The Docket - November 2022

Volunteer Lawyers Program

Thank you to these attorneys who have either closed a pro bono case or taken a new pro bono case in 2021-2022. This program is supported by the Community Outreach Committee of the Lake County Bar Association. Members of the Lake County Bar Association are indicated with an asterisk (*). To become a volunteer please call Prairie State Legal Services at 847-662-6925.

2021-2022 Pro Bono Volunteers

Britnee Hart*

Lawrence Gregory*

Fiona McCormick*

Kat Allen* Katherine McCollum*

Bob Hauser*

Femarie Ang Deanna Bowen* John Hough* James Magee* Donald Morrison*

Stuart Reid*

Gary Schlesinger*

Robert Stavins*

Michael Strauss* Rebecca Whitcombe* Deb Goldberg*

Magdalena Wilk Cathy Higgins-Mora Mary Field* Damian Crooks*

The Official Publication of the Lake County Bar Association • Vol. 29 No. 11 • November 2022

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THE DOCKET EDITORIAL BOARD

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Hon. Charles D. Johnson,Co-Editor Jennifer C. Beeler

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THE DOCKET • Vol. 29 • No. 11 • November 2022

JACKIE KURTH

BY JAKE A. LEAHY

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Mental Health in Life and Practice

October10th is World Mental Health Day, which ushers in a number of personal and professional reminders. According to the World Health Organization, the

objective of this global ly-recognized day is to raise awareness and support for mental health. Without dating myself, I can say that my generation did not openly discuss mental health or its implications on work, relationships, and self. Since the pandemic began, however, the topic of mental health seems to be ever-present in a work setting. For example, for the first time the firm I work at just introduced taking mental health days for support staff.

In addition to the important reminders World Mental Health Day brings with it, I find myself considering how mental health affects the litigation we practice in the court room, and I am reminded of an important piece of Illinois legislation: the Mental Health and Devel opmental Disabilities Con fidentiality Act (“MHD

President’s Page The

DCA”). This particular Act is cited to as 740 ILCS 110/1 et seq. in the “Civil Liabili ties” section of the Illinois Compiled Statutes. Ini tially, it sets forth various definitions that apply to mental health treatment. More importantly, it makes clear that mental health treatment records are to be kept confidential. In sum mary, confidentiality is the rule and disclosure is the exception when it comes to requesting mental health records.

We know best that a lot of times Illinois statutes can be more than a little difficult to understand. There are times when you can read the same sentence over and over, and still not tell what the legis lature is getting at. The MHDDCA is a welcome contrast to this scenar io. Section 4, by way of example, makes very clear the limited people entitled

BY TARA R. DEVINE PRESIDENT

to inspect and copy mental health records. The Act also makes clear that the normal course of sending a subpoena for records is not allowed unless accom panied by a judge’s order or a consent form. Also of note, a knowing or willful violation of the MHD DCA could result in being charged with a Class A Misdemeanor.

This is not to say men tal health records are never allowed to be introduced in litigation. 740 ILCS 110/10(1) states that disclo sure in a civil, criminal, or administrative proceeding is allowed when the person receiving mental health treatment “introduces his/her mental condition or any aspect of his/her services received for such condition as an element of his/her claim or defense[.]”

This means: if your cli ent’s mental health and/or mental health treatment is

Tara Devine President

Katherine Hatch

First Vice President

Danny Hodgkinson Second Vice President

Kevin Berrill Treasurer

Jeffrey Berman Secretary

Joseph Fusz Immediate Past President

Hon. Jacquelyn Melius

Craig Mandell

Sarah Raisch

Jeffrey O’Kelly

Jeremy Harter

Judy Maldonado

affirmatively introduced as a part of a claim or defense, then opposing counsel likely has an avenue to pursue their otherwise confidential mental health records. In a civil case, this could be making a claim for emotional distress due to the negligence of another. In a criminal case, this could be a defense that implicates prior mental health treatment.

In addition to the plain wording of the Act, there is a body of case law that interprets what it means to “introduce” a mental condition or mental health treatment. See Thiele v. Ortiz, 165 Ill. App. 3d 983 (1st Dist. 1988) (rejecting disclosure of mental health records because claim ing loss of society under the Wrongful Death Act does not specifically make mental health an issue in the pleadings); Maxwell v. Hobart Corp., 216 Ill. App. 3d 108 (1st Dist. 1991) (allowing disclosure when plaintiff placed his “phys iological and biological condition at the time of the accident into issue”); D.C. v. S.A., 178 Ill. 2d 551 (1997) (allowing disclo sure when “the interests of fundamental fairness and substantial justice” require it in a case that involved suicidal conduct); Norskog v. Pfiel, 197 Ill. 2d 60 (2001) (protecting defendant’s mental health records in a civil case arising out of a murder); Reda v. Advocate Health Care, 199 Ill. 2d 47 (2002) (finding disclosure is not warranted merely by claiming pain and suf fering and brain damage in a medical malprac tice lawsuit); Deprizio v. MacNeal Mem’l Hospital

Ass’n, 2014 IL App (1st) 123206 (ruling disclosure is warranted when Plaintiff disclosed experts to opine on brain dysfunction);

Stuckey v. Renaissance at Midway, 2015 IL App (1st) 143111 (reversing an order to produce defendant’s men tal health records when no exception applied in a nursing home case); Pfifer v. Gingher, 2017 IL App (3d) 160170 (allowing discov ery of plaintiff’s records when plaintiff answered interrogatories stating she was claiming “injury of the mind and body” such as panic attacks); Sparger v. Yamini, 2019 IL App (1st) 180566 (disallowing intro duction of mental health records because claiming a neurological injury is not synonymous with psycho logical claims).

This is also a relevant juncture to discuss a recent First District appellate case decided days ago on October 7, 2022. The case, Doe v. Burke et al., 2022 IL App (1st) 211283, involves a client-plaintiff suing the attorneys who represented him in a medical malprac tice case. The plaintiff in Doe alleged that after a jury awarded him millions, his medical malpractice attor neys issued a press release, which included details of his suicide attempt that led to the hospitalization that was the subject of the med ical malpractice lawsuit. The release contained facts about the client’s mental history and the client’s real name. The client there after sued the medical malpractice attorneys for violating the MHDDCA, because the press release was published without the client’s informed consent.

The attorneys argued that their disclosure was not prohibited by the Act because they did not have a therapeutic relationship with the client. They also argued that the client put his mental health at issue by agreeing to file the un derlying medical malprac tice lawsuit. Based on these arguments, the attorneys filed a motion to dismiss, which the trial court granted. The trial court cited inter alia the public nature of a medical mal practice lawsuit and the public nature of a trial. On appeal, the First District reversed and reinstated the case, finding that the client, after his attorneys disclosed his mental health information, had a poten tially viable cause of action under the MHDDCA.

Clearly, there is de veloping case law on this issue given the evolving way in which our society is handling mental health treatment and diagnoses. The takeaway is three-fold: if your client is a recipient of mental health treat ment, claim the privilege allowed under MHDDCA. The Act makes clear that as attorneys, we have to keep this information confidential unless there is a legal avenue to release it. Second, when filing a lawsuit, consider the im plications that introducing your client’s mental health may have on their privacy. Think to yourself: is there a viable claim or defense such that it is worth po tentially exposing all of my client’s mental health treatment? We owe it to our clients to think of the MHDDCA before putting those issues front-and-cen

ter in our pleadings. Third, before making any state ment or disclosures about your client’s mental health, get their permission. It is not only good practice as an attorney to run big de cisions by your client first, but consent is also required under the MHDDCA.

Ending where this President’s Page started, let this be a reminder to those who seek—or consider seeking—mental health treatment: the law protects your records. As stated, confidentiality is the rule and disclosure is the exception. We should continue to encourage our clients, friends, and family to ask for help when they need it based on this law and others like it.

Welcome

New LCBA Members

ATTORNEY

Jerry Barrera

Andres Cerritos Law

Marcelino Diaz

Chicago Worker’s Collaborative

Maryam Hassani Gauthier Family Law

Marta Malko Schiller, DuCanto & Fleck, LLP

Joseph L. Rourke

Donohue Brown Mathewson & Smyth

PROFESSIONAL

Pamela Daly

Old National Bank

STUDENT

Christopher Lopez

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The Veterans History Project, Ten Years On

As soon as Hal loween is over, thoughts turn immediately to the “real” holiday season. And while November focuses my attention on frying turkeys and family gatherings, there are other events and courthouse activities that merit attention and, most importantly, participation.

Veterans Day, origi

nally known as Armistice Day, is celebrated each year on November 11. The holiday honors all those who have served our country in the armed forces. The day marks the anniversary of the Armistice with Germany, which officially took place on November 11, 1918. The day was renamed Veterans Day in 1954 and contin ues to be observed each November 11.

The

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Trusts & Estates Seminar

November 22, 2022

11:00AM - 5:30PM

Glen Flora Country Club Waukegan, IL

LCBA Holiday Party Friday, December 2, 2022

LCBA Office Waukegan, IL

In the 19th Circuit we began the tradition of marking Veterans Day with participation in the Veterans History Project (VHP) in 2012. Created by Congress in 2000, the VHP sought to create a living history of the wars and conflicts in which service members have participated since World War I. The first-hand ac counts include memories of veterans from each of the following conflicts:

World War I, 1914-1918 World War II, 1939-1945 The Cold War Korean War, 1950-1953 Vietnam War, 1961-1975 Grenada, 1983 Panama, 1989 Operation Restore Hope, 1992-1993 Persian Gulf War, 1991 United Nations Operations in Somalia, Haiti, 1994-1995 Operation Allied Force, 1999 Peacekeeping forces in Bosnia, Operation Joint Guardian, 1999War on Terror, 2001-2009 Afghan War, 2001Iraq War, 2003-2011

Our participation in the VHP dates to the administration of Chief Judge Fred Foreman, who was instrumental in form ing the first committee to organize our participation in the VHP. The commit

BY CHIEF JUDGE MARK L. LEVITT

tee was chaired by Judges John Scully and Mike Fusz, both veterans of our military. Our celebration of Veterans Day and par ticipation in the VHP has grown consistently over the years.

This year, as in years past, members of the LCBA will participate as interviewers of the veter ans with volunteer court reporters recording the ses sions for submission to the Library of Congress. The event is truly special and includes a presentation of Quilts of Valor to each of the veterans, as well as the participation of Gold Star Families. I encourage each of you to attend if possible!

BUT THAT’S NOT ALL .

. .

On November 9, we will be celebrating Judge Mitchell Hoffman’s retire ment. The event will be held in the jury assembly

room at 3:30. Please stop by and wish Judge Hoffman well as he moves into the “travel phase” of his life.

It’s not just Judge Hoffman who is moving on to greener pastures. Donna Hamm is retiring from her position as Chief Deputy in the Circuit Clerk’s Office. I don’t think that I could find anyone in the 19th who doesn’t know Donna.

She has served in various capacities over her 40 years in our Circuit, and she is a vital part of our 19th Judi cial Circuit family. Donna will truly be missed.

AND ONE MORE UPDATE . . .

Although we have

we have run into a few unforeseen delays. Rolling out three new systems— one each for the Court, the State’s Attorney, and the Public Defender—is complicated. Who knew? Seriously though, de veloping and testing the interfaces between all of

effort to get all of the systems up and running as quickly as possible. A silver lining to the delay is that we will have more time to familiarize all of the stakeholders with these systems, including how to use them, before the ultimate “go-live” date. I will continue to provide updates as they become available.

Help us Foster a Safe, Fair and Just Society

AsI sit down to write this month’s column, it is clear that change is in the air (or perhaps it is just

BOARD OF TRUSTEES

Douglas

Dorando President

Kristie

Fingerhut Vice President

Perry Smith, Jr. Treasurer

Joan Fratianni Secretary

Nicholas Riewer

Past President

Jennifer L. Ashley

Nandia Black

Scott Gibson

David Gordon

Keith Grant

Louise Hayes

Fredric Lesser

Steven McCollum

Hon. Michael Nerheim

Michael Ori

Shyama Parikh

John Quinn, Sr.

Eric Rinehart

Melanie Rummel

David Stepanich

Carey Schiever

the permeating smell of artificial pumpkin spice flavorings…): autumn has arrived. The leaves are changing colors, the breeze brings a deeper chill, and the days are getting shorter. As we leave the summer behind and embrace the fall, the holiday season has also arrived. A season char acterized by the spreading of gratefulness, good will and good cheer, and also of charitable giving.

Law is a service busi ness, no doubt. Our professional responsibil ities center on our ethical obligations related to the services we provide to our clients, to the profession, and to the rule of law. As the authors expressed in an essay titled “Lawyers as Professionals and Citizens,” there is a fourth ethical responsibility or dimension for lawyers that requires us to generally provide ser

BY DOUGLAS DORANDO PRESIDENT

vices “in the public inter est” and in furtherance of a “safe, fair and just society.”1

In a nutshell, that is a critical mission of the Lake County Bar Foun dation. We are the phil anthropic arm of the Bar Association. Through the Foundation, the Lake County Bar is working to fulfill that public service obligation, to enhance justice, to promote fair ness, to support the disadvantaged, and much more. And, toward that end—and as has been chronicled in this column many times—the Founda tion provides support to a variety of programs and

1 Ben Heineman, William Lee and David Wilkins, “Lawyers as Profes sionals and Citizens,” available at: https://clp. law.harvard.edu/assets/ Professionalism-Project-Es say_11.20.14.pdf.

organizations that advance those vital interests.

As we move inexora bly into the autumn, and ultimately the holiday season, I would like to take a moment to encourage ev eryone to consider getting more involved in the Foun dation’s efforts to spread good cheer and to be a part of our charitable giving. How can you help? Here are just a few examples of means to those ends:

Contribute some of your time to support the Foundation. Please consid er volunteering to serve on the Board or a Committee, or just participate in the Foundation’s philanthrop ic efforts. And, of course, please attend and support the Foundation’s events.

Contribute financial ly to the Foundation. It’s simple. Just write a check. You can support the Foun dation, directly, or through

a specific sponsorship of Foundation events. You can join in a fundraising effort, encouraging your peers to contribute as well, or earmark cy pres funds to the Foundation. Whatever the source, those funds are

distributed to deserving recipients to advance jus tice, legal education, and improve our communities in myriad ways.

Just as they always will, lawyers see ways to change the world for good and

are acting to make it so. Every single day thousands of lawyers help people, through actions large and small, both public and im perceptible. Your support and gifts to the Founda tion can be a part of those

LAWYER REFERRAL

WHY SHOULD

efforts, and they need not be on a grand scale. As French author Paul Carvel said, “He who wants to change the world should already begin by cleaning the dishes.”

Happy Thanksgiving.

The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member attorneys with an opportunity to build business through client referrals. The service benefits the public by helping callers quickly find an attorney in the area of law in which they need help.

The LRS program is designed to assist persons who are able to 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.

Cost is only $200 annually for a Standard listing or $350 for a Premium listing. Download the application at www.lakebar.org/ page/LRS or contact the LCBA office for more information.

Till Death Do Us Part: Civil Damages After Remarriage

BY JACKIE KURTH

Itis not uncommon to represent a person in a civil wrongful death case who also seeks to remarry years after losing a spouse. Such clients have gone through an unspeakable tragedy—losing the love of their lives to an accident, such as a tragic collision or medical procedure.

It is not uncommon to represent a person in a civil wrongful death case who also seeks to remarry years after losing a spouse. Such clients have gone through an unspeakable tragedy—losing the love of their lives to an accident, such as a tragic collision or medical proce dure. Civil litigators may get to know these clients by representing them as plaintiffs, or when taking their depositions in defense of the case. As human beings, we want to see them find love again. As attorneys, howev er, we instead often see the prospect of remarriage as a legal hurdle.

In a wrongful death case, a de fense attorney may view remarriage as a way to draw a line in the sand of damages. A plaintiff’s attorney should thus consider how to educate the client on the effects that remarriage can have if their civil case goes to tri al. This article serves to outline how remarriage can alter damages claims in a civil suit.

Jackie Kurth is an Associ ate Attorney at Salvi, Schostok & Pritchard P.C. at the Waukeg an, Illinois location.

It is well-settled that recovery for loss of consortium ends upon the remarriage of the surviving spouse.1 This is true even if the marriage with the deceased spouse was of a different quality from that with the present spouse.2 A loss of consortium claim includes a claim for loss of material services.3 Thus, if a plaintiff does not make a loss of con sortium claim, then evidence of a remarriage is not admis sible at trial as it is not relevant to the issue of the amount of damages.4

This general rule, however, does not apply to claims for loss of financial support.5 In Pfeifer v. Canyon Constr.

1 See Carter v. Chicago & Illinois Midland Ry. Co., 130 Ill. App. 3d 431 (4th Dist. 1985).

She focuses her legal practice on catastrophic personal injury, medical malpractice, and nursing home negligence.

2 Id. at 436 (holding that evidence of sec ond marriage being of a different nature and quality was irrelevant to question of when loss of consortium damages end).

3 See Dotson v. Sears, Roebuck & Co., 157 Ill. App. 3d 1036 (1st Dist. 1987).

4 Id. at 1043.

5 Pfeifer v. Canyon Constr. Co., 253 Ill. App. 3d 1017 (2d Dist. 1993).

Co., the defendant attempted to argue that, a claim for loss of financial support should stop at remarriage just like a claim for loss of material services. The appellate court rejected this argument. In doing so, if first held:

Thus, the rule reiterated in Watson, i.e., that remarriage does not affect the damages recov erable in a wrongful death action, has applied to damages for loss of financial support. De fendant cannot escape the application of the rule by attempting to re cast financial support as either a type of material service or as an element of loss of consortium, separate from but similar to, the ‘material services’ which were at issue in Dotson….”6

The appellate court con tinued its analysis by stating:

The concept of consortium, as it emerg es from the cases, consists primarily and essentially of intangible elements which are unique, and very personal, to any given mar riage. The loss of consortium reflects the loss of personal benefits and satisfactions the surviving spouse enjoyed as a result of a highly individ ualized relationship with a particular person. That relationship and those benefits cannot be duplicated. As for material services, we note first that the courts speak of a wife’s ‘services in the home,’ services ‘as [the spouse’s] wife,’ and ‘personal services.’ The courts’ discussions do not include, even by implication, the concept of financial support. Too, while some material services are clearly more tangible in nature than such things as affection and companionship, they are also highly personal to, and generally flow from, the particular relationship between specific spouses. As such, they are properly part of consortium. 7

The Pfeifer court then distinguished consortium from financial support, further declaring:

In contrast, financial support lost due to the wrongful death of a spouse is totally tangi ble. Financial support is wholly unlike the elusive and highly personal characteristics of consor tium. It does not flow from, is not unique to,

6 Id. at 1027-28.

7 Id. at 1029-30 (emphasis added).

and does not depend upon the relationship between particular spouses. In fact, we believe it quite possible for financial support to flourish in a marital relationship even though many ele ments of consortium may be at low ebb, or even be missing altogether.”8

As support for this holding, the appellate court in Pfeifer cited to the Illinois Supreme Court’s opin ion in Elliott v. Williams, which held that “it is true that damages for loss of consortium are not capable of being given the detailed in-depth analysis that an expert can call upon to testify about in calculating a decedent’s professional worth where future earn ings of an individual em ployed in a particular field can be measured with precision and particulari ty.”9 Ultimately in Pfeifer, the appellate court reversed on the basis that loss of financial support should not cease on the date of remarriage, and a new trial was ordered.10

Believe it or not, these are some of the most recent Illinois cases on this topic. It appears that the boundaries of these rulings have not been tested—or, at the least, have not been defined by subsequent decisions. In ad dition, it appears that the question of whether grief and sorrow damages end upon the date of remarriage has not been formally answered following the 2007 amendment of the Wrongful Death Act.11

There has been limited delineation of this precedent. For example, the Martin case held that when a plaintiff merely lives with another—but does not remarry—then a loss of consortium claim stands, and evidence of living with another is irrelevant.12

With this precedent, the case law suggests that the only two factors that are relevant to deciding this issue are: (1) a remarriage happened; and (2) when the remar riage happened. Relying on the holding of Martin, there is room to argue that the timing of a couple’s dating, liv ing together, engagement, etc., are not relevant factors, since merely entering a personal relationship does not

8 Id. (emphasis added)

9 Id. at 1030 (quoting Elliott v. Willis, 92 Ill. 2d 530, 539-40 (1982)) (emphasis added).

10 Pfeifer, 253 Ill. App. 3d at 1031.

11 740 ILCS 180/1, et seq.

12 Martin v. Illinois C. G. R.R., 237 Ill. App. 3d 910, 922 (1st Dist. 1991) (rejecting the argument that the principle that loss of con sortium ends upon remarriage should be extended “to a surviving spouse who enters into a personal relationship with another per son but who is not married to that person”).

It is well-settled that recovery for loss of consortium ends upon the remarriage of the surviving spouse.

cause a cessation of loss of consortium damages. Moreover, there is a reasonable legal basis for arguing that the date of remarriage controls only loss of consor tium and loss of material services damages. This inter pretation is supported by the holding in Pfeifer explicitly allowing for loss of financial support to continue after remarriage, as well as the wording of Illinois Pattern Jury Instruction 31.04, entitled “Measure of Damages – Wrongful Death – Adult Decedent – Widow and/or Lineal Next of Kin Surviving.”13 This instruction reads, in relevant part, as follows:

In determining pecuniary loss, you may consider what the evidence shows concerning the following:

[1. What (money,) (benefits,) (goods,) (and) (services) the decedent customarily contributed in the past;]

[2. What (money,) (benefits,) (goods,) (and) (ser vices) the decedent was likely to have contributed in the future;]

[3. Decedent’s personal expenses (and other deductions);]

13 See IPI 31.04 (West 2022).

[4. What instruction, moral training, and su perintendence of education the decedent might reasonably have been expected to give decedent’s child had decedent lived;]

[5. Decedent’s age;]

[6. Decedent’s health;]

[7. Decedent’s habits of (industry,) (sobriety,) (and) (thrift);]

[8. Decedent’s occupational abilities;]

[9. The grief, sorrow, and mental suffering of [next of kin];]

[10. The relationship between [lineal next of kin, e.g. son] and [decedent].]

[11. The marital relationship that existed between [widow/widower] and [decedent].]

[Widow/widower] is not entitled to damages for loss of [decedent’s] society and sexual relations after [date of remarriage].14

In other words, this instruction specifically tells jurors that the only damages to be cut off after the date of remarriage are damages for loss of society and sexual relations. The other 10 paragraphs in IPI 31.04 concerning monetary support and grief and sorrow are not limited in this way. The “Notes on Use” also instruct that we are to “[u]se only those factors 1-11 which are applicable to the facts of this case. If the surviving spouse has remarried, the bracketed paragraph should be utilized to insert the date of the remarriage.”15

This outcome makes sense, since the decision in Pfeifer makes clear that loss of consortium is an element of damages distinct from loss of financial support. It arguably follows that this conclusion would also apply to grief and sorrow, which is also considered its own distinct element of damages. To sum up, a logical deduc tion from the foregoing discussion is that loss of society damages end upon remarriage, but future wage loss or grief and sorrow do not.

Id., citing Carter v. Chi. & Ill. Midland Ry. Co., 130 Ill.App.3d 431 (4th Dist. 1985).

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New Secretary of State Laws Governing Formal, Informal and Out of State Hearings

BY DAVID WINER

The Secretary of State implemented sweeping new rules governing In person For mal and Informal hearings and Out-of-State Packets for non-Illinois residents with a revocation hold in Illinois, starting on January 1, 2022.

In several respects, these new laws benefit the petitioner and make the process smoother, but in oth ers, more documentation is required.

FORMAL OR INFORMAL HEARING

The Secretary of State has added several situations where a Formal hearing is now required where in the past an Informal hearing was permissible. A Formal hearing requires the submission of a petition with a $50.00 fee, and the hearing is typically scheduled two months from the date of submission. By contrast, an Informal hearing is available on a walk-in basis at any Secretary of State facility with a hearing officer. A Formal hearing is required:

1) Where there are two or more DUI “dispositions” and one of them caused the current revoca tion or suspension. The definition of a “disposition” now includes Court Supervision, and also suspensions for a cannabis DUI for failing or refusing

to submit to cannabis roadside field sobriety tests or chemical testing at the station. In the past, a petitioner who had a prior DUI supervision and a rescission but was revoked from a subsequent DUI was allowed an Informal hearing. That person is now required to have a Formal hearing regardless of whether the first Summary Suspension was rescinded or they received Supervision on that DUI.

David J. Winer, a partner at the Law Of fices of Winer & Winer, concentrates his practice in driver’s license reinstatement, DUI/Traffic and criminal defense with offices in Waukegan and Skokie. For more information on Secretary of State Hearings, visit www.driverslicenseback.com

2) Renewal of a Restricted Driving Permit where a BAIID violation was not accepted by the BAIID Division. When a petition er with Restricted Driving Permit (RDP) receives a Breath Alcohol Ignition Interlock Device (BAIID) violation notice they are required to provide a written explanation. The Secretary of State responds either that the explanation “reasonably assures” them a violation did not occur or that it was not accepted. If not accepted, a Formal hearing is now required to renew or extend

the Permit. If there were no violations, the RDP may be renewed at an Informal hearing.

3) An out-of-state petitioner with a lifetime revocation must now appear for an in-person For mal Hearing. In the past they were allowed to petition through the mail with an Out of State Packet for clear ance of the Illinois revocation in order to obtain a license in their home state. They are now required to attend an in-person Formal hearing unless the hearing officer finds that there are “material extenuating circumstances.” However, inconvenience and monetary considerations do not qualify. It should be noted that an out of state resident who has a lifetime revocation can only apply for clearance 10-years from the date of the last revoca tion in any state.

4) A revocation, sus pension or cancellation from a conviction involv ing a death even if alcohol was not a factor.

5) A revocation or Summary Suspension where a Type A injury occurred during the commission of a DUI under 11-501.6.

NEW TYPES OF RESTRICTED DRIVING PERMITS

The Secretary of State has now created two types of Restricted Driving Permits (RDPs): 1) a Standard Restrict ed Driving Permit and 2) a Probationary Restricted Driv ing Permit that allows driving for any lawful purpose 12 hours a day, 6 days per week, within a 200 mile radius; a hardship does not need be shown. The past requirement that a permit only be used for work, medical, school, etc. has been removed from this new permit.

PROBATIONARY RDP

The petitioner for the new Probationary permit is not required to demonstrate an undue hardship and it may be issued to:

1) those already eligible for full reinstatement; or

2) A BAIID Multiple Offender (BMO) petitioner with 2 or 3 convictions regardless of their revocation eligibility date.

A BMO petitioner must keep the BAIID installed for 1,826 consecutive days (5years) before applying for full reinstatement. A 2-year permit will be issued that must be renewed every two years at an Informal hearing unless there was a BAIID violation that was not accepted by the BAIID Department, in which case a Formal hearing must now be conducted. If the petitioner removes the BAIID without approval from the Secretary of State it will result

in the 5-year requirement restarting.

To avoid a lapse in the 2-year BMO Permit, a re newal hearing must take place well before the permit expires. To avoid expiration of the permit, a hearing is permitted four months before its expiration date. If the permit does lapse, the time will be added to the end of the original 5-year period. However, a lapse will not be counted if the petitioner keeps the BAIID installed during the lapsed period.

STANDARD RESTRICTED DRIVING PERMITS

Standard Restricted Driving Permits are issued for one year and require proof of hardship. These are issued to Non-BMO drivers who are not eligible for full reinstatement. This typical ly involves one conviction or a second offender with a three-year summary sus pension. They are restricted for statutory reasons such as employment, medical care for the petitioner or a family member, court ordered public service, education, day care or a support program. The Secretary of State expanded the permissible driving restrictions to now include getting gas, charging the vehi cle, emergency repairs and routine vehicle care, including but not limited to oil changes, tire rotation, alignment and emission testing, or other service.

If, at the time of the hearing, the petitioner was not eligible for reinstatement and was granted an RDP, and while on the permit the petitioner becomes eligible for reinstatement, they can petition for full reinstatement if they drove on the RDP for nine of the twelve months.

A lifetime revocation occurs for petitioners convict ed of four or more DUI’s in any state with the last arrest occurring after January 1, 1999. Illinois residents are per mitted to apply for a lifetime permit five years from the date of the last revocation or release from incarceration, whichever is later. They are never eligible for reinstate ment and if a standard Restricted Driving Permit is granted, they must always drive with a BAIID. However, if the petitioner moves out of state, they must then wait to apply for clearance for 10 years from the last revocation in any state.

OUT-OF-STATE RESIDENTS

For out-of-state residents with an Illinois revoca tion hold, an Out-of-State Packet is now considered an Informal hearing and does not require a $50.00 appli cation fee. (They may decide to attend an in-person Formal hearing where $50.00 fee is required). To apply, they must have already passed their revocation eligibil

The Secretary of State has added several situations where Formal Hearing are now required where in the past an Informal hearing was permissible.

ity date, but those with a lifetime revocation are now required to attend an in-person Formal hearing unless a hearing officer makes a determination that there are “material extenuating circumstances.” Even then, they can only apply for clearance 10 years from the date of the last revocation in any state. An out-of-state petitioner with a lifetime revocation must complete an evaluation by an Illinois licensed provider. But, treatment comple tion documents can be done by any licensed out-of-state treatment provider.

To confirm proof of out-of-state residency, a non-life time petitioner can provide voter registration, utility bills, telephone bills, bank statements, income tax returns, mortgage statements or employment verification. Those who are multiple offenders (BMO) or lifetime revoked must now prove out-of-state residency by submitting a valid state issued ID card or license.

Out-of-state petitioners who submit a written packet are no longer required to obtain a Uniform Report or Up date evaluation. The Secretary of State has created a new form where the first part (4 pages) is completed by the petitioner and the second part (2 pages) must be filled out by a OASA licensed evaluator. The prior rule allow ing an out-of-state petitioner whose last DUI conviction occurred more than 15-years ago to be excused from obtaining an evaluation under certain circumstances has been rescinded and now all DUI revocations must have the new version of the evaluation completed by a licensed evaluator.

The deadline to receive results also has changed. A written out-of-state petitioner must now receive a ruling within 180 days, as opposed to the in-person hearing requirement that the decision be rendered within 90 days of the hearing.

NEW FORMS FOR DRUG RELATED ABUSE OR DEPENDENCY PROBLEMS

Due to the proliferation of drug-based DUI’s and the inability of the BAIID device to detect drugs, the Secre tary of State has added several requirements for petition ers with substance abuse problems. These additional new forms must be submitted to satisfy the Secretary of State that the petitioner is either no longer using illegal

drugs or uses legally prescribed products in a safe and responsible manner. These new forms can be found on the Secretary of State’s website under “Publications”

An Opiate Substitution Form. must be completed in full by the petitioner, his/her physician and evaluator or substance abuse counselor showing they have been stable in the program for at least one year and they must also prove abstinence from alcohol and any illegal drugs.

A Medical Cannabis Form. Petitioners who are prescribed medical cannabis are now required to submit a form completed by the petitioner, his/her physician and evaluator or substance counselor. However, if they are considered High Risk-Dependent, they must be stable in the program for at least 6 months to obtain a RDP, and for 12 months for reinstatement. They must also prove abstinence from alcohol and illegal or addictive drugs.

With Prescribed Opiate Medication. Petitioners are not required to prove abstinence from opiates, but must show they are stable on the prescribed medication and the form must be completed by the petitioner, his/ her physician and evaluator or substance abuse counselor. If they are High Risk-Dependent, they must show they have been stable in the program for at least 6 months for a RDP, and 12 months for reinstatement. They must also must prove abstinence from alcohol and all other drugs.

OTHER MISCELLENIOUS CHANGES

The new rules prohibit an unsatisfactorily explained BAIID violation from being the sole basis for cancelling an RDP. The BAIID violation will be included in the peti tioner’s file for any future hearings

The rules clarify when a lapse in a BMO permit occurred, requiring a restart of the 5-year period. If the hearing to renew the permit takes place prior to the permit expiration date, any subsequent lapse in the permit will not result in a restart of the 5-year period if the person keeps the BAIID installed. However, the total period of any lapse will be added to the end of the 5-year period, thereby assuring that the person has had the BAIID device installed with a valid permit for a full period of 5-years.

BMO petitioners who have an employment exemp tion and do not utilize a BAIID in a work vehicle do not satisfy the 5-year BAIID requirement until they drive on the device installed in their personal vehicle for the 5-year period.

The inability to obtain transportation to an in-person hearing or obtain the proper documentation are now considered circumstances that may justify a continuance after a showing of good cause. In the past, they were not grounds for a continuance.

Petitioners granted reinstatement must now com plete the requirements within 18-months from the date of the order and those granted an RDP must complete them within 120 days from order date.

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Not Just for Frucks: McQueen Likely to Reshape Respondeat Superior Liability for Employers Across Illinois

BY JAKE A. LEAHY

For those who don’t represent trucking companies, the recent Illinois Supreme Court ruling, McQueen v. Green , probably seems wholly irrelevant to practice. Not so fast.

1This case is likely to reshape more than just trucking law. It is likely to impact personal injury cases, and any case involving a business where the employee may not have been directly negligent.

Given the circumstances, the trucker did what any reasonable trucker would do

McQueen involves a trucking company, Pan-Ocean ic, which sent its employee, Lavonta Green, to pick up a three-ton piece of equipment from Patten Industries. Upon arrival, Patten’s employees loaded the truck. Green took a look and thought that it was not placed properly, so he asked for a reload. The Patten employees refused.

Green did what any reasonable trucker would do given the circum stances--at least, so the jury said. Green called his supervisor and asked for direction. On the call, Green described the load as “crooked.” The supervisor responded to “be safe,” and directed Green to deliver the equipment as is.

1 2022 IL 126666.

Jake A. Leahy is a JD can didate at the University of Illinois Chi cago School of Law, where he is a member of the Trial Advocacy & Dispute Resolution Council, competed in the 2022 MLK National Civil Rights Competition, and serves as President of the Estate Planning Student Society.

Heading down I-294, traffic was moving slowly, which is, evidently, ideal when transporting several tons of crooked equipment in a trailer. But once the interstate traffic began to clear up, the truck sped up, and Green lost control of the trailer. The plaintiff, in a nearby vehicle, was injured. The Supreme Court considered the following question: Does an employer’s admission of vicarious liability for its employee’s misconduct preclude a plaintiff from raising claims of direct negligence based on the employer’s own conduct?2 The Court noted that “the appellate court concluded that it does and, on that basis, ruled that the verdicts were legally inconsistent.”3

DIRECT LIABILITY AND VICARIOUS LIABILITY

Based on the common law, there are two ways that an employer can be held responsible for the misconduct of an employee. This occurs either through: (1) vicarious liability, in re

2 Id. ¶ 34.

3 Id.

sponse to actions taken by the employee, or (2) direct lia bility, for actions taken directly by the employer. It is well established that under vicarious liability, or respondeat superior, an employer may be found liable for an employ ee’s misconduct when the employee commits a tort that is within the scope of employment. Conversely, in order to effectively plead a direct negligence claim against an employer, it must be proven that the proximate cause of the injury was the breach of duty by the employer, not the employee.

With the proximate cause requirement, the issue of whether a plaintiff can allege direct liability against an employer, while the employer admits respon sibility under respondeat superior liability, has long been hashed out in juris dictions across America. A major reason why it is such a complex decision to reach is, presumably, because it is generally deemed to be a clearer—or more direct— claim to allege that the em ployee is responsible, rather than that the employer. After all, the employee is usual ly directly involved in the incident giving rise to damages: think of the truck accident described above. The employer is not directly involved in the accident, but even still, the employer might be liable for something outside of the accident’s timeframe, (such as if the employer negligently hired the person who caused the accident). Also, one defense in tort actions is that respondeat superior is not applicable if the employee acted outside of the scope of employment.

Generally speaking, if an employee is negligent, the employer is responsible for that negligence. Here, the Illi nois Supreme Court was tasked with determining wheth er an admission of liability under respondeat superior precludes direct negligence claims against the employer, such as for negligent hiring. The Illinois Supreme Court found both of these claims can be pleaded against an em ployer, so long as a good-faith factual basis exists to bring a direct negligence claim, even alongside a claim under the theory of vicarious liability.

REJECTING MCHAFFIE INCREASES THE RISK OF LIABILITY FOR ILLINOIS BUSINESSES

If the Illinois Supreme Court adopted the “McHaffie Rule,”4 then a direct negligence claim against the em

4 McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995) (en banc).

ployer would have been fully barred. While the Illinois Supreme Court disputed that McHaffie represents the majority view of jurisdictions, the rule is undoubtedly in fluential throughout the country. That rule, in pertinent part, reads:

[O]nce an employer has admitted respondeat superior liability for a driver’s negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability.5

Instead of adopting the McHaffie Rule, the Su preme Court rejected the doctrine and reversed the Appellate Court. In making the law clear, the Supreme Court may have opened the floodgates to suits against employers, whose only negligence may have been negligent hiring or training. Interestingly, had the Supreme Court ruled differently, it may not have been the end of direct lia bility claims when vicarious liability has been admitted. In 2021, the Colorado Supreme Court adopted the rule in McHaffie. 6 However, in the aftermath of that decision, legislation was passed, and a reversal of the rule was signed into law. Despite the Colorado Supreme Court’s ruling precluding vicarious liability claims, today, Col orado falls in line with Illinois law based on the Illinois Supreme Court’s McQueen decision.

While this case should be discussed in board rooms for trucking companies across Illinois, companies which do not own sixteen wheelers should not make the mis take of turning the other way. There may be other indus tries where an employer can be held liable, even when the employee was not negligent. For example, Colorado’s Ferrer case involved an injury taking place in a Yellow Cab, not trucking. Might this same rule be extended to other areas, such as a hospital in which the reception ist is negligently trained, a car dealership when the car salesman provides blatantly misleading information, or a bank when its new teller accepts clearly fraudulent checks? Time will tell the scope of this opinion, but it is likely to have an impact on businesses in Illinois for a long time to come.

5 Id. at 826.

6 Ferrer v. Okbamicael, 2017 CO 14M, ¶ 58.

The McQueen case is likely to reshape not just trucking law. It is likely to impact personal injury cases, and any case involving a business where the employee may not have been directly negligent.

Trust & Estates Fall Seminar

Trusts and Estates Law Update: Jack Richtman Changing Irrevocable Trusts: Fredric Lesser Office of the Public Guardian: Tom Hood The Declaration of Revocable Trust, Questions from the Front Lines: Bryan Winter & Linda Fine

Probate Litigation: Jesse Footlik

Case Management System Update: 19th Judicial Circuit Court

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Board of Directors’ Meeting

September

22, 2022

CALL TO ORDER

President Devine called the meeting to or der at 12:10 p.m.

ROLL CALL

Roll call indicated a quorum was estab

BOARD OF DIRECTORS

Tara Devine President

Katharine Hatch

First Vice President Daniel Hodgkinson Second Vice President Kevin Berrill Treasurer

Jeffrey Berman Secretary Joseph Fusz

Past President Hon. Jacquelyn Melius Director

Craig Mandell Director

Jeffrey O’Kelley Director

Sarah Raisch Director

Jeremy Harter Director

Judy Maldonado Director

Greg Weider Executive Director

lished, with the follow ing individuals present: Tara Devine, President; Katherine Hatch, First Vice President; Daniel Hodgkinson, Second Vice President; Kevin Berrill, Treasurer; Jeffrey Ber man, Secretary; Joseph Fusz, Past President; Craig Mandell, Director; Hon. Jacquelyn Melius, Director; Jeffrey O’Kelley, Director; Sarah Raisch, Director; Greg Weider, Executive Director.

ACTION ITEMS

Consent

Agenda Items

• August Board of Directors Minutes

The Draft minutes from the August meeting of the Board of Directors was in cluded in the agenda pack et. There were no requests for additions, corrections, or changes to the draft minutes.

The

Meeting Minutes

A motion was made and seconded to approve the Consent Agenda. Upon unanimous voice vote, the motion was declared car ried. The Consent Agenda is approved.

• Treasurer’s

Report

The August 2022 Financial Report and supporting materials were included in the Agenda packet. Discussion followed.

A motion was made and seconded to approve the Treasurer’s Report. Upon unanimous voice vote, the motion was de clared carried. The Trea surer’s Report is approved.

OLD BUSINESS

• Expungement

Event with Lake County Juvenile Justice Council

BY JEFFREY A. BERMAN SECRETARY

• Meet the Candidates Reception

Executive Director Weider and President Devine made a presentation regarding the LCBA meet and greet reception for candidates seeking election in November to the Second Judicial District seat on the Illinois Supreme Court, and the Second District Appellate Court, which is scheduled for September 28, 2022. All candidates have been invited. Discus sion followed.

NEW BUSINESS

• LCBA/LCBF Joint Meeting Update

•

August New Members

The New Members report for August was included in the agenda packet.

Second Vice President Hodgkinson made a pre sentation regarding his efforts to follow up on the suggestion to create an event to facilitate expunge ment of juvenile records. Discussion followed.

Executive Director Weider and President Devine made a presentation re garding the joint meeting for the LCBA and LCBF Boards that took place on August 25, 2022. The meeting was positive and constructive. A follow up meeting is scheduled for September 29, 2022.

Service to Others

Myfather was a high school boxer. My parents were great fans and supporters of am ateur boxing. I can vividly remember them taking me to Milwaukee to watch the Golden Gloves State Boxing Championships. I always enjoyed the trip, not only because I could miss school the next day, but because of the energy and personality of many of the competitors. Many boxing fans consider Muhammed Ali to be the greatest fighter of all time. I have always had an appre ciation for his accomplish ments in the ring but have an even greater admiration for how he stood up for his

beliefs. He held his ground when the world tried its best to knock him down. Later in life he co-founded the Children’s Peace Foun dation, supported Parkin son’s Disease research, and was an advocate for both the Special Olympics, and the Make-A-Wish Foundation. In 2005 he was awarded the Presidential Medal of Free dom. His athletic accom plishments were many, but I have always admired his personal resolve and com mitment to have an impact on the lives of others. One of my favorite Muhammed Ali quotes is “ others is the rent you pay for your room on earth.”

ARDC Update

Hall, Waukegan

Presented by: Jerome Larkin

Monthly

Committee Meetings

DAY MEETING LOCATION TIME

1st Tuesday

Diversity & Community Outreach

Virtual Until Further Notice 12:15-1:15

1st Thursday Real Estate VUFN 5:30-6:30

1st Thursday (Even Mo.) Docket Editorial Committee VUFN 12:15-1:15

2nd Tuesday Criminal Law VUFN 12:15-1:15

2nd Tuesday (Odd Mo.) Immigration VUFN 4:30-5:30

2nd Wednesday Family Law Advisory Group (FLAG) VUFN 12:00-1:00

2nd Wednesday Civil Trial and Appeals VUFN 4:00-5:00

2nd Thursday Young & New Lawyers VUFN 12:15-1:15

2nd Thursday Trusts and Estates VUFN 12:15-1:15

3rd Monday (Odd Mo.) Solo & Small Firms VUFN 12:00 noon

3rd Tuesday Local Government VUFN 12:15-1:15

3rd Tuesday LCBF Board of Trustees VUFN 4:00

3rd Wednesday Family Law VUFN 12:00-1:00

3rd Thursday LCBA Board of Directors VUFN 12:00 noon

3rd Thursday Debtor/Creditor Rights VUFN 5:30-6:30 As Needed Employment Law VUFN 5:15-6:15

• 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.

SUSAN MORGAN BRADLEY

JAMES J. BABOWICE