The Docket - March 2020

THE

DOCKET The Official Publication of the Lake County Bar Association • Vol. 27 No. 3 • March 2020

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Contents THE DOCKET • Vol. 27, No. 3 • March 2020

FEATURES 14 The Legislative Threat to Judicial Independence

10 Monthly Case Report 28 The Meeting Minutes December 19, 2019

18 Modifications of Child Support

30 In the Director’s Chair

Amazing

20 Elizabeth Olszewski’s Legacy

LCBA EVENTS

RAYMOND J. MCKOSKI

BY MICHAEL STRAUSS

A publication of the

BY STEPHEN J. RICE

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

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COLUMNS 2 President’s Page 15 Years of CLE: What have you learned?

BY STEPHEN J. RICE, PRESIDENT

4 The Chief Judge’s Page Courthouse Updates

BY CHIEF JUDGE DIANE WINTER

6 Bar Foundation

Welcome to Spring

BY NICHOLAS A. RIEWER, PRESIDENT

8 Legislation of Interest Report

BY TARA R. DEVINE, SECRETARY

BY DALE PERRIN, EXECUTIVE DIRECTOR

IFC 2019 LCBA Office Rental Pricing 3 The Calendar of Events 5 New LCBA Members 5 LCBA Event Pictures 5 Lawyer Referral Service 21 Doctor Lawyer Dinner 22 Family Law Conference 24 Golf Outing 29 Law Day 2020 32 Monthly Committee Meetings BC Gridiron

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15 Years of CLE: What have you learned?

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n 2005 I graduated from law school, married Lisa, and landed a Staff Attorney job with the 19th Judicial Circuit. That same

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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year, the Illinois Supreme Court instituted mandatory continuing legal education. I celebrate most of these anniversaries!

In all seriousness, MCLE has been a good thing for the Illinois legal system, even if it is an additional expense and the occasional burden (reporting deadline!) Think about this: when was the breadth of your legal knowledge widest? Probably right after you took the bar exam, because you had spent three years and then a few intense months cramming your head with everything from wills to torts, crim pro to secured transactions.

Could you answer whether “B has a perfected security interest in the furniture” today? I didn’t think so!

Few lawyers outside judicial clerks or staff attorneys need that breadth of knowledge in today’s practice environment. Even

The

President’s Page

still, a bit of legal cross-pollination helps us serve our clients and the public generally, as we navigate the intricacies of complex western democracy. When someone asks me about immigration law, for example, I know nearly nothing of practical use. Even still, having attended CLE on the topic several times, I am at least vaguely familiar with the complexities of the process, know a bit of the vocabulary, and can refer people to others who can help further.

Mandatory CLE is a good thing even if you deem it to possess only marginal utility. A common complaint one hears after a CLE is that “I got five minutes of value out of that two hours.” Even still, at times, that five-minute nugget changes an aspect of how you practice. Sometimes it even compensates for the other 115 minutes

BY STEPHEN J. RICE PRESIDENT altogether. CLE also allows us to confront ethical issues that are best first encountered in a CLE, and not in practice.

At the annual ARDC talks that the LCBA hosts as part of its fall luncheon series, the speakers have noted that disciplinary cases have dropped significantly in the past 10+ years.

There is no study—nor likely could there be one— that would causally tie MCLE to that drop, but it is conceivable that more than just correlation is at work.

On whole, I find attending CLE in person to be generally more rewarding that watching online videos or even live-streams. And because locally presented CLE is generally more convenient than traveling for it, the LCBA’s offerings have typically satisfied a good portion of my annual CLE requirements. CLE has been a good thing for bar associ-

ations like ours, which are well-poised to offer classes and seminars and, when those offerings are not free, can charge modest rates for the offerings.

At some of the LCBA CLE I’ve attended this year, I’ve learned about how small firms should create a succession plan (Solo & Small Firm Committee); I’ve heard about things to look for in electronic medical records (Civil Trial & Appeals Committee); I’ve been briefed on how the new marijuana laws affect municipalities, particularly with regards to public safety employees and those with commercial driver’s licenses (Local Government Committee); and I’ve been reminded of many trial techniques, both as a result of our 2019 Family Law Seminar and the Anatomy of a Trial series that it spawned.

One of the best things about live CLE in particular is the back-and-forth that typically occurs at the end of a presentation. We learn best when we are not just absorbing information, but also speaking and processing it orally. (I am cognizant of this every time I write a draft of a brief and hand it off to a colleague for comment. Often the best parts of the brief wind up being things I have to communicate about in more than mere prose.)

And so I end with an appeal to you: participate in our LCBA committees!

Almost all of them put on simple and free CLE offerings multiple times per year. Even when they are not doing so, the camaraderie and exchange of ideas that occurs at meetings

is always rewarding. We have a few big CLE events coming up: March 5-7: Real Estate Seminar in Nashville, Tennessee.

March 11: Doctor-Lawyer Dinner featuring Dr. Leslie Mendoza Temple, who gave a terrific speech a few years ago at this dinner about medical marijuana, and will be addressing current events on the marijuana topic.

April: 23-25: Family Law Seminar in Albuquerque, New Mexico.

May 21: The Civil Trial and Appeals Seminar and golf outing at Glen Flora.

There are many other offerings on the calendar at lakebar.org. Join us!

(And subliminal message: Reporting deadline!)

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Calendar of Events

March 24 Annual Meeting & Liberty Bell Awards Luncheon Waukegan City Hall April 23-25 Family Law Committee Conference Albuquerque, NM April 27 – May 1 Lawyers in the Classroom April 28 Access to Justice Luncheon Waukegan City Hall April 30 Ask a Lawyer Drop-In Clinic Waukegan Public Library May 1 Ask a Lawyer Call-In Clinic LCBA Office June 6 Installation Dinner Ivanhoe Country Club

LETTER TO THE EDITOR To Members of the Bar: This past weekend members of the bar put on our biennial gridiron show. The cast members worked very hard and put on a great show that was well received. There was one issue that did mar the second show though.

One skit named Lawlor’s Lawful Dispensary made fun of the ongoing joke among the criminal bar that the elevators in the new court tower always smell of marijuana. The skit used this and the new law legalizing marijuana to pretend that the vacant third and fourth floor of the criminal tower were really a marijuana dispensary for lawyers. The skit was called Lawlor’s Lawful Dispensary as Mr. Lawlor is the former public official who was the County Board Chairperson during the construction and opening of the building.

The skit was one of the funnier of the show. The skit in no way made fun of drug addiction or Mr. Lawlor’s recovery in any way. The majority of the cast are involved in the criminal justice system and work diligently to assist addicts with recovery on a daily basis.

Mr. Lawlor and his allies appear to have misunderstood the skit and attacked the bar and individual members of the cast personally including naming judges by name in a Facebook post. None of the people criticizing the show even attended. It should be noted that the Gridiron is a comedy show that uses satire to comment on public officials, members of the bar, members of the community, and current issues in our society. The gridiron has a long history going back seventy years of hard hitting satire. Everyone takes this with a smile and moves on. Thank you Judge Fisz for your understanding this year.

Members of the cast can accept bad reviews, but what is most troubling is the censorship of the skit Lawlor’s Legal Dispensary. It seems that the thin skinned, disgraced, former head of the county board reached out to powers in government and somehow got political pressure put on the bar association to drop this skit for the second performance.

This is unprecedented and a horrible example of misplaced political power and outright censorship of a satirical show.

The cast members worked long hours on this show and deserved better. Political censorship is never ok. As lawyers and members of the bar, we should fight to preserve our rights and our constitution and speak out when we see injustice such as this. Did we not take an oath stating this?

In conclusion, shame on any public official who put political pressure on the bar, and shame on the bar for bending to this pressure. In the future I hope that our public officials take their needling like an adult and laugh at themselves and not try to use their power to censor a satirical comedy show.

David Weinstein

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Courthouse Updates

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t has been a busy start for 2020! As this is an even numbered year, half of our Judges attended a mandatory week-long Judicial version of CLE in February. The other half will attend the week of March 30th through April 3rd so court calls that week will be consolidated.

Along with the recent announcement of Supreme Court Justice Robert Thomas’ retirement, Appellate Justice Michael Burke’s elevation to the Supreme Court, and Judge Liam Brennan’s elevation to the Appellate Court, the 19th Circuit also has a lot of movement.

CHANGES IN THE JUDICIARY Judge Christopher M. Kennedy was sworn in January 31st and has begun his judicial training. His formal installation ceremony is scheduled for February 19, 2020. Judge Kennedy is looking forward to taking the bench in the Mundelein branch court.

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Associate Judge Reginald C. Matthews was honored by Supreme Court Justice Robert Thomas with an appointment to the vacancy in the First Judicial Sub-Circuit. Reggie will officially assume the position of Circuit Judge on March 2, 2020. A change in assignment is pending at this time.

With Judge Matthews’ appointment to the Circuit bench, the 19th Circuit has another associate judge position to fill. The application period is open and will close on March 19, 2020.

LAKE COUNTY JUDGES READING PROGRAM RECOGNIZED A group of Lake County judges have participated in the United Way of Lake County’s Reading Success Program and recently celebrated the program’s 10th anniversary. The program was developed by United Way of Lake County to help build literacy skills to

The

Chief Judge’s Page ensure children can read at grade level by the end of the third grade. The judges have been working with Mrs. Chang at North Elementary School in Waukegan to tutor four first graders every year. Two judges tutor each week giving the students indi-

BY CHIEF JUDGE DIANE WINTER vidualized help to improve their reading skills.

Thirteen judges from the Nineteenth Judicial Circuit are currently participating in the weekly tutoring program. Judge Luis A. Berrones, who as Chair organizes the program for the judges and has tutored

[back row, left to right] Circuit Judge Jorge L. Ortiz, Associate Judge Stacey L. Senezcko, Associate Judge Elizabeth M. Rochford, Chief Judge Diane E. Winter, Associate Judge Janelle K. Christensen, Associate Judge Jacquelyn D. Melius, Associate Judge Luis A. Berrones, Circuit Judge Mitchell L. Hoffman, Associate Judge Veronica M. O’Malley. [second row] Jennifer Chang, first grade teacher North Elementary.

Welcome

New LCBA Members ATTORNEYS Scott Farrell Strategic Divorce

LAWYER REFERRAL SERVICE

Judge Jorge L. Ortiz with student.

Judge Veronica M. O’Malley with students.

Why should YOU join the LCBA Lawyer Referral Service?

for seven years said: “I Johnson, Jacquelyn D. Meam not surprised by this have always believed that lius, Veronica M. O’Malley, measurement, as every year being able to read well Jorge L. Ortiz, Elizabeth M. the judges comment that allows that person to take Rochford, Stacey L. Senecthey can see significant control of their life, and zko and Diane E. Winter. improvement in their stuThe LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member beattorneys a self-reliant, informed According to the dent’s reading skills at the with an opportunity to build business through client referrals. The service benefits the public by helping citizen.”

The judges particUnited Way of Lake of the academic year. callers quickly find an attorney in the area of law in which they need help. The LRSend is widely publicized and all LCBA ipating year are Luis A. theCounty, studentsinsurance partic-are eligibleBesides membersthis in good standing who carry required malpractice to join. being proud of Berrones, David P. Brodsky, ipating in the Reading this accomplishment, the The LRS program is designed to assist persons who are able to pay normal attorney fees but whose ability to locate legal Janelle K. Christensen, Success program average judges also representation is frustrated by a lack of experience with the legal system, a lack of information about enjoy the type getting of services to Patricia L.aCornell, Ste- costs ofaseeing 33-point increase over know the students, answerneeded, or fear of the potential a lawyer. phen M. DeRue, Mitchell their non-tutored peers at ing their many questions The Lawyer Referral Service is an intuitive win/win/win. We’re helping the public, by providing them with legal L. Hoffman, Charles the same we’re reading level.

I by playing and laughing together. resourcesD. with some degree of reliability; helping our members, matchmaker with clients whom they can help for a minimal referral cost; and we’re helping the Bar Association and our public image by offering our services. Although not all of the matches will work out, the risks and costs are minimal and the rewards are great.

Deborah Goldberg, Goldberg & Kane

LAWYER REFERRAL SERVICE

Why should YOU join the LCBA Lawyer Referral Service?

“I have been a member of the referral service for many years, particularly in the fields of Trusts & Estates. The service has generated a stream of potential clients, some of which are not viable but many of which have ripened into clients for litigation or estate planning. Frankly, I don’t mind answering people’s questions about our field of law, which most people find confusing. The referral service has been a great way for potential clients to speak with me and discuss the issues before having to spend money and before I have to commit to the clients. I whole-heartedly recommend the LCBA’s Client Referral Service as a way to grow your practice.”

Fredric Bryan Lesser, Lesser Lutrey McGlynn & Howe LLP

The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member As a long-time to member the LCBA Lawyer Referral I knowThe howservice useful it benefits is to be a the member of the I attorneys with an opportunity buildofbusiness through clientService referrals. public byservice. helping have obtained several cases through the service and would strongly recommend that attorneys seeking cases join. callers quickly findCompared an attorney in the area of law in which they need help.

The LRS is widely publicized and all LCBA to the many online services that claim to provide cases, the LCBA’s referral service actually delivers at a members in good standing who much lower cost.carry the required malpractice insurance are eligible to join.

McCollum, Law Offices of Steven McCollum, The LRS program isSteve designed to assist persons whoP. are able toP.C. pay normal attorney fees but whose ability to locate legal representation is frustrated by a lack of experience with the legal system, a lack of information about the type of services needed, or a fear of the potential costs of seeing a lawyer.

AVA I L A B L E R E F E R R A L PA N E L S

The Lawyer Referral Service is an intuitive win/win/win. We’re helping the public, by providing them with legal resources with some degree of reliability; we’re helping our members, by playing matchmaker with clients whom they can help for a minimal referral cost; and we’re helping the Bar Association and our public image by offering our Administrativeservices. Although • Consumer Environmental • and Estate Planning, Wills, not all of the matches will work•out, the risks and costs are minimal the rewards are great.

• • Appellate • Commercial

Deborah Goldberg, Goldberg & Kane • Criminal

• Employment

• Family • Real Estate

Trusts and Probate • Personal Injury / Property Damage

member of the referral service for many years, particularly in the fields of Trusts & Estates. The service C O N T A C T T“Ihas Hhave E been L Ca B A AT 8 4 7 . 2 4 4 . 3 1 4 3 O R AT I N F O @ L A K E B A R . O R G generated a stream of potential clients, some of which are not viable but many of which have ripened into clients

L A K E C O U N T Y L AW Y E R . I N F O for litigation or estate planning. Frankly, I don’t mind answering people’s questions about our field of law, which most people find confusing. The referral service has been a great way for potential clients to speak with me and discuss the issues before having to spend money and before I have to commit to the clients. I whole-heartedly recommend the LCBA’s Client Referral Service as a way to grow your practice.”

Lawrence Hyman Lawrence H. Hyman & Associates David Meek The Law Office of David Meek, LLC Bryan Reed Reed, Centracchio & Associates LLC Heather Rose Papanek Rose & Associates

GOVERNMENT/ NON-PROFIT Kimberly Thielbar Prairie State Legal Services

MILITARY Zachary Uram US Navy Regional Legal Service Office Midwest

PROFESSIONAL Perry Granof Granof International Group LLC. Pam Weiss Compass Care Management LLC

STUDENTS Jacquelin Farquhar Ashley Steinbrecher

Fredric Bryan Lesser, Lesser Lutrey McGlynn & Howe LLP As a long-time member of the LCBA Lawyer Referral Service I know how useful it is to be a member of the service. I have obtained several cases through the service and would strongly recommend that attorneys seeking cases join.

Compared to the many online services that claim to provide cases, the LCBA’s referral service actually delivers at a much lower cost.

Steve McCollum, Law Offices of Steven P. McCollum, P.C.

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Welcome to Spring

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ccording to Punxsutawney Phil, we are going to have an early Spring this year. On February 2, Phil came out of his burrow and did not see his shadow and, accordingly, we will have an early Spring.

It is my opinion that Phil’s 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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accuracy in reporting the weather is about the same as what you get on your nightly news. Spring is defined as the season between Winter and Summer, lasting from March to June, north of the equator, when the weather becomes warmer, leaves and plants start to grow again, and flowers appear. It is the time of year when we have something positive to look forward to such as the warmer weather, things turning green, the grey snow going away, and the sun shining on our faces again.

Spring has always been a season of hope and looking forward to positive things. That is especially important in these times when we are exposed to a lot of negative things such as impeachment proceedings, coronavirus, global warming, marijuana dispensaries running out of product (not from personal experience, just what I read in the news), and the Cubs not making any off season moves.

As attorneys, we are

BY NICHOLAS A. RIEWER PRESIDENT also dealing with the fact that the vast majority of what we do includes conflict. Whether you are arguing over the terms of a contract, a divorce proceeding, civil litigation, criminal proceedings or fighting over the terms of a will, we are constantly in an adversarial environment. Then you throw in the nightly news which deals with pretty much nothing but conflict and tragedy, it becomes more clear why the marijuana dispensaries are running out of product.

I would suggest that simple acts of kindness can go a long way in brightening somebody’s day. Small things like when you are walking down the street or through the corridors of the courthouse, and you see somebody, and make eye contact with them, say hello, or say good morning.

You would be surprised at how quickly a smile washes across their face. I have a seven-year old son who has a very positive outgoing personality. The smile that comes across a complete stranger’s face as we walk down the street when he greets them with “Hello” or “Good Morning”, makes me smile as well. I watch as a frown turns into a smile when my son holds the door open for a complete stranger. I have a sense of pride when I watch my son hold an elevator door and allows the women to get on or off first. More often than not, I hear “Thank you young man”, while they are brightly smiling.

As attorneys, many of us are in court on a regular basis. A Simple “Good Morning Your Honor” or “Thank You Your Honor” after an adverse ruling will, in most instances, cause

the Judge to look up, smile and say thank you.

None of these simple gestures cost a single cent and take virtually no time out of your day, yet in most cases, can brighten someone’s outlook, even if only for a short time.

I hope that Punxsutawney Phil was right and we are in for an early Spring with warmer temperatures, and sunny days. That combined with simple acts of kindness, can brighten a person’s day. If enough of us extend these simple acts of kindness, you may be pleasantly surprised one day when a complete stranger holds a door for you or greets you with a warm smile and hello.

Happy Spring Everyone!

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January 2020

Legislation of Interest Report

Editor’s Note: The monthly Legislation Of Interest Report is a new feature of The Docket, provided by 19th Judicial Circuit Law Librarian, Emanuel Zoberman, Status SB1786 Completed Legislative Action Spectrum: Moderate Partisan Bill (Democrat 65-16) Status: Passed on January 17 2020 - 100% progression Action: 2020-01-17 - Public Act . . . . . . . . . 101-0623 Statutes Amended In Order of Appearance 625 ILCS 5/3-704.2 625 ILCS 5/6-201 625 ILCS 5/6-204 from Ch. 95 1/2, par. 6-204 625 ILCS 5/6-205 625 ILCS 5/6-206 625 ILCS 5/6-209.1 new 625 ILCS 5/6-306.5 from Ch. 95 1/2, par. 6-306.5 625 ILCS 5/11-208.3 from Ch. 95 1/2, par. 11-208.3 625 ILCS 5/6-205.2 rep.

625 ILCS 5/6-306.7 rep.

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Synopsis As Introduced Amends the Illinois Vehicle Code. Provides that the amendatory Act may be referred to as the License to Work Act. Deletes language providing that all notices sent to a person involved in an administrative proceeding shall state that failure to satisfy any fine or penalty shall result in the Secretary of State suspending his or her driving privileges, vehicle registration, or both. Provides that the Secretary is authorized to cancel any license or permit if the holder failed to pay any fees owed to the Secretary for the license or permit (rather than failure to pay any fees, civil penalties owed to the Illinois Commerce Commission, or taxes due upon reasonable notice and demand). Provides that a person whose driver’s license was canceled, suspended, or revoked under certain circumstances shall have his or her driving privileges reinstated.

Deletes language providing that the reporting requirements for public officials shall apply to a truant minor in need of supervision, an addicted minor, or a delinquent minor whose driver’s license has been suspended. Provides for the immediate revocation of the license, permit, or driving privileges of any driver if the driver was convicted of a misdemeanor relating to a motor vehicle if the person exercised actual physical control over the vehicle during the commission of the offense. Provides that the Secretary is authorized to suspend or revoke the driving privileges of any person without a preliminary hearing if the person has been convicted of criminal trespass to vehicle if the person exercised actual physical control over the vehicle during the commission of the offense.

Provides that in order to be subject to suspension or revocation for violation of specific provisions of the Liquor Control Act of 1934, a person must also be an occupant of a motor vehicle at the time of the violation. Deletes language authorizing the Secretary to suspend or revoke the driving privileges of a person without a preliminary hearing for specific adjudications or violations. Deletes language providing that the owner of a registered vehicle that has failed to pay any fine or penalty due and owing as a result of 10 or more violations shall have his or her driving privileges suspended. Repeals Sections concerning the suspension of a driver’s license for theft of motor fuel and suspension of driving privileges for failure to satisfy fines or penalties for toll violations or evasions.

Effective July 1, 2020.

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January 2020

Monthly Case Report

Editor’s Note: Monthly Case Report is a new feature of The Docket, provided by 19th Judicial Circuit Law Librarian, Emanuel Zoberman,

Illinois Supreme Court – Criminal People v. Kimble, Supreme Court of Illinois, April 18, 2019, --- N.E.3d ---, 2019 IL 122830, 2019 WL 1722273 Background: Following mistrial on charges of four counts of aggravated criminal sexual abuse, defendant filed a motion to dismiss the charges on double jeopardy grounds.

The Circuit Court, McHenry County, No. 13-CF-1123, Sharon L. Prather, J., denied defendant’s motion to dismiss the charges. Defendant appealed. The Appellate Court, 416 Ill. Dec. 960, 86 N.E.3d 1245, reversed. State filed petition for leave to appeal, which was granted.

Holdings: The Supreme Court, Theis, J., held that: 1 judge did not abuse her discretion in deciding that mistrial was justified by manifest necessity, and therefore, double jeopardy clause did not bar reprosecution, and 2 judge’s communication to deadlocked jury, to continue deliberating, was proper and constituted a clear and noncoercive response, which was well within judge’s discretion; and 3 judge was not obligated to give supplemental instruction regarding jury deadlocks at any time prior to declaring a mistrial.

Reversed and remanded.

Burke, J., filed dissenting opinion.

Neville, J., dissented and filed opinion in which Burke, J., joined.

People v. Buffer, Supreme Court of Illinois, April 18, 2019, --- N.E.3d ----, 2019 IL 122327, 2019 WL 1721435 Background: After murder conviction of defendant, who was a juvenile at time of offense, was affirmed on appeal, 2012 WL 6951472, defendant filed a pro se petition for post-conviction relief, alleging that his 50-year prison sentence was unconstitutional. The Circuit Court, Cook County, No. 09 CR 10493, Thaddeus Wilson, J., summarily dismissed the petition. Defendant appealed. The Appellate Court, Fitzgerald Smith, P.J., 412 Ill.Dec. 490, 75 N.E.3d 470,

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reversed and remanded for resentencing. State appealed.

Holdings: The Supreme Court, Neville, J., held that: 1 defendant’s sentence was a “de facto life sentence” imposed without consideration of his youth, in violation of the Eighth Amendment’s ban on excessive punishment; abrogating People v. Perez, 424 Ill.Dec. 846, 110 N.E.3d 196; People v. Hoy, 417 Ill.Dec. 902, 89 N.E.3d 821; People v. Evans, 416 Ill.Dec. 769, 86 N.E.3d 1054; and People v. Applewhite, 409 Ill.Dec. 849, 68 N.E.3d 957, and 2 appropriate remedy was remand for new sentencing hearing, rather than remand for advancement of postconviction proceedings.

Affirmed and remanded for resentencing.

Burke, J., filed opinion specially concurring.

Illinois Supreme Court – Civil Fillmore v. Taylor, Supreme Court of Illinois, April 18, 2019, --- N.E.3d ----, 2019 IL 122626, 2019 WL 1721441 Background: Inmate brought action seeking writ of mandamus, declaratory relief, and common law writ of certiorari against three officers for Department of Corrections for failing to follow mandatory legal procedures before imposing discipline upon him for violating prison rules. The Circuit Court, Sangamon County, No. 15 mr 915, Rudolph M. Braud, Jr., J., granted officers’ motion to dismiss. Inmate appealed. The Appellate Court, Appleton, J., 414 Ill.Dec. 692, 80 N.E.3d 835, affirmed in part, reversed in part, and remanded. Defendant petitioned for leave to appeal.

Holdings: The Supreme Court, Thomas, J., held that: 1 disciplinary actions set forth in the Department of Corrections’ regulations did not create judicially enforceable rights for inmate that would allow him to seek mandamus or writ of certiorari based upon corrections officers’ alleged failure to comply with those regulations; but 2 disciplinary hearing that resulted in the loss of prisoner’s good time credits violated prisoner’s due process rights, as required to state a claim for common-law writ

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of certiorari; and prisoner’s allegation that he was denied his right to appear before a disciplinary committee composed of impartial individuals was sufficient to state claim for violation of his right to due process.

Appellate Court judgment affirmed in part and reversed in part.

Circuit Court judgment affirmed in part and reversed in part.

Cause remanded.

Burke, J., filed specially concurring opinion, joined

by Neville, J. Piccioli v. Board of Trustees of Teachers’ Retirement System, Supreme Court of Illinois, April 4, 2019, --- N.E.3d ----, 2019 IL 122905, 2019 WL 1484209

Holdings: The Appellate Court, Zenoff, J., held that: 1 brief and appendix filed by vendors violated Supreme Court rule on briefs; 2 Appellate Court would consider merits of appeal; 3 collateral-source rule was not implicated; 4 interest charges of $10,239 that were billed to vendors following purchasers’ refusal to close did not constitute damages recoverable against purchasers; 5 purchasers were not obligated to disclose their denial that vendors suffered any damages in response to complaint or interrogatory; 6 vendors had notice that purchasers were contesting damages; and 7 Appellate Court would not award additional attorney fees to vendors.

Affirmed.

Background: Retired teacher brought declaratory judgment against board of trustees of Teachers› Retirement System alleging repeal of amendment that allowed him to obtain service credit for his union service prior to becoming a certified teacher and to qualify for a pension was unconstitutional. The Circuit Court, Sangamon County, Ryan M. Cadagin, J., 2017 WL 10504597, granted summary judgment in favor of the board, and teacher appealed.

First Bank of Highland Park v. Sklarov, Appellate Court of Illinois, Second District, September 18, 2019, 2019 IL App (2d) 190210, 137 N.E.3d 218, 434 Ill.Dec. 63

Holdings: The Supreme Court, Burke, J., held that: 1 the board of trustees had the right to defend the validity of Act that repealed amendment; but 2 the amendment did not violate the special legislation clause of the state constitution; and 3 repeal of the amendment violated the Pension Protection Clause.

Holdings: The Appellate Court, Schostok, J., held that: 1 application of mend the hold doctrine to mortgagee’s withdrawal of first appointment motion and filing of a new one would have been inequitable, and 2 sufficient evidence established that, at time foreclosure was filed, mortgagor was not using property as a principal residence.

Reversed and remanded with directions.

Theis, J., filed dissenting opinion, joined by Thomas and Garman, JJ.

Affirmed.

Illinois Second Appellate - Civil Morse v. Donati, Appellate Court of Illinois, Second District, August 8, 2019, 2019 IL App (2d) 180328, 136 N.E.3d 1043, 434 Ill.Dec. 518 Background: Prospective vendors of real estate filed suit against prospective purchasers for breach of contract after purchasers refused to close. The Circuit Court, DuPage County, No. 15-CH-2123, Bonnie M. Wheaton, J., awarded vendors $3,608 in damages. Vendors appealed. The Circuit Court denied vendors and purchasers’ petition for attorney fees. Vendors appealed.

Background: Mortgagee brought foreclosure action against mortgagor. Mortgagee filed motion to be appointed mortgagee in possession of the property, and the Circuit Court, Lake County, Luis A. Berrones, J., granted the motion. Mortgagor appealed.

State Farm Mutual Automobile Insurance Company v.

Murphy, Appellate Court of Illinois, Second District, March 29, 2019, 2019 IL App (2d) 180154, 136 N.E.3d 595, 434 Ill.Dec. 46 Background: After passenger in vehicle that collided with another vehicle, guardian of second passenger, and driver of other vehicle brought negligence actions against estate of decedent, who had been driving first passenger›s vehicle, in which passengers were riding, first passenger’s automobile insurer filed declaratory judgment action, stating that it was defending estate in underlying lawsuits and seeking declaration that decedent did not qualify as “insured” under umbrella policy. The Circuit Court, Kendall County, Robert P. Pilmer, initially denied insurer’s motion, but on reconsideration entered summary judgment in favor of insurer. First

11

passenger, guardian of second passenger, and driver of other vehicle, appealed.

Holdings: The Appellate Court, McLaren, J., held that: 1 decedent did not qualify as insured under umbrella policy, and 2 last antecedent rule did not apply.

Affirmed.

Standlee v. Bostedt, Appellate Court of Illinois, Second District, March 29, 2019, --- N.E.3d ----, 2019 IL App (2d) 180325, 2019 WL 1417182 Background: Landowners of subdivision lots sought a preliminary and a permanent injunction against neighbors seeking to enjoin them from constructing a detached garage on their one-acre lot alleging a violation of a subdivision›s declaration of covenants governing permitted and prohibited structures on subdivision lots. The Circuit Court, Kane County, No. 17-CH-453, David R. Akemann, J., ordered demolition of the permit-approved and nearly completed garage. Neighbors appealed.

Holdings: The Appellate Court, Jorgensen, J., held that: 1 declaration ran with the land; 2 neighbor had constructive notice of the declaration; 3 declaration established a variance procedure for neighbors seeking to build an otherwise prohibited structure, rather than an absolute ban on structures; and 4 declaration was unenforceable against neighbors.

Reversed.

Mandigo v. Stolman, Appellate Court of Illinois, Second District, April 18, 2019, --- N.E.3d ----, 2019 IL App (2d) 180466, 2019 WL 17460 Background: Taxpayers brought tax-objection complaint against county, seeking a refund of property taxes. The Circuit Court, Lake County, Jorge L. Ortiz, J., granted other taxing districts’ motions to intervene, and entered summary judgment against taxpayers. Taxpayers appealed.

Holding: The Appellate Court, Schostok, J., held that Truth in Taxation Law did not apply to taxpayers’ claims.

Affirmed.

Schmidt v. Gaynor, Appellate Court of Illinois, Second District, May 22, 2019, --N.E.3d ----, 2019 IL App (2d) 180426, 2019 WL 2222994 Background: Former client brought breach of contract

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action against attorneys who represented her in her divorce. The Circuit Court, Du Page County, Ronald D. Sutter, J., granted attorneys’ motion to dismiss and denied client’s motion to reconsider. Client appealed.

Holdings: The Appellate Court, Burke, J., held that: 1 client’s breach of contract claim was duplicative of fee petition in divorce action, and 2 client did not have right to jury trial on her claim.

Affirmed.

Illinois Second Appellate – Criminal People v. Orahim, Appellate Court of Illinois, Second District, June 19, 2019, 2019 IL App (2d) 170257, 136 N.E.3d 1007, 434 Ill.Dec. 482 Background: Defendant pleaded guilty to aggravated assault and violation of an order of protection and was sentenced to two years’ probation. Defendant moved to reconsider his sentence. The Circuit Court, Du Page County, No. 16-DV-1577, denied motion. Defendant then moved to withdraw his plea. The Circuit Court, Jeffrey S. MacKay, J., denied motion. Defendant appealed.

Holding: The Appellate Court, Spence, J., held that trial court lacked jurisdiction over defendant’s motion to withdraw his plea.

Vacated.

McLaren, J., filed opinion concurring in part and dissenting in part.

People v. McKelvy, Appellate Court of Illinois, Second District, September 3, 2019, 2019 IL App (2d) 180630, 136 N.E.3d 1101, 434 Ill.Dec. 576 Background: Defendants charged with unlawful possession of a weapon by felon brought motion to suppress evidence recovered during traffic stop. The Circuit Court, Lake County, Theodore S. Potkonjak, J., granted the motion, and denied the state’s motion to reconsider. State appealed.

Holding: The Appellate Court, Schostok, J., held that defendants failed to make prima facie case that traffic stop violated their Fourth Amendment rights.

Reversed and remanded.

People v. Nelson, Appellate Court of Illinois, Second District, August 28, 2019, 2019 IL App (2d) 161097, 136 N.E.3d 198, 434 Ill.Dec. 450

Background: Defendant was convicted in the Circuit Court, Du Page County, No. 14-CF-1063, John J. Kinsella, J., of violating an order of protection. Defendant appealed.

Holding: The Appellate Court, Schostok, J., held that evidence that attorneys had told defendant that sending letters to his infant daughter would not violate order of protection prohibiting him from contacting his former girlfriend was not relevant.

Affirmed.

People v. Maas, Appellate Court of Illinois, Second District, June 5, 2019, --N.E.3d ----, 2019 IL App (2d) 160766, 2019 WL 2366601 Background: Defendant was convicted in the Circuit Court, Lake County, George D. Strickland, J., of aggravated possession of a stolen motor vehicle (PSMV), aggravated driving under the influence (DUI), failure to report a motor vehicle accident involving personal injury, attempted theft, aggravated assault, and criminal damage to government supported property, and was sentenced to an aggregate term of 22 years’ imprisonment. Defendant appealed.

Holdings: The Appellate Court, Burke, J., held that: 1 evidence was sufficient to support defendant’s conviction for failure to report a motor vehicle accident involving personal injury; 2 hospital records of defendant’s blood alcohol concentration and toxicology results were admissible; 3 defendant’s aggravated DUI and aggravated PSMV convictions did not violate one-act, one-crime rule; and 4 defendant’s consecutive prison sentences for aggravated DUI and aggravated PSMV were not improper.

Affirmed.

People v. Nolan, Appellate Court of Illinois, Second District, April 11, 2019, --N.E.3d ----, 2019 IL App (2d) 180354, 2019 WL 1567853 Background: Defendant was indicted for possessing cannabis with intent to deliver. He moved to dismiss indictment, alleging that prosecutor had presented grand jury with false or misleading evidence. The Circuit Court, Winnebago County, No. 15-CF-2902, Ronald J. White, J., granted motion. State appealed.

Reversed and remanded.

People v. Ali, Appellate Court of Illinois, Second District, March 11, 2019, --- N.E.3d ----, 2019 IL App (2d) 161016, 2019 WL 1120092 Background: Defendant was convicted in the Circuit Court, Lake County, Daniel B. Shanes, J., of criminal contempt. Defendant appealed.

Holdings: The Appellate Court, Zenoff, J., held that: 1 prosecutor’s remarks during rebuttal argument did not violate defendant’s Fifth Amendment rights, and 2 prosecutor’s remark was a permissible inference from evidence.

Affirmed.

People v. Conway, Appellate Court of Illinois, Second District, June 17, 2019, --N.E.3d ----, 2019 IL App (2d) 170196, 2019 WL 2498642 Background: Defendant, who was found guilty of armed robbery and sentenced to life imprisonment as habitual criminal, filed petition under Post-Conviction Hearing Act, and after State successfully moved to dismiss such petition, defendant moved for leave to file successive postconviction petition. The Circuit Court, Winnebago County, Joseph G. McGraw, J., denied motion. Defendant appealed.

Holdings: The Appellate Court, Spence, J., held that: 1 State’s input during “cause and prejudice” stage of post-conviction proceedings was improper; but 2 Appellate Court was not required to remand to trial court; and 3 defendant failed to establish cause and prejudice necessary for him to file successive petition.

Affirmed.

MEMBER RECEPTION SPONSORSHIP OPPORTUNITIES Contact Dale Perrin at dale@lakebar.org for more information.

Holding: The Appellate Court, Jorgensen, J., held that fact that defendant’s testimony concerning his interview with deputy sheriff contradicted deputy’s grand-jury testimony regarding interview did not warrant dismissal of indictment.

13

The Legislative Threat to Judicial Independence

A

RAYMOND J. MCKOSKI

ttacks on the judicial branch of government have been common since the founding of the nation. Frequently, these attacks come from the executive branch.

President Thomas Jefferson supported the impeachment of Supreme Court Associate Justice Samuel Chase because he disagreed with Justice Chase’s decisions.1 1

President Clinton threatened to call for the resignation of New York federal judge Harold Baer if the judge did not reverse his decision suppressing evidence in a drug prosecution.2 President Trump labeled U.S. District Court Judge Gonzalo Curiel “very biased and unfair,” “a hater” and advocated that the authorities investigate Judge Curiel. In President’s Trump’s mind, the courts were “rigged.”3 In 2015, former Illinois governor Bruce 1

Ming W. Chin, Judicial Independence: Under Attack Again?, 61 Hastings L.J. 1345, 1346 (2010) (“President Jefferson tried, but failed, to use Retired Judge the impeachment procedure to remove Ray McKoski United States Supreme Court Justice is an adjunct Samuel Chase, in part because of the professor at content of his decisions.”

2 Alison Mitchell, Clinton Pressing Judge to Relent, N.Y. Times, Mar. 22, 1996, at 1, https://www.nytimes.com/1996/03/22/nyregion/clinton-pressing-judge-to-relent.html.

3 See S. Cagle Juhan & Greg Rustico, Jurisdiction and Judicial Self-Defense, 165 U. PA. L. Rev. Online 123, 131-33 (2017) (summarizing some of President Trump’s statements critical of judges).

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the UIC John Marshall Law School.

Rauner told a newspaper editorial board, “I don’t trust the [Illinois] Supreme Court to be rational in their decisions.”

I think they’re activist judges who want to be legislators.”

Rauner further described the state’s highest court as “part of a corrupt system.”4 The fact that executive branch attacks on judges get the headlines does not mean that the legislative branch is asleep at the wheel. Every year legislators propose new laws designed to punish judges for their decisions and diminish judicial independence.

Sometimes the sponsors of a bill believe there is a chance to enact the bill into law. Other times, the legislators’ purpose is not to pass a bill but merely to frighten or bully the “offending” judges.

4 Kim Geiger, Rauner: Can’t Trust Illinois Supreme Court Justices ‘to be Rational,’ Chi. Trib., Apr. 8, 2015, http://www.chicagotribune.com/news/ct-rauner-illinoissupreme-court-met-0408-20150407-story. html15.

BILLS AND MORE BILLS ATTACKING THE JUDICIARY The Brennan Center for Justice determined that during the year 2019, legislators in twenty-five states introduced bills that if enacted “would have diminished the role or independence of the judiciary, or made it harder for judges to do their job.”5 The preceding year, bills were introduced in eighteen states similarly designed to politicize or weaken the independence of the courts.6 The legislative proposals sought to control court decisions, reduce court funding and judicial compensation, shorten terms of office, override state supreme court rules, gain a partisan advantage in the courts, and subject judges to discipline for exercising independence.7 A court’s administrative or adjudicatory decision unpopular with legislators often spawns an effort to intrude on the judicial function. Iowa is a good example.

Iowa legislators threatened that if the Iowa Supreme Court enforced its decision to ban guns from courthouses, the legislature would charge the courts $2.00 per square foot in rent for spaces occupied by the courts.8 To make the point less subtly, the bill required each chief judge to pay, from their salary, the wages of an armed courthouse security guard.9 Another bill reduced each Iowa Supreme Court justice’s annual salary to that of a member of the general assembly—a reduction from approximately $178,000 to $25,000.10 The sponsor of the salary reduction bill justified the decrease by explaining, “[i]f the Supreme Court wants to act like legislators they need to start getting paid like legislators.”11 Another Iowa proposal sought to increase the

number of state supreme court justices necessary to find a state statute unconstitutional from a simple majority of four to a supermajority of five.12 Moving to the West Coast, three Washington State legislators introduced a bill authorizing the legislature to override a decision of the state supreme court.13 Under the proposal, a majority vote by the house and senate reversing the court’s decision would be “binding on all persons affected by it from the effective date of the act, notwithstanding the opinion of the judiciary.”14 The Washington state legislators repeated a common refrain in attempts to reduce the status of the judiciary to less than a co-equal branch. According to its sponsors, the Washington bill was necessary:

Every year legislators propose new laws designed to punish judges for their decisions and diminish judicial independence

5

Legislative Assaults on State Courts--2019, BRENNAN CTR. FOR JUST. (Jan. 24, 2020), https://www.brennancenter.org/ourwork/research-reports/legislative-assaults-state-courts-2019.

6 Id. 7 See generally, Raymond J. McKoski, The Political Activities of Judges: Historical, Constitutional, and Self-Preservation Perspectives, 80 U. Pitt. L. Rev. 245, 308-12 (2018) (surveying legislative attempts to interfere with the independence of the judiciary).

8 S.B. 87-2044, 87th Gen. Assemb., Reg. Sess. 1 (Iowa 2018), https://www.legis.iowa.gov/legislation/BillBook?ga=87&ba=SF%202044.

9 Id. 10 H.R. 87-2036, 87th Gen. Assemb., Reg. Sess. 1 (Iowa 2018), https://www.legis.iowa.gov/legislation/BillBook?ga=87&ba=HF 2036.

11 Kurt Liske, Iowa Supreme Court Admits Unconstitutional Behavior & Commits to Continued Judicial Overreach, IOWA FIREARMS COAL. (Dec. 21, 2017), http://iowafc.org/ blog/2017/12/21/iowa-supreme-court-admits-to-unconstitutional-behavior-commits-to-continued-judicial-overreach.

to restore the balance of powers between and among the branches of government as established by the people in the state Constitution, to ensure that all political power is retained by the people, to protect, maintain, and secure individual rights and the perpetuity of free government, to guarantee the right of self-government, and to establish a process for preserving the independence of the legislative, executive, and judicial departments.15

Similarly, when Kansas legislators took umbrage at a state supreme court decision concerning public education funding, they proposed a constitutional amendment to put the judiciary in its place. The proposed amendment provided: As all political power is inherent in the people, the legislature shall determine suitable provision for finance of the educational interests of the state. The determination of the total amount of funding that constitutes suitable provision for finance of the educational interests of the state is exclusively a legislative power . . .. No court, or other tribunal, established by this constitution or otherwise by law shall alter, amend, repeal or otherwise abrogate such power, nor shall such power be exercised by, either directly or indirectly, 12 Iowa: Bills Would Require Supermajority of State Supreme Court (5/7) to Declare Laws Unconstitutional; Similar Provisions in Nebraska and North Dakota, GAVEL TO GAVEL (Feb. 5, 2018), http://gaveltogavel.us/2018/02/05/iowa-bills-would-require-supermajority-of-state-supreme-court-5-7-to-declare-laws-unconstitutional-similar-provisions-in-nebraska-and-north-dakota.

13 H.R. 1072, 65th Leg. Reg. Sess. 1 (Wash. 2017).

14 Id. 15 Id.

15

by any such court or other tribunal.16 Texas, of course, thinks on a much grander scale. Texas House Bill 1347 would have authorized the state legislature to declare unconstitutional any decision of federal district court, a federal court of appeals, and most importantly, the United States Supreme Court. If the Texas legislature “struck down” a federal ruling, Texas state officials would be 16 Kansas: Senate Leaders Appear to Stop Bill to Increase Funding for Public Schools Until Constitutional Amendment to Strip Courts of K-12 Funding Decisions is Passed, GAVEL TO GAVEL (Apr. 3, 2018), http://gaveltogavel.us/2018/04/03/kansas-senate-leadersappear-to-stop-bill-to-increase-funding-for-public-schools-untilconstitutional-amendment-to-strip-courts-of-k-12-funding-decisions-is-passed.

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prohibited from enforcing the federal court’s decision.17 THE JUDICIAL RESPONSE TO POLITICAL BRANCH ATTACKS Judges usually opt not to respond to political branch attacks on the integrity and independence of judiciary. And while at times silence is golden, when legislators attempt to advance partisan objectives or intimidate the judiciary by introducing blatantly specious legislation, judges have a duty to inform the public of the consequences of the legislative 17 Texas House Bill 1347, https://capitol.texas.gov/BillLookup/ History.aspx?LegSess=86R&Bill=HB1347. House Bill 1347 was “left pending in committee” as of April 17, 2019. Id.

proposal and the motives of the sponsors.

On occasion, judges do come out of their chambers to confront legislative threats. Unhappy with a ruling of the North Carolina Supreme Court, the state’s senate and house leaders issued a joint statement in a blatant attempt to bully the state supreme court justices into reversing their decision.18 The legislature’s joint statement concluded: Judges are not legislators and if these three [state supreme court justices] want to make laws, they should hang up their robes and run for a legislative seat. Their decision to legislate from the bench will have profound consequences, and they should immediately reconvene their panel and reverse their order.19 One of the “profound consequences” proposed by the legislative leaders was to require district judges to run for retention every two years instead of every eight years.20 After seeking and receiving advice from the North Carolina Judicial Standards Commission concerning the ethical ramifications of responding to the attack, Chief Justice Mark Martin quietly issued a brief statement explaining the court’s opposition to the senate bill proposing two-year judicial terms.21 The statement distinguished the role of judges from the role of legislators and addressed the practicalities of requiring judges to constantly campaign for office.22 The chief justice directed his eight sentence, one hundred twenty-eight-word reply to court staff without any public fanfare.

Judges may be reaching the point of abandoning the traditional approach of keeping quiet in the face of political branch attacks in favor of taking on a more vigorous defense of the judiciary. That position was urged by a panel of judges at the American Bar Association’s annual meeting in August 2019.23 California Chief Justice Tani Cantil-Sakauye challenged the judiciary to “raise the alarm” and speak up when attacked. Ohio Chief Justice Maureen O’Connor agreed that not only judges who are under attack, but also their fellow judges must speak up in defense of the targeted judge. But 18 Phil Berger, Legislative Leaders to Activist Judges: If You Want to Make Laws, Run for the Legislature (Feb. 7, 2017), https:// www.philberger.org/legislative_leaders_to_activist_judges_if_ you_want_to_make_laws_run_for_the_legislature.

19 Id. (emphasis added).

20 Capital Broad. Co., Editorial: Relentless Partisan Manipulations of State Courts Threatens Justice for All, WRAL.COM (Apr. 12, 2018), https://www.wral.com/editorial-relentless-partisan-manipulations-of-state-courts-threatens-justice-for-all/17478252.

21 Anne Blythe, Is NC Lawmakers’ Proposal a Threat to Judges Who Won’t Go Along with Their Agenda?, NEWS & OBSERVER (Oct. 30, 2017), https://www.newsobserver.com/news/local/ article181684616.html (“Martin added in the statement that he ran by the Judicial Standards Commission before releasing to make sure he wasn’t violating any ethical standards.”).

22 Robert Edmunds, Chief Justice Martin Addresses Senate Bill 698, N.C. APP. PRAC. BLOG, Oct. 25, 2017, https://www. ncapb.com/2017/10/25/chief-justice-martin-addresses-senate-bill-698 (reproducing Chief Justice Martin’s statement).

23 ABA, As Threats Intensify, Judges Urge Colleagues to Speak Out, (Aug. 2019), https://www.americanbar.org/news/abanews/ aba-news-archives/2019/08/as-threats-intensify-judges-urge.

it was Washington Supreme Court Justice Debra Stephens who put the point most descriptively: What we experience in the courts is the result of the fact that we are the place where the littlest dog gets to lift his leg against the biggest tree...

These very personal and sometimes terrifying attacks are having an effect. We have to take more aggressive action.24 The call to action by the ABA panel is in stark contrast to the conventional wisdom expressed by Judith Kaye, former Chief Judge of the New York State Court of Appeals, when she categorically stated that judges are “bound to silence” when facing even unfair criticism.25 Whether risk averse judges will embrace the new “aggressive” approach of Justice Stephens in responding to political attacks by the legislative branch is an open question. * This article draws from the author’s prior works, “Judges in Street Clothes: Acting Ethically Off-the-Bench,” (FDU Press, paperback, 2019) and “The Political Activities of Judges: Historical, Constitutional, and Self-Preservation Perspectives,” 80 U. Pitt. L. Rev. 245 (2018).

24 Id. 25 Judith S. Kaye, Safeguarding a Crown Jewel: Judicial Independence and Lawyer Criticism of Courts, 25 Hofstra L. Rev. 703, 714 (1997).

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17

Modifications of Child Support

T

BY MICHAEL STRAUSS

his month, I am tackling the issue of modifications of child support and recent rulings by the Illinois Appellate Courts regarding this. I am specifically speaking of In re Marriage of Salvatore, 2019 IL App (2d) 180425, In re Marriage of Wengielnik, 2020 IL App (3d) 180533, and In re Marriage of Connelly, 2020 IL App (3d) 180193.

Let’s begin with some background. Historically, child support in Illinois was based upon a percentage of the payor’s net income. The income of the parent with the majority of parenting time did not factor in and nor did the amount of parenting time either parent had with the children. In 2017, 750 ILCS 5/505 was given a complete facelift.

Now, the Court looks at the incomes of both parties when calculating the support. Further, the Court looks at the parenting time as well and if a parent has at least 40% of the overnights, then Michael S. the child support amounts dramatically Strauss is a drops. The new law tends to reduce the partner at amount the payor has to pay in child Schlesinger & Strauss, support across the board. Thus, many LLC. He people were giddy to get into Court to is also the attempt to reduce what they pay each Chair of month. Illinois law provides that you the Family cannot get a reduction simply beLaw Section Council of cause the law changed. You must first the Illinois provide proof of a substantial change.

State Bar However, the law does not state if the Association. substantial change has to be up, down,

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or sideways. If you can do that, then you are through the door and are entitled to have the child support modified to whatever the new statute provides for. However, the Court does have the ability to make the finding of a substantial change and then deviate the amount paid.

By way of example, a father has the majority of the parenting time of two (2) children. When child support was set, the mother was earning $50,000.00 per year and child support was set on 28% of her net income. The mother’s income goes up by $25,000 per year and she now earns $75,000.00 per year. She files to modify her child support because she knows that, even though her income went up substantially, the result will be lower child support. What should happen is that the Court should find that there has been a substantial change, but then exercise their discretion and deviate from the new child support guidelines.

The Court in this example should find that she still has the ability to pay what

she was paying and should deviate back up to what she was paying. To do otherwise and find that there has been no substantial change would be non-sensical and frankly would be absurd. And that takes us to the three (3) cases mentioned above.

In Salvatore, the father filed to modify his child support.

He alleged that his income had gone down. However, it also came out that the mother was unemployed at the time of the divorce and now was working full-time and earning about $24,000.00, although he argued she was earning double that amount. Thus, he also argued that her income had gone up and that was a substantial change. If the Court found that a substantial change had occurred and applied the new guidelines, then his child support would have plummeted. Truth be told, it appears from the Appellate Court ruling that there were some credibility issues with the father’s testimony.

The Court found no substantial change and denied his pleading. The Appellate Court affirmed. As stated above, I strongly believe the correct ruling would have been a finding of a clear substantial change from the mother going from $0.00 to $24,000.00.

Then, the Court could have deviated up back to what he was paying previously if they wanted to do that.

The next case was Wengielnik. The parties were divorced in 2013. At that time, the father had 82 overnights. Three (3) years later, the parenting agreement was modified and the father now enjoyed 130 overnights in odd years and 148 overnights in even years. The father cited In re Marriage of O’Hare & Stradt, 2017 IL App (4th) 170091. In that matter, the Court found a 6% increase in parenting time to not be a minor modification and found that was a substantial change.

His increase in parenting time was far more than 6% and he figured it had to fit the definition of a substantial change.

The trial Court found no substantial change in Wengielnik because the father never showed evidence of an increase in his expenses. The trial and Appellate Courts felt that he was making an apples to oranges argument. The Appellate Court affirmed. Again, if the Court did not want to reduce his support, then it should have found a substantial change, but then deviate back up to what he was paying. We all know that if this was reversed and the father went from 148 overnights down to 82 overnights, the mother would have filed to increase child support and she would have won and she would not have needed to show her expenses had gone up. What is also interesting to note is that the parent receiving child support does not need to account for how they spend the money and yet this Court was requiring him to do just that.

The third case in this epic trilogy of misapplying the law is Connelly. In this matter, the father filed to modify

his child support. He filed to modify based on his income going from $100,000.00 to $110,000.00, his ex-wife’s income increasing by approximately 50%, and that his overnight parenting time had increased from 32% to over 45%. In 2016, his parenting time had increased to the over 45%.

Over one (1) year later, he filed to modify. He did testify that expenses did increase for him due to having the children that much more. The trial Court found that the changes in his and his ex-wife’s income did not constitute substantial changes. Further, the Court found that his increase in parenting time was also not a substantial change. As stated above, I wonder what the result would have been if the father went from 45% parenting time down to 32%. I am nearly positive that the Court would have increased his support in that situation if the wife filed for a modification, but I digress. The trial Court felt that the father had to provide proof of an increase in “uncommon” expenses. I have literally never heard a judge state that someone has to prove uncommon expenses nor does the statute provide for uncommon expenses. What are uncommon expenses you ask? I have no clue, but I bet if we asked 20 different people, we would get 20 different answers. Again, if the Court did not want to modify and reduce his support, then they should have made the finding of a substantial change and then deviate the child support amount.

This line of cases have created a serious problem. These cases make it seem that anything that could have been foreseen will not allow a party to modify the support. Yet, it seems to me these trial Courts had the result decided before the case was even heard and just made up rules to get to their result. Just because a change was predictable does not render it less than substantial. We can all agree that when a child emancipates then the child support should modify or terminate if that was the last minor child. However, under this line of cases, I am truly unsure of even that.

I have been asked by several lawyers to work on the wording of the current laws so that rulings like this stop.

However, this is not a legislative issue. In my opinion, the laws of this State do not really provide for what these judges are doing. The judges in these cases seem to be making it up as they go instead of applying the law as written. In my opinion, all these fathers should have received the modification. I am sorry if it negatively impacts the other party, but the law is the law. Once a substantial change is found then the child support guidelines should have kicked in unless the Court ordered the deviation. The precedent set by the cases is dangerous to say the least. We are now left in a position where it is truly impossible to figure out what would allow for a modification of child support.

Many people were giddy to get into Court to attempt to reduce what they pay each month

19

Elizabeth Olszewski’s Legacy

I

BY STEPHEN J. RICE

’d like to offer a short story about Elizabeth Olszewski. I knew Elizabeth primarily from seeing her at LCBA functions. Elizabeth was the kind of person you noticed, not because she was young and pretty, but because she radiated megawatts.

If someone had asked me: “What is Elizabeth like?” I unteers for special training exercises that they program think a good simple answer would’ve been: “She shines.” for their students. Sometimes the exercise is helping We all know such people, but they are uncommon, in interview the students so that they are prepared for their a special way. My mother was one too, so I feel like I know college interviews. Other times we have worked with one when I see one. students one-on-one to revise college essays.

By avocation, lawyers take on many roles. So was About six months ago, I organized a small group to Elizabeth’s “shine” just one of these roles—was it merely a go to W2C’s office (a church on Grand Avenue) to confer superficial projection? It was not, and here is how I know with students on their essays. Among others, Deb Goldthat. berg and Judge Rochford are people I can always count Over the past two years, the Lake on. I went into the church’s big baseCounty Bar Foundation has worked ment and was milling around waiting Stephen J. to support a local organization called to get started when all of a sudden Rice is an Waukegan to College (W2C). W2C Elizabeth came up to me: “Hi!” Assistant State’s supports Waukegan students in grades “Hi back,” I said, and “what are Attorney in five through college graduation. The you doing here?” (she hadn’t been the Civil Dipurpose of the organization is to take someone from whom I’d solicited vision of the kids whose families do not have a hishelp). “I’ve been mentoring a stuLake County tory of being college educated, mentor dent,” she told me. “How did you get State’s Attorney’s those kids through their secondary involved with that?” I asked. “Tara Office, and school years, and assist them into Devine told me that the Bar Founthe 2019-20 going to college. dation was supporting Waukegan to President of Periodically, W2C’s staff will call College, so I got involved.” the Lake County Bar Association. me to ask if I can solicit some vol-

20 The Docket

Mentors like Elizabeth work with students, meeting with them at least monthly. They help the students set goals, track their academic progress, and assist them in preparing for the rather byzantine college application process. Elizabeth brought her energy—her shine—to a student through this program, mentoring her, and even visiting colleges with her. Perhaps as importantly, Elizabeth set a wonderful example for this student, showing her what an education can produce: you could wind up working at one of Illinois’ most successful law firms!

Elizabeth set this example for other W2C students, too.

Just a few months ago, a group of W2C students spent a day in Chicago at Salvi, Schostok & Pritchard, where Elizabeth worked.

That is how I learned that Elizabeth’s “shine” was

anything but a superficial projection—it was, rather, a reflection of her deeper character. I mentioned above that my mother was also a person with such a shine. Like Elizabeth’s, my mother’s life was also cut far too short.

That experience has taught me something about people like Elizabeth, and if I could speak to her family, I would tell them this: Not a year goes by— since my mom’s death, 26 years have—where a person does not reach out and express a fond remembrance of my mother, who was a beloved teacher. The same will be true of Elizabeth, whose life shined on so many family members, friends, associates, and the clients she served. I have no doubt of this, because when people shine like Elizabeth did, their light does not abate when their time on earth ends.

Elizabeth set a wonderful example for this student, showing her what an education can produce.

Lake County Bar Association and Medical Society’s Annual Doctor-Lawyer Dinner Medical cannabis updates: The 5-year journey since medical cannabis legalization in Illinois: A physician’s perspective.

The Illinois’ Compassionate Care Act for Medical Cannabis Patient Program started in 2014, with the first dispensary opening for business in November 2015. Dr. Leslie Mendoza Temple, Family and Integrative Medicine physician in Glenview, and former chair of the Medical Cannabis Advisory Board for the Illinois Department of Public Health will share her perspectives on how cannabis has impacted her medical practice. She has certified over 430 patients since the program started. She will discuss the ongoing challenges and opportunities that face patients and the medical community with respect to clinical benefits and side effects, public health risks, and education.

March 11, 2020 Primo’s Restaurant

720 N. Milwaukee Ave., Gurnee 5:30 pm Reception 6:30 pm Dinner 7:30 pm Program $55 per person Spouses and Guests welcome Presented by Dr. Leslie Mendoza Temple

Medical Director of the Integrative Medicine Program at NorthShore University HealthSystem and Clinical Associate Professor in Family Medicine at the University of Chicago Pritzker School of Medicine.

REGISTRATION AVAILABLE ONLINE AT WWW.LAKEBAR.ORG

21

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 2004LAKECO

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 Noon 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: _______________________________________________________________________________________

22 Lake TheCounty Docket Bar Association

Return registration form to: 300 Grand Ave STE A Waukegan, IL 60085 TEL 847-244-3143 FAX 847-244-8259

2019

Don’t Roll the Dice with Another Law Firm.

Salvi, Schostok & Pritchard has been serving Lake County since 1982. Our reputation is built upon exceptional lawyers, an exceptional client experience, and exceptional results – securing more than $1.5 billion in verdicts and settlements.

If you have a client who has been injured in a motor vehicle accident, give Tara Devine or Jennifer Ashley in our Lake County office a call at (847) 249-1227.

We are here to help get the justice your client deserves.

218 North Martin Luther King Jr. Avenue, Waukegan, Illinois 60085 • (847) 249-1227

salvilaw.com MEDICAL MALPRACTICE

2019 ideas.indd 1

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23 11/7/19 9:40 AM

Lake County Bar Golf Outing Thursday, July 23, 2020

White Deer Run Golf Club 250 W. Gregg’s Parkway, Vernon Hills Registration & Practice: 11:00 a.m.

Lunch: 11:30 a.m. - 12:30 p.m.

Shot Gun Start: 12:30 p.m.

Post Game Reception: Approx. 5:00 p.m.

Register online at www.LakeBar.org

Golf & Sponsor Registration MY FOURSOME: 1. ____________________________________ HDCP 2. ____________________________________ HDCP 3. ____________________________________ HDCP 4. ____________________________________ HDCP Please try and place me with: Name: ________________________________

o Individual Player: # ____ @ $185 (includes golf, lunch & reception)­­ o Foursome: # ____ @ $700

(includes golf, lunch & reception)­­

o Feel Good Four Pack: # ____ @ $20 o Lunch Only: # ____ @ $25 o Reception & 1 Drink Ticket: # ____ @ $25 $1,500 o Hole-In-One Sponsor: $1,200 o Eagle 4-Some Sponsor: $750 o Gold Tee Sponsor: $500 o Golf Cart Sponsor: $250 o Competition Hole Sponsor: $150 o Lunch / Dinner Sponsor:

Total $ _______

Cont­act Information Sponsorship opportunities are available on a first paid, first serve basis. Sponsors will be recognized with signage at the event and a thank you ad in The Docket.

Name: ______________________________________ Firm: ________________________________________ Display Acknowledgment as: _________________________________________________________________ (How the sponsor’s name will appear) Address: ____________________________________ City, State & Zip: ______________________________ Phone: _____________________________________ Fax: ________________________________________ E-mail: ___________________________________________________________________________________ Payment method: o Check enclosed o Visa* o Mastercard* o Discover* o American Express* Number: ___________________________________ Expiration Date: ____/____/____ CVV: ___________ Signature: ________________________________________________________________________________

24 The

*A 4% credit card procesing Fee will be added when paying with a credit card.

Please Return Registration By July 10, 2020: Lake County Bar Association • 300 Grand Avenue, Ste A • Waukegan, IL 60085 Docket TEL (847) 244-3143 • FAX (847) 244-8259

25

26 The Docket

27

Board of Directors’ Meeting

The

December 19, 2019 1. Consent Agenda: a. November Minutes – P4 b. November New Members – P7 Motion to approve the Consent Agenda with recommendation adopted as well as the November Minutes; Motion Seconded; Motion passed.

2. Treasurer’s report:

a. June - November 2019 Financial Report – P8 Update by the treasurer on financial report, including total revenue, total expenses, and net operating income. Also discussed upcoming sources of revenue and expenses for the next 30 to 180 days.

OLD BUSINESS: 1. Policy on Sponsorships

Expert Valuation Services Over 30 years of Valuation, Forensic Accounting And Expert Witness Experience

Louis A. Epstein, C.P.A., C.V.A. lou@laecpa.com

Michael H. Shulkin, C.P.A., A.B.V. michael@laecpa.com

Louis A. Epstein, C.P.A. & Associates, Ltd. Certified Public Accountants

5225 Old Orchard Rd, Suite 2 Skokie, IL 60077 Phone: 847 583-0005 Fax: 847 583-0006 www.laecpa.com

28 The Docket

Meeting Minutes

BY TARA R. DEVINE SECRETARY

by Non-Members – P23 Motion to pass the proposed LCBA Policy on Sponsorships; Motion Seconded; Motion passed.

Discussed the IJA Suffragette Event set for April 25th, 2020

2. LCBA/LCBF Holiday Party – Recap. – P24 Went through a new LCBA Seminar Review Form and recap on the holiday party.

Next Board Meeting Date: January 23, 2020

NEW BUSINESS: 1. Spring Lunches – Proposed Dates: 3/24, 4/28, 6/5. Brainstorm ideas for speaker for the Access to Justice Luncheon. Discussed potential speakers.

OTHER MATTERS: Other Matters: 1. Current Membership Stats: Active Members: 898 / Dropped: 98 / New members: 80 2. IJA Suffragette Event - Tea at Ivanhoe with a historical dramatization 3. Discussion on possible co-sponsored event with Jefferson Inn

Motion to adjourn: 12:53

BOARD MEMBERS PRESENT Stephen Rice President Hon. Patricia Cornell First Vice President Kathleen Curtin Treasurer Tara Devine Secretary Katherine S. Hatch 2017-2020 Director David R. Del Re 2018-2021 Director Thomas A. Pasquesi 2018-2021 Director Dwayne Douglas 2019-2022 Director Daniel Hodgkinson 2019-2022 Director Dale A. Perrin, Executive Director

VOLUNTEERS NEEDED LAWYERS IN THE CLASSROOM April 27-May 1, 2020 @ Lake County Schools Volunteer one hour on one or more days presenting an in-classroom discussion on the 19th Amendment

DROP-IN CLINIC Thursday April 30, 2020 @ Waukegan Public Library 4:00 p.m. - 6:30 p.m.

Volunteer one or more hours answering legal questions one on one

CALL-IN-CLINIC Saturday May 2, 2020 @ Lake County Bar Office 9:00 a.m. - 12:00 p.m.

Volunteer one or more hours to answer legal questions via the phone

YES, I WOULD LIKE TO VOLUNTEER TO ASSIST WITH: n DROP-IN CLINIC (4/30/20) n CALL-IN-CLINIC (5/2/20)

n LAWYERS IN THE CLASSROOM

I wish to visit the following grade(s): n Grades K-3 n Grades 3-6 n Grades 7-8 n High School I am available on the following dates: n 4/27 n 4/28 n 4/29 n 4/30 n 5/1

n AM n PM

n I am able to present to a class in Spanish Name _______________________________________________ Email Address _________________________________________ Telephone____________________________________________

Registration is available online at www.lakebar.org or return registration form to: 29 Lake County Bar Association • 300-A Grand Avenue• Waukegan, IL 60085 • TEL: 847-244-3143 • E-MAIL: info@lakebar.org

Amazing

T

his organization and its members continue to amaze and impress me. This past month’s Gridiron event was one of the most amazing things I’ve ever witnessed and been involved with.

It is a gross understatement to say that most people, particularly those who enjoy the show but are not involved with it, have NO idea the amount of time and effort that goes into putting it on.

Hats off to show directors Stella Day and Craig Mandell who deserve Oscars, People’s Choice Awards, Screen Actors Guild Awards, Golden Globe Awards, and all the other various awards given for movies, plays, and

30 The Docket

TV shows. I’m in awe of your creativity, vision and determination. As great as you are as attorney’s, I think you both missed your calling. Craig should be writing for Saturday Night Live and Stella should be directing the next big hit on Broadway.

Then there is the Cast!

The 40+ attorney members who apparently are lawyering to pay bills until they are discovered in Hollywood. Simply amazing all of you! I can’t wait to see what the 2022 Gridiron brings. Be sure to see the Gridiron photo page in this issue and on our website.

We are neck deep into our busy season with the Gridiron just wrapping up, the Real Estate Commit-

In the

Director’s Chair

tee’s annual conference in Nashville the first weekend of March, Family Law Committee’s conference in Albuquerque in April, Spring Luncheons, Civil Trial & Appeals Seminar & Golf Outing in May, Installation Banquet on June 12, Golf Outing in July, many various Brown Bag CLE’s mixed in there, and oh yes, membership renewals coming up in June.

Mark your calendars and watch for our weekly E-News to keep up to date and informed of upcoming activities and information.

BY DALE PERRIN EXECUTIVE DIRECTOR If something asks you to register, take 1 minute and do it right then before you get busy with something else. Don’t forget to sign-in as a member when registering to secure the member rate and track your attendance and participation.

I am truly thankful and appreciative for your support, involvement and trust in this organization, and your continued membership which makes it all possible.

Today was Good. Today was Fun. Tomorrow is Another One. -Dr. Seuss

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31

Monthly

Committee Meetings

DAY

MEETING

LOCATION

TIME

1st Tuesday

Diversity & Community Outreach

LCBA

12:15-1:15

1st Thursday

Real Estate

Primo, Gurnee

5:30-6:30

Editorial 1st Thursday (Even Mo.) Docket Committee

LCBA

12:15-1:15

2 Tuesday

LCBA

12:15-1:15

LCBA

4:30-5:30

nd

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

3rd Wednesday (Odd Mo.) Employment Law

Varies

5:15-6:15

3rd Thursday

LCBA

12:00 noon

nd

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.

32 The Docket

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

Bar

Bulletin Board

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

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