The Docket - Year in Review 2019 - Town Square Publications

THE

DOCKET The Official Publication of the Lake County Bar Association • Vol. 27 26 No. 1 • January 2020 2019

2019 YEAR IN REVIEW

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Contents THE DOCKET • Vol. 27, No. 1 • January 2020

FEATURES 10 Not a Weedapolooza, but Legal Nonetheless

BY TIMOTHY B. NIEHUS

14 Rules or Mere Suggestions

BY MICHAEL STRAUSS

18 Nichols v. Fahrenkamp: Illinois Supreme Court Acknowledges QuasiJudicial Immunity Extends to Guardians ad litem

A publication of the

BY NATHANIEL L KATZ

300 Grand Avenue, Suite A Waukegan, Illinois 60085 (847) 244-3143 • Fax: (847) 244-8259 www.lakebar.org • info@lakebar.org THE DOCKET EDITORIAL COMMITTEE Jeffrey A. Berman,Co-Editor Hon. Charles D. Johnson,Co-Editor Jennifer C. Beeler Hon. Michael J. Fusz Hon. Daniel L. Jasica Sarah A. Kahn Kevin K. McCormick Hon. Raymond J. McKoski Tracy M. Poulakidas Stephen J. Rice Neal A. Simon Hon. ­­­James K. Simonian Rebecca J. Whitcombe Alex Zagor STAFF Dale Perrin Executive Director Jose Gonzalez Membership Coordinator Katherine Montemayor Office Manager

AD SIZE 1/8 Page 1/4 Page 1/2 Page Full Page Inside Front or Inside Back Cover

Back Cover

ONE ISSUE

6 ISSUES

COLUMNS 2 President’s Page The Rule of Law, 2020

BY STEPHEN J. RICE, PRESIDENT

4 The Chief Judge’s Page Thank you for Two Great Years

BY CHIEF JUDGE JAY W. UKENA

6 Bar Foundation

Thank You and Have a Happy, Healthy, and Prosperous New Year’s

BY NICHOLAS A. RIEWER, PRESIDENT

24 The Meeting Minutes October 17, 2019

BY TARA R. DEVINE, SECRETARY

26 In the Director’s Chair

New Year – New Goals

BY DALE PERRIN, EXECUTIVE DIRECTOR

LCBA EVENTS

IFC 2019 LCBA Office Rental Pricing 3 The Calendar of Events 3 New LCBA Members 5 Grapevine 7 Veterans History Project 5 Holiday Party 8-9 Gridiron 21 Real Estate Conference 22 Family Law Conference 25 Holiday Party 28 Monthly Committee Meetings BC Member Reception

12 ISSUES

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Advertising Rates To place an ad or for information on advertising rates, call (847) 244-3143. Submission deadline: first day of month preceding the month of publication. All submissions must be made in electronic format (high resolution PDF or JPG format at a resolution of 300 pixels per inch or more.) See www.lakebar.org/page/Docket_Advertising The Docket is the official publication of the Lake County Bar Association, 300 Grand Avenue, Suite A, Waukegan, Illinois 60085 (847) 2443143, and is published monthly. Subscriptions for non-members are $45.00 per year.

Reproduction in whole or part without permission is prohibited. The opinions and positions stated in signed material are those of the authors and not necessarily those of the Association or its members.

All submitted manuscripts are considered by the Editorial Board. All letters to the editor and articles are subject to editing. Publications of advertisements is not to be considered as an endorsement of any product or service advertised unless otherwise stated.

The Rule of Law, 2020

W

elcome to 2020!

This U.S. electoral year will make 2020 momentous. Such a statement borders on political cliché, of course, because politicians always say that “this is the most important election in our history.” So what might make this electoral year

2019-2020 OFFICERS & DIRECTORS Stephen J. Rice President Hon. Patricia L. Cornell First Vice President Joseph M. Fusz Second Vice President Kathleen Curtin Treasurer Tara R. Devine Secretary Brian J. Lewis Immediate Past President Hon. Christen L. Bishop Katharine S. Hatch David R. Del Re Thomas A. Pasquesi Dwayne Douglas Daniel Hodgkinson

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more momentous than any of the previous?

Elections over the past decade have reshaped the political landscape in many democratic countries.

Great Britain is perhaps “Exhibit A” because of its seemingly endless Brexit process. In Germany, which has always had two clearly dominant parties in the post-war era, one of them (the SPD) may fall into third-tier status due to other parties siphoning off votes on the farther ends of the political spectrum, both left and right. But Germany and Britain, like the United States, have relatively long-lived democratic institutions and, perhaps most importantly: independent judiciaries, plus media institutions that are not monopolies of the state.

Not so Poland, in which a 2010 plane crash killed 96 people, many of them high-ranking politicians including the country’s President. The crash was pilot error, in part due to pressure from the President to get the plane

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President’s Page

landed on an airstrip in the forest. The event was a national trauma, but conspiracy theories that developed around it (e.g., it was a bomb; it was a Russian plot) were soon promulgated as politics by Poland’s “Law and Justice Party.”

That party, which has decidedly undemocratic leanings, has ruled Poland since 2015 (although it had recent electoral setbacks).

Can a relatively young democracy like Poland withstand illiberal leadership? So too Hungary, which provides a similar case study.1 Closer to home in Mexico this past October, the Sinaloa drug cartel placed into question whether 1

See this 2018 Atlantic essay by Anne Applebaum for a bracing overview of Polish and Hungarian politics over the last ten years: https:// www.theatlantic.com/magazine/archive/2018/10/poland-polarization/568324/.

BY STEPHEN J. RICE PRESIDENT the Mexican government maintains the state’s legitimate monopoly on police and military force.

“State monopoly on force” sounds menacing, and it can be if such power in a country is not subservient to popular acceptance and the rule of law—hence the “legitimate” modifier. A legitimate monopoly on force historically underpins stable societies.

This past October, the Mexican army captured the son of drug kingpin El Chapo Guzman in Culiacán.

Immediately, cartel militias equipped like militaries with machine guns and armored vehicles created chaos. The Mexican government relented, releasing the captured son within 24 hours. The incident begot the question: Does the Mexican government possess a legitimate monopoly on force? And relatedly, does Mexico’s judiciary

possess the credibility to deal with the cartels, with the cartels’ nearly limitless access to cash and corrupting influence? All of this raises the question of whether Mexico teeters on failed-state status, which hopefully it does not.

There are many more international examples of countries in peril: Turkey’s strongman leadership; Bolivia’s recent election, whose “winner” fled to Mexico; and on and on.

“Hey Steve, this is the LCBA publication, you dolt! You’re supposed to wish us Happy New Year and tout the upcoming golf outing!” Indeed, let’s get back to America and Lake County, Illinois, 2020.

We’ve got an upcoming Gridiron to enjoy (Feb. 21/22), travel seminars to

look forward to (Real Estate to Nashville in March, and Family Law to Albuquerque in April), and much else.

In between, all of us have the rule of law to maintain, which we all do one case at a time, every working day.

It is easy to take that for granted in a country that has curated the rule of law for over 200 years.

But peer beyond our borders to see what is happening elsewhere. (See also, County, Cook; County, McHenry; etc.). The institutions that underpin our rule of law can be affected by local and national elections. So please stay involved with the LCBA in 2020, help our Lake County legal community maintain the rule of law and, when the time comes, get out and vote!

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Calendar of Events

January 1 New Year’s Day Office Closed February 21 & 22 2020 Gridiron, Gorton Center, Lake Forest

March 5-7 Real Estate Committee Conference Nashville, TN April 23-25 Family Law Committee Conference Albuquerque, NM

Welcome

New LCBA Members

Attorneys Austin Brady Attorney At Law Jennifer Dillon Schiller DuCanto & Fleck, LLP Carol Doane-Mitchell The Law Offices of Martin A Delaney, III Ltd.

Thomas Nield Attorney At Law Christine Panos Panos Law Firm Jonathan Rosenfeld Rosenfeld Injury Lawyers LLC Yelena Shvartsman Shvartsman Law

Jessica Duhig Leonard J. LeRose, Jr. LTD.

Kristin Tauras McKenna Storer

Dylon Goll Attorney At Law

Lauren Walker Lake County State’s Attorney’s Office

Lauren Harris Roth Melei Petsche Spencer Luis Hizo Attorney At Law Jennifer Lazarus Attorney At Law Rebecca Levin Strauss Malk & Feder Mitchell Lieberman Noonan & Lieberman, Ltd. Konstantinos Markakos The Law Offices of Konstantinos K. Markakos P.C.

Irma Wilson Prairie State Legal Services Inc. Associates Connor Beer Accumed Kelley Fox Lesser Lutrey Pasquesi & Howe Steven Hamilton Hamilton Tax and Accounting Bruce Hunter Attorney At Law

Katya Martinovich Ray & Glick, LLC

Ken Lechman Merrill Lynch

William Meyer DesignerShare LLC

Cathy Murphy Gonzalez Chicago Title

Stephen Miller Robbins Schwartz

Pete Salerno Stratus Concept

January 2020

3

Thank you for Two Great Years

A

s my term as Chief Judge officially comes to an end on January 1st, this will be my last opportunity to address Docket readers through the Chief Judge’s Page. As I reflect upon my two years as Lake County’s Chief Judge I am overwhelmed with gratitude and appreciation for all of the hard work and dedication of every employee and staff member of the 19th Judicial Circuit that has made these past two years ones of growth, progress and innovation for our court system and the Lake County legal community. Because of their professionalism, and with the cooperation and dedication of our many court partners, the 19th Judicial Circuit has been able to continue its tradition of excellence and service to the citizens of Lake County.

During my occupancy of the Chief Judge’s office

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I had the honor of presiding over the opening of the new Criminal Court Tower and administrative facilities. And while the ribbon cutting was just the culmination of a lot of hard work and planning that began years before my tenure, I was privileged to represent all those who made the project possible, as well as the multitude of attorneys, judges, litigants, probation officers, State’s Attorneys, Public Defenders, sheriff’s deputies, court reporters and clerks that will make this new facility a living symbol of justice for years to come. Additionally, we have begun, and are now well into, the project that will culminate in the implementation of the Court’s long-awaited case management system (CMS). This new system will allow us to take advantage of the latest innovations in technol-

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Chief Judge’s Page ogy and better serve the public. We also started an early-resolution call for criminal cases, and our first ever courtroom solely dedicated to the service of self-represented litigants.

As with any marking of time, the past two years has seen changes in personnel that will resonate for years to come. With the retirement of Judges John Scully, Michael Fusz and Margaret (Meg) Marcouiller, the 19th Judicial Circuit lost the skill and experience of three of our most respected and learned colleagues.

And, with the swearing-in of Associate Judges Stephen DeRue, Jacquelyn Melius, Ari Fisz, Reginald Mathews, Patricia Cornell, Bolling Haxall and Circuit Judge Joseph Salvi, we have gained a breadth of experience and dedication that will impact our courts well into the future. Additionally, 2019 saw the appoint-

BY CHIEF JUDGE JAY W. UKENA ment of Steve Fabbri, a long-time probation officer and supervisor in the Probation Department, as Lake County’s new director of Adult Probation, replacing the retiring Rose Gray who served in that position for ten years and was with Adult Probation for a total of 39 years. With the retirement of Dr. Dena Traylor, Dr. Holly Hinton was appointed as new interim director of psychological services. Finally, we also hired a new executive director, Todd Schroeder whose first day of work was November 27, 2019. Todd comes to us with a range of experience at both the state and local levels and will be a great asset to our judicial operations.

Sadly, the last two years was also marked by the passing of three retired judges, Judges John Phillips, Bernard Drew and Michael Fritz, all of whom

served our circuit with honor and distinction and left their indelible mark on our courthouse. This year we were also hit particularly hard by the passing of one of our sitting judges, Tom Schippers. While Tom’s bravery and perseverance in the face of a devastating diagnosis inspired all of us, the loss of his brilliance, kindness and friendship was felt deeply by everyone in the Lake County Legal community.

During my stewardship as Chief Judge I also had the occasion to preside over some other memorable events including the celebration Kids Korner’s 25th anniversary, the rare closing of the courthouse on January 30th and 31st 2019 due to the extreme cold of the polar vortex, and the installation and unveiling of the Lincoln portrait at the main entrance to the new Court Tower, where Illinois’

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Grapevine

Hal Winer turned 93 years old on October 29, 2019.

Born in Rochester, NY, Hal dropped out of high school at the age of 16 to work at Bosch & Lomb and was later drafted into in the 7th Infantry Division in WWII. He received his Honorary High School diploma while 20,000 feet in the air on the Honor Flight in 2010. A graduate of Syracuse University and John Marshall Law School in 1964 Hal was hired as the Deerfield prosecutor and has never looked back. Although there are no official records it is likely that after 55 years Hal is the longest serving Municipal Prosecutor in Illinois history!!

favorite son greets visitors as they enter. I have also had the pleasure of writing twenty-two Chief Judge’s Page Docket articles, with Trish Cornell assisting on an additional one. Although I won’t miss making a monthly deadline, I felt privileged to be allowed to share my thoughts and musings with you. Being Lake County’s Chief Judge has been the honor of my professional career. I have enjoyed every day of my

Michael J. Schostok has joined Salvi, Schostok & Pritchard as an Associate Attorney. Mr. Schostok is the son of late Partner Michael P. Schostok, and of Second District Appellate Justice Mary Seminara Schostok.

Tara R. Devine, the Lake County Managing Partner at Salvi, Schostok & Pritchard, was honored by the Daily Herald Business Ledger as a 2019 Influential Women in Business. Tara is also currently the Secretary of the LCBA. On Monday, November 11, 2019, a group of ten students from the Waukegan 2 College program visited Salvi, Schostok & Pritchard’s Chicago office to learn more about the legal industry as the students prepare to apply to college. During the visit, the students went on a tour of the firm’s Chicago office and heard presentations from the firm’s COO, Marketing Director, and a paralegal.

At the end of the visit, Salvi, Schostok & Pritchard associate attorneys Michael J. Schostok and Elizabeth R. Olszewski guided the students through a mock trial.

two-year stint at the helm of this wonderful organization and I sincerely thank all of you for the opportunity I have had to serve. On January 2nd, Judge Diane Winter will take over as Lake County’s next Chief Judge. Please join me in wishing her a successful and productive term. Finally, to you and your families, have a happy and healthy holiday season, with all the best in the year to come.

Salvi, Schostok & Pritchard associate attorneys, Michael J. Schostok and Elizabeth R. Olszewski guide Waukegan 2 College students through a mock trial.

Attorney Jed Stone with Stone & Associates Ltd. has moved to 325 Washington St., Suite 400, Waukegan, IL. 660085.

Salvi, Schostok & Pritchard COO, TJ Saye delivers a presentation on the various jobs at a law firm to Waukegan 2 College students.

The students from Waukegan 2 College toured the Salvi, Schostok Chicago offices.

January 2020

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Thank You and Have a Happy, Healthy, and Prosperous New Year’s

A

s I sit here writing this column, I am in post-operative day number four from my left BOARD OF TRUSTEES Nicholas A. Riewer President Carey J. Schiever Vice President Joann M. Fratianni Secretary Perry S. Smith Jr. Treasurer Jeffrey A. Berman Immediate Past President Jennifer L. Ashley Nandia P. Black Douglas S. Dorando Kristie Fingerhut Hon. Fred Foreman (Ret.) Joseph M. Fusz Scott B. Gibson Kenneth J. Glick David J. Gordon Keith C. Grant Amy L. Lonergan Fredric B. Lesser Steven P. McCollum Joseph Morrison Michael G. Nerheim Melanie Rummel Hon. Henry C. Tonigan (Ret.) Hon. Joseph R. Waldeck (Ret.)

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hip replacement surgery.

The reason I point this out is if there are any typos or grammatical errors in this column, I would appreciate it if you would blame the oxycodone, my secretary, or Dale Perrin who proofreads my submissions. The first thing that probably comes to your mind is why do we have such an old president for the foundation that he already needs hip replacement surgery?

I may be older than some presidents, but I don’t recall, recently, attempting to verbally harass and intimidate any 16 year old Swedish environmental activist, so I got that going for me.

The real purpose of this column, however, is to say thank you. Since my last column, the Lake County Bar Foundation has again supported the “Veterans History Project”. The Veterans History Project

BY NICHOLAS A. RIEWER PRESIDENT takes place on Veterans Day morning at the Lake County Courthouse. World War II, Korean War, and Vietnam War Veterans are invited to come to the courthouse and meet with volunteer lawyers who have their oral histories recorded by volunteer official court reporters. The court reporters prepare transcripts of the interviews which are sent to the Library of Congress to memorialize what these brave men and women gave to their country during their service.

My first thank you goes to the lawyers and court reporters who come to the courthouse on a court holiday to participate in this event.

The next thank you goes to all of the judges, both active and retired, who are instrumental in organizing the event, finding veterans who are willing to

participate, getting sponsors for food and beverages, as well as running the program.

The next thank you is to the Lake County Sheriff’s Deputies who also participate on their day off providing security services and helping direct the veterans to their appropriate locations for the ceremonies and interviews.

I would also like to thank the military personnel, both active and retired who help as well.

As you can imagine, there are expenses associated with the Veterans History Project. In addition to the food and beverages that are provided, we attempt to provide each of the veterans with a commemorative gift to say thank you for your participation. This year we were able to provide each of the participating veterans with

an American Flag encased in a wooden shadowbox.

My last and special thank you is to Heal Team 6. Heal Team 6 was created by the Esposito Family; Steven, his wife Melissa, and their children, Stephanie and Michael.

They formed Heal Team 6 to help support the many small charities that have the passion and determination to help others but lacked resources. Heal Team 6 is an all-volunteer organization. No one associated with Heal Team 6 is

paid a salary or any other financial benefit. Over half of the organizations supported by Heal Team 6 are veteran related. I was fortunate enough to meet Steven Esposito and his family several years ago and was eventually asked if I would be interested in getting involved with Heal Team 6, which I gladly accepted.

As I learned more about Heal Team 6 and their involvement with veterans organizations, I mentioned to Steven that I have been involved with the Veterans

History Project for a number of years. While preparations were being made for the 2019 Heal Team 6 Charitable Event (a Hero’s Salute 3), Steven asked, unsolicited, if Heal Team 6 could designate the Veterans History Project as one of the benefactors of the event. I was not expecting this generous offer, but readily accepted.

A Hero’s Salute 3 took place on October 6th at the Cuneo Mansion & Gardens in Vernon Hills, Illinois. As a result of the generosity of

Heal Team 6, the Veterans History Project received $18,162.50. This amount of money will cover the financial needs of the Veterans History Project for many years to come.

Steven, thank you to you, your family, the board, and the host committee of Hero’s Salute, 3 for such a generous donation.

Again, thank you to all who participated in the Veterans History Project 2019. Happy New Year to all and I hope you have a prosperous new year.

VETERANS HISTORY PROJECT NOVEMBER 11, 2019

January 2020

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ACT!

Advertise!

ATTEND! Gorton Community Center

400 E. Illinois Road • Lake Forest, IL 60045

Doors Open at 6:30 p.m.

Show at 7:30 p.m.

RESERVATION FORM Friday, February 21, 2020 Saturday, February 22, 2020 (Includes $3.50 Eventbrite Fee)

# of tickets ____ x $52.50* per person = $_____ # of tickets ____ x $52.50* per person = $_____

_______________________________________ Company/Firm

_______________________________________ Contact

_______________________________________ Address

_______________________________________ City, State & Zip

_______________________________________ Phone

_______________________________________ E-mail

METHOD OF PAYMENT Check Discover*

Visa* MasterCard* American Express*

_____________________________________ Card Number

_____________________________________ Expiration Date & CCV

_____________________________________ Signature

*A 4% Credit Card Processing Fee will be applied to purchases paid with a credit card. All tickets must be paid for at the time of the order. No refunds issued after February 14, 2020.

RETURN THIS FORM WITH YOUR PAYMENT: Lake County Bar Association • 300 Grand Avenue, Suite A • Waukegan, Illinois 60085 TEL: 847-244-3143 • E-mail: info@lakebar.org

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BROADWAY LCBA Style Dinner on your own

Doors open at 6:30 p.m. with hosted beer and wine Curtain rises at 7:30 p.m.

SPONSORSHIPS FEED THE CAST The Need: • Gridiron actors meet 10 times in preparation for the show • This occurs after work • They are hungry and grumpy The problem: • Food cost $ The solution: • You can sponsor a meal for $175 • (That’s what it costs to feed sad, grumpy actors) The benefit: • We acknowledge you in the Gridiron program • Your name/logo will grace the food table • The actors will refer you cases worth millions • The Pope will expedite your path to sainthood

RESTAURANT SPONSORSHIP Seeking Lake Forest area restaurants to become “preshow” sponsors of the Lake County Bar Association biannual Gridirion Show. For one low price ($299) we will advertise your restaurant to 1,000 members, over 300 whom will be in Lake Forest for the show.

1,000 Lake County Lawyers will see you in: • Our January and February 2018 magazine, highlighting your special offer in connection with our show • A complimentary 1/4 page advertisement in our March 2020 magazine • Acknowledgement on the Lake County Bar Association website and in weekly e-mails to 1,000 members through February 2020.

PLAYBILL ADVERTISING RESERVATION The 2020 Gridiron Show, The Lake County Bar Association’s hilarious musical follies, will be held February 21 & 22, 2020 at the Gorton Community Center, Lake Forest.

You can to be part of the fun by advertising in the just-as-hiliarious keepsake Gridiron Playbill. You know you’ll be sorry if your ad isn’t included. Reserve your space now!

AD SIZE - COLOR Inside Front/Back Cover Full Page (Live Area) Half Page (Horizontal) Half Page (Vertical) Quarter Page (Horizontal) Quarter Page (Vertical) Business Card (Horizonal) Graphic Design Service Fee

_______________________________________

Company/Firm

_______________________________________ Contact

_______________________________________ Address

DIMINSIONS (width x length) 8.5” x 11” 7.75” x 10.265” 7.75” x 4.895” 3.75” x 10” 7.75” x 2.34” 3.75” x 4.91” 3.5” x 2” N/A

PRICE $700 $450 $250 $250 $150 $150 $125 $50/hour

METHOD OF PAYMENT Check Discover*

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*A 4% Credit Card Processing Fee will be applied to purchases paid with a credit card.

E-mail

RETURN THIS FORM WITH YOUR PAYMENT: Lake County Bar Association • 300 Grand Avenue, Suite A • Waukegan, Illinois 60085 TEL: 847-244-3143 • E-mail: info@lakebar.org

January 2020

9

Not a Weedapolooza, but Legal Nonetheless

T

BY TIMOTHY B. NIEHUS

he Cannabis Regulation and Tax Act (CRTA) went into effect on January 1, 2020.

CRTA allows for the legal recreational use of cannabis in Illinois. However, the act is by no means a wholesale legalization of cannabis. Instead, in terms of criminal liability for the use and possession of cannabis, the CRTA creates a series of exceptions to the previously enacted Cannabis Control Act, and then some exceptions to those exceptions.

In addition to legalizing the use and possession of cannabis, CRTA addresses issues including cultivation, transportation, sale, delivery, and taxation. Storage, safe-keeping, destruction and record-keeping are also addressed. Social equity within the cannabis industry is addressed, and community renewal programs are ushered forth. Finally, the CRTA establishes new grounds for expungement.

The previously existing prohibitions on cannabis in the Cannabis Control Act remain pretty much unchanged. The only amendTim Niehus ment to the statutes controlling the is an Assispossession of cannabis,1 and possestant State’s Attorney sion of cannabis with intent to deliver,2 currently is the inclusion of the phrase “Except assigned to as otherwise provided in the Cannabis the Gang Regulation and Tax Act” to each. So, and Drug the possession and use of cannabis in Division.

Illinois is still very much illegal under 1 2

720 ILCS 550/4.

720 ILCS 550/5.

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many circumstances, but there now some narrow exceptions which allow for legal use and possession. And keep in mind, this is in addition to the use allowed under the Compassionate Use of Medical Cannabis Pilot Program.

The CRTA exceptions for use and possession only apply to those 21 years of age or older; if you are under 21, there are no CRTA protections for you, unless you otherwise qualify as a patient under the Compassionate Use of Medical Cannabis Pilot Program, or are participating in the Community College Cannabis Vocational Pilot Program.3 The use and possession exceptions legalize the possession of cannabis based on differing weights for differing forms of the cannabis: up to 30 grams of cannabis flower; up to 5 grams of cannabis concentrate; and up to 500 milligrams of THC in a cannabis infused product. The weight 3

See 410 ILCS 705/10-15.

thresholds for the three forms of cannabis also depend on whether the possessor is a resident or a non-resident (15 grams, 2.5 grams and 250 milligrams, respectively for non-residents).4 What are the differences in the types of cannabis?

Under CRTA, Cannabis is still defined as it has always been under the Cannabis Control Act. Under CRTA the definition of cannabis is “marijuana, hashish, and other substances that are identified as including any parts of the plant Cannabis sativa and including derivatives or subspecies, such as indicia, of all strains of cannabis, whether growing or not; the seeds thereof, the resin extracted from any part of the plant; and any compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin, including tetrahydrocannabinol (THC) and all other naturally produced cannabinol derivatives, whether produced directly or indirectly by extraction; however, ‘cannabis’ does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted from it), fiber, oil or cake, or the sterilized seed of the plant that is incapable of germination.

‘Cannabis’ does not include industrial hemp as defined and authorized under the Industrial Hemp Act,” and “also means concentrate and cannabis-infused products.”5 Cannabis concentrate is a product that is obtained from the cannabis plant by refining the plant. It can be an oil, a powder, a resin, or a taffy-like substance. Think of a reduction sauce, or vanilla extract, or orange juice concentrate. Cannabis concentrate is defined as “a product derived from cannabis that is produced by extracting cannabinoids from the plant through the use of propylene glycol, glycerin, butter, olive oil or other typical cooking fats; water, ice, or dry ice; or butane, propane, CO2, ethanol, or isopropanol. The use of any other solvent is expressly prohibited unless and until it is approved by the Department of Agriculture.” An Illinois resident may have up to 5 grams of this; 2.5 grams for a non-resident.

Cannabis flower is the raw plant material other than the “hempy” non-drug portions of the plant. Cannabis flower is defined as “marijuana, hashish, and other substances that are identified as including any parts of the plant Cannabis sativa and including derivatives or sub-

species, such as indica, of all strains of cannabis; including raw kief, leaves, and buds, but not resin that has been extracted from any part of such plant; nor any compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin.” An Illinois resident may have up to 30 grams of this; 15 grams for a non-resident.

Cannabis-infused products are products made with cannabis: brownies, gummies, soda, and even skin creams. Cannabis-infused product is defined as “a beverage, food, oil, ointment, tincture, topical formulation, or another product containing cannabis that is not intended to be smoked.” An Illinois resident may possess a product of this nature if it contains no more 500 milligrams of THC; no more than 250 milligrams may be possessed by non-residents. The exceptions for cannabis-infused products in the CRTA are atypical.

Most statutes prohibiting controlled substances do so in a manner where the mass of the whole substance is the relevant mass, if the whole substance contains any amount of the controlled substance. Under CRTA, however, the relevant mass is the mass of the T.H.C. within the mass of the whole substance. The big problem with this approach is that the crime labs in Illinois may not be able to quantify the amount of T.H.C. within a whole substance anytime soon. However, before you start advising clients on the potential markets for two-pound brownies and gummies, be aware that there are labs outside of Illinois with the ability to conduct this analysis, and they contracted with our labs.

Beyond the exceptions that allow for use and possession, there are other exceptions that restrict possession.

CRTA does not excuse negligent conduct induced by cannabis use. Possession is not allowed in a school bus, on the grounds of a school, in a correctional facility, in a private vehicle (unless in a sealed, secured container that is reasonably inaccessible while the vehicle is in motion), or in a private residence licensed to provide child care. Use of cannabis is prohibited in a school bus, on the grounds of a school, in a correctional facility, in any motor vehicle, in a private residence licensed to provide child care, or in any public place, or in knowing proximity of persons under 21 years of age. A public place is defined as “any place where a person could reasonably be expected to be observed by others” including “all parts of buildings owned in whole or in part, or leased, by the State or a unit of local government” but “does not include a private residence unless the private residence is used to provide licensed child care, foster care, or other similar

The most important thing to know about the new cannabis expungements is that they only apply to what are called minor cannabis cases

4 5

See 410 ILCS 705/10-10.

Relevant terms are defined at 410 ILCS 705/1-10.

January 2020

11

social service care on the premises.”6 Smoking cannabis is prohibited in areas where smoking is prohibited. Operating or controlling vehicles and craft while using or being under the influence is still prohibited. Facilitating the use or possession of cannabis by someone not entitled to do so by CRTA or the Compassionate Use of Medical Cannabis Pilot Program Act is not allowed; nor can cannabis be transferred to such persons. Police Officers, Firefighters, Corrections Officers and Probation Officers may not use while on duty. A school bus driver or a commercial driver’s license holder may not use cannabis while “on duty.” Reckless driving and cannabis-based DUI are still viable charges. Private businesses may prohibit the use of cannabis on their property. Also, schools may not violate the Federal drug-free school zone laws.7 Legal use and possession of cannabis may not provide the sole or primary basis for an action or proceeding under the Juvenile Court Act or by DCFS, nor may it restrict rights relating to adoption, fitness and fostering, nor may it serve as a basis for any adverse finding or restriction related to guardianship, conservatorship, trusteeship, the execution of wills, or the management of an estate.8 Landlords may not be penalized under state law for leasing to persons who lawfully use cannabis.9 Property owners, however, are not required to allow guests, clients, lessee’s, customers or visitors to use cannabis on their property.10 Furthermore, under the amendments to 765 ILCS 605/33, a condominium association may restrict any use of cannabis in common areas and may prohibit the smoking of cannabis within a private unit but may not restrict others forms of use and consumption within the private unit.

Employers are free to adopt and enforce zero-tolerance policies regarding the use or possession of cannabis in the workplace, while working, or while on-call.11 In addition to use and possession, CRTA does allow for some personal cultivation of cannabis. Illinois residents 21 years of age or older who are qualified patients under the Compassionate Use of Medical Cannabis Pilot Program may grow up to five plants over five inches tall for personal use even if they do not have a cultivation center license or a craft grower license. The cultivation area needs to be enclosed, secured and out of ordinary public view. Additionally, the criminal prohibitions in the Cannabis Control Act against the growing and possession of cannabis plants has been amended so that the growing of up five plants is now a civil violation punishable by a fine of $100 to $200.12 Aside from all the personal use and possession issues addressed by CRTA, the bulk of this 600-page act is 6 7 8 9 10 11 12

12

410 ILCS 705/10-35(3)(F).

See 410 ILCS 705/10-35.

See 410 ILCS 705/10-30(a).

See 410 ILCS 705/10-30(b).

See 410 ILCS 705/10-30(c).

See 410 ILCS 705/10-50(a).

720 ILCS 550/8.

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regulatory. Now that the former class B and civil cannabis violations are legal, there is a new legal cannabis industry within the state, and with it there are numerous and detailed regulations for growers, transporters and dispensers. The enforcement of these regulations falls to the Department of Agriculture and the Department of Financial and Professional Regulation. Immunities and privileges for those lawfully engaged in the cannabis industry are set forth in Article 45. The growing and cultivation of cannabis is covered in Article 20, Adult Use Cultivation Center, and Article 30, Crafter Growers.

Infuser organizations are covered in Article 35. The transportation of cannabis is in Article 40. Dispensing organizations are in Article 15. Social equity in the cannabis industry is covered in Article 7. The Community College Cannabis Vocation Pilot Program is in Article 25. Finally, the all-important taxation issues are addressed in Articles 60 and 65, the Cannabis Cultivation Privilege Tax and the Cannabis Purchaser Excise Tax. In addition to the enactment of CRTA, Public Act 101-27 amends numerous existing statutes. One set of amendments to the Criminal Identification Act creates new grounds for expungement and pardon. The most important thing to know about the new cannabis expungements is that they only apply to what are called minor cannabis cases (or maybe not, as you’ll see later), which are defined as “a violation of Section 4 or 5 of the Cannabis Control Act concerning not more than 30 grams of any substance containing cannabis, provided the violation did not include a penalty enhancement under Section 7 of the Cannabis Control Act and is not associated with an arrest, conviction or other disposition for a violent crime as defined in subsection (c) of Section 3 of the Rights of Crime Victims and Witnesses Act.”13 This will be the misdemeanor or class 4 felony violations of 720 ILCS 550/4 and 5 involving 30 grams or less of a cannabis.

Minor cannabis cases do not include cases in violation of 720 ILCS 550/7, which states: “(a) Any person who is at least 18 years of age who violates Section 5 of this Act by delivering cannabis to a person under 18 years of age who is at least 3 years his junior may be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized by Section 5.”

Minor cannabis cases do not include cases where the cannabis violation is associated with a violent crime as defined by the Rights of Crime Victims and Witnesses Act,14 which states: “(c) “Violent crime” means: (1) any felony in which force or threat of force was used against the victim; (2) any offense involving sexual exploitation, sexual conduct, or sexual penetration; (3) a violation of Section 11-20.1, 11-20.1B, 11-20.3, 11-23, or 11-23.5 of the Criminal Code of 1961 or the Criminal Code of 2012; (4) domestic battery or stalking; (5) violation of an order of 13 20 ILCS 2630/5.2(a)(1)(G–5).

14 725 ILCS 120/3(c).

protection, a civil no contact order, or a stalking no contact order; (6) any misdemeanor which results in death or great bodily harm to the victim; or (7) any violation of Section 9-3 of the Criminal Code of 1961 or the Criminal Code of 2012, or Section 11-501 of the Illinois Vehicle Code, or a similar provision of a local ordinance, if the violation resulted in personal injury or death. “Violent crime” includes any action committed by a juvenile that would be a violent crime if committed by an adult. For the purposes of this paragraph, “personal injury” shall include any Type A injury as indicated on the traffic accident report completed by a law enforcement officer that requires immediate professional attention in either a doctor’s office or medical facility. A type A injury shall include severely bleeding wounds, distorted extremities, and injuries that require the injured party to be carried from the scene.”

The new amendments to the expungement laws place an obligation on the State Police and all law enforcement agencies to automatically expunge certain cannabis related records. This obligation only applies to law enforcement; there are no such obligations on State’s Attorney’s Offices, the Circuit Courts, or the Circuit Court Clerks.

The State Police and law enforcement agencies within the state are required to expunge records related to arrest, charges not initiated by arrest, orders of supervision, or orders of qualified probation (550/10 probation).

They must do so by the following time-table: cases from 1/1/2013 to 1/1/2020 to be expunged by 1/1/2021; cases from 1/1/2000 to 1/1/2013 to be expunged by 1/1/2023; and cases before 1/1/2020 to be expunged by 1/1/2025.15 With regards to convictions, anyone can file a motion to vacate and expunge their conviction for misdemeanor and Class 4 violations of 720 ILCS 550/4 and 5. Then the State’s Attorney has 60 days to file an objection. The statute states the following: “(3) Any individual may file a motion to vacate and expunge a conviction for a misdemeanor or Class 4 felony violation of Section 4 or Section 5 of the Cannabis Control Act. Motions to vacate and expunge under this subsection (i) may be filed with the circuit court, Chief Judge of a judicial circuit or any judge of the circuit designated by the Chief Judge. When considering such a motion to vacate and expunge, a court shall consider the following: the reasons to retain the records provided by law enforcement, the petitioner’s age, the petitioner’s age at the time of offense, the time since the conviction, and the specific adverse consequences if denied. An individual may file such a petition after the completion of any sentence or condition imposed by the conviction. Within 60 days of the filing of such motion, a State’s Attorney may file an objection to such a petition along with supporting evidence. If a motion to vacate and expunge is granted, the records shall be expunged in accordance with subparagraph (d)(9)(A) of this Section.

15 See 20 ILCS 2630/5.2(i)(1)(A).

An agency providing civil legal aid, as defined by Section 15 of the Public Interest Attorney Assistance Act, assisting individuals seeking to file a motion to vacate and expunge under this subsection may file motions to vacate and expunge with the Chief Judge of a judicial circuit or any judge of the circuit designated by the Chief Judge, and the motion may include more than one individual.”16 You will likely have noticed some wording in this statute does not quite mirror the statute on automatic expungements; the term “minor cannabis case” is not used here. Instead, the statute applies to all class 4 and misdemeanor convictions.

Any minor cannabis cases that are pending disposition as of January 1, 2020, may be subject to dismissal.

If the case occurred before the effective date, and is still pending on the effective date, and a sentence has not been imposed, then the defendant may file a motion seeking dismissal of the case. The statute provides: “If a person is arrested for a Minor Cannabis Offense as defined in this Section before the effective date of this amendatory Act of the 101st General Assembly and the person’s case is still pending but a sentence has not been imposed, the person may petition the court in which the charges are pending for an order to summarily dismiss those charges against him or her, and expunge all official records of his or her arrest, plea, trial, conviction, incarceration, supervision, or expungement. If the court determines, upon review, that: (A) the person was arrested before the effective date of this amendatory Act of the 101st General Assembly for an offense that has been made eligible for expungement; (B) the case is pending at the time; and (C) the person has not been sentenced of the minor cannabis violation eligible for expungement under this subsection, the court shall consider the following: the reasons to retain the records provided by law enforcement, the petitioner’s age, the petitioner’s age at the time of offense, the time since the conviction, and the specific adverse consequences if denied. If a motion to dismiss and expunge is granted, the records shall be expunged in accordance with subparagraph (d)(9)(A) of this Section.”17 This act is lengthy and covers a lot of ground. In many ways, however, it is not what people thought it would be. Many people are laboring under a belief that cannabis is or will be totally legal in Illinois—a full on, five-alarm, weedapolooza—but that’s not even close to the truth of the matter. If you are an advocate of legalization, then CRTA is probably a disappointment. If you are an opponent of legalization, then CRTA is probably a disappointment. But as of January 1, 2020, it has become a disappointment for all, so enjoy the upcoming rounds of litigation on how to apply and enforce it.

16 20 ILCS 2630/5.2(i)(3).

17 20 ILCS 2630/5.2(i)(6).

January 2020

13

Rules or Mere Suggestions

I

BY MICHAEL STRAUSS

am a sports fanatic, so I will begin with a sports analogy. Holding is a penalty in football that is commonly called during games, and coaches and players have incorporated techniques to avoid the penalty being called on them. Let’s say that the National Football League secretly told its referees to stop calling holding penalties, without actually eliminating the rule against holding.

Initially, for the first few games, coaches, players, and fans may scratch their heads, wondering about the absence of holding penalty calls. Over time, however, coaches and players would eventually realize that holding was occurring but was not being called as a penalty.

So they would then incorporate techniques in play that included holding. Why shouldn’t they? The referees are not calling the penalty, and it makes stopping a rushing defensemMichael S. an, blocking, and many other football Strauss is a plays so much easier. The rule against partner at holding was intended to prevent cerSchesinger & Strauss, tain behavior. That prohibited behavLLC. He is ior will now occur; but, if the referees also the. Chair start calling holding penalties again, of the Family then the players would go back to Law Section playing without holding, or to using Council of the Illinois those practiced techniques to avoid State Bar the penalty being called.

Association.

This is exactly how I feel about

14

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the existence versus the enforcement of certain statutes, Supreme Court Rules, and local rules.

We have all probably received a pleading or response from a pro se litigant that, well, complies with no known laws. Typically, it is some kind of stream of consciousness with no facts, no paragraphs, and no citations.

Historically, some judges would give the self-represented litigant leeway that they might not have given if the pleading or response had been drafted by an attorney. Case law is clear that the pro se litigant should not be treated any differently than attorneys. In fact, “a pro se litigant must comply with the rules of procedure required of attorneys, and a court will not apply a more lenient standard to pro se litigants.” People v. Vilces, 321 Ill.App.3d 937 (2nd Dist.

2001) citing People v. Fowler, 222 Ill. App.3d 157, 163 (2nd Dist. 1991). The

reality is that pro se litigants are not attorneys. If it is possible to respond to what he or she filed or if it is possible to understand the response, then I do understand the judges giving the litigant permission in allowing the matter to proceed as presented, especially when looking at access to justice issues for the self-represented The problem that I have seen lately is the same leeway being given to attorneys. We have all probably received petitions, responses, or motions from opposing attorneys that can best be described as a stream of consciousness.

These documents may lack paragraphs or even numbering.

It may simply be long, run-on sentences.

Subsection 2-603 of the Illinois Code of Civil Procedure, 750 ILCS 5/2603, provides in part,

failure to state a reason why he was unable to specifically admit or deny the allegations as an admission of the allegations. Unfortunately, we rarely see judges treating all of our cases like the Smith Court ruled.

When a pleading does not comply with simple rules, such as numbered paragraphs, how in the world can you file an answer or motion against it? The reality is that a filed pleading that does not comply with Local Rules, Supreme Court Rules, and/or the Code of Civil Procedure should be stricken, denied, or at least require the attorney to amend it and replead. In most matters, even when properly brought before the court for this adherence to rules, the judges do not want to discuss or even address the procedural problems with the pleading.

Most courts in Illinois have local rules addressing issues that occur within that locality to direct how lawyers should properly bring a pleading before the court. By way of example, Lake County Local Rule 2-1.01(D) provides that all motions need to include a statutory citation in the caption. Yet, how often are we forced to respond to motions lacking the citations? It may seem like mere semantics, but it is much more than that.

When you file a motion with a citation, it educates the Court and the opposing party on how to respond to it and what will be needed for the moving party to be successful. For instance, when a party files a motion to vacate, the party must properly cite the statute upon which relief is sought. The responding party needs to know, as the elements to plead, and what is necessary to succeed, vary greatly depending on which statute section is applicable.

The Illinois Supreme Court has stated, “The rules of court we have promulgated are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written.” Bright v Dicke, 166 Ill.2d 204, 210 (1995). Yet, judges seem to allow parties to proceed even when in direct violation with local rules, let alone those of our supreme court. This just perpetuates the problem and allows people to literally violate the law.

While it may seem that enforcing local rules, the Supreme Court Rules, or statutes will simply kick a case down the road, that is not the truth. If the trial courts enforced the laws and rules as written, it would save the litigants and attorneys time and confusion. This confusion is perhaps more prevalent when judges in the same

When you file a motion with a citation, it educates the Court and the opposing party on how to respond to it and what will be needed for the moving party to be successful.

(a) All pleadings shall contain a plain and concise statement of the pleader’s cause of action, counterclaim, defense, or reply. b) Each separate cause of action upon which a separate recovery might be had shall be stated in a separate count or counterclaim, as the case may be and each count, counterclaim, defense or reply, shall be separately pleaded, designated and numbered, and each shall be divided into paragraphs numbered consecutively, each paragraph containing, as nearly as may be, a separate allegation.

Further, 735 ILCS 5/2-610 provides in part, Pleadings to be specific. (a) Every answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates. (b) Every allegation, except allegations of damages, not explicitly denied is admitted, unless the party states in his or her pleading that he or she has no knowledge thereof sufficient to form a belief, and attaches an affidavit of the truth of the statement of want of knowledge, or unless the party has had no opportunity to deny.

In the case of In re Smith, the attorney failed to specifically admit or deny the allegations against him as required by ARDC Rule 233 (the Disciplinary Commission equivalent of section 2-610(b)). 168 Ill.2d 269 (1995).

The Illinois Supreme Court deemed the attorney’s failure to either specifically admit or deny the allegations and

January 2020

15

county are enforcing statutes and rules differently. For a given case, correct enforcement may extend or delay the matter, but then litigants and attorneys would take the time to amend the documents appropriately. This would streamline the process. By allowing pleadings and motions to proceed which do not comport with laws or rules, the court is teaching the attorneys and parties that anything goes, and they do not need to follow the law or the rules. Everything then becomes free game. If the court does not want to enforce certain rules, then I suggest that they remove that rule. However, if there is a law or rule then they are to be followed and enforced.

Otherwise, we all just need to know which laws and rules are truly rules of law and which are just mere suggestions.

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January 2020

17

Nichols v. Fahrenkamp: Illinois Supreme Court Acknowledges Quasi-Judicial Immunity Extends to Guardians ad litem

O

BY NATHANIEL L KATZ

n June 20, 2019, the Illinois Supreme Court extended the shield of quasi-judicial immunity to protect guardians ad litem who submit recommendations to the court regarding a child’s best interests. Common law has long recognized that judges are immune from liability for the acts they perform as part of their judicial duties.

In Nichols v. Fahrenkamp,1 the court extended this protection to other actors within the judicial process.

In 2004, plaintiff Alexis Nichols received $600,000 as part of a settlement for injuries suffered in a motor vehicle accident when she was 11 years old. At the time of the settlement, the probate court appointed her mother, Jelanda Miller, as guardian to administer her estate and appointed David Fahrenkamp as guardian ad litem. In 2012, Nathanhaving reached the age of majority, iel Katz Nichols sued her mother, claiming graduated that her mother used $79,507 of from the settlement funds for her own benefit.

University of WisconThe trial court ruled in Nichols’ favor sin-Madison but limited recovery, holding that Law School Nichols’ mother was not liable for the in May of entire $79,507, because Nichols had a 2018. He guardian ad litem who approved the is licensed to practice estimates and expenditures. Fahrenlaw in both kamp, at ¶ 4.

1 Nichols v. Fahrenkamp, 2019 IL 123990.

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Nichols then sued Fahrenkamp for legal malpractice. Fahrenkamp filed a motion for summary judgment, which the trial granted. The trial court held that a guardian ad litem who acts in the limited role of providing recommendations to the court regarding a minor’s best interests is immune from liability. The Fifth District Appellate Court reversed, concluding that immunizing guardians ad litem would be inconsistent with the guardian’s duty to act as an advocate on behalf of the plaintiff.

The Illinois Supreme Court was faced with a single question to resolve: whether the function of the guardian ad litem was to serve as an advocate for the minor or was more closely associated with that of an impartial judicial officer.

To determine whether an actor’s role is sufficiently connected to the judicial process merit quasi-judicial Wisconsin and Illinois. immunity, the United States Supreme Court created a “functional test,”

which requires a court to look past the title attached to an office or position and look to that position holder’s function. Cleaving v. Saxner.2 The parties disagreed on Fahrenkamp’s function as guardian ad litem. Fahrenkamp characterized his function as guardian ad litem as an actor closely tied to the judicial process, based upon the statutory regime created by the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”).3 In 2000 and again in 2006, the IMDMA was amended to establish a tripartite division among attorneys, child representatives, and guardians ad litem. Under this division, the guardian ad litem’s function in part is to testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child.4 While Fahrenkamp conceded that he was not appointed under the IMDMA, he argued that the court that appointed him relied upon its inherent authority as noted in In re Mark W., 227 Ill.2d 365 (2008).5 In In re Mark W., the Illinois Supreme Court concluded that a circuit court has the inherent authority to appoint a guardian ad litem to report on the best interests of a mentally disabled parent.6 Furthermore, the In re Mark W. court described the guardian ad litem’s role as the “‘eyes and ears of the court” and not as the ward’s attorney. 7 Nichols characterized Fahrenkamp’s function differently. Nichols argued that Fahrenkamp was appointed under Section 11-10.1(b) of the Probate Act to function as an advocate on behalf of Nichols, without any connection to the judicial process.8 Nichols’s argument relied in part upon the language in Section 11-10.1(b) of the Probate Act,9 which provides that “in any proceeding for the appointment of a standby guardian or a guardian the court may appoint a guardian ad litem to ‘represent the minor in the proceeding.’”10 Nichols also relied on the Illinois Supreme Court’s decision in Stunz v. Stunz.11 In Stunz, the Supreme Court

held that when appointed, the guardian ad litem’s duty is to examine the case, determine what the rights of his wards are, and what defense their interest demands, and to make such defense as the exercise of care and prudence will dictate.12 The Illinois Supreme Court ultimately concluded that Fahrenkamp’s function as guardian ad litem was closely associated with the judicial process, and analogous to a guardian ad litem under the IMDMA or In re Mark W. The court rejected Nichols’s arguments by focusing on two points: (1) the trial court’s authority to appoint a guardian ad litem; and (2) the evolving function of the guardian ad litem in Illinois over the past 40 years.

Initially, the court concluded that Nichols’s reliance on Section 11-10.1(b) of the Probate Act was misplaced because that section does not apply to every proceeding involving a minor’s property rights.13 Instead, Section 11-10.1(b) applies only to proceedings for the appointment of a standby guardian or a guardian.14 As Fahrenkamp correctly noted, the trial court may appoint a guardian ad litem to report on the best interests of the ward based on its inherent authority, apart from any statutory provisions.15.

Therefore, the court concluded that there is no reason to presume that the trial court relied on Section 11-10.1(b) of the Probate Act when it appointed Fahrenkamp.16 The Supreme Court next determined that Nichols’s reliance on Stunz was also improper due to the evolving function of the guardian ad litem in Illinois over the past 40 years. At the time of Stunz--in 1890--the Supreme Court first described the guardian ad litem’s duty as the duty to raise a legal defense of the ward’s interest.17 When the General Assembly enacted the Probate Act and passed section 11-10.1 of the Probate Act in 1979, it had a similar view of guardians ad litem. In early cases under the Probate Act, guardians ad litem acted much like traditional attorneys, representing minors before both the trial and appellate courts.18 At that time, the role of attorney and guardian ad litem were largely coextensive.19.

The Supreme Court concluded that, guardians ad litem who submit recommendations to the court on a child’s best interests are protected by quasi-judicial immunity.

2 Cleaving v. Saxner, 474 U.S. 193 (1985).

3 750 ILCS 5/101 et seq. (West 2016).

4 Id., § 506(a).

5 Fahrenkamp, at ¶ 19.

6 In re Mark W., 227 Ill. 2d at 374.

7 Id. 8 Fahrenkamp, at ¶ 21.

9 755 ILCS 5/11-10.1(b).

10 Fahrenkamp, at ¶ 31.

11 Stunz v. Stunz, 131 Ill. 210 (1890).

12 Id. at 221-22.

13 Fahrenkamp, at ¶ 40.

14 755 ILCS 5/11-10.1.

15 In re Mark W., 227 Ill. 2d at 374 16 Fahrenkamp, at ¶ 41.

17 Stunz v. Stunz, 131 Ill. 210, 221 (1890).

18 See In re Estate of Cohn, 95 Ill. App. 3d 205 (1981); Roth v.

Roth, 52 Ill. App. 3d 220, (1977).

19 Fahrenkamp, at ¶ 26

January 2020

19

However, the court noted that most cases in Illinois during the twenty-first century involving a guardian ad litem treat the guardian ad litem as a reporter or a witness connected to the judicial process, not as an advocate.20 In In re Mark W., the court explained that “the traditional role of the guardian ad litem is not to advocate for what the ward wants, but, instead, to make a recommendation as to what is in the ward’s best interests.”21 The court observed that this evolved understanding of the function of a guardian ad litem corresponds to the use of that phrase in the IMDMA.22 Although no Illinois court had specifically considered whether this position merits quasi-judicial immunity, Fahrenkamp relied on state supreme courts who have granted immunity to actors who fulfill a comparable roll in New Mexico, Idaho, and Washington, as well as the United States Court of Appeals for the Seventh Circuit, who, in the course of its discussion of child representatives under the IMDMA, accepted that guardians ad litem also require the protection provided by quasi-judicial immunity.23 Based upon these holdings, the Supreme Court con20 Id., at ¶ 35.

21 In re Mark W., 227 Ill.2d at 374.

22 Fahrenkamp, at ¶ 38.

23 Id., at ¶ 48.

cluded that, guardians ad litem who submit recommendations to the court on a child’s best interests are protected by quasi-judicial immunity. In order to be able to fulfill their obligation to submit recommendations to the court regarding a child’s best interest, guardians ad litem need absolute immunity without the worry of intimidation and harassment from dissatisfied parents.24 The court did not specifically mention guardian ad litem appointments of a disabled person in its analysis.

However, the court’s decision may be interpreted to apply quasi-judicial immunity to protect a guardian ad litem for a disabled adult as well. As noted above, the court based its conclusion in part on In re Mark W. and the IMDMA, which both provide that the role and function of the guardian ad litem in the case of a minor is to act as the eyes and ears of the court and make a recommendation as to what is in the ward’s best interests.25 Prior to 1995, Section 11a-10 of the Probate Act26 (governing the appointment of guardians for adults with intellectual disabilities) allowed a court to appoint a guardian ad litem to “represent the respondent.”27 However, Section 11a-10 was amended in 1995 to bring the use of “guardian ad litem” into conformity with the IMDMA. After the 1995 amendment, Section 11a-10(a) allowed the court to appoint a guardian ad litem “to report to the court concerning the respondent’s best interests.”28 Though the court’s ruling on its face limits the protection of quasi-judicial immunity to guardians ad litem of a minor, the court’s underlying reasoning and the conformity found between the language in the IMDMA, Section 11a-10 of the Probate Act, and In re Mark W., leads to the logical conclusion that guardians ad litem appointed under Section 11a-10 of the Probate Act who submit recommendations to the court on a disabled adult ward’s best interests should likewise be afforded quasi-judicial immunity.

The Illinois Supreme Court’s ruling in Nichols v.

Fahrenkamp should encourage the General Assembly to review the Probate Act and the IMDMA to ensure that the phrase “guardian ad litem” is used consistently throughout each statute. If nothing else, Fahrenkamp v.

Nichols demonstrates the importance of specifying the guardian ad litem’s function in the circuit court’s order of appointment in order to reduce the potential for any misunderstanding.

24 Id. 25 Id., at ¶ 38.

26 755 ILCS 5/11a-10(a) (West 1996).

27 Fahrenkamp, at ¶ 31.

28 Id.

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2019

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January 2020

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Return registration form & payment to:

22 TheLake Docket County Bar Association 300 Grand Ave STE A Waukegan, IL 60085 TEL 847-244-3143 FAX 847-244-8259

26TH ANNUAL FAMILY LAW CONFERENCE Albuquerque, NM

Thursday, April 23, 2020 

Welcome Reception (5:30 pm - 7:30 pm)

Friday, April 24, 2020  Breakfast (7:00 am - 8:00 am)  4 Hours of CLE (8:00 am - Noon)  Group Activity (Afternoon)  Group Reception (Early Evening) Saturday, April 25, 2020 • Breakfast (7:00am - 8:00 am) • 4 hours of CLE (8:00 am—Noon) • Conference End (Noon)

Hotel Albuquerque April 23-26, 2020

The Hotel: $165/night (by March 27, 2020) Hotel Albuquerque Call: 1-800-237-2133 Provide the Group / Convention Code Lake County Bar Association Family Law 2020

Register online: www.lakebar.org Seminar Registration:

REGISTER EARLY AND SAVE $95!

REGULAR REGISTRATION (Register & paid by 3/27/20) LCBA Member 8 hours of CLE Non– Member 8 hours of CLE Guests of CLE Attendee, ages 10 and above (includes welcome reception, 2 breakfasts) Friday Afternoon Activities: Best of Albq. Trolley Tour Friday Reception @ High New Restaurant & Saloon

# ________$375* per person # ________$499* per person # ________$125* per person # ________$25* per person # ________$35* per person

LATE REGISTRATION (Registered & paid after 3/27/20) 8 hours of CLE # ________$450* per person LCBA Member 8 hours of CLE # ________$574* per person Non– Member Guests of CLE Attendee, ages 10 and above (includes welcome reception, 2 breakfasts) # ________$175* per person Friday Afternoon Activities: Best of Albq. Trolley Tour Friday Reception @ High Noon Restaurant & Saloon

# ________$25* per person # ________$35* per person

SEMINAR MATERIALS: (Materials provided electronically to all registrants. Printed materials cost $25) Yes, I would like Hard Copies of my materials for $25: _____ Hard Copy ($25*) Thursday Welcome Reception (Included with registration but RSVP if attending) # ______ (Included but RSVP Required) TOTAL TUITION $______________________ (*Add 4% to total if paying with a credit card)

Name: ____________________________________________________________ ARDC # _____________________ Guest ________________________________________

Guest ___________________________________________

Firm: _________________________________________

Address: ________________________________________

City: _________________________________________ State: _______________________ ZIP: ________________ TEL: _________________________________________ E-Mail: __________________________________________ Payment method: □Check

□AmEx* □VISA* □MasterCard* □Discover* (add 4% to

total if paying with credit card)

Card # ___________________________________________________________ Exp Date: __________ CVC_______ Signature: _______________________________________________________________________________________ Return registration form to: January 2020 Lake County Bar Association 300 Grand Ave STE A Waukegan, IL 60085 TEL 847-244-3143 FAX 847-244-8259

23

Board of Directors’ Meeting October 17, 2019 CALL TO ORDER: 12:08 ACTION ITEMS: 1. Consent Agenda: a. September Minutes – P4 b. September New Members – P8 Motion to approve the consent agenda, motion seconded, motion passed.

2. Treasurer’s report: a. June - September 2019 Financial Report – P6 Brief discussion by Treasurer regarding outstanding invoices, income, report, revenue and expenses.

OLD BUSINESS: 1. Current Membership Stats: a. Current Membership – 845 / Suspended (not renewed) – 143 2. CLE Presentation & Licensing Agreement: The proposed CLE Presentation & Licensing Agreement provides LCBA authority to record CLE presentations and use the recording as the Assocation sees fit. Request a motion to approve the proposed CLE Presentation & Licensing Agreement. – P23 Motion to approve

24 The Docket

The the proposed CLE Presentation & Licensing Agreement, motion seconded, motion passed.

3. LCBA/LCBF Cost Sharing Agreement: Replace current Lease Agreement to a Cost Sharing Agreement in attempt to eliminate or reduce property taxes. Request motion to approve proposed Cost Sharing Agreement which will replace current Lease Agreement with LCBA. – Forthcoming Finalized Cost Sharing Agreement provided.

Discussion regarding the purpose and intent of the cost sharing agreement.

Amy Lonegran was present to answer any questions.

Motion to approve the cost sharing agreement, motion seconded, motion passed.

4. Committee Event Sponsorship Policy: Continue discussion on developing a policy addressing how sponsorship income is to be used and allocated.

Current proposed policy attached – P25 Draft policy on Sponsorships proposed and discussed. Discussion to

Meeting Minutes

BY TARA R. DEVINE SECRETARY

be continued at the next Board Meeting.

NEW BUSINESS: 1. Credit Card Fees: Discuss options for collecting credit card fees. P26 Discussion regarding missing credit card fees for dues. Proposed draft invoice and online invoice discussed. Motion to not pursue missing credit card fees of $2.99 and under, motion seconded, motion passed.

Committee Liaison Reports: Director Liaisons to report on activities of their assigned committee(s) 1. Civil Trial & Appeals 2. Community Outreach & Diversity 3. CLE 4. Criminal Law 5. Debtor/Creditor 6. Docket 7. Family Law 8. Golf Outing 9. Gridiron 10. Judicial Selection & Retention 11. Local Government 12. Real Estate

13. Trust & Estates 14. Young & New Lawyers Motion to adjourn: 1:15 BOARD MEMBERS PRESENT Stephen Rice President Hon. Patricia Cornell First Vice President Joseph Fusz Second Vice President Kathleen Curtin Treasurer Tara Devine Secretary Brian Lewis Past President Hon. Christine L. Bishop 2017-2020 Director Katherine S. Hatch 2017-2020 Director David R. Del Re 2018-2021 Director Dwayne Douglas 2019-2022 Director Daniel Hodgkinson 2019-2022 Director Dale A. Perrin, Executive Director

Annual MemebershipHoliday Party December 6, 2019

January 2020 25

New Year – New Goals

A

s we wrap up 2019 and set our sights on 2020, it’s once again time to look at what’s been accomplished over the past 12 months and identify what needs to be addressed in the new year.

Much has been accomplished this past year including cleaning up the organizations finances and getting us back on solid financial footing. Near record attendance at events including the Installation Dinner, Family Law Spring and Fall Seminars, Real Estate Seminar, Holiday Party, Golf Outing, and several CLE trainings namely the tremendously successful Anatomy of a Trial series.

Thank you to the many members who attended and participated in these events.

Without your participation the events would cease to exist. Next, thank you to the Committee Chairs, committee members, speakers, presenters, and anyone else who assisted in the planning and implementation of the event. Without your insight, experience and hard work, the event would be a dud and members wouldn’t attend. Finally, thank you to the many individuals and

26 The Docket

companies who sponsor these events. Without your financial support we likely would have to charge such an exorbitant amount to attend that few would attend.

So, thank you to every member who planned, supported and attended an event this past year. Please spread the word and help us grow. The more members we have, the greater our resources, which means the stronger our organization will be.

Looking forward to 2020, one area that I’ve identified for improvement is communications with our members. Hardly a week goes by that one or more members comment that they didn’t know about something, or never received information. Many times, it comes down to the information that we have is wrong or incomplete.

So, I would like to encourage every member to take five minutes in the month of January to make sure your Member Profile is up to date and complete.

To do this, go to the LCBA website (www.lakebar. org). Log-In by clicking the Sign In button on the upper

In the

Director’s Chair

right. Enter your login (which is likely your email) and password. Click forgot password to reset or call the LCBA office if you don’t know it.

If you have an open invoice with the LCBA, you will automatically go to the Invoice page upon log in to let you know that you have an unpaid invoice and giving you an opportunity to pay it online. (you can avoid the credit card fee by sending in payment via a check). If you don’t owe money, you’ll go to your Manage Profile page. On that page, click on the “Edit Bio” link. Update and complete all or as much info as you can under the Account Information and Professional Information sections. If you wish to add info under Additional Information section, please do so. Be sure to click the “Save Changes” button at the bottom before moving on to another page.

Go back to the Manage Profile page (link in blue bar

BY DALE PERRIN EXECUTIVE DIRECTOR at top), click on the “Preferences” link and update that page as needed. Click the “Save My Settings” button at bottom.

Finally, back on the Manage Profile page scroll down and click on the “Groups” button and make sure you’re included in the various committees/groups that you wish to be. Add or delete groups as desired.

With all this info completed and correct, you will receive all general Association communications, like our weekly E-News, and communications specific to the committees you wish to be a part of.

As always, you’re welcome to call or stop by the LCBA office for assistance with updating your profile or any other need you might have concerning the Association, Foundation or Lake County legal community.

Here’s wishing you a prosperous year filled with great health, loving family and many good friends.

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January 2020 27

Bar

Bulletin Board

Monthly

Committee Meetings

DAY

MEETING

LOCATION

TIME

1st Tuesday

Diversity & Community Outreach

LCBA

12:15-1:15

1 Thursday

Real Estate

Primo, Gurnee

5:30-6:30

Editorial 1st Thursday (Even Mo.) Docket Committee

LCBA

12:15-1:15

2nd Tuesday

LCBA

12:15-1:15

LCBA

4:30-5:30

st

Criminal Law

2nd Tuesday (Odd Mo.) Immigration 2nd Wednesday

Family Law Advisory Group (FLAG)

LCBA

12:00-1:00

2nd Wednesday

Civil Trial and Appeals

LCBA

4:00-5:00

2 Thursday

Young & New Lawyers

TBD

12:15-1:15

2nd Thursday

Trusts and Estates

LCBA

12:15-1:15

3rd Tuesday

Local Government

LCBA

12:15-1:15

3rd Tuesday

LCBF Board of Trustees

LCBA

4:00

3rd Wednesday

Debtor/Creditor Rights

Varies

5:30-6:30

3rd Wednesday

Family Law

C-105

12:00-1:00

3 Wednesday (Odd Mo.) Employment Law

Varies

5:15-6:15

3rd Thursday

LCBA

12:00 noon

nd

rd

LCBA Board of Directors

• RSVP to a meeting at www.lakebar.org.

• Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143.

• Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis.

28 The Docket

To place an ad or for information on advertising rates, call (847) 244-3143

Do you have a speaker idea or suggestion for our business meetings?

We would like to hear from you!

Send your ideas to: dale@lakebar.org

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January 2020 29

300 Grand Avenue, Suite A Waukegan, IL 60085 Tel: 847-244-3143 Fax: 847-244-8259

MEMBER RECEPTION

MEMBER RECEPTION SPONSORSHIP OPPORTUNITIES

LCBA Member Receptions will generally be held on the 4th Thursday of every month.

Your $500 sponsorship includes: • Recognition in advertising before the event and on signage at the event • Reception from 4:30 – 6:30 p.m.

• Complimentary beer and wine. Upgrades available for additional fee.

Contact Dale Perrin at dale@lakebar.org to add your name to a reception.