial court entered a default judgment. The order enjoined the defendant from future violations of the Environmental Protection Act, ordered him to clean up the site, and fined him $79,000. The defendant then did appear and moved to quash the service and vacate the judgment. The trial court denied the motion, and the defendant appealed.

The appellate court affirmed, though in a split decision. The majority criticized the defendant for failing to suggest that he could have been found with a diligent inquiry and found that the prosecution had adequately demonstrated its diligence in attempting to serve the defendant personally.

The dissent: "mere difficulty" not enough

The dissenting member of the panel, however, noted that "the State commanded the investigative resources of the Lake County State's Attorney's office, the Lake County sheriff's department, and the Illinois Attorney General's office." The dissent discussed additional steps the State might have taken to ascertain the whereabouts of the defendant, including surveillance of the property, checking the records of other governmental offices, and searching the circuit clerk's records for any prior or pending legal proceedings.

The dissent also disagreed that the defendant had any burden to show that upon a reasonable inquiry he could have been found. Distinguishing "mere difficulty" in obtaining personal service from "impracticality," the dissenting justice opined that section 2-203.1 should be used only in extraordinary circumstances, such as where the record shows that the defendant is consciously evading service. (The defendant in People ex rel. Waller v Harrison has petitioned the Illinois Supreme Court for leave to appeal.)

Rock Island attorney Robert Park agrees that the Harrison case raises serious due process concerns. "Service by publication usually results in no notice at all to the defendant," he says. "Service plus mailing to addresses where the plaintiff knows the defendant is not located is hardly any better. Before the court imposes a substantial personal liability, it is not too much to ask to provide actual notice to the defendant."

Stalter, however, says "this is the exact type of case contemplated by the special service statute. The only reason respondent's location could not be determined for personal service was because property ownership had been set up in such a manner as to make such determination impractical."

Will Blakely create sentencing chaos?

Federal and many state courts are holding off on sentencing hearings in the wake of Blakely, but the case will have limited impact on Illinois state courts. Find out why.

The talk of the federal criminal defense bar is Blakely v Washington, ___ US ___, 124 S Ct 2531 (2004), decided by the United States Supreme Court in June.

In Blakely, the defendant entered a guilty plea to kidnapping his estranged wife. Standing alone, the facts admitted in his plea supported a maximum sentence of 53 months. Washington's statute, however, permitted the court to impose an enhanced sentence for specified certain aggravating factors.

The trial court in Blakely's case did so, imposing a sentence of 90 months after making a judicial determination that he had acted with "deliberate cruelty." Blakely had not admitted the facts supporting that determination, nor had a jury made those factual findings. Blakely appealed, arguing that this sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence.

The United States Supreme Court agreed, relying on Apprendi v New Jersey, 530 US 466 (2000). The court held that a judge's authority to sentence derives wholly from the jury's verdict, so unless a defendant admits, or a jury finds, facts that justify an enhanced sentence, it is void under the Sixth Amendment.

Like Washington state's sentencing framework, the federal government's sentencing guidelines permit judges to increase defendants' presumptive sentences by making various factual findings. The Blakely court, however, expressed no opinion as to whether the federal sentencing guidelines also violated the Sixth Amendment. But only a few days after the Supreme Court handed down its opinion, some federal district judges began finding that under Blakely, the federal sentencing guidelines were unconstitutional.

Uncertain of what to do, many federal courts, with the agreement of counsel, have decided to continue nearly all sentencing hearings until after the Supreme Court clarifies the issue. The high court is expected to do so sometime after October 4, 2004, on which date it will hear oral arguments in U.S. v Booker and U.S. v Fanfan, which squarely present the question of the constitutionality of the federal sentencing guidelines in the wake of Blakely.

Different guidelines in Illinois

Where does Blakely leave Illinois state court criminal cases? Former ISBA Criminal Justice Section Council chair Robert Loeb notes that Illinois' sentencing structure is different from the one at issue in Blakely. Enhancements that are built into the sentencing structure in Washington state are elements of the substantive offenses in Illinois.

"In Illinois, we have classes of [for example] drug crimes and theft crimes that are based on the amount of the drug or the amount stolen." The more drugs you're charged with and convicted of possessing or selling, or the more money you're charged with and convicted of stealing, the greater the offense classification and, hence, your possible sentence. "Those elements already have to be charged and proven beyond a reasonable doubt."

Loeb does predict that Blakely will result in a challenge to Illinois' method of handling death penalty cases, which consist of three determinative stages: guilt, eligibility for the death penalty, and sentencing. While the right to a jury trial attaches to all three phases, the sentencing phase requires the sentencing authority – either the judge or the jury – to weigh the aggravating factors against any mitigating factors.

If the jury or judge finds no mitigating factors sufficient to preclude imposition of the death sentence, then the court is supposed to impose it. 720 ILCS 5/9-1(g), (h). This aggravation/mitigation stage has no burden of proof but, rather, is left up to the judge's or jury's discretion about whether death is the appropriate sentence, says Loeb. Because of the absence of a statutory burden of proof, Loeb predicts a constitutional challenge to this phase of death penalty proceedings based on Blakely.

While Justice O'Connor, who dissented from the Supreme Court's opinion in Blakely, and other federal judges and prosecutors have publicly decried the decision's effect on the courts as "chaos," Loeb opines that any havoc in federal criminal courts will be short-lived. In the long run, predicts Loeb, prosecutors will alter their charging and plea-bargaining procedures to ensure that factors that might enhance a sentence will be pled or admitted to by the defendant.

Congress may also alter the federal sentencing guidelines, he says, perhaps to provide for mandatory maximum sentences from which judges may depart downward instead of mandatory minimum sentences from which they may depart upward. What's most likely, in Loeb's view, is that substantive federal statutes will be amended to make enhancing factors elements of the offenses, as they are in Illinois.

A wealth of information and discussion about Blakely is freely available on the World Wide Web. A good starting place is Ohio State University law professor Douglas A. Berman's weblog, "Sentencing Law And Policy," at <http://sentencing.typepad.com/>.

Helen W. Gunnarsson, a member of ISBA's Administrative Law Section Council, is an attorney and writer in Highland Park. She also writes ISBA's weekly e-mail Practice Updates (see <http://www.isba.org/updates.asp>) and can be reached at <gunnarssonhg@comcast.net>.