DCBA Brief, March/April 2021

DuPage County Elects New Clerk of the Circuit Cou r t for t he Eig ht eent h Judicial Circuit

An Interview With

Candice Adams

www.dcbabrief.org

Volume 33, Issue 7 March/April 2021

Table of Contents Dexter J. Evans Editor-in-Chief

Join the Judges’ Nite band and cast for a new take on this annual tradition.

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Editor’s Message

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Jordan M. Sartell Associate Editor

President’s Message

Articles 6 Litigants continue to test bounds of Illinois’ Biometric Information Privacy Act following Illinois Supreme Court’s finding that a plaintiff need not have an actual injury to recover damages - By Rachel Nevarez and Michael Barnes 12 Same-Sex Discrimination Claims Under Title VII: The Application of United States Supreme Court’s Decision in Oncale v. Sundowner Offshore Services, Inc. in the Seventh Circuit - By Joseph Nichele 16 Trauma and the Adolescent Brain - By Christina Graffagna 18 Successfully Using the Illinois Nursing Home Care Act to Help Your Elderly Clients - By Margaret Battersby Black

45 Spotlight on Judge Robert J. Anderson - By Azam Nizamuddin 47 ISBA Update - By Kent A. Gaertner 48 DuPage County Elects New Circuit Court Clerk: An Interview with Candice Adams - By Ted A. Donner 52 Honorable Craig Belford - By James Ryan 54 Legal Aid Update - By Cecilia Najera 55 Classifieds 56 Where to Be with DCBA

By Robert Rupp

Editorial Board Anthony Abear Jolianne W. Alexander Brian M. Dougherty Alex Fawell Anne C. Fung Raleigh D. Kalbfleisch Rachel E. Legorreta Christopher J. Maurer Jane E. Nagle Joseph K. Nichele Azam Nizamuddin John J. Pcolinski, Jr. Jay M. Reese Arthur W. Rummler James L. Ryan Marie Sarantakis David N. Schaffer Leah D. Setzen Edward R. Sherman Hilary E. Wild Jacki L. Hamler Publication Production Ross Creative Works Graphic Design Jeffrey Ross Cover Photography Mittera Printing

26 Substitution of Judge as of Right: What Bars the Absolute Right to Substitution?

- By Emmet Fairfield 30 Highlights of New Illinois Laws Taking Effect in 2021 - By Raleigh D. Kalbfleisch 36 Illinois Law Update - By Editors Hilary Wild and Edward Sherman DCBA Brief March/April 2021

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From the Editor

New and Exciting Changes Coming Soon

By Dexter J. Evans

You may have noticed that we did not have a March issue and that this particular issue combines both March and April. The fact of the matter is that the Editorial Board voted to take our budgeted money for March and put it all in let it ride on GameStop stock. Now for the bad news. We never sold it. We are in for the long haul because we believe that GameStop can be made great again.

All kidding aside, the pandemic has forced the entire bar association to look at ways in which to ensure that you, our membership, continue to receive the content you are accustomed to receiving while also realizing that we just cannot operate at the same level as pre-pandemic as all of us try and recover from the financial/ economic losses we have suffered during this long ordeal.

A survey recently went out to the membership and the timing was no coincidence. At least for the time being, you can expect to be receiving a bi-monthly issue of the Brief which includes more articles and the same content.

This will be throughout the year (12 months) rather than over a 10-month period as we have done prior. We appreciate the members’ responses to the survey and as we work on ways to improve the content and accessibility of the Brief, your responses will absolutely be considered.

Some of the changes we hope to see in the near future are an enhanced website, the ability to utilize hyperlinks to access content if you are viewing the Brief digitally, and regular article and case law/statutory updates that are posted on the website ongoing rather than having

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to wait for the official, monthly release of our great publication. However, rest assured, we are not doing away with the hard copy of the Brief. We understand that the great majority of the membership values a physical copy of the Brief and we will continue to ensure that you receive one.

I made quite a few calls for articles in the past and I am going to do it once again. We need them. There are so many great writers in our membership who have a vast array of legal knowledge on different practice areas.

Not only do you get to showcase your legal knowledge in a 6-8-page, double-spaced article, but you also can get MCLE credit. It is a win-win situation.

We’d like to thank our article editors for this issue, Joe Nichele and Tony Abear and Case Law editors, Hilary Wild and Ed Sherman. Articles were contributed by Rachel Nevarez and Michael Barnes, Christina Graffagna, Joe Nichele, Margaret Battersby Black, and Emmet Fairfield. Also, a special thanks to Raleigh Kalbfleisch for her review of new Illinois laws and Ted Donner for the profile piece on Candice Adams.

If you have not already done so, please complete the DCBA Brief Reader Survey and Win – The Editorial Board is reaching out to all DCBA members and friends for feedback on the DCBA Brief magazine. The survey takes less than ten minutes to complete and the results will be used to ensure the DCBA publishes the highest quality content in the most efficient way possible. All respondents completing the survey can (Continued on page 4)

DCBA Brief March/April 2021

Dexter J. Evans is an equity partner at Woodruff Johnson & Evans where he focuses his practice on personal injury litigation. Dexter is the Editor-in-Chief of the DCBA Brief and an active member of the DuPage County Bar Association. He is a member of the Million Dollar Advocates Forum. He earned his J.D. from Northern Illinois College of Law where he graduated magna cum laude in 2005.

President’s Message

Learning to Pivot

By Wendy M. Musielak In 2017, after three years of serving on the DCBA Board, I decided to run for Third Vice President of the DCBA. I was fortunate enough to win that election. From the day I won, I began making plans of what I would do during my year of presidency. I thought about what events we would have, what my trip would be, and what I would like to accomplish.

During the 2019-2020 year, I put pen to paper to lock in my plans. The cruise was booked.

My installation was planned. There was going to be food trucks, wine and beer tastings and so much more. Right as I was looking to lock in the rest of the plans for my year, the world shut down – literally. We were in a pandemic. What initially seemed would be a couple weeks of “Sheltering in Place” became over two months of it. My originally-planned Installation and Casino Night needed to be reworked. Events needed to be postponed, but I was sure by the fall things would be better.

I was wrong.

I know things in life rarely go exactly as planned. But this was different. It was not one or two changes – it was everything. Considering I am a planner and a bit of a Type A personality (alright stop laughing at the “bit of”), having all my plans in disarray was unsettling.

What was I going to do? How could I lead the DCBA during a pandemic? What do you do when we cannot safely gather? You pivot and make a new plan.

How many times, as we watched a basketball game, did we see a player pivoting to overcome an obstacle? You cannot travel with the basketball. You cannot double dribble, but you can lock that one foot in place and move around to see what is open. As you pivot, suddenly something that seemed impossible becomes possible. The same is true for

obstacles in life. If you spend your time focusing on the obstacle and what you cannot do, you miss what you can do. Opportunities exist everywhere, but can be easily overlooked when you spend your time focusing on the roadblocks ahead of you. Life is not easy. In fact, people face challenges daily, but it is how we face adversity and handle problems that builds our character. Thinking of that reminded me of one of my favorite quotes: “Success is not final, failure is not fatal: it is the courage to continue that counts.” Winston Churchill. Is something a failure because things did not go exactly as planned? While initially, it may feel like it is, failure only happens when you stop adjusting and stop believing in yourself. When you refocus on what you have done, you can start to see how the unexpected may have led to some of your greatest successes.

Despite all the things that we have not been able to do this year, there is so much that we have done just by pivoting. Our MCLE programs have continued to be spectacular. We have come together in various ways safely (in person and virtually). We have worked together to do so many different things this year (professionally and personally) that while it may not be what was planned, it continued to bring a smile to my face.

DCBA President, Wendy M. Musielak is a Partner at Esp Kreuzer Cores LLP in Wheaton, where she concentrates her practice in family law.

She graduated with highest honors from DePaul University College of Commerce with her Bachelor’s Degree in Finance and Management in 1999 and earned her J.D. from DePaul University’s College of Law in 2003. In 2015, Wendy was admitted to practice before the United States Supreme Court.

Wendy was recognized as the DCBA Lawyer of the Year in 2013.

So, for the rest of my term as President, I am going to keep pivoting and see what we can do and hopefully, by my last column, I will be able to share with you what I learned from it.

In the meantime, I ask all of you to take a moment and reflect on your pivoting this year and see just how successful you have already been.

Take a moment to congratulate yourself for your hard work and perseverance. It has not been easy, but you have all done it! Be proud of yourself! You earned it!

DCBA Brief March/April 2021

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New and Exciting Changes Coming Soon (Continued from page 2) The DCBA BRIEF is a publication of the DuPage County Bar Association 126 South County Farm Road Wheaton Illinois 60187 (630) 653-7779

DCBA Brief welcomes members’ feedback.

Please send any Letters to the Editor to the attention of Dexter Evans, at email@dcbabrief.org

Wendy M. Musielak President

Aaron E. Ruswick Secretary/Treasurer

Kiley M. Whitty President-Elect

DeAnna C. Rosinski Assist. Treasurer

Angel M. Traub 2nd Vice President

James J. Laraia General Counsel

Directors: Mark S. Bishop Patrick L. Edgerton James S. Harkness Rebecca A. Krawczykowski Ronald D. Menna, Jr. Karen R. Mills John J. Pcolinski, Jr. Jay M. Reese Arthur W. Rummler Alissa C. Verson Amanda M. Zannoni

Jennifer L. Friedland Assoc. Gen’l Counsel

Kent A. Gaertner ISBA Liaison

Richard J. Veenstra 3rd Vice President Stacey A. McCullough Immediate Past President

opt into a drawing for one of two Amazon gift cards generously donated by Raleigh Kalbfleisch. The survey can be found at www.surveymonkey.com/r/DCBABriefSurvey.

As a final thought, as some of you may have heard or read, one of our long-standing members, David Wentz, passed away suddenly in early January. Although David did not get to see his brilliant article in the publication, we did. I did not know David well, but I have been told by many that he was a great lawyer and an even better man/husband/father. Prayers and thoughts to him and his family/friends.

Robert T. Rupp Executive Director The DCBA Brief is the Journal of the DuPage County Bar Association (“DCBA”). Unless otherwise stated, all content herein is the property of the DCBA and may not be reprinted in whole or in part without the express permission of the DCBA. ©2021 DCBA. Opinions and positions expressed in articles appearing in the DCBA Brief are those of the authors and not necessarily those of the DCBA or any of its members. Neither the authors nor the publisher are rendering legal or other professional advice. This publication is not a substitute for the advice of an attorney. Publication Guidelines: All submitted materials are subject to acceptance and editing by the Editorial Board of the DCBA Brief. Material submitted to the DCBA Brief for possible publication must conform with the DCBA Brief’s Writer’s Guidelines available at dcbabrief.org. Letters to the Editor should be limited to 250 words. Preference is given to responses to letters to the editor, articles or columns recently published in the DCBA Brief. Profane, derogatory or obscene language, political views or views that could be considered slanderous or defamatory are not accepted. Letters submitted anonymously are not accepted. All advertising and promotions are subject to approval. Approval and acceptance of an advertisement does not constitute an endorsement or representation of any kind by the DCBA or any of its members. Contact information: Articles, comments, criticisms and suggestions should be directed to the editor at email@dcbabrief.org.

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DCBA Brief March/April 2021

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Litigants continue to test bounds of Illinois’ Biometric Information Privacy Act following Illinois Supreme Court’s finding that a plaintiff need not have an actual injury to recover damages - By Rachel Nevarez and Michael Barnes

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Articles

16 18 26 30 36

Same-Sex Discrimination Claims Under Title VII: The Application of United States Supreme Court’s Decision in Oncale v. Sundowner Offshore Services, Inc. in the Seventh Circuit - By Joseph Nichele Trauma and the Adolescent Brain - By Christina Graffagna Successfully Using the Illinois Nursing Home Care Act to Help Your Elderly Clients - By Margaret Battersby Black Substitution of Judge as of Right: What Bars the Absolute Right to Substitution?

- By Emmet Fairfield Highlights of New Illinois Laws Taking Effect in 2021 - By Raleigh D. Kalbfleisch Illinois Law Update - By Editors Hilary Wild and Edward Sherman

Article Editors Joseph K. Nichele

Joseph K. Nichele is a partner with Broida and Nichele, Ltd. where he concentrates his practice in civil litigation. He received his undergraduate degree from Purdue University and his law degree from Valparaiso University School of Law.

Anthony Abear Anthony Abear is a graduate of DePaul University College of Law, and he received his baccalaureate degree in Communications from the University of Illinois. He is a former editor-in-chief of the DCBA Brief and is the owner of Abear Law Offices in Wheaton.

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Litigants continue to test bounds of Illinois’ Biometric Information Privacy Act following Illinois Supreme Court’s finding that a plaintiff need not have an actual injury to recover damages

By Rachel Nevarez and Michael Barnes

Illinois’ Biometric Information Privacy Act (or “BIPA”) was enacted over a decade ago, but it has not been until the last few years that there has been a flurry of litigation over the scope and application of the statute. BIPA sets forth comprehensive requirements for entities that possess and collect biometric identifiers and information from people, and further sets statutory damages for each violation, in addition to allowing for other damages and attorney fees. For years, it was unclear whether a plaintiff needed an actual injury to state a viable BIPA claim, but in 2019, the Illinois Supreme Court weighed in and found that a plaintiff need only allege a technical violation to proceed with a claim. This decision opened the floodgates to numerous individual and class actions, which are now making their way through courts.

Recent cases demonstrate that where BIPA applies to an entity, it can be difficult to develop defenses to the alleged violations, and some courts have described BIPA as imposing strict liability. However, one area of law that is not well-settled relates to the potential liability of third-party vendors and manufacturers of programs that entities, such as employers, use to track various aspects of employees’ work. There is substantial disagreement among the federal district courts as to whether BIPA’s requirements apply to these parties who have no direct relationship with the plaintiff. In short, the relative success of a case has often hinged on statutory interpretation and meticulous comparison of the facts to BIPA’s requirements.

Statutory Requirements and Legislative History BIPA regulates the collection, use and sharing of individuals’ biometric information by private entities and was enacted to address concerns about the use of biometric information.1 Unlike other identifiers, a person cannot change their biometric data if the data is compromised, and persons with compromised data are more likely to suffer identity theft.2 In enact-

1. 740 ILCS 14/1, et seq.

2. 740 ILCS 14/5 (c).

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ARTICLES ing BIPA, the legislature found that the “full ramifications” of biometric technology is unknown.3 BIPA applies to all “private entities,” which are defined to mean any person, partnership, corporation, limited liability company, association, or any other group, however organized.4 State and local governments, as well as their agents and contractors, are excluded.5 BIPA also expressly exempts certain financial institutions.6 BIPA protects biometric identifiers and biometric information.

It defines biometric identifiers as: 1) a retina or iris scan, 2) fingerprint, 3) voiceprint, or 4) a scan of hand or face geometry, but excludes certain personal information from the definition of biometric identifier, such as handwriting samples, tattoos, physical descriptions, and photographs.7 BIPA defines “biometric information” as “any information,” regardless of how it is captured, converted, stored, or shared that is based upon a biometric identifier.8 Biometric information does not, however, include any information that is derived from items that are excluded from the definition of biometric identifiers.9 The statute also excludes information captured from a patient for medical treatment and certain information collected under various other statutes.10 Section 15 of BIPA articulates the requirements and prohibitions on the retention, collection, disclosure and destruction of biometric information.11 First, a private entity that obtains biometric data must formulate a written policy that is publicly available.12 The policy must establish a schedule for the length of time the data are to be kept, along with guidelines for the permanent destruction of the data whenever the purpose for obtaining the identifier or information has been satisfied or three years after the entity’s last interaction with the individual.13

Additionally, under section 15(b) of the Act, entities must obtain a written release from an individual whose biometric identifiers or information has been obtained, and a written release means “informed written consent, or in the context of employment, a release executed by an employee as a condition of employment.”14 The written release must meet specific statutory requirements: it must be signed by the individual, must notify the individual that the biometric information is being captured and stored and the purpose and length of time the information will be kept.15 An entity in possession of biometric data may not sell or profit from the information.16 Under section 15(d) of the Act, an entity is prohibited from redisclosing biometric information to third parties absent a specifically outlined exception.17 Moreover, BIPA requires entities to store, transmit, and protect from disclosure all biometric data in its possession using reasonable care and in the same or more protective manner than that which the entity protects other confidential information.18 BIPA expressly creates a private right of action for individuals who are “aggrieved” by the violation of BIPA and allows plaintiffs to recover statutory or actual damages, whichever is greater.19 The amount of statutory damages is dependent on whether the entity violating BIPA was negligent or acted recklessly or intentionally. For negligent violation of BIPA,

About the Authors

3. Id. at 14/5(f).

4. Id. at 14/10.

5. Id. at 14/10, 25(e).

6. Id. at 14/25(c).

7. Id. at 14/10.

8. Id. 9. Id. 10. Id. at 14/10, 25(b).

11. Id. at 14/15.

12. Id. at 14/15(a).

13. Id. 14. Id. at 14/10, 15(a).

15. Id. at 14/15(b)(1)-(3).

16. Id. at 14/15(c).

17. Id. at 14/15(c), (d)(1)-(4).

18. Id. at 14/15(e)(1)-(2).

19. Id. at 14/20.

Rachel Nevarez is a partner in the litigation department of Wiedner & McAuliffe, Ltd. Rachel graduated cum laude from Chicago-Kent College of Law and magna cum laude from Knox College.

Michael Barnes is an associate in the litigation department of Wiedner & McAuliffe, Ltd. Mike graduated magna cum laude from Chicago-Kent College of Law and cum laude from Northern Illinois University.

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In short, BIPA gives rise to claims where liability can be established “regardless of whether damage can be shown and regardless of the violator’s state of mind.

injury, the Illinois Supreme Court removed one of the largest hurdles facing plaintiffs in BIPA actions. It also opened the door for class action suits on behalf of groups of individuals whose biometric information was collected, stored, and shared in violation of BIPA, regardless of whether there were any tangible consequences resulting from the violations. Meanwhile, federal courts in Illinois, which have more stringent standing requirements than Illinois state courts, have also recently allowed cases to move forward over objections based on lack of actual injury.25

statutory damages are $1,000; reckless or intentional violation allows for statutory damages of $5,000.20 Under either scenario, the prevailing plaintiff may also recover reasonable attorney fees and “other relief.”21

Although a Plaintiff must establish negligent, reckless or intentional conduct to recover statutory or actual damages under BIPA, some courts have concluded that BIPA imposes strict liability because no mental state must be proven to recover attorneys’ fees or obtain injunctive relief.26 Further, at least one district court has gone as far as saying that every time an entity discloses or otherwise disseminates biometric information without consent, it violates the statute and potentially entitles a plaintiff to statutory damages.27 In short, BIPA gives rise to claims where liability can be established “regardless of whether damage can be shown and regardless of the violator’s state of mind.”28

Recent Developments in BIPA claims.

BIPA has remained unchanged since its enactment in 2008, including its express recognition of a private cause of action for violations.22 However, the courts’ application of BIPA in private causes of action has seen a number of significant developments in recent years that have given BIPA claims new teeth. As recently as 2017, the Illinois Appellate Court ruled that a technical violation of BIPA that does not result in actual injury to a plaintiff is insufficient to state a viable claim for relief.23 The Illinois Supreme Court subsequently reversed, finding that a technical violation of the Act is sufficient to state a claim under BIPA.24 In eliminating the need for an actual

The end result is that BIPA has emerged as a powerful tool for plaintiffs that leaves limited room for defendants to maneuver.

To establish liability under BIPA, a plaintiff need only establish that a company collected, stored, or used his or her biometric information without following the letter of the law. And as can be seen with the number of BIPA cases in litigation, many companies which have used biometric information are alleged to have done so in violation of the Act. In one of the more high-profile recent decisions, Facebook reached a $650 million settlement in a BIPA class action based on its use of facial recognition, or “tagging,” software that automatically identified individuals in photographs uploaded to the platform.29

20. Id. at 14/20(1), (2).

21. Id. at 14/20(3), (4).

22. The only exception being section 30 of the Act, which created a committee to study best practices for state and local governments’ use of biometric information and was automatically repealed on January 1, 2009. 740 ILCS 14/30; P.A. 95-994, § 30.

23. Rosenbach v. Six Flags Enter. Corp., 2017 IL App (2d) 170317, ¶¶20-23, 147 N.E.3d 125, 129-31 (2nd Dist. 2017).

24. Rosenbach v. Six Flags Enter. Corp., 2019 IL 123186, ¶ 38, 129 N.E.3d 1197, 1207 (2019).

25. Fox v. Dakkota Integrated Systems, LLC, - - F.3d - - , 2020 WL 6738112, No. 20-2782 (7th Cir. Nov. 17, 2020) (elaborating on the holding of Bryant v. Compass Grp. USA, Inc., 958 F.3d 617 (7th Cir. 2020)).

26. 740 ILCS 14/20; Snider v. Heartland Beef, 2020 U.S. Dist. LEXIS 152791, *15-19 (C.D. Ill. Aug. 14, 2020); see Cothron v. White Castle Sys., 2020 U.S. Dist. LEXIS 104795, *13-16 (N.D. Ill. June 16, 2020).

27. Cothron v. White Castle Sys., 2020 U.S. Dist. LEXIS 141391, *17-20 (N.D. Ill. Aug. 7, 2020).

28. Snider, 2020 U.S. Dist. LEXIS 152791, *21-22.

29. Surma, Katie, Illinois residents can now apply for up to $400 from massive Facebook privacy settlement, Chicago Tribune, (Sept. 22, 2020, 3:22 PM), https://www.chicagotribune.com/business/ct-biz-facebook-settlement-privacy-illinois-20200922-pjgcyodp4zfxha6bvluyndn6mm-story.html.

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ARTICLES A prevalent theme in many cases is employers using security and payroll systems that utilize biometric information, leading to class action suits by employees under BIPA.30 Employers’ hopes of finding safe harbor under the Exclusive Remedy provision of the Illinois Workers’ Compensation Act were recently dashed when the Illinois Appellate Court rejected an employers’ assertion that workers’ compensation was the exclusive remedy for BIPA violations, joining in with the numerous federal court decisions that have held similarly.31 In short, employers have been and will likely continue to be the subject of BIPA lawsuits for at least the next few years until industries that adopted biometric systems make changes to come into compliance with BIPA, until there are changes made to the statute, or unless and until appellate courts are more receptive to arguments made by defendants.

Unresolved conflicts for the liability of third-party vendors of equipment and software used to collect, store and use biometric data.

The potential liability of third-party vendors of hardware and software that facilitate the use and collection of biometric information is unsettled. Most entities do not create the equipment and software necessary to use biometric information. Instead, they hire third-parties which sell those products and services, and in some instances, those vendors themselves sometimes obtain (or are alleged to have obtained) the biometric information used by employers.32 The question of third-party vendor liability under BIPA has resulted in a recent split in decisions in the United States District courts in Illinois which remains unresolved. In many cases, whether a motion to dismiss has been successful turned on the sufficiency of facts pled and arguments over the definition and scope of the Illinois legislature’s choice of words in framing BIPA.

to establish that a third-party vendor committed any of the acts contemplated by BIPA.33 There, the plaintiff was employed by a hospital that utilized an automated medication dispensing system manufactured by the defendant.34 To gain access to the system, and as a condition of their employment, hospital employees were required to scan their fingerprints in the defendant’s system.35 The court first recognized that, unlike other sections of BIPA, the “mere possession of biometric data is insufficient to trigger section 15(b)’s requirements,” and then turned to the question of whether BIPA applied only to entities which “actively” collect biometric data.36 The court ultimately concluded that the plaintiff’s allegations failed to allege sufficient facts to assert a claim under Section 15(b) of BIPA.37 The court noted that the plaintiff’s allegations did not allege facts about how the defendant took an active step to “collect, capture, purchase, receive through trade, or otherwise obtain” the plaintiff’s biometric data.38 The court also pointed to the plaintiff’s allegations that he was required to scan his fingerprint using the defendant’s system as a condition of his employment and that his fingerprint was subsequently stored on the defendant’s system, but that plaintiff failed to allege how the data made its way into the defendant’s systems.39 Accordingly, the court dismissed the plaintiff’s section 15(b) claim.40

For example, in Heard v. Becton, Dickinson & Co., the district court dismissed a complaint that failed to allege sufficient facts

The plaintiff in Heard also brought claims under sections 15(a) and 15(d) of BIPA, which respectively require an entity in possession of biometric information to have a publicly-available written policy regarding the use of biometric data and limits its dissemination to third-parties.41 The court first found that the term “possession,” as used in BIPA, contemplates some exercise of dominion or control over the data, although not necessarily exclusive control.42 Nevertheless, the court dismissed the plaintiff’s claims under that section, finding that he failed to allege that the defendant exercised any dominion or control over his biometric data.43 In analyzing the section 15(d) claim, the court further found that the plaintiff’s

30. E.g. Liu v. Four Seasons Hotel, Ltd., 2019 IL App (1st) 182645, 138 N.E.3d 201 (1st Dist. 2019); Cothron v.

White Castle Sys., 2020 U.S. Dist. LEXIS 104795; Snider, 2020 U.S. Dist. LEXIS 152791.

31. McDonald v. Synchrony Bronzeville Park, LLC, 2020 IL App (1st) 192398, ¶¶27-28 (1st Dist. Sept. 18, 2020)(holding the Illinois Workers’ Compensation Act does not bar a BIPA claim against an employer and collecting federal court cases holding same); Cothron, 2020 U.S. Dist. LEXIS 104795, **16-19.

32. Compare Hazlitt v. Apple, Inc., 2020 U.S. Dist. LEXIS 210963, *28-29 (S.D. Ill. Nov. 12, 2020)(describing relationship between plaintiff consumer and defendant manufacturer as “more direct”).

33. Heard, 440 F.Supp.3d 960 (N.D. Ill. February 24, 2020).

34. Id. at 962.

35. Id. 36. Id. at 965-66.

37. Id. at 967.

38. Id. at 966-67; 740 ILCS 14/15(b).

39. Heard, 440 F.Supp.3d at 966-67.

40. Id. at 967-68; accord Kloss v. Acuant, Inc., 462 F. Supp. 3d 873, 877 (Ill. N.D. 2020) (dismissing BIPA claims for failure to allege sufficient facts and finding that the allegations “merely parrot” the statutory language) (quotation omitted).

41. Heard, 440 F.Supp.3d at 968.

42. Id. 43. Id. at 968-69.

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ARTICLES allegations were insufficient to support his claim that the defendant disclosed the information in violation of that section because plaintiff made his allegations “on information and belief.”44 The court held that this is permitted only where the information is peculiarly within the defendant’s control, and found that the allegations were too speculative to meet federal pleading standards.45 In contrast, in Figueroa v. Kronos, Inc., the Northern District considered a Rule 12(b)(6) motion to dismiss a complaint brought under BIPA against Kronos, which provides human resource management software to thousands of employers in Illinois.46 In particular, Kronos provides timekeeping software that utilizes employee biometric information.47 The plaintiffs were employees at companies which utilized the Kronos software and devices, and alleged that their fingerprint data was collected.48 The plaintiffs asserted claims under sections 15(b), which requires that an entity obtain informed consent prior to obtaining biometric data, and 15(d), which requires an entity in possession of biometric data to obtain authorization prior to disclosure of any such data.49 The plaintiffs alleged that Kronos did not inform them that it was collecting, storing, or using their biometric information, or to whom the data would be disclosed.50

Kronos’ alleged storage, use and disclosure of plaintiff’s biometric data because “to have done those things Kronos necessarily first had to ‘obtain’ the data.”54 The court also rejected Kronos’ argument that in the employment context, BIPA does not apply to any entity other than the plaintiff’s employer, concluding that regardless of the context, “Kronos still was a ‘private entity’ that ‘collected[ed]’ or ‘obtain[ed]’ Plaintiffs’ data, and thus remained obligated to receive a release from them as a condition of employment.”55

Kronos moved to dismiss the complaint. Like the defendant in Heard, Kronos argued that it did not “actively collect” the plaintiffs’ data.51 Kronos also argued it was not subject to the requirements of section 15(b) because BIPA’s definition of “written release” expressly delegates notice and consent obligations to the employer.52 The court rejected both arguments.

The court declined to follow Heard, which required the plaintiff to plead facts that the defendant “actively” collected biometric data under section 15(b).53 The court reasoned that the phrase “otherwise obtain” was sufficiently broad to encompass

The court then went on to consider whether plaintiff stated a cause of action under section 15(d).56 Unlike in Heard, Kronos did not argue that it was not in possession of the plaintiff’s biometric information.57 However, Kronos maintained that it did not “disclose” plaintiffs’ biometric information because “disclose” means “to make known or public” or “to show after a period of inaccessibility of being unknown.”58 The court found Kronos’ argument unpersuasive, noting that 15(d) governs not only the disclosure of biometric information, but also the dissemination of such data.59 Therefore, the court concluded that the plaintiffs’ allegations that Kronos disseminated their biometric data (which were made on information and belief) were sufficient to state a claim under section 15(d), regardless of whether Kronos “disclosed” the information.60 Kronos also argued that section 15(e), which provides that a private entity must transmit biometric information using reasonable care, permitted its alleged dissemination of the plaintiffs’ biometric data.61 The court also rejected this argument, however, concluding that section 15(e) does not authorize dissemination, but only sets forth the means by which an entity might transmit biometric data where otherwise allowed.62 Accordingly, the court denied Kronos’ motion to dismiss the plaintiffs’ section 15(b) and 15(d) claims.63

44. Id. 45. Id. at 969.

46. Figueroa v. Kronos, Inc., 454 F.Supp.3d 772, 778-79 (N.D. Ill. April 13, 2020).

47. Id. 48. Id. at 779-80.

49. Id. at 779.

50. Id. at 779.

51. Id. at 783-84.

52. Id. at 783; Heard, 440 F.Supp.3d at 967-68 (declining to consider defendant’s argument that BIPA should not apply because defendant was not plaintiff’s employer); see Namuwonge v. Kronos, Inc., 418 F. Supp. 3d 279, 286 (N.D. Ill. November 22, 2019)(finding it unnecessary to consider whether BIPA requires an entity other than an employer to secure an executed written release).

53. Figueroa, 454 F.Supp.3d at 784-85.

54. Id. at 784.

55. Id. at 783.

56. Id. at 785-87.

57. See Heard, F.Supp.3d at 968-69.

58. Figueroa, 454 F.Supp.3d at 785 (quoting Black’s Law Dictionary (11th ed. 2019)).

59. Id. 60. Id. 61. Id. at 785-86.

62. Id. 63. Id. at 792.

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ARTICLES Lessons learned from the current state of litigation.

Any party contemplating or faced with BIPA litigation must perform a thorough analysis of the facts or allegations to the statute itself. The split in district court decisions can be explained, in part, by how the courts construe the allegations of the complaint. The differences also hinge on whether the plaintiff has enough facts to bring the allegations beyond the basic statutory requirements such that courts are able to find that a plausible reading of the complaint gives rise to the conclusion that a defendant violated it. Allegations that are speculative or are pled “on information and belief” are given closer scrutiny and may be more vulnerable to challenge.

However, BIPA cases remain a relatively recent phenomenon.

As a result, there are few appellate court opinions addressing BIPA in general and no appellate court decisions addressing third-party vendor liability for alleged BIPA violations. Furthermore, most decisions that were available at the time of this writing were decided on Rule 12(b)(6) motions to dismiss, leaving open the possibility of further developments should any of these cases reach summary judgment, trial, or are appealed.

This is an area of law to watch, as there are sure to be ongoing developments that could impact plaintiffs’ rights and defendants’ liability.

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Same-Sex Discrimination Claims Under Title VII: The Application of United States Supreme Cour t’s Decision in Oncale v.

Sundowner Offshore Services, Inc. in the Seventh Circuit.

By Joseph Nichele

It is well known that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on a person’s gender. Specifically, Title VII provides, in relevant part, that “[i]t shall be an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”1 The United States Supreme Court has interpreted Title VII to not only cover the terms and conditions of a person’s employment, in the narrow sense, but the entire spectrum of disparate treatment of men and women in the workplace.2 This means that when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.3 To prevail on a hostile work environment claim, a plaintiff must establish that: (1) his or her workplace was both subjectively and objectively offensive; (2) that his or her sex was the cause of the harassment; (3) that the harassment was severe or pervasive; and (4) that there is a basis for employer liability.4

Title VII necessarily bars a discrimination claim ‘because … of sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant), are of the same sex.”5 Thus, same-sex harassment claims are cognizable under Title VII provided that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination because of sex.6

What may not be realized by practitioners is that Title VII not only protects employees from harassment from someone who is of the opposite sex but also prohibits same-sex harassment in the workplace. While recognizing that same-sex harassment in the workplace was not the principal evil that Congress was concerned with when it enacted Title VII, the Supreme Court nevertheless has categorically held that, “Nothing in

The Landmark Decision in Oncale v. Sundowner Offshore Services, Inc. In Oncale v. Sundowner Offshore Services, Inc., the plaintiff was one of eight men working on an oil platform in the Gulf of Mexico. During his employment, the plaintiff allegedly was “forcibly subjected to sex-related, humiliating actions against him” by his co-workers, was “physically assaulted ... in a sexual manner,” and was threatened with rape.7 In recognizing that same-sex harassment claims are actionable, the Supreme Court in Oncale set forth three ways a Title VII plaintiff could meet the “because of” requirement in a same-sex case.8 First, a plaintiff can show that he received explicit or implicit proposals of sexual activity, provided that he also comes forward with “credible evidence” that the harasser was homosexual.9 Second, a plaintiff can show that he was harassed “in such sex-specific and derogatory terms” so as to make it clear that the harasser is motivated by a “general hostility to the presence” of one sex being in the workplace.10 Third, a plaintiff may offer direct comparative evidence showing that the harasser in a mixed-sex workplace treated one sex better than the other.11

1. 42 U.S.C. §2000e-2(a)(1)(Emphasis added).

2. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986).

3. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

4. Lord v. High Voltage Software, Inc., 839 F.3d 556, 561 (7th Cir. 2016).

5. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80 (1998).

6. Id. at 81.

7. Id. at 77.

8. Id. at 80-81.

9. Id. at 80.

10. Id. 11. Id.

12

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ARTICLES The Supreme Court in Oncale emphasized that Title VII is not a “civility code” and “the prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.”12 For Title VII to apply, a harasser’s conduct still must be severe or pervasive enough to create an objectively hostile or abusive work environment.”13 The Supreme Court stated “We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation—for discriminatory ‘conditions of employment.’”14 According to the Supreme Court, the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, and that inquiry requires careful consideration of the social context in which particular behavior occurs.15 “A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field – even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.”16 After the Supreme Court’s decision in Oncale, in Shepherd v. Slater Steels Corp., the United States Court of Appeals for the Seventh Circuit considered whether a male plaintiff established an issue of fact as to whether he was discriminated against because of his sex by a male co-employee.17 In Shepherd, the Seventh Circuit found that the finder of fact could permissibly conclude that the plaintiff was sexually harassed by his male co-worker because he is male.18 In that case, the plaintiff alleged that his male co-worker repeatedly remarked that he found the plaintiff handsome, and embarked on a campaign of harassment which featured exposing himself to the plaintiff four or five times weekly, repeatedly “grabbed himself,” and on one instance rubbed himself into an erection and threatened to sexually assault the plaintiff. In considering the case in light of Oncale, the Shepherd court noted that it did not believe that

the examples set forth in Oncale to establish the “because of” requirement were exhaustive, but what matters “is whether a reasonable factfinder could infer from the facts that Shepherd was harassed ‘because of’ his sex.”19 The Shepherd court found that although none of the alleged incidents necessarily proved that the harasser was homosexual, the connotations of sexual interest in the plaintiff suggested that he might be sexually oriented towards members of the same sex and that should be an issue for the fact finder to determine at trial.20 The Shepherd court further concluded that the finder of fact, evaluating this harassment in context, might reasonably conclude that because of the relentlessly sexual tenor of the harassment, that plaintiff was harassed because he is a man.21 Thus, the Shepherd court reversed the entry of summary judgment in favor of the employer as to the plaintiff’s sex discrimination claim.

In Shafer v. Kal Kan Foods, Inc., the Seventh Circuit reviewed the entry of summary judgment in favor of the employer where the plaintiff, a male, alleged that his male co-worker made numerous explicit and sexual remarks to him; forced the plaintiff’s face to his crotch and moved his groin to give the impression that plaintiff was performing oral sex; grabbed the plaintiff’s hand and moved it to his own crotch while moaning; pulled a handful of hair from the plaintiff’s chest; and bit the plaintiff on the neck hard enough to raise welts.22 The Shafer court ruled that what happened to the plaintiff was not a “pervasive” deterioration in the conditions of his employment on account of his sex.23 The Shafer court distinguished the harassment in Shepherd, which it characterized as daily fare, from the harassment of the plaintiff’s co-worker which consisted of four batteries.24 The Shafer court reasoned that the plaintiff became a target because he could not defend himself, and that he did not

About the Author Joseph K. Nichele is a partner with Broida and Nichele, Ltd. where he concentrates his practice in civil litigation. He received his undergraduate degree from Purdue University and his law degree from Valparaiso University School of Law.

12. Id. at 81.

13. Id. 14. Id. 15. Id. 16. Id. 17. Shepherd v. Slater Steels Corp., 168 F.3d 998 (7th Cir. 1999).

18. Id. at 1012.

19. Id. at 1009.

20. Id. at 1010.

21. Id. at 1011.

22. Shafer v. Kal Kan Foods, Inc.417 F.3d 663, 665 (7th Cir. 2005).

23. Id. at 666.

24. Id.

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ARTICLES establish that the working conditions at the defendant company were worse for him than women.25 The Shafer court affirmed the entry of summary judgment holding that the plaintiff had not established that his encounters with the harasser reflected more than personal animosity or juvenile behavior, and while he may have a solid claim for battery against the harasser under state tort law, he lacked a claim against the defendant for sex discrimination.26 In Lord v. High Voltage Software, Inc., the plaintiff brought a Title VII suit complaining that his male co-workers had poked and slapped him on the buttocks, reached between his legs, and teased him about a female worker who they thought he liked.27 The District Court granted the employer’s motion for summary judgment. As proof that his co-workers had discriminated against him because of his sex, the plaintiff relied entirely on the fact that the co-workers’ behavior had “sexual overtones.”28 According to the Lord court, there was nothing to suggest that the harasser was homosexual, and the harasser’s conduct did not reflect a general hostility to the presence of men in the workplace.29 Further, the plaintiff pointed to no facts suggesting that only male employees were subjected to such teasing.30 The Lord court held that sexual touching and taunting was not enough, standing alone, to prove that the plaintiff had been harassed because he was male.31 “Sexual horseplay differs from sex discrimination, and Title VII covers only discriminatory conduct.”32 Because it found that no reasonable jury could conclude that the plaintiff was targeted because of his sex, the Lord court affirmed entry of summary judgment against the plaintiff.

“

Title VII not only protects employees from harassment from someone who is of the opposite sex but also prohibits samesex harassment in the workplace.

In Smith v. Rosebud Farm, Inc., the Seventh Circuit affirmed the judgment entered in favor of the plaintiff.33 In Smith, a male former employee filed an action against his former employer alleging that his male co-workers behind the meat counter harassed him over a four-year period.34 The plaintiff’s co-workers grabbed him and reached down his pants, and repeatedly

mimed oral and anal sex both on the plaintiff and on each other. The Smith court recognized that “Shafer and Lord mark an important boundary line: Title VII is an anti-discrimination statute, not an anti-harassment statute;” however, held unlike in Shafer and Lord, that the plaintiff had offered direct comparative evidence that only men experienced harassment at the defendant’s restaurant.35 Specifically, the Smith court found that there had been ample testimony from the plaintiff and other witnesses that only men were groped, taunted, or otherwise tormented, and that no witness recalled seeing female employees subjected to the same type of treatment.36 The Smith court rejected the defendant’s argument that this direct comparative evidence was insufficient because only male employees worked behind the meat counter.37 The Smith court recognized that if the plaintiff had worked in an all-male environment, the fact that only men were touched and groped would not raise an inference of sexual discrimination; but, the Smith court found that the plaintiff did not work in an all-male environment.38 The defendant employed approximately 6-7 women and 15-16

25. Id. 26. Id. at 666-667.

27. Lord v. High Voltage Software, Inc., 839 F.3d 556, 559-560 (7th Cir. 2016).

28. Id. at 562.

29. Id. 30. Id. 31. Id. at 561-562.

32. Id. at 562 (citing Shafer, 417 F.3d at 663).

33. Smith v. Rosebud Farm, Inc., 898 F.3d 747 (7th Cir. 2018).

34. Id. at 749.

35. Id. at 752.

36. Id. 37. Id. 38. Id.

14

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ARTICLES men in its small store and that female employees sometimes work in the meat department when the shop was busy.39 Thus, because men worked alongside women at the restaurant, and only men were harassed, the Smith court found that a reasonable jury could conclude the plaintiff’s co-workers would not have harassed him if he had been female.

Warner v. USF Holland, Inc., a case decided by the United States District Court for the Northern District of Illinois, provides a good illustration as to the application of the Oncale methods to establish the “because of” requirement to a same-sex discrimination claim. In Warner, the plaintiff alleged that his immediate supervisor made sexual comments to him for 18 months.40 The plaintiff believed that his supervisor was bisexual and that these comments were implied sexual overtures.41 The plaintiff alleged that over the 18 months his supervisor made comments to him such as “high-maintenance,” “hi handsome,” “how are we doing today, lover?,” and “cutie pie.”42 The plaintiff also complained that his supervisor would give him a look “like a man was looking at a woman.”43 Finally, the plaintiff alleged that his supervisor sexually propositioned him in a men’s bathroom at work by exposing his genitalia to the plaintiff and telling him that he was “good looking” and by saying “if I was gay, I would like to be with somebody like you.”44

Regarding the first Oncale method, the plaintiff testified that he believed that the harasser was bisexual.46 The Warner court held that a bisexual harasser does not violate Title VII.47 The Warner court found it important that the plaintiff presented no independent evidence that the harasser was gay or bisexual except for his own interactions.48 Based in part on these reasons, the District Court granted summary judgment in favor of the employer.

Conclusion Several principles can be gleaned from the Seventh Circuit and the Northern District of Illinois cases interpreting Oncale.

First, to establish the “because of” requirement under the first Oncale method by showing the harasser was homosexual, a plaintiff must come forward with “credible” evidence. In most circumstances, a plaintiff must come forward with some independent evidence other than his or her own interactions for the evidence to be deemed credible. Further, it is insufficient to argue that a harasser was bisexual, as bisexual harassment is beyond the reach of Title VII.49 Also, under the second and third Oncale methods, if a plaintiff works in an environment where all the employees are essentially of the same sex, he or she will be unable to proceed under the second and third Oncale methods.50

In analyzing the plaintiff’s claims, the Warner court held that the plaintiff could not prevail under any of the Oncale methods. The Warner court addressed the second and third Oncale methods first as it believed those to be the plaintiff’s weakest claims. Under the third Oncale method, the Warner court found that because all truck drivers and all dock workers at the company were men, there was no mixed-sex workplace, and thus, the plaintiff could not proceed under the third method.45 Similarly, the Warner court held that the plaintiff could not succeed under the second Oncale method because given the all-male workplace for drivers it was difficult to see how any general hostility towards men exists.

Most importantly, Title VII is not a “civility code” and does not prohibit bullying or horseplay, even if such conduct has sexual overtones. There has to be actual discrimination. If a plaintiff can satisfy one of the three Oncale methods and prove that the discrimination was “because of” his or her sex, the plaintiff still must prove the other elements of a hostile work environment claim. These elements include that the workplace was both subjectively and objectively offensive, that harassment was severe or pervasive, and that there is a basis for employer liability. Unfortunately for plaintiffs, the threshold is high as a workplace that is actionable is one that is considered to be “hellish.”51

39. Id. 40. Warner v. USF Holland, Inc, 2012 WL 245190 at *1 (N.D. Ill. January 25, 2012).

41. Id. 42. Id. at *2.

43. Id. 44. Id. at *3.

45. Id. at *4.

46. Id. at *5.

47. Id. (citing Holman v. Indiana, 211 F.3d 399, 401 (7th 2000)).

48. Id. at *5.

49. “But even if we accept plaintiff’s bisexual theory, this raises a separate problem. As noted above, the Seventh Circuit has held that a bisexual harasser does not violate Title VII.” Warner, 2012 WL 245190, at *5 (citing Holman v. Indiana, 211 F.3d 399, 401 (7th 2000)).

50. Smith, 898 F.3d at 752; Warner, 2012 WL 245190, at *4.

51. Wittaker v. N. Ill. Univ., 424 F.3d 640, 645 (7th Cir. 2005)(quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1013 (7th Cir. 1997)).

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When working with adolescents who have experienced trauma, it is crucial to gain knowledge regarding the definition of trauma, how it impacts the brain, what trauma responses can look like emotionally and behaviorally, and how to approach people who have experienced trauma using a trauma-informed approach.

Trauma is an event that threatens or is perceived to threaten someone’s life, safety, or well-being. It can overwhelm a person’s ability to cope and cause neurophysiological dysregulation that compromises affective, cognitive, and behavioral responses.

Trauma and the Adolescent Brain

By Christina Graffagna

Trauma exposure can be acute or chronic. Acute trauma is a single event that produces trauma responses in an individual.

Chronic trauma is when multiple and varied traumatic events occur. Chronic trauma may look like an adolescent witnessing domestic violence, being involved in a car accident, and then becoming a victim of community violence. It can also look like longstanding abuse or neglect.

Whether acute or chronic, experiencing trauma can affect the brain. Specifically, it may impact the amygdala and medial prefrontal cortex (mPFC). The amygdala is responsible for recognizing and reacting to threats in the environment. This is a crucial part of safety and survival. However, when a brain has experienced trauma, this part of the brain may become hyperaware and cause strong reactions to people, places, and things that serve as reminders of the traumatic event even if those things are not a present threat.

The mPFC connects to the amygdala and sends out cues to calm the brain, reassures that the environment is safe, and reduces amygdala reactivity. After trauma, the pathway between the amygdala and mPFC may be weakened. The amygdala then experiences heightened awareness of threat and danger and does not have strong access to the mPFC to regulate this perception. These changes in the brain are not permanent.

Providing youths who have experienced trauma with safe, stable environments, therapeutic resources, and supports can help heal and manage these changes in the brain.

Because of this impact on the brain, survivors of trauma may experience changes in their emotions, behavior control,

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“

A trauma-informed juvenile justice system provides services that increase the safety of the youth and provides supports and tools to cope with traumatic stress exposure.

self-concept, cognition, and relationships. The impact of trauma can cause physical symptoms like rapid heart rate, sweating, and stomachaches when presented with a trauma reminder.

Trauma responses may manifest as difficulty identifying and experiencing emotions, impulsivity, low self-esteem, difficulty planning and completing tasks, and heightened difficulty with authority or redirection. This may lead to substance abuse, violence and aggression, risk-taking behaviors, and greater connection with negatively influencing peers. Because of the heightened risk of these behaviors, these youths may have increased involvement with the juvenile justice system.

exposure to traumatic reminders. A trauma-informed juvenile justice system provides services that increase the safety of the youth and provides supports and tools to cope with traumatic stress exposure.

When engaging with youths who may have complex traumatic histories, use a calm demeanor and spend time establishing rapport. Model the respect you expect in return. Use age-appropriate language and active listening skills such as repeating, paraphrasing, and affirming the youth. Seek to comfort, not threaten. Because of the changes that occur in the brain after trauma, the youth’s threat detection may be heightened. Pay attention to your non-verbal communication, physical space, and tone/volume. Using these skills will assist in calming the youth and signaling that they are in a safe environment.

Trauma can affect the brain, behaviors, and emotions in complex ways. Adolescents who have experienced trauma may have acute or chronic exposure leading to trauma-related symptoms and brain changes. These changes are not permanent, and behavioral/emotional symptoms can be managed through trauma-informed care. In the juvenile justice system, trauma-informed care includes an understanding of complex trauma and its connection to risk-taking behaviors. Approach those with traumatic histories with understanding and reassurance of safety to minimize trauma symptoms and provide support.

About the Author

Using a trauma-informed approach realizes the impact of trauma and understands potential paths for recovery, recognizes the role trauma-related reactions and survival coping play, and responds to enhances a youth’s protective factors and achievements. Within the juvenile justice system, a traumainformed approach understands complex trauma can lead to aggressive and defensive behavior. It implements system changes to improve a youth’s safety and seeks to reduce

DCBA Brief March/April 2021

Christina Graffagna obtained a Master of Education in Community Counseling from Loyola University Chicago and a Bachelor of Science in Psychology from the University of Alabama. Christina delivers LGBTQIA-affirming, trauma-informed therapy using a strength-based perspective to foster meaningful conversations with adolescent clients at 360 Youth Services.

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Successfully Using the Illinois Nursing Home Care Act to Help Your Elderly Clients

By Margaret Battersby Black

The Nursing Home Care Act (“NHCA”), is a consumer rights statute that protects residents of nursing homes who are vulnerable to abuse and neglect due to age or infirmity.1 The Illinois General Assembly passed the original NHCA in 1979 as an attempt to reform the nursing home industry “amid concern over reports of ‘inadequate, improper and degrading treatment of patients in nursing homes.’”2 Historically, significant barriers to litigation existed to achieving justice for the elderly and infirmed because of the costs of litigation in comparison to the potential settlement or verdict.

Often, nursing home residents are not wage earners, have multiple medical conditions or disabilities, and have a decreased life expectancy. Ironically, these factors can support defense arguments for decreased damages due to minimal economic damages and non-economic damages undercut by limited life expectancy and baseline medical conditions and disabilities. However, the NHCA makes these cases more legally and economically attractive to lawyers who are willing to advocate for nursing home residents as more fully set forth in the body of this article.

Residents’ Rights are Guaranteed The NHCA outlines residents’ rights in Article 2, Part 1.

Certainly included are the rights guaranteed by law and the Illinois Constitution as well as the United States Constitution, but also included are identified rights that are specific to these individuals, including a resident’s right to manage his own affairs, retain and use her personal property in her immediate living quarters, communicate by mail, telephone or visitation, and the free exercise of religion. This article will focus on the

1. 210 Ill. Comp. Stat. Ann. 45/1-101 et. seq.

2. Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 357-358, 95 Ill. Dec. 510, 489 N.E.2d 1374 (1986).

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rights conferred by section 2-107 of the NHCA Act, the right to be free from abuse or neglect: An owner, licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident. It is the duty of any facility employee or agent who becomes aware of such abuse or neglect to report it as provided in “The Abused and Neglected Long Term Care Facility Residents Reporting Act”.3 Neglect is defined by the NHCA as “a facility’s failure to provide, or willful withholding of, adequate medical care, mental health treatment, psychiatric rehabilitation, personal care, or assistance with activities of daily living that is necessary to avoid physical harm, mental anguish, or mental illness of a resident.”4 Personal care means “assistance with meals, dressing, movement, bathing or other personal needs or maintenance, or general supervision and oversight of the physical and mental well-being of an individual, who is incapable of maintaining a private, independent residence or who is incapable of managing his person whether or not a guardian has been appointed for such individual.”5 When put together, these definitions most commonly allow for private causes of action under the NHCA for conditions like bed sores, falls, malnutrition, dehydration, uncleanliness, medication errors, failures to supervise, and countless other injuries that can occur in nursing homes when personal care is not provided.

The NHCA confers legal rights and protections to nursing home residents. Section 3-607 of the NHCA guarantees a

3. 210 Ill. Comp. Stat. Ann. 45/2-107.

4. 210 Ill. Comp. Stat. Ann. 45/2-117.

5. 210 Ill. Comp. Stat. Ann. 45/1-120.

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nursing home resident a right to a trial by jury, and section 3-606 invalidates any attempt to obtain a waiver by a resident or his legal representative. However, increasingly and despite these assurances, nursing homes are asking residents or the representatives to sign “pre-dispute” binding arbitration agreements upon admission. Under a purported motivation to limit the costs of litigation for both parties, these agreements often also limit or seek to completely waive the rights and remedies under the NHCA without adequately informing the signatories to these agreements of the existence of the NHCA. This kind of action is clearly contrary to the legislative intent of the NHCA. The court in Harris v. Manor Healthcare Corp. addressed the legislature’s intent when it stated that “…we believe that section 2-602 was enacted primarily to encourage private enforcement of the Act and to compensate residents for violations of their rights…”6 However, the NHCA’s stated intent is seemingly in conflict with the Federal Arbitration Act (“FAA”). In Fosler v. Midwest Care Center II, Inc., the Second District addressed this issue, finding that where a resident or resident’s representative has signed an arbitration agreement, Sections 3-606 and 3-607 of the NHCA are preempted.7 However, in Carter v SSC Odin Operating Co., the Illinois Supreme Court found that while the FAA may preempt the NHCA in this regard, arbitration agreements may be invalidated along common-law contract defense grounds.8 It is this author’s experience that these defenses may be plentiful but often dismissed in situations involving a frail elderly or infirmed nursing home resident who is forced to sign a pre-dispute arbitration agreement.

The first obstacle to tackling these defenses is to determine whether they are valid, and further, whether the signatory to the agreement had actual authority and/or legal capacity to sign.

An attorney practicing in the area of elder law would be wise to educate her clients on arbitration agreements, encouraging those clients to seek counsel before signing any agreement. A separate article on arbitration agreements, their validity, and ways to defeat or dispute them could easily fill another journal article.

Mandatory Obligations of the Nursing Home When Rights are Violated In Article III, Part 6 of the NHCA, certain duties are outlined for nursing homes. Section 3-601 provides: “[t]he owner and licensee are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident.” Unlike traditional personal injury or medical malpractice cases, where employers are often not liable for the intentional acts of their employees, in contrast the NHCA provides for statutory liability of an owner or licensee for the intentional conduct of its employees.

About the Author Margaret Battersby Black is a partner at Levin & Perconti. A trial lawyer focused on nursing home litigation, Margaret holds the Illinois record for highest verdict in a nursing home case. Margaret graduated with a BA from the University of Michigan in 2002 and her JD from Chicago-Kent College of Law, in 2008.

6. Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 357-358, 95 Ill. Dec. 510, 489 N.E.2d 1374 (1986).

7. Fosler v. Midwest Care Ctr. II, Inc., 391 Ill. App. 3d 397, 331 Ill. Dec. 773, 911 N.E.2d 1003 (2009).

8. Carter v. SSC Odin Operating Co., LLC, 229 Ill. 2d 618, 325 Ill. Dec. 2, 897 N.E.2d 250 (2008).

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Momkus LLP is pleased to announce that Patrick R. Boland has been promoted to Partner at the law firm.

AD here Patrick’s areas of practice include:

LLP

COMMERCIAL AND CIVIL LITIGATION PARTNERSHIP AND SHAREHOLDER DISPUTES REAL ESTATE LITIGATION

ARTICLES Where Rights and Obligations Collide: Lawsuits under the NHCA When a lawyer believes a nursing home resident has been wronged under the NHCA, she is entitled to file a private cause of action under the NHCA. A complaint under the NHCA should be clear on its face that the cause of action is being brought under the Act. However, not all nursing facilities are covered by the Act. Section 1-113 identifies facilities that are not covered under the NHCA including, but not limited to, hospitals, assisted living facilities, and facilities for child care.

Because the NHCA holds both the licensees and owners liable, it is important to know who the owner and/or licensee of the facility was at the time of the cause of action. The Illinois Department of Public Health identifies the current licensees online.9 However, because an action may have occurred under the operation of a different licensee, it is always prudent to confirm licensure by emailing DPH.LTCQA.Licensure@ illinois.gov.

Differentiating between NHCA Cases and Healing Arts Malpractice Cases It is important to know at the outset of a case whether it will be a pure NHCA case or some hybrid theory of recovery that might include a claim for medical malpractice. Under the NHCA, only owners and licensees are liable to residents whose rights are violated. In Wills v. DeKalb Area Retirement Center et. al., the Second District held that based upon the plain reading of the NHCA and the fact that owners and licensees are vicariously liable for their agents, the individual healthcare professionals are specifically excluded as Defendants under the NHCA.10

under the NHCA, additional legal theories must be pursued against those defendants, such as healing arts malpractice.

When filing a case that is strictly NHCA based in origin, a lawyer is not required to comply with the affidavit requirements of 735 ILCS 5/2-622. The 2-622 statute normally requires that attached to a complaint for medical malpractice is an affidavit identifying that a health professional has determined that there is a reasonable and meritorious cause for the filing of such action. However, in a NHCA lawsuit, no such affidavit is required.

The Illinois Supreme Court decision in Eads v. Heritage Enterprises Inc. is instructive on the distinction between a NHCA action and a healing arts malpractice action.11 The Supreme Court in Eads agreed with the appellate court that requiring Plaintiff’s to file a 2-622 affidavit would “thwart the purpose of the Act,” in which “litigation was viewed as an engine of reform.”12 In other words, requiring a 2-622 affidavit in healing arts malpractice cases has been seen as posing a deterrent to those improperly bringing such cases by ensuring that a medical professional supports the case. In contrast, it is clear that the legislature did not intend to put up any obstacles to filing a case under the NHCA.

Therefore, when filing a case involving an Illinois nursing home under the NHCA, the complainant is suing the owners and licensees, not the individual medical staff. A complaint filed under the NHCA is not a traditional medical malpractice lawsuit; if additional defendants are sought to be included, such as nurses or doctors, because those individuals cannot be sued

Similarly, the NHCA does not require proof of professional negligence. In Myers v. Heritage Enterprises, Inc., (“Myers 2”), the Fourth District reversed the trial court when the jury was instructed on professional negligence in its jury instruction rather than ordinary negligence.13 In Myers, the negligence at issue was the operation of a Hoyer Lift, a lift used to transfer immobile residents, operated by two certified nurse’s aides, or CNAs.14 The Myers court specifically determined that “the act of CNAs moving a nursing home resident does not constitute skilled medical care requiring the professional negligence instruction,” focusing on the minimal training requirements and primary job of providing personal care of a CNA.15 This suggests that expert testimony

9. https://ltc.dph.illinois.gov/webapp/LTCApp/ltc.jsp.

10. Wills v. De Kalb Area Ret. Ctr., 175 Ill. App. 3d 833, 844, 125 Ill. Dec. 657, 530 N.E.2d 1066 (1988).

11. Eads v. Heritage Enters., 204 Ill. 2d 92, 272 Ill. Dec. 585, 787 N.E.2d 771 (2003).

12. Eads, 204 Ill. 2d at 103.

13. Myers v. Heritage Enters., 354 Ill. App. 3d 241, 248, 289 Ill. Dec. 828, 820 N.E.2d 604 (2004).

14. Myers, 354 Ill. App 3d. at 608-09.

15. Id. at 610.

DCBA Brief March/April 2021

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ARTICLES

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would not be needed to prove a case under the NHCA, unlike a medical malpractice case.

(I)dentified rights that are specific to these individuals, (include) a resident’s right to manage his own affairs, retain and use her personal property in her immediate living quarters, communicate by mail, telephone or visitation, and the free exercise of religion.

While this may be the law, the determination of whether to disclose an expert witness should be on a case by case basis.

In particular, where the conduct of licensed nurses is at issue, it is not clear that the holding of Myers 2 would necessarily prevail. This author finds it helpful to retain a nursing expert to navigate through the nursing home chart, the nursing home employee depositions, and explain these concepts to the jury at trial. This is particularly true in cases that involve issues that have more complex medical principles, such as pressure sores that become infected, improper assessments of a resident’s condition, medication errors, and changes in condition. However, simple neglect cases such as failures to maintain dignity, abuse, and failures to provide basic personal care are cases in which the holding of Myers 2 would likely prevail, and it may not make sense economically to secure an expert.

Litigation on a NHCA action does not automatically terminate in the event of the passing of the subject nursing home resident. Due to the very nature of NHCA claims, often by the time the case is filed, or frequently during the litigation, the resident dies. In Myers v. Heritage Enterprises Inc., (“Myers 1”), the Fourth District held that a NHCA claim survives the death of a resident and may be brought by the resident’s representative.16 Therefore, complaints can be filed or amended upon a resident’s death to include a Survival Act claim pursuant to 755 ILCS 5/27-6 under the NHCA. Remedies Available under the NHCA Section 3-602 requires that a licensee pay the actual damages, costs and attorney’s fees to a resident whose rights are violated under Part 1 of Article 2 of the NHCA. One of the rights enumerated under this section is the right to be free from abuse or neglect. Therefore, when a trier of fact finds that a facility licensed under the NHCA has committed abuse or neglect, damages for the actual injuries to the resident must be

16. Myers v. Heritage Enters., 332 Ill. App. 3d 514, 517, 266 Ill. Dec. 32, 773 N.E.2d 767 (2002) (citing Wills v.

DeKalb Area Ret. Ctr., 175 Ill. App. 3d 833, 841, 125 Ill. Dec. 657, 530 N.E.2d 1066 (1988)).

DCBA Brief March/April 2021

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ARTICLES awarded. Actual damages will include items ordinarily recoverable for a living plaintiff, or a deceased plaintiff pursuant to the Survival Act, such as medical expenses, pain and suffering, disability, and disfigurement.

Berlak acknowledged should be considered, along with a full evidentiary hearing on the attorney’s fee applicable.23 Accordingly, the Grauer court awarded $1,287,159.22 in attorney’s fees on the NHCA portion of the verdict.

Over time, case law has helped further shape and define the scope of the NHCA and confirm its legislative intent to allow private attorneys to help police the industry by acting as private attorneys general.17 What’s more, Section 3-602 of the NHCA awards successful litigants with attorney’s fees and costs taxed against the owner and licensee of the facility. The First District first addressed attorney’s fees under the NHCA in Berlak v. Villa Scalabrini Home for the Aging, Inc. finding that the payment of attorney’s fees and costs is a mandatory requirement evidenced by the word “shall” within the Act.18

Grauer is also notable for establishing the scope of costs to be awarded to successful litigants under the NHCA. In Grauer, the plaintiff argued that “costs” as provided by Section 3-602, included all litigation costs expended by the plaintiff. Defendant argued that “costs” included only those statutory costs already provided for by 735 ILCS 5/5-108, which included minimum nominal costs like filing fees and a jury demand. The Grauer Court sided with the plaintiff on the basis of statutory construction, reasoning:

The Berlak court specifically opined that attorneys would not be reasonably induced to represent clients in these types of lawsuits if they did not think that they could recover their fees.19 In Berlak, the court determined that the existence of a contingency fee agreement between an attorney and client is a relevant factor in considering the reasonableness of the fee.20 In Berlak, the Plaintiff’s recovery was nominal at $11,218.44, and the attorney’s hourly rate fees and costs approved by the appellate court amounted to $85,000, which was over seven times the actual verdict.21 However, in the more recent case of Grauer v. Clare Oaks, the First District declined to follow the hourly rate fee calculation methodology when it upheld the trial court’s award of a contingency fee on a verdict of $4,111,477.66.22 Grauer is distinguishable from the facts of Berlak because in Grauer a contingent fee to plaintiff’s attorneys of one-third of the $4.11 million award appeared to more reasonably compensate plaintiff’s attorneys for pursuing the claim. While taking note of Berlak, the Court in Grauer determined that the trial court in Grauer had fully considered all relevant factors in assessing the attorney’s fee including the existence of the contingency fee contract, a factor

17. Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 369, 95 Ill. Dec. 510, 489 N.E.2d 1374 (1986).

18. Berlak v. Villa Scalabrini Home for the Aged, 284 Ill. App. 3d 231, 236, 219 Ill. Dec. 601, 671 N.E.2d 768 (1996).

19. Berlack, 284 Ill. App. 3d at 240.

20. Id. at 241.

21. Id. at 243.

22. Grauer v. Oaks, 2019 IL App (1st) 180835.

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We agree with the plaintiffs that it can be presumed that, when the General Assembly enacted section 3-602, it was aware that the predecessor statute to section 5-108 already allowed the taxation of “court costs” to any prevailing plaintiff against any losing defendant. We therefore agree with the plaintiffs that, if we construed the word “costs” in section 3-602 to mean the same thing as “costs” in section 5-108, we would be finding that the legislature’s inclusion of this term in section 3-602 afforded a nursing home resident who prevails against a licensee with nothing beyond what was already provided by Illinois law.24 In Grauer, the plaintiff was awarded $147,471.55 in litigation costs in addition to the attorney’s fees awarded.25 Residents injured at nursing homes may also be entitled to punitive damages. While the NHCA initially provided for treble damages for violations of resident’s rights, the act was amended in 1995 and the treble damages provision of the act was repealed.26 In the legislative hearings and debates on the amendment, there is legislative support for the principle that punitive damages should be assessed in a nursing home case.

For example, Senator Beverly J. Fawell commented:

23. Grauer v. Oaks, 2019 IL App (1st) 180835, 134.

24. Grauer, 2019 IL App 180835, 156.

25. Grauer v. Oaks, 2019 IL App (1st) 180835.

26. 210 ILCS 45/3-602 P.A. 89-197 (eff. July 21, 1995).

DCBA Brief March/April 2021

ARTICLES The elimination of the mandatory provision in no way prevents a judge or jury from awarding punitive damages in any amount, even in excess of triple actual damages, if actions of the nursing home or any of its employees or agents are deemed to be intentional or willful and wanton, or grossly negligent.27 The case law that followed made clear that the repeal of treble damages did not mean that other remedies were unavailable. In Dardeen v. Heartland Manor Inc., while discussing the amendment repealing treble damages, the Illinois Supreme Court noted “[u]nder the amended version of the statute, plaintiff may recover actual damages and attorney fees upon proof of defendant’s negligent violations of the Act, and may additionally recover common law punitive damages upon proof of willful and wanton misconduct on the part of defendant.”28 Pleading and proving punitive damages need to be consistent with a common law complaint for punitive damages, alleging facts that amount to willful and wanton misconduct.

However, Section 3-605 of the NHCA provides that any funds recovered for a resident under the NHCA are exempt from the reach of a public aid lien and cannot disqualify a resident receiving benefits from a continuation of their public aid benefits. In In re Estate of Castro, the Second District confirmed that the exemption provided to residents under Section 3-605 extended to the representative of the estate: “to allow an exemption for settlement funds paid to a nursing home resident only if she survives the date of the settlement would be an unjust if not an absurd result.”29 Additionally, Section 3-608 of the NHCA makes clear that a facility and its agents cannot retaliate against a resident or his representative for reporting, testifying or bringing a cause of action in conjunction with the NHCA.

Hesitancies of Residents and their Families in Filing these Cases Residents and their families are often hesitant to move forward with these cases due to fear of retaliation and concern that recovery may disqualify the resident from receiving public aid.

Practitioners Wanting to Represent Clients under the NHCA Should Familiarize Themselves with the Relevant Case Law In conclusion, the plain language of the NHCA and the case law developed in the years since its enactment can benefit your elderly and infirmed clients. This author highly recommends that anyone seeking to represent clients who have redress under the NHCA further familiarize themselves with both the Act and the case law cited in this article to establish a working knowledge of how the NHCA can be used to advocate on behalf of your clients.

27. 89th General Assembly, Regular Session, Senate Transcript, 57th Legislative Day, p. 90 (May 24, 1995), www.ilga.gov/senate/transcripts/strans89/st052495.pdf.

28. Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 300, 238 Ill. Dec. 30, 710 N.E.2d 827 (1999) (See also Eads v. Heritage Enters., 204 Ill. 2d 92, 104, 272 Ill. Dec. 585, 787 N.E.2d 771 (2003)).

29. Dep’t of Pub. Aid v. Castro (In re Estate of Castro), 289 Ill. App. 3d 1071, 1075, 225 Ill. Dec. 592, 683 N.E.2d 1255 (1997).

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ARTICLES

Substitution of Judge as of Right:

What Bars the Absolute Right to Substitution?

By Emmet Fairfield

Two years ago, I wrote an article entitled, “The Absolute Right to Substitution of Judge is not Absolute: The ‘Test the Waters’ Doctrine Continues to Muddy the Waters.” In the article, I examined the substitution of judge as of right statute and its judicially grafted “test the waters” doctrine and argued the Illinois Supreme Court should reject the test the waters doctrine in favor of the plain language of the statute.1 Given the test the waters doctrine remains a viable exception to the substitution of judge as of right statute in the First, Third, and Fifth Districts, and despite the fact I argued against it in my previous article, I thought it would be useful to whomever may read this publication to survey cases in which courts have applied the substitution of judge statute in common practice scenarios.2 (The Second District has not taken a position on the viability of the doctrine. However, it has cited the rule favorably in unpublished orders in dicta.3) An understanding of how the substitution of judge statute is applied is important because any orders entered after an erroneous denial of a motion for substitution of judge as of right are void.4 Before any discussion of cases applying the statute, however, a quick refresher on the substitution of judge as of right statute, its timeliness requirement, and the test the waters doctrine is appropriate.

matter of right” provided the party timely exercises the right.5 A substitution motion is timely if it is filed prior to the commencement of the hearing or trial and before the judge to whom it is presented has ruled on any substantial issue in the case.6 Generally, a court has no discretion to deny a motion to substitute under section 2-1001(a)(2) if it meets the timeliness requirement.7 However, our reviewing courts have engrafted two exceptions to this rule: the court may deny the motion if (1) it was brought for the purpose of delaying the proceedings8; and (2) the moving party had the opportunity to test the waters and form an opinion as to the judge’s disposition toward his or her claim.9 It is important to note the requirement the motion be brought before the judge to whom it is presented has made a ruling on a substantial ruling issue in the case applies both in original actions, refiled actions, as well as post judgment proceedings.10

Substitution of Judge as a Matter of Right Section 2-1001(a)(2) of the Code of Civil Procedure (Code) provides that each party is entitled to one substitution of judge “as a

What constitutes a ruling on a substantial issue in the case?

A “substantial issue” is one which relates directly to the merits of the case.11 The determination of whether the judge has made a ruling on a substantial issue relating directly to the merits of the case often requires only a routine application of this principle. For instance, courts have held rulings on motions to dismiss, to strike a complaint (even when done sua sponte), for summary judgment, or for preliminary injunction, constitute rulings on substantial issues for purposes of the statute.12 Such rulings clearly relate directly to the merits of the case, such that the right to substitution is defeated.

1. 31 DCBA Brief 8 (February 2019).

2. Safeway Ins. Co. v. Ebijimi, 2018 IL App (1st) 170862, ¶¶ 34-35; City of Granite City v. House of Prayers, Inc., 333 Ill. App. 3d 452, 461-62 (5th Dist. 2002); In re Estate of Gay, 353 Ill. App. 3d 341, 343-44 (3d Dist. 2004).

3. Galvan v. Allied Ins. Co., 2013 IL App (2d) 120525-U, ¶ 26; People ex rel. Illinois Department of Healthcare and Family Services v. Finney, 2019 IL App (2d) 190577-U, ¶ 26.

4. Schnepf v. Schnepf, 2013 IL App (4th) 121142, ¶ 24.

5. 735 ILCS 5/2-1001(a)(2) (West 2018).

6. Id. § 2-1001(a)(2)(ii) (West 2018).

7. See Schnepf, 2013 IL App (4th) 121142, ¶ 27, 327 Ill. App. 3d 333, 336 (4th Dist. 2002).

8. Id. ¶ 42 (citing In re Estate of Wilson, 238 Ill. 2d 519, 557 (2010)).

9. Cicinnati Ins. Co. v. Chapman, 2012 IL App (1st) 1117792, ¶ 23.

10. Bowman v. Ottney, 2015 IL 119000, ¶ 25 (refiled action); In re Marriage of Kozloff, 101 Ill. 2d 526, 532 (1984) (postjudgment proceedings); Niemerg v. Bonelli, 344 Ill. App. 3d 459, 464-66 (5th Dist. 2003) (section 2-1401 petition).

11. Rocha v. FedEx Corporation, 2020 IL App (1st) 190041,¶ 73.

12. Gilliland v. Board of Ed. Of Pleasant View Consol. School Dist. No. 622 of Tazewell County, 67 Ill. 2d 143, 157 (1977) (motion to dismiss); Rocha, 2020 IL App (1st) 190041, ¶ 76 (sua sponte order striking complaint); Heman v. Jefferson, 136 Ill. App. 3d 745, 751 (4th Dist. 1985) (motion for summary judgment); Sarah Bush Lincoln Health Center v. Berlin, 268 Ill. App. 3d 184, 188 (4th Dist. 1994) (motion for preliminary injunction).

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DCBA Brief March/April 2021

ARTICLES Similarly, there are certain rulings which obviously are not rulings on substantial issues. For example, orders setting a briefing schedule or hearing on a contested motion and rulings on motions for continuance, unopposed motions for leave to amend, and motions for severance of the issues are not rulings on substantial issues under the statute.13 Such rulings clearly do not relate directly to the merits of the case.

Many times, however, more analysis must be performed to determine whether a ruling constitutes a ruling on a substantial issue. What follows are brief examinations of cases in which the statute was applied in common practice situations.

In the context of discovery, whether a ruling on a discovery motion or dispute constitutes a ruling on a substantial issue depends on the circumstances of the dispute. Courts focus on whether the ruling pertains to “‘evidentiary trial matters,’” or whether the discovery motion concerns the admissibility and relevance of material information.14 In Nasrallah v. Davilla, for example, the appellate court held the trial judge’s rulings setting a physician’s deposition fee and granting additional time to answer Rule 213 interrogatories did not constitute rulings on substantial issues under the statute and, therefore, the trial judge should have granted the motion.15 In In re Marriage of Birt, the appellate court reversed the denial of a motion for substitution where the trial judge had made rulings on two motions to limit discovery by nonparties to the action, finding the motions did not relate to the merits of the case.16 In Safeway Insurance Co. v. Ebijimi, on the other hand, the court held the granting of leave to depose a former employee of the insurance company defendant, denying a motion to compel written discovery and for broader depositions, and ordering the moving party to come forward with evidence that the in13. In re Marriage of Crecos, 2015 IL App (1st) 132756, ¶ 26 (order setting a briefing schedule); Caprata v.

Black, 127 Ill. App. 2d 363, 366 (1st Dist. 1970) (order granting continuance); People ex rel. Alexander v. Keogh, 81 Ill. App. 3d 729, 730 (4th Dist. 1980) (order granting unopposed motion to amend a complaint); Delta Oil Co., Inc. v. Arnold, 66 Ill. App. 3d 375, 380-81 (1st Dist. 1978) (motion for severance of issues of single cause of action.

14. Ebijimi, 2018 IL App (1st) 170862, ¶ 33 (quoting Granite City, 333 Ill. App. 3d at 461); In re Marriage of Petersen, 319 Ill. App. 3d 325, 339 (1st Dist. 2001).

15. Nasrallah v. Davilla, 326 Ill. App. 3d 1036, 1039-41 (1st Dist. 2001).

16. In re Marriage of Birt, 157 Ill. App. 3d 363, 367, 368-69 (2d Dist. 1987).

17. Ebijimi, 2018 IL App (1st) 170862, ¶ 35.

18. Williams v. Estate of Cole, 393 Ill. App. 3d 771, 775 (1st Dist. 2009).

19. In re Estate of Hoellen, 367 Ill. App. 3d 240, 246-47 (1st Dist. 2006).

20. Yassin by Yassin v. Certified Grocers of Illinois, Inc., 150 Ill. App. 3d 1052, 1073 (1st Dist. 1986) (motion in limine).

21. Estate of Roselli, 70 Ill. App. 3d 116, 120 (1st Dist 1979).

22. Id. at 121-22.

23. Chavis v. Woodworker’s Shop, Inc., 2018 IL App (3d) 170729, ¶ 5.

24. Id. ¶¶ 14-15.

surance company disputed or denied coverage constituted rulings on substantial issues, rendering the substitution motion untimely.17 Likewise, in Williams v. Estate of Cole, the court held discovery orders quashing subpoenas, imposing special discovery rules, and denying a motion to disqualify an attorney constituted rulings on substantial issues.18 In In re Estate of Hoellen, the appellate court found an order directing a party to produce certain documents was a ruling on a substantial issue, explaining the order “entailed more than a mere administrative or ministerial decision” and the documents ordered to be produced contained information allowing the nonmoving party to go forward with its claim.19 Courts have also found that a pretrial ruling on an issue of law, such as a ruling on a motion in limine, constitutes a ruling on a substantial issue.20 In Estate of Roselli, the trial judge issued a pretrial ruling that certain evidence sought to be introduced by the moving party was inadmissible.21 The appellate court affirmed the denial of the motion for substitution, explaining the ruling on the admissibility of evidence barred the right to substitution.22 In the context of contempt proceedings, like discovery disputes, whether a finding of contempt is a ruling on a substantial issue depends on the circumstances. In Chavis v. Woodworker’s Shop, Inc., the moving party made an inappropriate remark directed at the judge, causing the judge to find him in contempt and place him in a holding cell until he apologized, and thereafter sought substitution as of right.23 The appellate court characterized the moving party’s conduct as criminal contempt, found the contempt finding “had nothing to do with the merits” of the claim, and therefore, reversed the order denying the motion and vacated all subsequent orders.24

About the Author

DCBA Brief March/April 2021

Emmet C. Fairfield is a 2013 graduate of NIU College of Law. He is a staff attorney for the research division of the Illinois Appellate Court, First District, a former associate attorney at Broida and Nichele, Ltd. in Naperville, former law clerk to Justice Lisa Holder White, and staff attorney for the Fourth District.

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ARTICLES

...it must be noted that parties must actively test the waters and that the judge’s voluntary injection of his or her feelings about the case without prompting by the parties does not defeat the right to substitution.

Under what circumstances has a party tested the waters?

When has a party tested the waters and formed an opinion as to the judge’s disposition toward his or her claim? In many cases, courts look to the record to determine whether the judge and the parties have discussed the matters ultimately at issue and whether the judge has given any indication of his view of the case. Courts will also evaluate whether the judge voluntarily brings to the parties’ attention its disposition toward certain issues in the case.28 What follows are several examples where the appellate court has applied the doctrine.

In Levaccare v. Levaccare, the appellate court found the moving party had “ample opportunity to test the waters,” in part, where the trial judge had been intimately involved in the parties’ settlement negotiations.29 In that case, the brother and sister involved in a dispute over the distribution of their mother’s estate engaged in settlement negotiations in court with the trial judge’s participation and, afterward, the judge prepared a memorandum memorializing seven points of compromise.30

In the context of pretrial settlement conferences, the appellate court has found that a judge’s recommendation as to the amount of settlement does not constitute a ruling on a substantial issue.

In Rodisch v. Commacho-Esparza, the parties participated in an off-the-record settlement conference during which the parties had discussed settlement and the trial judge made a recommendation.25 Later, the judge court explained its reasons for denying the motion, indicating the parties had discussed the merits of the case.26 The appellate court held no ruling on a substantial issue had been made even though the pretrial conference had “necessarily involved discussions about certain aspects of the merits of the case,” noting there was no indication in the record the judge had “clearly established his position on any of the issues.”27 (Although it certainly appears this case would have been ripe for the application of the test the waters doctrine, the appellate court did not discuss the doctrine in this case.)

In Rocha v. FedEx Corporation, the appellate court found the test the waters doctrine provded additional support for its conclusion that a sua sponte order striking a complaint defeated the right to substitution of judge.32 The court found it significant that the parties seeking substitution had filed their motion 13 months after it filed its initial complaint and 7 months after

25. Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 348 (2d Dist. 1999).

26. Id. at 348-49.

27. Id. at 351.

28. See e.g., Palos Community Hospital v. Humana, Inc., 2020 IL App (1st) 190633, ¶ 30.

29. Levaccare v. Levacarre, 376 Ill. App. 3d 503, 508 (1st Dist 2007).

30. Id. at 504-05.

31. In re Estate of Gay, 353 Ill. App. 3d 341, 344 (3d Dist. 2004).

32. Rocha, 2020 IL App (1st) 190041.

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In In re Estate of Gay, the appellate court found the moving party had tested the waters and had the opportunity to form an opinion as to the judge’s disposition toward the case where the parties had engaged in several pretrial conferences during which the judge had discussed the merits of the case and suggested the moving party’s burden of proof would be significant.31

DCBA Brief March/April 2021

ARTICLES the court had sua sponte struck their initial complaint, giving the trial judge a “reasonable concern” the parties were “judge shopping.”33 In Estate of Hoellen, the appellate court likewise found the test the waters doctrine provided additional support for its conclusion the trial judge had properly denied the motion for substitution.34 In that case, the moving party’s attorney stated at the hearing on the motion for substitution that he believed the judge had shown a predisposition to ruling in favor of the opposing party, which the appellate court found was clear evidence the attorney had formed an opinion as to the court’s disposition toward the case.35 Levaccare, Estate of Gay, Rocha, and Hoellen involved scenarios where the moving party had the opportunity to form an opinion as to the judge’s disposition toward the merits of the case.

However, it appears the party’s opinion of the judge’s disposition need not necessarily relate to the merits of the case. For example, in Palos Community Hospital v. Humana, the appellate court found the moving party had tested the waters where the judge’s ruling permitted the moving party to discern the judge’s “position on the production of documents [that] were at the heart of [the] controversy.”36

Palos Community Hospital and Granite City demonstrate the right to substitution may be defeated if the moving party had the opportunity to test the waters as to the judge’s disposition toward contentious discovery disputes.

While these cases illustrate when a party has tested the waters, it must be noted that parties must actively test the waters and that the judge’s voluntary injection of his or her feelings about the case without prompting by the parties does not defeat the right to substitution. In Cincinnati Ins. Co. v. Chapman, the appellate court held the moving party’s knowledge of the judge’s ruling in an unrelated case involving a common issue that was directly adverse to the moving party’s position did not bar the right to substitution under the test the waters doctrine.40 There, the trial judge sua sponte informed the parties of its ruling in the unrelated case and, therefore, the appellate court found neither party had tested the waters.41 The facts in Chapman lend support to the Fourth District’s concern, as expressed in Schnepf v. Schnepf, that a trial judge could inadvertently extinguish the “absolute” right to substitution.42

Likewise, in City of Granite City v. House of Prayers, Inc., the appellate court affirmed the denial of a motion for substitution of judge as of right.37 There, the party seeking substitution sought substitution after a newly assigned judge issued a discovery order requiring it to comply with previous courts orders within two days and post a $50,000 cash bond after having previously failed to comply with certain deadlines.38 Applying the test the waters doctrine, the appellate court explained that, in light of the newly assigned judge’s “more serious approach” to the moving party’s noncompliance, it was “reasonable to assume” the moving party had formed an opinion that the judge did not hold “a favorable view of its reasons for noncompliance.”39

Conclusion Section 2-1001(a)(2) of the Code, while seemingly straightforward on its face, remains a cause for significant litigation in the trial and reviewing courts and often involves more than a straightforward application of the statute and its interpreting case law. In some instances, the dispute becomes whether the party seeking substitution has tested the waters, which often requires the judge “to make the ‘nuanced, subjective determination,’ of whether they have indicated their disposition toward a claim at some point in the proceedings.”43 In any event, because the doctrine remains a viable reason to deny a motion for substitution of judge as of right, it is important to understand how courts apply the substitution of judge statute given the grave consequences – all subsequent orders become void – that result from the erroneous denial of such motions.

33. Id. ¶ 77.

34. Hoellen, 367 Ill. App. 3d at 247.

35. Id. 36. Palos Community Hospital, 2020 IL App (1st) 190633, ¶ 29.

37. Granite City, 333 Ill. App. 3d at 460-62.

38. Id. at 454-56.

39. Id. at 462.

40. Chapman, 2012 IL App (1st) 111792, ¶ 25.

41. Id. 42. Schnepf, 2013 IL App (4th) 121142, ¶¶ 54-55.

43. Schnepf, 2013 IL App (4th) 121142, ¶ 50.

DCBA Brief March/April 2021

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ARTICLES Below are just some of the new laws that take effect in 2021.

EDUCATION HB 26: All Illinois high schoolers with a grade point average in the top 10% of their class will be accepted to Northern Illinois University, Eastern Illinois University, Southern Illinois University and Western Illinois University (provided they meet other criteria like college preparatory curriculum requirements and test scores).

SB 1601: Starting in the 2020-2021 school year, U.S. history classes for K-12 students must include instruction on the history of Illinois.

Highlights of New Illinois Laws Taking Effect in 20211

By Raleigh D. Kalbfleisch

HB 3550: Sex education courses and instruction in grades 6 through 12 will now be required to include an age-appropriate discussion on the meaning of consent.

HB 3404: Beginning in the 2020-2021 school year, each public university and community college in Illinois must make information on all of the school’s mental health and suicide prevention resources available to students.

HB 2237: The law creates the Illinois Higher Education Savings Program, where the state will deposit $50 into a college savings account for every child born or adopted in Illinois after Dec. 31, 2020. The funds (plus interest and earnings) can be used for higher education expenses like tuition, fees, books and more if parents or guardians claim the funds by the child’s 10th birthday, the child has completed secondary education or turned 18 and is an Illinois resident.

HB 2691: Transgender students ineligible for federal financial aid (including those disqualified for failing to register for the draft) as well as students who are not U.S. citizens (also unable to qualify for federal financial aid) are both eligible to receive state financial aid through the Monetary Award Program.

1. https://www.nbcchicago.com/news/local/chicago-politics/these-are-the-new-illinois-laws-taking-effect-in-2021/2403532/#:~:text=Senate%20Bill%20667%20caps%20out,limit%20prescription%20 insulin%20co%2Dpays; https://www.illinoissenatedemocrats.com/caucus-news/48-senator-donharmon-news/1624-interesting-new-laws-for-2020-and-2021; https://www.chicagoparent.com/learn/ new-illinois-laws-for-families/.

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DCBA Brief March/April 2021

ARTICLES CONSUMER PROTECTION SB 1624: Companies that collect personal information about Illinois residents will be required to report any data breaches impacting more than 500 Illinois residents to the state attorney general, as well as steps taken or plans related to the incident. The attorney general can then publish information about the breach to help consumers protect themselves.

HB 2189: Companies that provide direct-to-consumer commercial genetic testing (like ancestry.com or 23andMe) are now prohibited from sharing genetic test or other personally identifiable information about a person with health or life insurance companies without written consent from the person.

HB 88: The law reduces the post-judgment interest rate on consumer debt under $25,000 from 9% to 5% and cuts the timeframe to collect on a judgment from 26 to 17 years, aimed at helping people better manage their debt and stopping predatory debt collection practices.

SB 667: Insurance companies must limit the total amount a person is required to pay for insulin to $100 for a 30-day supply.

SEXUAL HARASSMENT, ABUSE AND VIOLENCE SB 75: The Workplace Transparency Act prohibits any contract or agreement (like a non-disclosure agreement) from restricting an employee from reporting allegations of unlawful conduct for investigation.

The state’s Department of Human Rights is now also required to create a sexual harassment prevention training program for employers, plus a separate program specifically for restaurants and bars, and employers must provide training each year.

The Sexual Harassment Victim Representation Act mandates that in any proceeding in which a victim and accused perpetrator are both members of the same union, they cannot be represented by the same union representative.

SB 1507: The Civil Remedies for Nonconsensual Dissemination of Private Sexual Images Act allows victims of revenge porn to recover damages (economic, emotional distress, punitive and more) in the two years after an image is disseminated or threat to disseminate is made.

HB 2135: The law removes the statute of limitations for criminal sexual assault, aggravated criminal sexual assault and aggravated criminal sexual abuse for all ages, not just minors.

HB 3498: Removes the statute of limitations for female genital mutilation for victims under 18, meaning the crime can be prosecuted at any time. It also makes female genital mutilation done by a parent or guardian a Class X felony.

HB 2818: Allows survivors of sexual assault and stalking to keep their home addresses confidential to reduce the risk that their attacker may locate them. The measure enables people to list the Illinois attorney general’s office as their contact address in some circumstances through the address confidentiality program already established for domestic violence survivors.

INMATES RIGHTS AND RESOURCES SB 2090: Cook County Jail will now be required to set up a temporary polling place within the jail during elections to allow those incarcerated, but not yet convicted, to cast their ballots. Every other local election authority in the state must also coordinate vote by mail opportunities for pre-trial detainees in county jail, and mandates that upon release of a person who is eligible to vote, the Department of Corrections give that person a specified form informing him or her that

About the Author

DCBA Brief March/April 2021

Raleigh D. Kalbfleisch is a sole practitioner concentrating in family law. She is a graduate of Purdue University and the Quinnipac University School Law and was a visiting student at Chicago Kent College of Law. She is an active member of the ISBA, DCBA and Family Law Section. She is a past president of D.A.W.L and on the Board of the DuPage Bar Foundation.

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ARTICLES voting rights have been restored, as well as a voter registration application.

HB 2541: Requires the Department of Corrections and the Department of Juvenile Justice to implement a nonpartisan civics program throughout correctional institutions to teach civics – including voting rights, government, current affairs and more – to those who will be released within the next 12 months.

SB 156: The Department of Corrections will allow inmates to access job search and career-building websites in a specified period of time before their release.

HB 2045: Prohibits the Department of Corrections and the Department of Juvenile Justice from requiring a co-payment for receiving medical or dental services.

LABOR AND WORKERS’ RIGHTS HB 3405: Stipulates that gratuities and tips to employees are property of the employees and cannot be retained by the employer.

SB 161: Creates a Worker Protection Unit within the Illinois Attorney General’s office, dedicated to enforcing employment laws and protecting workers by ensuring they are paid properly, have safe workplaces and more.

HB 253: Graduate assistants doing research, teaching or other pre-professional duties will no longer be classified as “students” when it comes to state labor law, and instead will be considered employees, granting them the same rights as employees, including the right to collectively bargain.

Side note: An amendment to the Illinois Human Rights Act reduced the number of employees, from 15 to one, that an employer must have to be subject to state discrimination laws.

Employers will be required to file any final, adverse judgments or administrative rulings entered against them in discrimination or sexual harassment cases to the Illinois Department of Human Rights. Employers will have to file these reports for the preceding calendar year before July 1 of each subsequent year.

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PROTECTIONS FOR ANIMALS HB 3390: Requires dog and cat kennels to be equipped with a fire sprinkler or alarm system in each building housing animals, if the kennel is not staffed at all times.

SAFETY ON THE ROAD SB 1496: Increases the maximum penalty for hitting a worker in a construction zone from $10,000 to $25,000 and those who disobey traffic-control devices in a highway construction or maintenance zone will face fines between $100 and $1,000.

HB 1873: Doubles the fines for illegally passing a school bus from $150 to $300 for the first violation and from $500 to $1,000 for any subsequent violations.

SB 1862: Scott’s Law requires drivers to change lanes, slow down and proceed with caution when approaching emergency vehicles or disabled cars on the side of the highway. Anyone who fails to do so will be fined at least $250 for the first violation (rather than the previous $100 minimum penalty) and at least $750 for the second, reaching as high as $10,000.

HB 331: Requires state law enforcement and transportation agencies to work together to increase the number of cameras on Cook County highways and allows any law enforcement agency in the area to use images from the cameras to investigate gunfire or detect hazards on roadways.

SB 86: Prohibits the use of an electronic device to stream or watch videos while on the road with violations punishable by a fine of $75 for a first offense, $100 for a second, $125 for a third and $150 for a fourth or subsequent offense.

SB 1786: Failure to pay a fine for a non-moving violation will no longer result in the loss of a driver’s license.

LAW ENFORCEMENT HB 2767: Requires the curriculum of police training schools to include information on recognizing signs and symptoms of work-related stress, issues that may lead to suicide and solutions for intervention with peer support services. In-service training for officers, required to be completed every three years, must

DCBA Brief March/April 2021

ARTICLES now include information on officer wellness. And additionally, the Illinois Law Enforcement Training Standards Board will have to develop or approve an in-service course on wellness and suicide prevention that includes stress management techniques and intervention, among other topics related to mental health.

HB 2708: Creates a process to handle the DNA of a missing person. Police may gather a DNA sample from the missing person and a DNA reference sample from family members and submit it to the National Missing and Unidentified Persons System if the person remains missing for 30 days or longer.

INSURANCE AND MEDICAL CARE HB 2847: This new law prohibits insurers from refusing to insure, charging different rates or otherwise discriminating against those who are living organ donors – people who, while still alive, have donated organs like a kidney or portion of their liver to patients who need them. The measure also prohibits employers from retaliating against employees who request or take a leave of absence to donate an organ, bone marrow or blood. Finally, it requires the secretary of state to create an organ and tissue donor registry.

HB 3113: Health insurance policies must cover one annual office visit for a full-body skin examination for lesions suspicious for skin cancer, without charging the patient a deductible, coinsurance or co-payment.

SB 162: Requires insurers to cover diagnostic mammograms when deemed medically necessary, without imposing a co-pay or cost-sharing requirement.

HB 889: Insurers are required to cover long-term antibiotic therapy (including doctor visits and testing) for people with tick-borne illnesses like Lyme disease, among others.

HB 3487: Hospitals with emergency rooms will now be required to post in each ER information about how to sign up for health insurance coverage in the Illinois health insurance marketplace.

HB 3435: Insurers will be required to cover medically necessary epinephrine injections for children under the age of 18.

PREGNANCY AND CHILDBIRTH HB 2895: Requires medical staff caring for pregnant or postpartum women at birthing facilities to take annual training on said care for African-American women and infants, and directs the Illinois Department of Public Health to create an initiative to improve birth equity, including the development of implicit bias training and more.

HB 2: Sets forth 21 specific rights of women with regard to pregnancy and childbirth, including things like the right to receive healthcare consistent with medical standards, the right to choose a midwife or physician, the right to choose her birth setting, the right to receive information on her condition and treatment (including pain relief), the right to privacy, the right to refuse treatment, the right to contact with her newborn, the right to give birth in the position of her choice, and more. Illinois agencies, healthcare providers, day care centers and more will post these rights in prominent places and on their websites.

DEPARTMENT OF CHILD AND FAMILY SERVICES HB 1551: Requires DCFS to follow several new guidelines when a child is returned to the custody of a parent or guardian.

The agency must complete a home safety checklist within the 24 hours before the child is discharged from foster care, as well as again within five days of the child’s return, plus every month thereafter until the case is closed. DCFS must also provide a minimum of six months of aftercare services beginning when the child returns home, as well as ensure that the child is up to date on well-child visits. Additionally, when a person who is legally required to report child abuse allegations (known as mandated reporter, a category that includes people like teachers, law enforcement, medical professionals, etc.) makes an allegation using the telephone hotline about a home with prior contact with the agency, the department is required to accept it as a referral.

SB 1743: DCFS is now required to develop and circulate a standardized survey to gather feedback from children aging out of or transitioning out of the state’s foster care system to include requests for information on the children’s experience with foster care and their recommendations for improvement.

DCFS will submit a report with the survey results to the

DCBA Brief March/April 2021

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ARTICLES governor and the General Assembly each time it is conducted, every five years. This measure also requires the department to put a locked suggestion box in each shelter, group home, transitional living arrangement and more, as well as submit an annual report to lawmakers on the issues and concerns raised from the suggestion boxes, plus solutions.

cants for a driver’s license or state identification card to choose from “male,” “female” or “non-binary” when designating sex.

HB 831: This new law mandates that whenever DCFS receives a claim of suspected child abuse while the child was receiving care in a hospital, including a psychiatric hospital, the department must notify the directors of the Department of Public Health and the Department of Healthcare and Family Services.

CANNABIS SB 455: This measure allows a trained school nurse or administrator to administer or supervise the self-administration of cannabis infused products to a student who is part of the state’s medical marijuana program, with the written permission of a parent or guardian as well as proof of the student’s participation in the program in the form of the registry ID card.

SB 1239: DCFS is required to immediately report to local law enforcement any allegation that a child is being abused or neglected by a person who is not the child’s parent, immediate family, person responsible for the child’s welfare or paramour of the child’s parent for a possible criminal investigation.

BATHROOMS SB 556: This law requires all single-occupancy restrooms in a public place to be identified as for use by all genders, with a sign indicating it is for no more than one person at a time (unless for family or assisted use) and not designating it for any specific gender.

HB 3711: Requires every public place to have at least one “safe, sanitary, convenient, and publicly accessible” baby diaper changing station accessible to either both men and women, or in both the men’s and women’s restrooms. This doesn’t apply, however, to industrial buildings or nightclubs and bars that don’t allow patrons under 18.

SEXUAL ORIENTATION AND GENDER IDENTITY HB 3534: Requires the Illinois secretary of state to allow appli-

SB 1378: This measure prohibits anyone who is qualified and able from being excluded from serving on a jury on the basis of their sexual orientation.

HB 1438: Adults over 21 are now legally allowed to use marijuana recreationally. Illinois residents can have up to 30 grams of cannabis flower, five grams of cannabis concentrate and 500 milligrams of THC-infused products, known as edibles.

Non-Illinois residents can have up to half of those amounts.

You can only buy marijuana at state-licensed dispensaries, and only consume them in your own home – otherwise you can be ticketed for public consumption. Landlords can prohibit cannabis use in their properties, and employers can still prohibit its use and drug test employees. Growing marijuana plants is only allowed for medical patients and even then, they can only have five plants.

Law enforcement agencies will automatically expunge arrests that did not lead to a conviction for amounts up to 30 grams, and the governor will grant pardons authorizing expungement for convictions up to 30 grams. The state has also launched a social equity program aimed at giving easier entry into what promises to be a lucrative business for those who have been historically, disproportionately impacted by drug laws in Illinois.

DCBA Brief March/April 2021

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ARTICLES

Illinois Law Update Editors Hilary Wild and Edward Sherman

Wrongful Death Action against Forest Preserve and Construction Contractors Arising From Fatal Crash Due to Hydroplaning Near Camp Bullfrog Dismissed Because Defendants Owed No Duty to Remove Debris Allegedly Clogging Drainage System Grabinski v. The Forest Preserve of Cook County et al., 2020 IL App (1st) 191267 In Grabinski, the Special Administrators of the Estates of Jonathan Grabinski and Salvatore Melant brought wrongful death claims against the Illinois Department of Transportation (IDOT), the Forest Preserve District of Cook County (Forest Preserve), Commonwealth Edison Company (ComEd), and Intren, Inc. (Intren). 17-year-old Grabinski and his 18-yearold passenger, Melant, both died when the car Grabinski was driving hydroplaned and hit a tree. The accident occurred on Archer Road adjacent to property owned by the Forest Preserve.

The Estates claimed that IDOT and the Forest Preserve owned, controlled, maintained, possessed, and/or managed the road, adjacent ditch and/or adjacent terrain where the accident occurred. The plaintiffs voluntarily dismissed IDOT. The Forest Preserve moved to dismiss under section 2-619(a) (9) of the Code of Civil Procedure, arguing that the Forest Preserve did not own, operate, or control the road or its drainage system, as it was all under the exclusive jurisdiction and control of IDOT. The Forest Preserve also raised three governmental tort immunities: (1) no liability for failing to inspect the property of others; (2) no liability for the effects of weather on roadways; and (3) no liability for failure to install warning signs.

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The Estates filed an amended complaint, modifying their claims against the Forest Preserve and adding ComEd and Intren as defendants. The plaintiffs now asserted that debris from the Camp Bullfrog construction project, which was close to the location of the accident, migrated into the road’s drainage system, causing it to be “obstructed and [filled] with soil and debris, in effect closing the ditch and drainage system and making it useless, and allowing water run-off onto the road***.”

The plaintiffs claimed that the Forest Preserve, ComEd, and Intren, which were involved in the construction of Camp Bullfrog in 2014 and 2015, were negligent in allowing the road’s drainage system to become obstructed with debris.

The Forest Preserve supplemented its original motion to dismiss in response to the amended complaint. Intren and Comed also moved to dismiss the amended complaint under section 2-619. The Cook County trial court entered an order granting all three motions to dismiss stating, “[T]he uncontroverted evidence shows that IDOT has exclusive jurisdiction over the road.” Neither the Forest Preserve, ComEd, nor Intren had a concurrent duty to maintain the road or its drainage system.

Moreover, the governmental tort immunity defenses raised by the Forest Preserve protected it against the plaintiffs’ allegations.

The Estates appealed, arguing that the trial court erred in dismissing the amended complaint because all three defendants owed a duty to remove debris from the Camp Bullfrog construction project and not allow it to clog the adjacent road’s drainage system. Specifically, the estates claimed that the three defendants breached their duty by cutting down trees and dig-

DCBA Brief March/April 2021

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ging up dirt and not cleaning up the leftover debris. Over a year later, debris migrated into the adjacent road’s drainage system, allowing water to pool on the road and causing the accident.

The First District Appellate Court affirmed the dismissal of the amended complaint. Citing 605 ILCS 5/4-203, it confirmed that IDOT exclusively owns, controls, and maintains the road, including the road’s drainage system. It distinguished the facts before it from those in Whittaker v. Honegger, 284 Ill. App. 3d 739 (5th Dist. 1996), where the Fifth District Appellate Court held that the landowners owed a duty to travelers on the adjacent road to keep their land free from conditions that were unreasonably dangerous to such travelers who may come into contact with the condition. Unlike the plaintiffs in Whittaker, the Estates did not allege that the Forest Preserve let debris from the Camp Bullfrog construction project migrate directly onto the road. There were no allegations that the Forest Preserve’s property invaded the actual pavement of the road. Rather, the plaintiffs alleged that the Forest Preserve let debris migrate into the road’s drainage system, but IDOT (which had been voluntarily dismissed) was solely responsible for maintaining the road’s drainage system.

out by IDOT, causing water to pool on the road. Moreover, requiring the Forest Preserve to ensure that debris on its land did not migrate into the adjacent road’s drainage system and that IDOT did not let the debris build up over time would place an undue burden of the Forest Preserve.

The Court applied substantially the same analysis to the claims against ComEd and Intren, holding that neither company owed any kind of care to the decedents regarding

About the Authors

The Court next determined that the Forest Preserve did not owe a common law duty to the plaintiffs to clean up the debris from Camp Bullfrog to ensure that it did not migrate into the adjacent road’s drainage system. The decedents’ injuries were not reasonably foreseeable to the Forest Preserve – it is highly unlikely that the Forest Preserve could foresee that debris would migrate into the adjacent road’s drainage system more than a year after construction was complete and not be cleared

DCBA Brief March/April 2021

Hilary Wild graduated from the University of Colorado School of Law and practiced in New York for several years before moving to Illinois.

Since 2014, she has worked for Rolewick & Gutzke, P.C., specializing in employment law, business law, and a variety of types of litigation, including personal injury, wills and trusts and commercial.

Edward R. Sherman is an attorney in the Oak Brook firm of Lillig & Thorsness, Ltd. His practice includes civil litigation and appeals.

He is a member of the Appellate Lawyers Association, Illinois Association of Defense Trial Counsel, as well as the Defense Research Institute’s Appellate Advocacy Committee.

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ARTICLES debris migrating from the Forest Preserve’s property into IDOT’s drainage system. It further determined that, even if ComEd and Intren had a contractual duty to clean up any debris they created as part of Camp Bullforg construction project, the Estates could not assert any contractual rights against ComEd or Intren because the decedents were not third-party beneficiaries to those contracts. Accordingly, the amended complaint was properly dismissed.

propriated; and (3) used in the defendant’s business.” Id., quoting Strata Marketing, Inc. v. Murphy, 317 Ill. App. 3d 1054, 1068 (2000). Whether the information constitutes a trade secret focuses on its secrecy. To show that information falls within the Act, the plaintiff must show that the information was sufficiently secret to give the plaintiff a competitive advantage and the plaintiff took affirmative measures to prevent others from acquiring or using the information.

Summary Judgment and Attorney’s Fees Properly Awarded to Defendants in Trade Secrets Act Case Where Plaintiff Failed to Keep Customer Names Secret Multimedia Sales & Marketing, Inc. v. Marzulla et al., 2020 IL App (1st) 191790

The defendants contended that MSM failed to maintain customer lists or identify what information it was trying to protect. They argued that the depositions of the plaintiff’s witnesses showed that there were no actual customer lead lists, and MSM’s failure to identify specific customer information, in the form of a customer list or otherwise, that it was seeking to protect precludes it from claiming a trade secret violation.

In Marzulla, Multimedia Sales & Marketing, Inc. (MSM) sued Radio Advertising, Inc. (RAI), and former MSM employees, alleging that when three of its employees left MSM to work for RAI, they improperly took MSM’s potential customer lead lists that were protected by the Illinois Trade Secrets Act (the Act) (765 ILCS 1065/1 et seq.) and used the information to solicit MSM customers.

MSM appealed the summary judgment determination and attorneys’ fees award. While the appeal was pending, the defendants filed a motion for attorney’s fees incurred in defending the appeal. The First District Appellate Court affirmed the trial court’s judgment, but it declined to award additional attorney’s fees to the defendants.

The Appellate Court disagreed. It determined that MSM’s “renewal lead lists,” which contained information regarding the customer’s name, telephone number, purchase history, PSAs purchased, and pricing, were eligible for protection under the Act. However, the claims under the Act still failed because MSM did not show it kept the information on the renewal lead lists sufficiently secret or made reasonable efforts to maintain their secrecy. MSM gave the names of its customers to radio stations, which then broadcast that information and were otherwise free to use it without restrictions. The Appellate Court determined it was “irrelevant” that MSM did not disclose the customer’s contact person, purchase history, or PSA preferences to the radio stations because, once a competitor hears a PSA from one of MSM’s customers or otherwise receives the name of an MSM customer from the radio station, it can contact the customer and acquire whatever information the customer is willing to provide. “In short, once the customer’s name is known, the other ‘important information’ MSM says is secret is easily ascertainable and so not secret information under the Act.” Id. at ¶26.

“To set forth a violation of the Act, a plaintiff must allege facts that the information at issue was: (1) a trade secret; (2) misap-

Section 5 of the Act permits the court to award reasonable attorney’s fees to the prevailing party when a “claim of

The Cook County trial court granted summary judgment to the defendants, finding that they presented evidence that many parties shared MSM’s lead lists and MSM failed to raise a genuine issue of material fact that the lists qualified as trade secrets under the Act. The trial court further granted the defendants’ motion for attorney’s fees under section 5 of the Act, finding that MSM’s trade secrets claims were made in bad faith. The trial court awarded the defendants $71,688 in attorney’s fees.

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DCBA Brief March/April 2021

ARTICLES misappropriation is made in bad faith.” Applying the standard set forth in Rule 137, the trial court had found that MSM’s trade secrets claims were “never well-grounded in fact or warranted by existing law or an argument to extend existing law” and awarded attorney’s fees. MSM admitted to providing material information about its customers to radio stations without requiring the stations to sign confidentiality agreements and knowing that the radio stations would air the customers’ information or otherwise disclose it. Accordingly, the Appellate Court held that the trial court did not abuse its discretion in finding that MSM’s claims were made in bad faith.

The Appellate Court denied the defendants’ motion for attorney’s fees incurred on appeal. Section 5 of the Act does not specifically provide for payment of attorney’s fees incurred on appeal, and defendants provided no other basis for an attorney’s fees award. Even if section 5 extends to an appeal, MSM had a right to appeal the trial court’s summary judgment order as long as it had a good faith belief the trial court committed error.

Summary Judgment in Favor of Defendant Manufacturer of Dump Trailer in Strict Liability Action Inappropriate Where Plaintiff’s Expert’s Testimony Created a Genuine Issue of Fact as to Whether the Product was Unreasonably Dangerous Gillespie et al. v. Edmier et al., 2020 IL 25262, Dec. 3 2020 In Gillespie, the Illinois Supreme Court affirmed the appellate court’s reversal of summary judgment in favor of the defendant manufacturer, East Manufacturing Corporation (East Manufacturing), in a strict liability action brought by the plaintiffs.

Plaintiff Dale Gillespie was injured when he fell off the stairs of a dump trailer manufactured by East Manufacturing. Dale and his wife filed suit against East Manufacturing, among other defendants. The Gillespies alleged that East Manufacturing was strictly liable for, and acted negligently in, designing, manufacturing, and selling a defective and unreasonably dangerous product.

In his deposition, the plaintiffs’ expert, Gary Hutter, opined that the steps on the dump trailer were defective and unreasonably dangerous. He explained that the spacing and width of the steps, as well as the lack of side rails on the dump trailer, did not comply with the recommendations of OSHA, the American National Standards Institute, the Federal Motor Carrier Safety Regulations, and the Truck Trailer Manufacturers Association.

The Cook County circuit court granted East Manufacturing’s motion for summary judgment, ruling that OSHA does not apply to trailers and that industry standards are not mandatory. The circuit court also found that the trailer met industry custom and practice because East Manufacturing built the trailer pursuant to the specifications of the purchaser and the purchaser had the trailer modified by a third party who added a tarp cover and cap. The court further found that the thirdparty modifications demonstrated that the trailer was not unreasonably dangerous when it left East Manufacturing’s control.

The Gillespies appealed, and the First District appellate court reversed the trial court’s summary judgment grant. The appellate court reasoned that the deposition testimony of Hutter and others was sufficient to create a genuine issue of material fact as to whether the trailer was unreasonably dangerous. East Manufacturing appealed.

The Illinois Supreme Court affirmed the appellate court’s decision. It recited the elements of a strict product liability action: (1) the injury complained of resulted from a condition of the product; (2) the condition was unreasonably dangerous; and (3) the condition existed at the time the product left the manufacturer’s control. A showing that the product is unreasonably dangerous in a strict liability claim, based on a design defect, may be proved “by evidence of the availability and feasibility of alternate designs at the time of its manufacturer, or that the design used did not conform with the design standards of the industry, design guidelines provided by an authoritative voluntary association, or design criteria set by legislation or governmental regulation.” Id. at ¶11, quoting Anderson v. Hyster Co., 74 Ill.2d 364, 368 (1979).

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ARTICLES East Manufacturing argued that summary judgment was proper under the risk-utility test, under which the utility of the design must be weighed against the risk of harm created, and if the likelihood and the gravity of the harm outweigh the benefits and utilities of the product, the product is unreasonably dangerous.

It argued that government regulations and industry standards not applicable to it or the dump trailer were irrelevant and that the appellate court erred in considering those standards.

Laches Avoids Vacation of Defective Summons In Foreclosure Case In Ocwen Loan Servicing, LLC v. DeGomez, 2020 IL (1st) 190774, the Illinois Appellate Court (Second District) affirmed the dismissal of a petition to vacate judgment in which the defendants asserted that the judgment was void because they were not properly served under Illinois Supreme Court Rule 101(a).

The Gillespies countered that the OSHA and industry standards served as a basis for their expert’s opinion, and that the issue on appeal was limited to Hutter’s use of such standards in forming his opinion. Whether the standards could be admitted into evidence was not the issue.

In March of 2010, Ocwen Loan Servicing filed a foreclosure action against the defendants. The summons caption stated: Ocwen Loan Servicing, LLC v. Guadalupe DeGomez, et al. and attached to the summons was a page directing Defendant DeGomez, as well as Defendant Teresa Trujillo to be served. All Defendants were served and in June of 2010 the circuit court entered a default judgment. The subject property was later sold at a sheriff’s sale and subsequently confirmed by the court. Third parties later purchased the subject property.

The Illinois Supreme Court agreed with the Gillespies. It held that Hutter’s deposition testimony was sufficient to create a genuine issue of material fact as to whether the dump trailer was unreasonably dangerous, and that Hutter must be allowed to testify regarding the basis of his opinion, including the OSHA and industry standards, even if those standards themselves could not be admitted into evidence.

Justice Karmeier filed a concurring opinion, joined by Justices Garman and Burke, taking issue with the majority’s opinion’s implications that the OSHA and industry standards properly formed the basis for Hutter’s opinion, and that Hutter could testify as to the OSHA standards as the basis of his opinion.

The majority’s opinion suggested that an expert must always be permitted to testify to the basis of his opinion. However, the concurring justices pointed out that the trial court, in its role as “gatekeeper,” must determine whether any standard raised by an expert is sufficiently reliable to form the basis for his expert opinion. Hutter may or may not be able to testify about the OSHA and industry standards he used to reach his conclusion, depending on the trial court’s determination as to whether this information is of a type that is reliable in the context of the data and facts of the case.

Ultimately, the concurring justices agreed that Hutter provided a factual basis for his opinion and did not rely solely on OSHA standards. This meant that there was a genuine issue of fact precluding summary judgment.

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In September of 2018, the defendants filed a petition for relief from void judgment under Section 2-1401(f) of the Code of Civil Procedure. Defendants argued in their petition that they were not properly named on the summons and the court lacked personal jurisdiction over them. Defendants subsequently settled with the third party purchasers as to the title to the subject property. The circuit court then found that the petition to vacate was moot as to Ocwen as no money damages were sought and the claims to the subject property had been resolved. The circuit court also found that the rest of the remaining relief was barred by laches.

On appeal, the appellate court first referenced Supreme Court Rule 101(a) that states a summons is to be directed to each defendant and that a summons that does not name a person on its face is no summons at all as to the unnamed person concerned. The appellate court went on to cite its previous holding in Arch Bay Holdings, LLC-Series 2010B v. Perez, 2015 IL App (2d) 141117 in which it held a summons that failed to list a defendant on its face was fatally defective.

However, the appellate court distinguished the present case.

First the appellate court noted that “[i]t is difficult to imagine how the caption on the summons, stating ‘OCWEN LOAN

DCBA Brief March/April 2021

ARTICLES SERVICING, LLC vs. GUADALUPE DEGOMEZ, ET AL,’ could have possibly prevented DeGomez from understanding the meaning or significance of the summons: that Ocwen was the plaintiff and that DeGomez was a defendant.”1 The appellate court further noted that “we cannot determine that the alleged technical deficiency regarding the absence of DeGomez’s name following ‘To each Defendant:’ defeated personal jurisdiction over her. There were only two names listed on the summons, and DeGomez would have known if she were a defendant.”2 With respect to Defendant Trujillo, the appellate court found that the summons was improper as she was not named on its face and therefore there was no summons at all. However, the appellate court found that although void judgments may be attacked at any time, laches can preclude relief where prejudice is demonstrated. The appellate court then noted that Defendant Trujillo did not argue that she was not served or had no knowledge of the foreclosure action. The appellate court then noted that the unreasonable delay allowed Defendant Trujillo to increase the damages she sought and resulted in irreparable harm to Ocwen who could not recover the subject property.

Issuing of Deed in Foreclosure Lawsuit Bars Borrowers’ Claim For Violation of RESPA and Consumer Fraud In Adler v. Bayview Loan Servicing, LLC and The Bank of New York Mellon, 2020 IL App (2d) 191019, the Illinois Appellate Court (Second District) affirmed the dismissal of a lawsuit by borrowers after the confirmation of sale was found to be a barred claim under Section 15-1509(c) of the Illinois Mortgage Foreclosure Law, which bars claims of all parties to a foreclosure after the deed vesting title has been issued.

In 2010, Bank of New York Mellon filed a foreclosure action against Plaintiffs Ronald and Lisa Adler and obtained a judgment of foreclosure in 2012. Bayview Loan Servicing, LLC subsequently acquired servicing rights and communicated with the Adlers regarding a trial period payment plan. Bayview then noticed the Adlers’ home up for a sheriff’s sale in September of 2015. The Adlers filed a motion to stay the sale and requested leave to file a counterclaim against Bank of New 1. Ocwen Loan Servicing, LLC v. DeGomez, 2020 IL (1st) 190774, ¶ 21 (2nd Dist. 2020).

2. Id.

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ARTICLES York Mellon for breach of contract in the foreclosure case. The circuit court denied the request to stay the sale and leave to file the counterclaim due to untimeliness. The foreclosure sale was confirmed on November 2, 2015 and Bank of New York Mellon issued a deed on November 6, 2015.

The Adlers then filed a complaint against Bank of New York Mellon and Bayview Loan Servicing, LLC in the United States District Court for the Northern District of Illinois. However, the Federal Court dismissed this lawsuit under the Rooker-Feldman doctrine that prevents a federal court from hearing a claim that is “inextricably intertwined” with a prior state court judgment when “the plaintiff had a reasonable opportunity to raise the issues in state court proceedings.”3

Affordable Program and concluded that the Adlers’ claims were encompassed within the statute’s provisions. The appellate court also noted that the proper time to raise the Adlers’ issues was between the entry of the judgment of foreclosure and the judicial sale, that the Adlers were aware of the issues set forth in their complaint for five months before the judicial sale and only raised the issues 20 days before the judicial sale was scheduled and that the Adlers did not appeal the circuit court’s denial of their requested leave to file a counterclaim.

The Adlers then filed a separate lawsuit in the circuit court in state court in which they claimed that Bank of New York Mellon and Bayview Loan Servicing, LLC violated RESPA by conducting a foreclosure sale without following the act’s procedural requirements, and the Illinois Consumer Fraud Act by engaging in various unfair acts while the Adlers sought a permanent loan modification offer following their default. The circuit court dismissed this lawsuit on the basis that the claims were barred by Section 15-1509(c) of the Illinois Mortgage Foreclosure Law and by res judicata.

On appeal, the Adlers argued that the barring of “all claims” under Section 15-1509(c) was limited to seeking relief from a foreclosure judgment or an order confirming sale. Bayview Loan Servicing, LLC and Bank of New York Mellon argued that Section 15-1509(c) applies to “all claims” relating to the foreclosure action.

The appellate court reviewed Section 15-1509(c) in context of other parts of the Illinois Mortgage Foreclosure Law that specifically allow for a judicial sale to be set aside for violations of other statutory provisions, including mortgagors who applied for assistance under the Making Home

3. Adler v. Bayview Loan Servicing, LLC and The Bank of New York Mellon, 2020 IL App (2d) 191019, ¶ 11 (2nd Dist. 2020).

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News &

Events

45 Spotlight on Judge Robert J. Anderson - By Azam Nizamuddin 47 ISBA Update - By Kent A. Gaertner 48 DuPage County Elects New Circuit Court Clerk: An Interview with Candice Adams - By Ted A. Donner 52 Honorable Craig Belford - By James Ryan 54 Legal Aid Update - By Cecilia Najera 55 Classifieds 56 Where to Be with DCBA

By Robert Rupp

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News & Events

Momkus LLP is pleased to announce that John P. Killacky is now an Equity Partner at the law firm.

John’s areas of practice include:

LLP

COMMERCIAL LITIGATION GENERAL COUNSEL SERVICES BUSINESS LAW

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DCBA Brief March/April 2021

News & Events

Spotlight on Judge Robert J. Anderson

LRS Stats

12/1/2019 to 12/31/2019

By Azam Nizamuddin

I distinctly recall the first time I heard Judge Robert (“Bob”) J. Anderson speak. It was at a DCBA judges’ forum at the Attorney Resources Center at the 18th Judicial Circuit Courthouse, many years ago. The panel consisted of several seasoned judges providing insights and suggestions of how attorneys should practice when they appear before them. When Judge Anderson took the mic, he focused less on civil procedure and more on decorum and professionalism. He cautioned against unprofessionalism and untoward behavior in the heat of litigation and disputes. He advised the attendees to treat everyone, Honorable Robert Anderson (Ret.) including fellow attorneys, with respect and courtesy. Judge Anderson reminded us all how stressful and demanding the legal profession can be, with the demands of clients, particularly in the area of family law and criminal law. But our lives and practice can have a fortunate balance by avoiding personalizing disputes and making sure that everyone is accorded respect and courtesy. Frankly, so many years later, his presentation is the only one I can recall. I think it had to do with the level of sincerity and integrity with which Judge Bob Anderson has not only practiced law, and adjudicated disputes, but also how he has lived his life. Indeed, he certainly practiced what he preached because I had the pleasure of appearing before him many times and found him to be prepared, substantive, respectful, and accommodating to attorneys and their clients.

Bob Anderson began his career in private practice and then became an Assistant State’s Attorney in DuPage County. After a very successful private practice where he was a named partner, Bob Anderson was appointed Associate Judge in DuPage County in March of 1992. Three years later, he was appointed as a Circuit Judge by the Illinois Supreme Court. He was elected by the people of DuPage County as a permanent Circuit Court Judge in 1996 and retained that post until his retirement in 2019.

Early on, he was assigned to the Felony Criminal division. Subsequently, he found his place in Juvenile, Divorce, and Paternity Court. In fact, for many years, he served as Presiding Judge of the Domestic Relations Division and was (Continued on page 46)

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The Lawyer Referral & Mediation Service received a total of 910 referrals, including 36 in Spanish (782 by telephone, 119 online referrals and 9 walk-ins) for the month of December.

We receive calls in the following areas but currently have no attorneys in these areas: Civil Rights, Health Care Law and Mental Health. If you practice in these areas and would like to join LRS or add them to your existing LRS profile, please call Tim Doyle at (630) 653-7779 or email tdoyle@dcba.org.

If you have questions regarding the service, attorneys please call or email Tim. Please refer clients to call (630) 653-9109 or request a referral through the website at www.dcba.org/lawhelp.

Administrative Law . . . . .

Animal Law . . . . . . . . . .

Appeals . . . . . . . . . . . . .

Bankruptcy/Credit Law . .

Business . . . . . . . . . . . .

Collection . . . . . . . . . . .

Consumer Protection . . . .

Contract Law . . . . . . . . .

Criminal Law . . . . . . . . .

Elder Law . . . . . . . . . . .

Employment Law . . . . . .

Estate, Trusts and Wills . .

Family Law. . . . . . . . . . .

Government Benefits. . . .

Immigration Law. . . . . . .

Insurance Law . . . . . . . .

Intellectual Property Law .

Mediation . . . . . . . . . . .

Military Law . . . . . . . . . .

Modest Means . . . . . . . .

Personal Injury . . . . . . . .

Real Estate Law . . . . . . .

School Law . . . . . . . . . .

Tax Law . . . . . . . . . . . . .

Workers’ Compensation . .

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Spotlight on Judge Robert J. Anderson (Continued from page 45) head of the Juvenile Courtroom, hearing Child Protection and Delinquency cases until his retirement.

Judge Anderson enjoyed hearing cases in the Juvenile Division for obvious reasons. But a case early on in his career as a prosecutor endeared him to the rights and plight of children trapped in difficult and challenging situations. In the early 1980’s, two parents were prosecuted for abuse of their young children, ages 7 and 9. It was a horrendous situation for the family.

The parents locked up the kids who were both sleeping in cribs, the windows in the home were blocked with newspapers, and the kids had not been fed regularly, were unwashed, and were being fed from a dog

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bowl. As a prosecutor, Bob Anderson took immediate steps to provide help and protection to the young children who were being abused. Since then, he has spent much of his career making sure both women and children are protected from abuse by family members and others.

Judge Anderson’s deep interest and desire to protect members of our society from any kind of abuse is what led him to participate in the ISBA’s Lawyers’ Assistance Program (“LAP”). LAP is designed to help lawyers and their families concerned with alcohol abuse, drug dependency, and depression or burnout. Every year, as a result of the outstanding work of the LAP staff and the sacrifice of volunteers, LAP

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presents an award to those that have gone above and beyond, and set an example of support. In 2018, LAP presented its Judge of the Year Award to Judge Bob Anderson.

Although he has been retired for two years, Judge Anderson’s schedule has not dwindled. He continues to teach at Loyola University as Adjunct Faculty. He’s still active with the ISBA and he continues to serve on several not-for-profit boards including the Illinois CASA (Court Appointed Special Advocates) for children, and Project Help, designed to prevent child abuse for at-risk families. Judge Bob Anderson is an ideal representation of the judiciary and of our legal system here in Illinois and across the nation.

News & Events ISBA Update

Criminal Justice Reform Rushed Through

By Kent A. Gaertner

In the closing days of the 101st Legislature, the Illinois Black Caucus brought forth a criminal justice reform bill that was more than 600 pages in length. It deals with numerous topics including bail reform, police accountability and training, prisoner’s rights, police purchasing of military-type equipment and new standards for decertification of a police officer. Little time was given before a vote was called, although many of the provisions that ended up in the bill were the subject of previous hearings in 2020.

Many of the provisions of the bill were not supported by Illinois prosecutors and law enforcement.

ISBA responded by immediately soliciting input from its various section councils and committees. The overall positions taken were supportive of the bill despite the many controversial provisions. The Executive Committee of the ISBA is authorized to take action on behalf of the ISBA where there is insufficient time to fully vet the issues with the Board of Governors or the Assembly.

Using this authority, the Executive Committee voted to support this legislation, feeling that, on the whole, the reforms in the bill were important. As the Vulcan saying goes, “The good of the many

outweighs the good of the few.” Most of the provisions of this bill go into effect on 7/1/2021.

As to other matters being discussed at the Board level, the Scope and Correlation Committee is circulating a draft to the Section Councils and Committees of possible proposed changes to Illinois Rule of Professional Conduct 8.4. This involves updating guidelines regarding sexual harassment in the legal workplace. Comments were due by 2/19/2021. These will be used to fine-tune the proposal or perhaps reconsider the matter completely. I will keep you posted.

The Illinois Supreme Court Rules Committee has taken no action as of this writing on the CBA/CBF proposals for access to justice. As I have previously discussed, the ISBA has serious concerns about many of these proposals.

The Board just completed three training/ planning sessions to move forward with its responsibilities for long-range planning. They were assisted by a facilitator from the ABA. The next Board meeting is the last week in March with another scheduled in May. The June Annual Meeting is still currently planned as an in-person event. Let’s keep our fingers crossed.

Among the agenda items for the March Board meeting is a proposal to allow free ISBA membership to all Illinois law students starting their first year. This may also be extended to the St. Louis law schools who have many graduates accepting positions in Illinois.

Stay well, mask up, keep your distance and let’s get everyone vaccinated as soon as possible so we can go back to living our lives.

Also to be considered is a proposal to require mandatory malpractice insurance in order to practice in Illinois.

Again, this would be an initial investigation into feasibility with a follow-up report to be published.

Kent Gaertner is the Eighteenth Judicial Circuit’s representative on the ISBA Board of Governors. He is the principal of Kent A. Gaertner P.C. and “Of Counsel” to Pfeiffer Law Offices, P.C. where he concentrates his practice in bankruptcy and workouts. He was president of the DCBA in 2009-2010.

DCBA Brief March/April 2021

About the Author

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News & Events

DuPage County Elects New Circuit Court Clerk: An Interview with Candice Adams

By Ted A. Donner

Candice Adams

Candice Adams is the first woman and the first attorney to serve as Clerk of the Court for the Eighteenth Judicial Circuit.

A graduate of The John Marshall Law School, she was a member of The John Marshall Law Review and their National Moot Court Team before graduating cum laude in 2012. Eight years later, she won the county-wide election for her current position in a race in which almost a half million voters participated, defeating the incumbent by just over 6,000 votes.

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We sat down to talk with Adams about her background and the perspective she brings to her new role on January 20, 2021, the day that Kamala Harris was sworn in as the first female Vice President of the United States. Adams told us she was particularly conscious of that fact, being the first woman to ever serve as Clerk of the Circuit Court in DuPage County. “When you walk into this office,” she said, “there are portraits of the four men who held this office previous to me, and then there’s me, and that is certainly something that, being a woman, I’m excited for my daughter to see. Before I got this position, she wouldn’t have seen a woman there on that wall because there had never been one. Now there is a woman’s portrait up there and that shows my daughter that she can do this too so, yes, today is a big day. It’s an important day in history and it’s important for us here.”

As Clerk of the Court, Adams oversees a staff of some 150 people, most of whom are themselves women. That staff includes the clerks assigned to each of the individual judges, people handling files in the clerk’s office on the first floor of the courthouse, and dozens of others who

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handle the archives, court orders and other records necessary to the court’s business. “It definitely hasn’t gone unnoticed to me,” Adams continued, “that I am the first woman to be here, in this position, overseeing a department that’s primarily made up of women. They have someone in the lead, now, who’s one of them as well.”

She is also one of “us lawyers,” having come to her new job at the courthouse from Ankin Law in Chicago, a personal injury and workers compensation firm where she worked as an associate. “I think I’m the first person to hold this job who’s a lawyer,” she said when we asked about her background. “I know what it’s like to walk into one of the courtrooms here and have no idea how to do an electronic order, and I know that it’s different in other counties. I’m used to Cook County, where you still have to use carbon paper between your copies and have to press down to write out your order for the judge to sign. Things are very advanced here in DuPage County. The speed at which this team moves to make things change is incredible. I come from a law firm where we were constantly

News & Events

trying to find the most efficient, costeffective way to do things and it’s very much the same here. People here are always looking for the quickest, easiest, most efficient way for people to get their work done and these electronic orders are a good example of that. It takes a minute to learn how to do them, but they have changed how the courthouse works.

They have changed how we maintain records and how people are able to get access to the courthouse system.”

Change and Progress. While the DuPage legal community might take some comfort from knowing that Adams understands what it means to work as a lawyer, there has been some trepidation since she was elected. Chris Kachiroubas held this position for some 16 years, after all, and people had certainly come to know what they should expect from him.

We had to ask whether lawyers should be worried over how much Adams might just want to change everything – how determined she might be to just upset the apple cart? “Your question is interesting,” she said in response, leaning back in her chair, “but I’m a member of the bar,

right? I have spent time in courtrooms, so I certainly understand what makes a courtroom more efficient or less efficient.

Change? Will there be changes in some things? Yes, there probably will be – and a lot of the changes that will be made, I expect, are going to be dictated by the Illinois Supreme Court.”

She leaned forward. “But, when we’re talking about how the bar is going to be impacted specifically, I guess I’d have to say that I’m hoping it will be in a very positive way and that it will mean, for one thing, that you’ll have more access to things online. You’ll be able to see more online and you’ll get more information that you would have otherwise had to come to the courthouse for. So, should the bar expect change? Yes, they probably should, but the progress that we make in this office over the next four years while I’m serving as Clerk should make life easier for the attorneys and for pro se litigants alike.”

“I’m not sure what change is a concern for people, what they worry may affect them negatively,” she continued, “but I think the pandemic has taught us a lot. Zoom,

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in particular, has taught us that we can still hold court proceedings and not take up somebody’s entire day by forcing them to be in the courthouse. There are now monitors being installed so that Zoom can be continued in the DuPage County courtrooms. That may be something people are worried about, but I don’t think it’s a bad thing. I think, instead, that it’s going to be a huge benefit for people who are trying to make their court dates.”

First Initiatives. “I want to hit the ground running,” Adams said, “so we’re working on developing a few things right away. The Illinois Supreme Court recently said that we can do texting notifications, for example, so we’re in the process of developing a texting system to remind litigants of when they have to be in court.

It’s still in the developmental stage, we still need to figure out some of the logistics, but we’re in meetings now and we’re talking with some companies about what texting services there are that could support what we’re trying to do here. We’re going to start out on a small scale with some of the courtrooms so we can see how it works, but the idea is you’ll sign up and provide your number, and then

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News & Events

you’ll get text reminders when your court date is coming up.”

something that this office can help with, then we want to do that here.”

entitled to the use of court resources, is something very important to us here.”

“And we’re looking at expungements,” she said, “which is something we’re planning to do on a couple of different fronts.

We want to do an expungement summit similar to those held in other counties, where people can come in and get their records expunged, but we’re also developing an application process here in the office to make it easier for people to come in throughout the year and start work on getting the documents filed for the expungement that they’re looking to get.”

Prior to law school, while Adams was still living in her native Ohio, she spent four years working as a rape crisis counselor, helping the victims of sexual assault. Since then, her commitment to public service appears to have been paramount, something bound to affect how she approaches her position as Clerk of the Court. “One of my goals,” she told us, “is to make the courthouse a place where people can come and feel like it’s a resource for them, as opposed to being some forbidden place they’re afraid to walk into.”

Changes in the Community. Adams started in her position within weeks of Hon. Kenneth Popejoy being sworn in as the new Chief Judge and just a few months after Suzanne Armstrong first started as Courthouse Administrator.

The three of them are working together in a courthouse in which roughly a third of the judges, the sheriff, and a great many people on staff are all fairly new to their positions – and they are working with a County Board which, for the first time in its history, is made up of a majority of Democrats.

Whether that means developing bilingual signage or setting up facilities where those with sensitive concerns, like the need for an order of protection, can get their filing done more privately, it ultimately involves concern with the needs of self-represented litigants. “Pro se litigants are a unique group of people,” she said, “so we spend a lot of time in this office trying to figure out how we can best help make the systems we have in place more user friendly for that group of people. If we can get things working so that a pro se litigant understands what the forms are saying, that makes it easier on everybody else throughout the courthouse. Finding a way to make pro se litigants feel like they’re seen here, that they have a voice here and that they are

“We meet regularly, our office and the Chief Judge’s office,” Adams told us. “We meet every two weeks, more if it’s needed, and we are working together, all of us, very closely. Suzanne Armstrong, who is the Court Administrator, is someone I’ve called with a ton of questions about how the world is supposed to look and how everything works here in the courthouse.

Bob Berlin, the DuPage County States Attorney, is likewise someone I talk to about what we’re doing and with whom we’re doing some presentations for the County Board. We’re going to be doing some presentations pretty soon about how the new criminal reform bill will affect our office, cannabis expungements and the like, and how that all looks. We want to make sure that we have positive

The DuPage County Bar Association, working with the Public Interest Law Initiative and DuPage Legal Aid, had likewise been developing an expungement program when the pandemic put the brakes on that effort. But there is still hope that it can continue in 2021. “We have begun meeting with groups within the legal community and will be reaching out to many more in the near future,” Adams told us, “and hopefully we’ll get this program up and going soon.”

“It’s really important to me,” she continued. “Expungements change lives. Your record affects you when you apply for housing or a job or for the military. It can affect whether you get into a particular school to get an education. So, an expungement can have a big impact on somebody’s life and, certainly if that’s

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News & Events

working relationships with the other departments throughout the county that rely on us and upon whom we rely. You’d be right to assume we work very closely with the Chief Judge, but we also do a lot of work with the States Attorney and the Public Defender, Jeff York. This is something of a hub for a lot of different departments throughout the county so a great many people have some kind of working relationship with us. Maintaining those relationships and making sure they can be positive so that we can make sure that things work smoothly are definitely things that we’re going to be focusing on here. It doesn’t matter who’s a Democrat or who’s a Republican, this is an office that we can work together to build. For me and for this office, as much as we can do to make sure that we’re working well with others, regardless of political affiliation, we want to do that.

It’s in everyone’s best interest for us to all come together.”

A Civilized Changing of the Guard.

“I didn’t grow up in DuPage County, I grew up in Cleveland Heights, Ohio,” Adams told us,” and I would say the Republicans were in the minority there. I don’t know that I even knew a lot of Republicans growing up. But then I moved to Chicago, I went to law school, I met my husband, and I moved to DuPage County and 2016 happened, right? And I think that changed a lot of people.

You have to understand, I had a major

in political science and a minor in criminology, so politics is something that has always been of interest to me. I knew that I wanted to run but I didn’t understand, back in 2018 when I was very new to politics, how big the divide between Republicans and Democrats really was. I didn’t know when I was first starting out in all of this, how much of an uphill battle it was supposed to be. I didn’t know or didn’t understand at the time how rare a Democrat was among elected officials in DuPage County. Where I grew up, everybody was a Democrat, so when I decided to run, I didn’t think about how much of an uphill battle this was going to be. I thought I could do this job, I thought I would be good at it, and I ran for it. I put a lot of work into trying to get this job, and I am just so appreciative and so grateful that the results came out the way they did.”

“That said,” Adams added, “I would be remiss if I didn’t acknowledge that the person who sat in this chair before me did a lot of good things. He spent 16 years here doing a lot of good things, and he’s been very gracious to me and I very much appreciate Chris for all that he’s made available to me during the transition, and what he’s pointed out to me. We actually had a remarkably good campaign season together.

It was never aggressive or attacking and it was very respectful, and it was a dialogue.”

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That was evident during a discussion Adams and Kachiroubas had with the Daily Herald during the campaign (one which may have been intended to be a debate, but which proved far too cordial for such a moniker). When Adams described some of her ideas for the Clerk’s office, Kachiroubas was quick to say that he wanted to “compliment Candice on this,” calling one of her suggestions “an outstanding idea.” When she was asked

by Herald editor Robert Sanchez, in turn, why she had decided to run against the incumbent court clerk of 16 years, she looked down just a touch and said with a smile, “I thought he was retiring.”

The race was close, it was cordial and civilized, and it ended amicably with Candice Adams elected as the first woman to serve as Clerk of the Circuit Court in the history of DuPage County. “I want people to know how proud I am to be a part of this office in this county,” she told us, “and of the staff that’s out here working every day on new initiatives to make DuPage County a leader when it comes to the clerk’s office. Oftentimes, people don’t really understand what the clerk’s office does but they’re often the unsung heroes of the courthouse. The coronavirus had a huge impact on this office and the courthouse, and this department just handled it all with such grace. So, I’m very proud to be here, I’m very appreciative of the staff, and I’m very excited to see what new initiatives we can do going forward.”

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News & Events

Honorable Craig Belford

By James Ryan

Craig Belford

In May 2020, the Honorable Craig Belford was sworn in as associate judge, the first to be sworn in during the Coronavirus pandemic. He is currently assigned to the Chancery Division. Judge Belford’s appointment as associate judge came after he spent over 20 years serving the Illinois judiciary in various roles, including service as a Law Clerk for three Illinois Supreme Court justices.

Judge Belford is a DuPage County native and a proud graduate of Lake Park High School in Roselle. After high school, Judge Belford enrolled at the University of Illinois where he majored in Political Science and graduated summa cum laude. Judge Belford reports that he first began to consider a legal career as a possibility after doing some assigned reading for a course on constitutional law taken during his junior year. After the University of Illinois fueled an interest in the law, Judge Belford enrolled in the prestigious University of Chicago Law School, from which he graduated in 1995.

Fortunately for us, although he had the opportunity to interview with firms nationwide, Judge Belford chose instead to come back home to DuPage County to

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practice law. After short stints in private practice with the firm of Rathje & Woodward and in-house at a healthcare company, Judge Belford first began serving the judiciary as a staff attorney for the Second District Appellate Court. After a year of service on the general research staff, Supreme Court Justice Louis Rathje hired him away to serve as his senior law clerk. Judge Belford served in that position for almost two years, until Justice Rathje’s term ended in the Fall of 2000.

Toward the conclusion of his time with Justice Rathje, Judge Belford suffered a profound, personal tragedy when his wife was killed suddenly in a motor vehicle accident, leaving him a widowed, single father of a two-year-old daughter. That tragedy gave Judge Belford a different perspective on the judicial system that he never could have imagined – that of a plaintiff in a wrongful death case. In our interview, Judge Belford recounted the fear, the uncertainty, and the frustration that he experienced as a party that he never could have imagined before.

After stepping away for several months, Judge Belford made his way back to the judiciary first by serving as a law clerk for Justice Thomas Callum on the

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Second District Appellate Court, then for Supreme Court Justice Robert Thomas for 19 years, and briefly for Supreme Court Justice Michael Burke following Justice Thomas’s retirement in early 2020. Judge Belford also made his way back to court as a litigant both as a foster parent and eventually as an adoptive parent for two of his five children.

Through these experiences as a party, Judge Belford learned in a way that he never could have through the practice of law just how gut-wrenching and all-consuming a court proceeding can be for the parties involved. A case is not simply a file in the office; it is a constant, looming presence in a party’s life.

During our interview, we discussed Judge Belford’s work on Justice Thomas’s staff for 19 years. Throughout that time, Judge Belford observed up close not only a great jurist with an excellent legal mind, but also a great man who successfully navigated work, family, and community life with a sense of purpose.

Judge Belford specifically noted Justice Thomas’s work establishing the Illinois Supreme Court’s Committee on Professionalism, which Judge Belford regards as an enduring legacy to Justice Thomas’ extraordinary career.

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In transitioning from working alongside Supreme Court judges to working as an associate circuit court judge himself, Judge Belford quickly noticed two major changes. First, he noticed that the pace of a trial court is significantly different from that of the appellate court. Judge Belford observed that he went from a court that decided approximately 100-120 cases per year, to a traffic courtroom in which he sometimes decided between 100-120 cases before lunch. Second, he noticed a difference between being an advisor to the decision-maker and being the decision-maker himself. Judge Belford commented that this change truly sunk in for him when he imposed a jail sentence for the first time.

When Judge Belford is not on the bench, he enjoys reading and spending time with his family. He is also an avid musician, who continues to play drums regularly both at his church and with his band, Side Project, which has been together for several years. This past December, Judge Belford was honored to administer his first oath of office when his Side Project bandmate, Lynn LaPlante Allaway, was sworn in as a member of the DuPage County Board.

Welcome Welcome to the new DCBA members.

Attorneys: Andrew Y. Acker, Storino, Ramello & Durkin; Greg S. Gann; Angela S. Larimer, Larimer Law LLC; Bridget Greeley Wrobel, Law Office of Bridget G. Wrobel, LLC; Tanya Witt, The Witt Law Firm, P.C.; Jessica A. Michaels, Mayer Brown LLP; Josie R. Norton, The Law Offices of Jonathan Merel, P.C.; Michael P. Tomlinson, Tomlinson & Shapiro, P.C.; Joseph S. Hamrick, Dreyer Foote; Joel C. Zimmerman, Joel C Zimmerman & Associates Ltd.; Tej M. Shastri, Knauf Law P.C.; Sheldon L. Lebold; Eric J Vogel, Law Offices of Benedict Schwarz, II P.C.; Libby F. Vassmer; Amina Z. Jaffer; Elizabeth A. Cronin, Power & Cronin, Ltd.; Amanda McDonough; Matthew Adam Dejewski; Alexandra N. Prejzner; Jacqueline Noel McClellan, Attorney Sally McClellan, Ltd.; Kelsey J. Burge; Carrie A. Ganci-Clodi, Clancy & Associates; Anthony D. Scorzo; Jessica G. Nosalski; Carlos M. Arteaga, Castlebrook Law PC. New Student Members: Holly F. Rumiano, Indrakshi Kaushik Roy, Ayesha Mohammed.

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News & Events Legal Aid Update

Judges’ Nite 2021!

By Cecilia Najera

Hard to believe we have lived an entire year with pandemic protocols in place.

In the past year, I have learned to Zoom for business and social reasons. I have helped my child learn virtually and sent him to school in a mask. I’ve had to take four COVID tests out of precaution and have foregone the annual family vacation. I have also had the opportunity to equip the office to work from home and then do so. I’ve spent quality time with my family and neighbors, enjoyed gardening in my backyard, and watched a lot of Iowa Hawkeye football and basketball. Although our office remains open by appointment only, DuPage Legal Aid continues to assist our clients with Orders of Protection, Divorce, Parentage, Guardianship, Bankruptcy and some expungement cases. We continue to give monthly legal clinics to Loaves and Fishes and Family Shelter Services clients, even if it is over the telephone or

by Zoom. We have all found many ways to interact virtually for business and social reasons and continue to find other ways to adapt to our circumstances. The tradition of Judges’ Nite is no different.

I am so pleased and excited to be able to write that the show will go on and Judges’

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Nite 2021 will take place! This year’s show may look a little different, but I have no doubt that the event will bring just as much fun and entertainment as it has in the past. Since January, our resident Director, Nick Nelson; Producers, Jess Defino and Rachel Boehm; as well as some of our favorite performers have been hard at work writing and practicing via Zoom as well as in person.

JNB (“the band”) has also been pulling together their scores.

Judges’ Nite 2021 will be held on April 16, at the Danada House in Wheaton.

The show will be one hour long, it will be pre-recorded and more of a sketch comedy format, but one way or another, there will still be song in the form of music videos! Huzzah! If the Governor’s orders permit, we will be able to gather in the pavilion to enjoy a buffet and watch the show on two projector screens. If we are unable to gather traditionally, the Danada House parking lot will transform into a drive-in theater for the night. Either way, we will still have a Silent Auction.

Unfortunately, the auction will be scaled back and there won’t be Pfizer COVID Vaccines to bid on, but there will be other pandemic protocol-friendly items.

DCBA Brief March/April 2021

We have already procured a condo stay in Siesta Key, Florida and a Private Pool Party. We will have a “Call for Funds for a Brighter Future”, as well as a 50-50 Raffle. Judges’ Nite will continue to be Legal Aid’s most successful fundraiser of the year.

Legal Aid is so grateful for the efforts of the Judges’ Nite cast, the band, and crew for taking on the challenge to provide us a show during a pandemic. Words cannot express the appreciation I have for the dedication that each and every one of them has to their craft and to make us laugh during such a challenging time. After all, “Laughter is an instant vacation.” -Milton Berle.

See you at the show!

About the Author A Wheaton native, Cecilia “Cee-Cee” Najera is a graduate of the University of Iowa and received her J.D. from Southern Illinois University. She served as the DCBA New Lawyer Director from 2004 to 2009 and is currently the Director of DuPage Bar Legal Aid Service.

News & Events

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Attorney office space 12’ x 14’ office just east of downtown Naperville.

Unfurnished first floor space includes use of conference room, reception area, kitchen, internet, utilities and parking. Available immediately.

Monthly rent $650. Perfect for sole practitioner. For additional details, contact Debbie at 630-753-8033 or email debbie@lechowiczlaw.com

Wheaton

Downtown Naperville

One room available for rent in a shared office space near courthouse with exclusive 1st floor entrance. Monthly rent of $600 per month for a 15’x9’ room. Utilities included: electric, water, sewer, heat, air conditioning, and internet. Telephone services not included. Room has lock and key. Contact Niki at 630-784-8500 or info@chirosolutions.org

Are you in need of a spacious office suite with windows, hard wood floors and conference area? The suite includes a furnished large reception area, shared copy room and kitchen, as well as high speed internet.

The adjacent offices are shared by attorneys. The building is located in downtown Naperville, has an elevator and tremendous parking. Available immediately. Contact Pamela at 630-416-7600.

Naperville Multiple office spaces for rent in downtown Naperville. We are centrally located between the Metra station and downtown Naperville. Currently renting multiple units: 2 Unfurnished offices starting at $500 per month; and 2 fully furnished ready to use offices beginning at $750 per month.

Please contact Darran to inquire at (630) 926-8377

DCBA Brief March/April 2021

55

News & Events

Where to Be with DCBA by Robert Rupp Mega Meeting 2021 Recordings Thank you to everyone who joined us for the 2021 Virtual Mega Meeting on March 5th and 12th. The programming was very well-received and we were honored to host Chief Judge Kenneth Popejoy’s first State of the Courthouse address, a text version of which will be included in a future issue of the Brief. Recordings of all CLE Sessions from Mega Meeting, including the ARDC’s special program on Diversity, will be available on the IICLE Website starting April 15th. Access the DCBA/IICLE Library through the DCBA website to activate member pricing for these programs or to receive complimentary access to our library of Section programming.

New DCBA Website Launching Speaking of the website, make sure and visit DCBA.org this month as we launch a completely redesigned site. The new webpage has been built with user resources in mind. This means that you can come to the DCBA website for quick links to 18th Circuit court information, easier access to CLE materials, a new reading experience of DCBA Brief, and exciting new ways to connect with your fellow DCBA members.

Judges’ Nite 2021 Amidst plague and pestilence, the Judges’ Nite Cast and Crew and the Judges’ Nite Band have pulled together a 2021 edition of Judges’ Nite that is not to be missed. The virtual curtain will rise on a video performance unlike any other JN production on April 16th at 7:00 PM. If the fates allow, the judges and lawyers of DuPage County will gather with family and guests at Danada House for a lavish viewing party. Online viewing is

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also being arranged for those unable to attend in person, which may be for everyone should we not be able to gather in person. Visit www.dcba.org/JN2021 to purchase your tickets today. As always, Judges’ Nite will be a fundraiser for DuPage Legal Aid, and your support is critical in that respect. A number of fundraising activities are planned that are outlined in the Legal Aid Director’s Report found on page 54 of this magazine. DCBA members are always generous, and the circumstances of the last 12 months make that generosity all the more needed.

Nashville is Calling!

There is still time to join in on the DCBA President’s Trip to Nashville, TN, April 22-25, 2021. Our host property, DREAM Nashville, will put us close to all the great country music nightlife the Music City has to offer. Registration includes a welcome reception, group dinner and breakfast CLE. RSVP at www. dcba.org/Nashville.

Law Day 2021 We look forward to celebrating Law Day 2021 on April 30, 2021. At the time of publication, we are hopeful that this event will be celebrated with an in-person noon luncheon at Le Jardin at Cantigny Park. In the event that we are not able to celebrate in person, a virtual event will be held at that date and time.

Whether live or in person, our program will feature the presentation of the 2021 Liberty Bell Award, recognition of the pro bono award winners from DuPage Legal Aid and programming that highlights the 2021 Law Day theme, “Advancing the Rule of Law Now.” RSVP’s for this event at www.dcba.org/LawDCBA Brief March/April 2021

Day21 are greatly appreciated. Should the in-person luncheon proceed, tickets will be available for purchase. Should the program be virtual, your RSVP will ensure you receive access information.

2021 Presidents Ball All DCBA members and friends are invited to a gala celebration nearly a year in the making on May 14th, commencing at 6:30 PM. Our plans to mark Wendy Musielak’s installation last June with a grand party and Casino Nite, like so many other plans, were pushed back again and again over the year. We are excited though to be able to finally come together at the Doubletree in Lisle for a night of celebration. In addition to celebrating the accomplishments of Wendy’s year as president, we will finally have the opportunity to formally present the 2020 Lawyer of the Year to Hon. Paul Marchese and the 2020 Gabric Award to John “Jack” Donahue. Visit www.dcba.org/prezball21 to purchase tickets today.

2021 Installation of Officers and Directors On June 4, 2021, Kiley Whitty will be installed as president for DCBA’s 142nd year, along with a new Third Vice President, three Directors and a New Lawyer Director (please watch for your email ballot and vote by May 3 for these positions).

This event will be held as a luncheon, returning to Le Jardin at Cantigny Park.

Tickets are available through the DCBA website at www.dcba.org/Install21. Please also note that this event will serve as the association’s annual meeting as prescribed by the DCBA Bylaws.

For the latest details on all DCBA events, check the DCBA.org website.

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