The Docket - September 2021

THE

DOCKET The Official Publication of the Lake County Bar Association • Vol. 28 No. 9 • September 2021

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Contents THE DOCKET • Vol. 28, No. 9 • September 2021

FEATURES 8 Reasonable Inference or a Hunch: Is a Traffic Stop Permissible Simply Because a Car’s Owner Has a Suspended License?

A publication of the

BY HON. BOLLING W. HAXALL

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 Stephen J. Rice Neal A. Simon Hon. ­­­James K. Simonian Rebecca J. Whitcombe Alex Zagor

12 The Illinois Supreme Court Concludes Residential Foreclosure Fees Collected by Clerks of the Circuit Court are Unconstitutional

BY JEFFREY A. BERMAN

20 Bringing the Dark into the Light

BY LINDSAY B. COLEMAN AND

JUDGE DEBRA B. WALKER WITH EDITING ASSISTANCE FROM KELLY T. BENNETT

20 Pop in, Zoom in, Join in – This Little Committee is Doing Fine

BY KARISSA ANDERSON

STAFF Greg Weider Executive Director Jose Gonzalez Membership Coordinator Nancy Rodriguez Receptionist

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COLUMNS 2 President’s Page September’s Here— Write On!

BY JOSEPH FUSZ, PRESIDENT

4 The Chief Judge’s Page The New Normal

BY CHIEF JUDGE DIANE WINTER

6 Bar Foundation

A Field of Dreams

BY DOUGLAS DORANDO, PRESIDENT

26 The Meeting Minutes July 15, 2021

BY DANIEL HODGKINSON, SECRETARY

LCBA EVENTS IFC Shred Event 3 Grapevine 3 Calendar of Events 4 New LCBA Members 5 Membership Luncheons 15 2021 Family Law Mid Year Seminar 23 Trust & Estate Seminar 27 Lawyer Referral Service 28 Monthly Committee Meetings

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

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

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

September’s Here—Write On!

T

he legal profession has afforded me the opportunity to meet many different people over the years, and to forge a few friendships along the way. One of the very good

Joseph Fusz President Tara Devine First Vice President Katharine Hatch Second Vice President Kevin Berrill Treasurer Daniel Hodgkinson Secretary Hon. Patricia Cornell Immediate Past President Dwayne Douglas Hon. Jacquelyn Melius Craig Mandell Sarah Raisch Jeffrey O’Kelley Jeremy Harter

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friends that I have made in Lake County is Waukegan criminal defense attorney Daniel Hodgkinson. Dan and his wife Jeanette live in Lake Forest, and in recent years, they purchased and restored the local mansion that inspired author F. Scott Fitzgerald to write The Great Gatsby, one of the Great American Novels of the 20th Century.

That novel was one of my favorites from high school, and it seems fitting that an influence from my adolescent education should have a connection to the profession it helped me achieve, and a friendship that I value.

“Life starts all over again when it gets crisp in the fall” is one of the more quoted lines from The Great Gatsby. Without delving into a complex literary analysis of that particular quote in the context of the novel, we are mindful of the

The

President’s Page

premise it proposes each year as September comes around. While we will usually have at least a few more weeks of meteorological summer to enjoy here in Lake County, the anticipation of warm days that transition to cooler weather does offer us an opportunity to shift our mindset and enjoy the sights, sounds and wonder of the fall season.

September is the start of a new season, with activities and customs that have been traditions and staples in our lifetimes. Some of the most common examples include weekend trips to neighboring states, visits to apple orchards, nights around campfires, and the commercial proliferation of pumpkin spice in all manner of products. The onset of the fall season makes summer feel like a distant memory and heightens the anticipation of the holidays in the coming months. For

BY JOSEPH FUSZ PRESIDENT those of us who love the fall and the changing of seasons, it is a wonderful time of year.

Life for the Lake County Bar Association starts over as well in the fall, as our committees return to their regular monthly meeting schedule. We also have a full slate of member events in the month of September.

Our annual LCBA Shred Event will be on Friday, September 10 in the Bar Association Parking Lot. Our annual Fall Luncheon series resumes with the Lake County Update, featuring presentations from different state and county divisions on Tuesday, September 21. Finally, our Community Outreach & Diversity Committee will be hosting a CLE titled “Sitting in Uncomfortable Spaces” on Wednesday, September 22. These should all be great events, and we look forward to your attendance

and participation.

The beginning of our programming year also offers a new opportunity to our members to start anew, to become engaged, to find new ways to participate in our bar association. Each individual committee chair will be putting out the call for speakers at monthly meetings. Rob Deters and the rest of the CLE Committee will soon be looking for others to get involved in specialized educational programing. Craig Mandell and Stella Day are always in need of additional actors, singers, and writers for the upcoming 2022 Gridiron.

But still one of the simplest, most important ways that members can participate in our bar association is by writing articles for our monthly Docket publication.

Many changes have taken place in the legal community since the beginning of the pandemic. Illinois laws have been promulgated and passed in the last two years, and many different practitioners in our community may be unaware of these changes. New appellate court opinions have been issued by our state supreme and appellate courts, and attorneys have not had an opportunity to appreciate the effects of new caselaw. New technology has been implemented in our courthouses and our legal practices, affecting everything from case filings to adversarial hearings. We need our members to know about these changes—we need people to take the time to write an article for The Docket.

Our profession is

blessed with many individuals of great intellect, from talented orators and persuasive advocates to thoughtful and responsive members of the judiciary. Writing an academic article is a straightforward task, yet many are reluctant. But if we think about approaching this task with a different mindset, it could make a difference. One of the most famous science fiction authors of all time, Isaac Asimov, was quoted as stating: “Writing, to me, is simply thinking through my fingers.” Following this simple approach, we can be successful.

It does not have to be overly complex or elaborate, but that is welcome as well. An article could focus on bringing awareness to a new Illinois statute or case.

It could be an interview of a new member of the judiciary or a retiring member of the bar. It could be an in-depth analysis of the intended and unintended consequences of common law and caselaw. It can be written in the privacy of your own office or home, with or without a mask on.

But the insights and efforts that you put into writing an article will have a community benefit that goes far beyond the receipt of the Continuing Legal Education hours that you personally receive.

To be clear: this isn’t just about making our monthly legal publication longer in length. My call for Docket article submissions is a reminder of one of the core tenets of the Lake County Bar Association: the education of ourselves and our fellow members. Our values include the promo-

tion of the administration of justice and the advancement of the art of jurisprudence. Our goals state that we are to provide members with opportunities for education. Our mission is to promote the science of jurisprudence. One of the most direct ways that any member of our organization can help to promote our mission, our values, and our goals is by contributing to our Docket publication.

So as life starts over again for us here in the Lake County Bar Association, enjoy any time you have with our colleagues and friends. As always, please consider giving generously of your time, talent and energy in the coming year, and participating in our events however you can. We

The

Grapevine

In May, Joe Kolar started his third term as President of the Bohemian Lawyers’ Association of Chicago. Founded in 1911, Presidents usually serve one year, but Joe has stayed on to serve through the pandemic.

are truly at our best when we take the time to give the best of ourselves to each other. Thank you again.

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Calendar of Events September 6, 2021 Holiday Courthouse Closed

September 10, 2021 8:00 AM - 12:00 PM Annual LCBA Shred Event Waukegan, IL September 16, 2021 12:00 PM LCBA Board Of Directors Monthly Meeting Waukegan, IL September 21, 2021 4:00 PM LCBF Board of Trustees Monthly Meeting Waukegan, IL September 21, 2021 12:15 PM Membership Luncheondd Lake County Update Waukegan, IL September 22, 2021 12:00 PM - 1:30 PM Sitting in Uncomfortable Spaces: Exploring Truths and Navigating Professional Relationships across the Racial Divide October 7, 2021 12:00 pm - 4:30 pm Family Law Mid Year Seminar Waukegan, IL

September 2021

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The New Normal

S

eptember may be the beginning for the “new normal” to take shape at the courthouse. I write “beginning” because the procedural changes outlined in the Circuit’s newest Administrative Order will be subject to being

Welcome

New LCBA Members ATTORNEY

Michael Zuckerman Northwestern Law School Patrick Dankwa John Law Office of Patrick Dankwa John, P.C. Trevor Current Lake County State’s Attorney’s Office Joseph Salvi Salvi & Maher, LLC Elliot Dubin Elliot Dubin Attorney at Law Jennifer Lavin Jennifer L. Lavin, P.C. Delaney Hunt Hunt & Associates, P.C.

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The

adjusted after implementation. Judges have been scheduling more in-person hearings over the summer to get attorneys and litigants ready to return to the courtrooms.

Administrative Order 21-21 outlines, by Division, which proceedings will be heard in-person and which will be heard via Zoom. Whether these changes take effect as currently scheduled on September 7, 2021, will depend on the COVID positivity rates and advice from the Lake County Health Department. The plans for our next stage are in place and we will find the right time to take this next step.

The Nineteenth Judicial Circuit has continued to push forward with technology enhancements for the courtrooms.

Some courtrooms were not equipped for what has been termed “hybrid” calls. Civil courtrooms are now equipped to allow for the audio from Zoom participants to be amplified throughout the

Chief Judge’s Page courtroom. Also, additional microphones, screens, and cameras have been installed so in-person and Zoom participants can be heard and seen by each other. These hybrid proceedings will allow the judges, attorneys, and the litigants the greatest flexibility in scheduling.

The Juvenile Division and the branch courts will also have hybrid hearing capability. Each judge retains discretion to determine whether a case will be held entirely in-person, a hybrid situation, or remotely

by Zoom. Keep in mind, the most recent Administrative Order outlines the beginning of court proceedings with remote or hybrid appearances as an option. No one knows how many attorneys and litigants will prefer to attend court in-person as opposed to remotely on Zoom when given the op-

BY CHIEF JUDGE DIANE WINTER tions. As we gather more information after implementing these schedules, further adjustments will be made based on what is learned after implementation takes place and decisions can be made as to what features work best.

The Nineteenth Judicial plans to maintain—and hopefully expand—the existing Zoom rooms in the law library to accommodate litigants without technology, or for those who need technical assistance from library staff when appearing remotely.

New features can also be found on the 19th Judicial Circuit’s homepage located at www.19thcircuitcourt.state.il.us. The homepage now features a new link entitled “Court Rules and Orders.” Clicking this link will take the user to a landing page listing all active Administrative Orders, the Local

Court Rules, Standing Orders issued by a Presiding Judge, and the Illinois Supreme Court Rules. Now attorneys and litigants will be able to access the most recent Administrative Orders and the current version of the Local Court Rules.

The second new feature to the Circuit’s webpage is the addition of a new “Eviction Information and

Resources” section. By clicking on the Eviction section of the homepage, the user will be directed to a landing page that lists the LCBA Lawyer Referral Service, the Evictions Help Desk hours and location, as well as information and resources tailored specifically for landlords as well as tenants. An update on the moratorium, outside resources, and court forms

are also included on this page. The locations of these new features are indicated with yellow arrows in the picture.

In anticipation of a greater number of evictions, foreclosures, and collection cases, the Nineteenth Judicial Circuit, in partnership with the LCBA, has established Help Desks not only for Evictions cases, but also

for Residential Mortgage Foreclosures and Small Claims cases. There is also Residential Foreclosure and Small Claims mediation available. So, if you cannot take a client’s case in these areas, let the public know there is help available through different agencies and programs listed on the Circuit’s website and through the helpdesks at the courthouse.

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MEMBERSHIP LUNCHEONS Lake County Update September 21, 2021 12:15 p.m City of Waukegan City Hall Pro Bono Awards Luncheon October 19, 2021 12:15 p.m.

City of Waukegan City Hall ARDC Update Luncheon November 16, 2021 12:15 p.m.

City of Waukegan City Hall The cost each: LCBA Members $20 If registered by November 15, 2021.

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September 2021

5

A Field of Dreams

“I

f you build it, they will come.” I watched the game

BOARD OF TRUSTEES Douglas Dorando President Carey Schiever Vice President Perry Smith, Jr. Treasurer Joan Fratianni Secretary Nicholas Riewer Past President Jennifer L. Ashley Jeffrey A. Berman Nandia P. Black Kristie Fingerhut Hon. Fred Forman (Ret.) Scott B. Gibson David J. Gordon Keith C. Grant Fredric B. Lesser Amy L. Lonergan Steven P. McCollum Joseph McHugh Hon. Michael Nerheim Michael Ori Shyama Parikh John Quinn, Sr. Eric Rinehart Melanie Rummel David Stepanich Hon. Henry C. Tonigan (Ret.)

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BY DOUGLAS DORANDO PRESIDENT

at the Field of Dreams in Dyersville (sadly from my sofa and not the “cheap” seats in Dyersville), but it transported me back to the very reflection that I suggested in my last article.

Lake County’s legal community is one of the strongest I’ve seen and one I am proud to be associated with—the attorneys here understand the concept of justice and community and do their part to give back, not only to our legal community, but also to the community at large. The last year has shown us how resilient we are as well, continuing our

important work through more charitable and philanthropic giving. I hope that trend continues as we leave COVID and its lockdowns behind us (sooner rather than later).

As many of you know, the Bar Association building is a project of joint partnership between the charitable giving of the community and the Bar Foundation, and stands as a resource for all attorneys in Lake County. Like the Field of Dreams, we built it, and indeed you have come—using it for depositions, breaks between court calls, holiday parties, CLE, and more. This

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building and the possibilities it contains, like our philanthropic work, is not done.

In other goings on, I am pleased to report that once again the Foundation is supporting the Veterans History Project (November 11, 2021). We also have renewed our support for Waukegan to College and I also would encourage the membership to consider supporting Waukegan to College (W2C) directly.

Our legal community’s partnership with this worthy organization continues to be strong and flourish, supporting first generation college hopefuls to achieve their goals.

It is such a privilege for us to practice in Lake County. I, like many of you, look forward to the reopening of the general court calls, and seeing you in person again.

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September 2021

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Reasonable Inference or a Hunch:

Is a Traffic Stop Permissible Simply Because a Car’s Owner Has a Suspended License?

T

BY HON. BOLLING W. HAXALL

he U.S. Supreme Court ruled last term that an officer has reasonable suspicion to conduct an investigatory stop of a vehicle when the officer knows the registered owner cannot legally drive, absent information that the owner is not the driver.1

The decision reversed the Kansas Supreme Court but confirmed the position taken by the majority of states— including Illinois.2 1

FACTS AND PROCEDURAL HISTORY Charles Glover, Jr. was charged with driving as a habitual violator and filed a motion to suppress all evidence 1 2

8

Kansas v. Glover, --- U.S. ----, 140 S.Ct. 1183, 206 L.Ed.2d 412 (April 6, 2020).

See Village of Lake in the Hills v. Lloyd, 227 Ill.App.3d 351, 354 (2nd Dist. 1992) (“Police knowledge that an owner of a vehicle has a revoked driver’s license provides a reasonable suspicion to stop the owner’s Hon. Bodie vehicle for the purpose of ascertaining the Haxall is an status of the license of the driver.”); PeoAssociate ple v. Barnes, 152 Ill.App.3d 1004, 1006 Judge of the (4th Dist. 1987) (“We hold that it is appro19th Judicial priate for a police officer to stop a vehicle Circuit and investigate the driving status of the assigned driver based on information that the ownto the Park er of the vehicle has a suspended driver’s license.”) In Lloyd, the court noted the City Branch long-standing presumption in Illinois civil Court. cases that a vehicle has been driven by its owner. 227 Ill.App.3d at 353.

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resulting from the stop of his pickup truck.3 The parties presented stipulated facts to the Kansas district court judge, which included the following: a deputy was on routine patrol when a license plate check revealed that the registered owner of a truck (Glover) had a revoked Kansas driver’s license; the deputy did not observe any traffic infractions and made no effort to identify the driver prior to conducting a traffic stop; the deputy assumed Glover was the truck’s driver and stopped him.4 The district court granted Glover’s motion to suppress, finding that the deputy did not have reasonable suspicion to initiate a traffic stop.5 The district judge’s ruling was based, in part, on her own personal experience: she noted that she had three cars registered in her name, although two were primarily driven by her husband and daughter.6 3 Glover, 140 S.Ct. at 1186-87.

4 Id. at 187.

5 State v. Glover, 54 Kan.App.2d 377, 377-78 (Kan.Ct.App. 2017).

6 Id. at 378.

The Kansas Court of Appeals reversed.7 The appellate court found that the deputy had reasonable suspicion to initiate a traffic stop to investigate whether Glover was the driver of his truck and there was no evidence from which the deputy could have inferred that someone other than Glover was driving.8 The appellate court also noted that courts in other jurisdictions consistently held that an officer had reasonable suspicion to initiate a traffic stop under similar facts.9 The Kansas Supreme Court reversed the appellate court and affirmed the district court.10 The court found that the deputy’s suspicion that the truck’s then-unidentified driver did not have a valid license was merely “a hunch and was unsupported by a particularized and objective belief.”11 The court noted that the deputy made no effort to confirm the driver’s identity before stopping the truck, and that it was not unlawful for a person with a revoked license to own a vehicle or to allow a licensed driver to use it.12 The court drew a “distinction . . . between an assumption and an inference, and this distinction is especially significant in the context of determining whether an officer had reasonable suspicion.”13 The court placed the deputy’s suspicion that Glover was driving the truck into the former category, noting the deputy had no personal knowledge of Glover or his driving habits.14 The court opined that the suspicion of Glover as the truck’s driver required the “stacking” of two assumptions: (1) that Glover was driving his truck; and (2) that a vehicle owner is likely to disregard a license suspension or revocation and continue to drive.15 The court also was concerned that allowing the stop created a disincentive for law enforcement to con-

firm a driver’s identity before stopping a vehicle.16 SUPREME COURT DECISION The U.S. Supreme Court reversed, holding that a police officer does not violate the Fourth Amendment by initiating an investigative traffic stop after learning that a vehicle’s registered owner has a revoked driver’s license, so long as the officer lacks information negating the inference that the owner is the vehicle’s driver.17 The Court reiterated that the information rising to the level of “reasonable suspicion” for a Terry stop18 is relatively low—considerably less than required for proof by a preponderance of the evidence and obviously less than necessary for probable cause.19 The Court also noted that States have a “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles [and] that licensing, registration, and vehicle inspection requirements are being observed.”20 Based on the registration check, the Court found, the deputy knew that the owner of the truck had a revoked license, and the deputy “drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.”21 That a person other than the owner could be the driver did not negate the reasonableness, the Court ruled.22 The Court rejected Glover’s argument (accepted by the Kansas Supreme Court) that the deputy’s assumption improperly required him to also assume that a driver with a revoked license will continue to drive.23

[A] police officer does not violate the Fourth Amendment by initiating an investigative traffic stop after learning that a vehicle’s registered owner has a revoked driver’s license, so long as the officer lacks information negating the inference that the owner is the vehicle’s driver.

7 8 9 10 11 12 13 14 15

Id. at 386.

Id. at 377.

Id. at 382-83.

State v. Glover, 308 Kan. 590, 602 (2018).

Id. at 591.

Id. at 594-95.

Id. at 595.

Id. at 596.

Id. at 597-98.

16 17 18 19 20 21 22 23

Id. at 599.

Kansas v. Glover, 140 S.Ct. at 1186.

Terry v. Ohio, 392 U.S. 1 (1968).

Glover, 140 S.Ct. at 1187 (citing Prado Navarette v. California, 572 U.S. 393, 397 (2014); United States v. Sokolow, 490 U.S. 1, 7 (1989).

Glover, 140 S.Ct. at 1188 (quoting Delaware v. Prouse, 440 U.S. 648, 658 (1979).

Id. Id. Id. The Court cited two studies that indicate that drivers with revoked licenses frequently continue to drive—a matter the Court claimed was in “common experience.” Id. No such studies were

September 2021

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The Court’s opinion explicitly rejected an argument (adopted in Justice Sotomayor’s dissent) that the deputy could only rely on inferences grounded in his specialized experience or training as a police officer, rather than those made by ordinary people on a daily basis.24 The Court noted that reasonable suspicion is an abstract concept and can be based on simple common sense, although specialized training still could be significant in an officer’s reasonable suspicion.25 The Court next rejected Glover’s contention that permitting the stop allowed law enforcement to focus on probabilities instead of basing suspicion on specific and articulable facts as contemplated under Terry.26 The Court found that the deputy could point to specific facts—that the owner of a particular truck had a revoked license—and combine that fact with a commonsense judgement in order to develop reasonable suspicion to conduct an investigatory stop.27 LIMITATIONS AND UNANSWERED QUESTIONS Although Glover seems to create a bright-line rule— that an officer can stop a car upon receiving information that its owner does not have a valid license—the Supreme Court sought to “emphasize the narrow scope of [the] holding.”28 The Court noted that additional facts might dispel an officer’s reasonable suspicion; for example, if the officer knows that the gender or age of the driver do not match that of the owner, then an investigatory stop would not be permissible.29 In addition, the Court did not address the applicability of its ruling to a car with multiple registered owners. The concurring opinion noted that such a factual scenario remained unresolved.30 In People v. Galvez, the Illinois appellate court addressed this fact pattern.31 The Galvez Court ruled that a Terry stop was not permissible where a registration check indicated that a car had two owners, only one presented in the district court, nor did the stipulated evidence indicate that it was the deputy’s experience that individuals with revoked licenses continue to drive. In her concurring opinion, Justice Kagan questioned this point. She wrote, “[w]hat are the odds that someone who has lost his license would continue to drive? The answer is by no means obvious.” Id. at 1192 (Kagan, J., concurring).

24 Id. at 1189-90.

25 Id. 26 Id. at 1190.

27 Id. While the Court did not discuss the nature of an investigatory stop, Kansas argued that its minimal intrusion was a significant consideration. Brief for the Petitioner, Kansas v. Glover, 2019 WL 2549744 at *24. (“The stops are necessarily short in duration because their purpose is limited to confirming or dispelling that the owner is unlawfully driving. If it turns out the owner is not the driver, the innocent driver will be quickly on his or her way.”) (citations omitted).

28 Glover, 140 S.Ct. at 1191.

29 Id. 30 “[W]hen the officer learns a car has two or more registered owners, the balance of circumstances may tip away from reasonable suspicion that the one with the revoked license is driving.” Id. at 1193 (Kagan, J., concurring).

31 401 Ill.App.3d 716 (2nd Dist. 2010).

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of whom had a revoked license.32 The Galvez Court noted that many people with a suspended or revoked license will refrain from driving or decrease the time spent behind the wheel.33 Given that the Glover Court stressed the reasonable suspicion inquiry “falls considerably short of 51% accuracy,”34 it is unclear how the Supreme Court would rule on the issue. For now, the Galvez holding remains intact in Illinois and an officer may not stop a vehicle with multiple registered owners if one or more have a valid license.35 In its opinion, the Glover Court noted that Kansas’ license-revocation scheme increased the reasonableness of the inference that a revoked car owner is driving the vehicle.36 In Kansas, driving privileges are revoked only upon a conviction for certain serious traffic offenses (e.g., vehicular homicide, reckless driving), or for repeated traffic violations.37 As a result, the Court reasoned, in Kansas there is an increased likelihood that a registered owner with a revoked license might be the one driving a car.38 In her concurring opinion, Justice Kagan—joined by Justice Ginsburg—found the Kansas revocation provisions dispositive.39 In Illinois, driving privileges are suspended or revoked for reasons other than a history of traffic violations or the commission of a serious infraction.40 Therefore, an officer’s assumption that an owner with a license suspended or revoked in Illinois was driving the car might not permit a Terry stop under Justice Kagan’s analysis. However, because the majority ruled that the “common sense” inference that a revoked owner may be driving his own 32 Id. at 717.

33 Id. at 719. Much like the opposite argument raised in Glover—that many individuals with suspended licenses continue to drive—it does not appear that empirical evidence regarding the impact of suspended driving privileges on future driving was presented in the trial court during the suppression hearing.

34 Glover, 140 S.Ct. at 1188 (quoting United States v. Arvizu, 534 U.S. 266, 274 (2002) (internal quotation marks omitted)). Justice Scalia once implied that reasonable suspicion could be quantified as being as low as “1 in 10 or at least 1 in 20.” Navarette v.

California, 572 U.S. 393, 410 (2014) (Scalia, J., dissenting).

35 At least one appellate justice has indicated that he would overrule Galvez. United States v. Hernandez, 2012 IL App (2d) 110266, ¶ 17 (Birkett, J., concurring) (“In my view, we should depart from the holding in Galvez because it is both badly reasoned and unworkable.”)

36 Glover, 140 S.Ct. at 1188-89.

37 Id. at 1189.

38 Id. 39 Id. at 1192 (Kagan, J., concurring) (“And Kansas almost never revokes a license except for serious or repeated driving offenses. . . In other words, a person with a revoked license has already shown a willingness to flout driving restrictions . . . I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws. . . Along with many other States, Kansas suspends [rather than revokes] licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees or child support. . . most license suspensions do not relate to driving at all; what they most relate to is being poor.”)

40 See, e.g., 625 ILCS 5/7-702(a) (suspension of license for delinquent child support payments); 625 ILCS 5/7-705.2 (suspension for noncompliance with visitation order). See also https://www. cyberdriveillinois.com/departments/drivers/losepriv.html (last visited on January 14, 2021) (suspension for failure to pay fines or appear in court.)

car is sufficient,41 an officer in Illinois may stop a car after learning the owner does not have a valid license.

CONCLUSION The Glover decision confirmed the position of Illinois courts that an officer can permissibly stop a vehicle if a registration check indicates the car’s owner does not have a valid license, so long as the officer does not have information that a person other than the owner is driving. The holding seems to extend to other factual scenarios, such as information that a warrant exists for the car owner’s arrest.42 However, if a vehicle is owned by multiple people and at least one of the registered owner has a valid license, the officer must attempt to further identify the driver before stopping the car. According to the Supreme Court, a belief that the owner of a car is its driver is a reasonable inference based on common sense and not simply a hunch.

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41 Glover, 140 S.Ct. at 1188.

42 See United States v. Williams, 2020 WL 5267910 (S.D.Ga. 2020) (relying on Glover to permit the stop of a car when officers knew a warrant was issued for the arrest of the registered owner); People v. Cummings, 399 Ill.Dec. 210 (2016) (permitting in a pre-Glover case the stop of a car because the registered owner had an outstanding warrant). The rationale underpinning Glover would also seem to support a vehicle stop in the context of an AMBER Alert.

Brief of the United States as Amicus Curie Supporting Petitioner, Kansas v. Glover, 2019 WL 2635895 at *12.

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The Illinois Supreme Court Concludes Residential Foreclosure Fees Collected by Clerks of the Circuit Court are Unconstitutional

BY JEFFREY A. BERMAN

A

fter first rejecting a defense based on the “Voluntary Payment Doctrine,” the Illinois Supreme Court held that fees imposed by Circuit Court Clerks under the Save Our Neighborhoods Act are unconstitutional, setting the stage for repayment of the improper fees to foreclosure plaintiffs.

On June 17, 2021, the Illinois Supreme Court struck THE RESIDENTIAL MORTGAGE FORECLOSURE down on constitutional grounds a section of Illinois’ foreFILING FEE closure rules imposing a $50 filing fee for each residential In 2010, the Illinois General Assembly enacted the mortgage foreclosure case filed, and up to an additional “Save Our Neighborhoods Act,” in response to the mort$500 fee for institutions that file many foreclosures, the gage foreclosure crisis of 2010.2 The legislative goal was to “create[ ] additional programs for people in foreclosure proceeds of which were to be used to fund programs for problems” and to “help people who credit counseling and remediating needed help with their mortgage situblight associated with abandoned Jeffrey Berations and in our foreclosure-plagued properties.1 In addition to providing man of the new clarity on the broad scope of the society.”3 law firm of Among other things, the Act duress exception to the Voluntary Anderson + Wanca has amended section 15-1504.1 of the IlliPayment Doctrine, this decision will extensive nois Code of Civil Procedure,4 along undoubtedly have substantial financial experience with sections 7.30 and 7.31 of the ramifications for Circuit Court Clerks in commerIllinois Housing Development Act.5 and the State, as they cannot continue cial litigaSection 15-1504.1 requires mortgage to support those programs in this way, tion, class actions and and likely will be forced to relinquish insurance more than a decade’s worth of unlaw2 Id., at ¶ 14. coverage litigation in state and fully collected fees.

3 Id., citing General Assembly, House Civfederal courts across the country.

1 Walker v. Chasteen, (June 17, 2021).

12

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2021 IL 126086

He is Co-Editor of the Docket and serves on the LCBF Board of Trustees.

4 5

il Judiciary Comm. Transcripts (May 7, 2010) at 10:11-16, 4:16 to 6:1; 6:19-21.

735 ILCS 5/15-1504.1.

20 ILCS 3805/7.30, 7.31.

foreclosure plaintiffs to pay the clerk of the circuit court an additional $50 fee for the Foreclosure Program Prevention Fund. Section 15-1504.1(a-5) further requires a portion of the fees to be deposited into the Abandoned Residential Property Municipality Relief Fund (Abandoned Residential Property Fund).

The Illinois Housing Development Authority was directed to grant the money collected in the Foreclosure Prevention Program Fund to housing counseling agencies and approved non-profit community-based organizations throughout the state for foreclosure prevention outreach.6 The funds collected in the Abandoned Residential Property Fund were to be distributed by grants to Chicago and other municipalities throughout the state to fund such things as cutting grass at abandoned properties, trimming trees and bushes, extermination of pests, removing garbage and graffiti, installing fencing, and demolition.7 A general provision also permitted expenditures to include repair or rehabilitation of abandoned residential property.8

to the Clerk of the Circuit Court under Section 15-1504.1 of the Code of Civil Procedure.11 THE FEE CHALLENGE LAWSUIT In October 2012, Plaintiff Walker filed a putative class action complaint against the Clerk of the Circuit Court of Will County, challenging the constitutionality of Section 15-1504.1. The Circuit Court thereafter certified a class consisting of all individuals and entities who had paid the $50 filing fee, and also a class of defendants consisting of all Circuit Court Clerks in Illinois. In addition, the State, through the Attorney General, was allowed to intervene in the matter.12 In November 2013, the Circuit Court granted partial summary judgment in favor of Walker based on the judicial fee officer prohibition in article VI, section 14, of the Illinois Constitution13 and declared the statute unconstitutional on its face.14 The Illinois Supreme Court, however, reversed and remanded the case, holding that Circuit Court Clerks did not fall within the constitutional provision prohibiting fee officers in the judicial system.15 Following remand, the operative complaint was amended twice, and Plaintiff Diamond was added as an additional named party.16 The second amended complaint alleged that Section 15-1504.1 of the Code of Civil Procedure17 and sections 7.30 and 7.31 of the Housing Develop-

“[C]ourt fees must be related to services rendered by the courts or maintenance of the courts”

THE UNDERLYING FORECLOSURE LAWSUITS Plaintiff Reuben Walker filed a mortgage foreclosure complaint in Will County Circuit Court.9 Plaintiff M. Steven Diamond filed a mortgage foreclosure complaint in Cook County Circuit Court.10 In order to file those cases, each plaintiff was assessed and paid a $50 add on filing fee 6 7 8 9 10

Walker v. Chasteen, 2021 IL 126086, at ¶ 16.

Id., at ¶¶ 17-18.

Id. Id., at ¶ 3.

Id.

11 12 13 14 15 16 17

Id. Id., at ¶ 4.

Ill. Const. 1970, art. VI, § 14.

Walker v. Chasteen, 2021 IL 126086, at ¶ 5.

Walker v. McGuire, 2015 IL 117138.

Walker v. Chasteen, 2021 IL 126086, at ¶ 7.

735 ILCS 5/15-1504.1.

September 2021

13

ment Act18 violated the equal protection, due process, and uniformity clauses of the Illinois Constitution.19 Plaintiffs also alleged that the statutes violated the constitutional right to obtain justice freely (the “free access” clause).20 The second amended complaint sought, inter alia, declaratory and injunctive relief and a return of all filing fees paid pursuant to section 15-1504.1.21 The Defendants maintained that the statutes were constitutional. In addition, the Cook County Circuit Court Clerk argued that the Voluntary Payment Doctrine precluded the Plaintiffs’ claims because they did not pay the filing fees “under protest.”22 The trial court granted partial summary judgment in favor of the Plaintiffs. The court held the Plaintiffs had paid the fee under duress and, therefore, the Voluntary Payment Doctrine did not preclude their claims.23 The court further found that the statutes at issue are facially unconstitutional because the challenged provisions violated the free access, equal protection, due process, and uniformity clauses of the Illinois Constitution.24 The Circuit Court thus entered a permanent injunc18 19 20 21 22 23 24

20 ILCS 3805/7.30, 7.31.

Ill. Const. 1970, art I, § 2, art. IX, § 2.

Ill. Const. 1970, art. I, § 12.

Walker v. Chasteen, 2021 IL 126086, at ¶¶ 7-8.

Id., at ¶ 8.

Id., at ¶ 9.

Id.

tion enjoining the Clerks from enforcing the Act and collecting the fees. The injunction was stayed to facilitate a direct appeal to the Supreme Court pursuant to Rule 302(a).25 The Illinois Attorney General, on behalf of the State, the Cook County Circuit Court Clerk, and the Will County Circuit Court Clerk each filed separate direct appeals which were then consolidated.26 THE SUPREME COURT DECISION The Supreme Court affirmed. Justice Carter wrote for the Court, with Justice Theis dissenting. Justice Neville did not participate.

THE VOLUNTARY PAYMENT DOCTRINE DID NOT PRECLUDE PLAINTIFFS’ CLAIMS The Supreme Court first took up the non-constitutional contention that the payments were made voluntarily and thus the Plaintiffs’ claims were barred by the Voluntary Payment Doctrine. Plaintiffs responded by asserting that the payments were made under duress, and thus the duress exception to the Doctrine applied.

The Circuit Court in Reuben Walker had held that the Voluntary Payment Doctrine did not defeat the claims because the “duress” exception applied, and it did so for two independent reasons. First, it found that duress inherent25 Id., at ¶ 10.

26 Id., at ¶ 11.

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The Docket

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ly existed because the Plaintiffs would have been restricted from reasonably accessing the court system had they not paid the required court fee. It also held that Walker’s testimony further established that he paid the filing fee under duress.27 The Supreme Court observed that the Voluntary Payment Doctrine is well established and provides that “money voluntarily paid under a claim of right to the payment and with knowledge of the facts by the person making the payment cannot be recovered back on the ground that the claim was illegal.”28 To avoid application of the Doctrine, a claimant must show “not only that the claim asserted was unlawful but also that the payment was not voluntary, such as where there was some necessity that amounted to compulsion and payment was made under the influence of that compulsion” or invoke another recognized exception such as “fraud or misrepresentation or mistake of a material fact.”29 In finding that the duress exception applied, the Circuit Court principally relied on Midwest Medical Records Ass’n v. Brown, 2018 IL App (1st) 163230.30 The Supreme Court likewise found the Midwest Medical decision to be “persuasive.”31 In Midwest Medical, the plaintiffs brought an action alleging that a $60 fee they paid to the Cook 27 Id., at ¶ 26.

28 Id., at ¶ 22, quoting McIntosh v. Walgreens Boots Alliance, Inc., 2019 IL 123626, ¶ 22.

29 Id. 30 Midwest Medical Records Ass’n v. Brown, 2018 IL App (1st) 163230.

31 Walker v. Chasteen, 2021 IL 126086, at ¶¶ 23-24.

County Circuit Court Clerk for filing motions to reconsider interlocutory orders violated the Clerks of Courts Act.32 The trial court dismissed based on the Voluntary Payment Doctrine, rejecting the plaintiffs’ claims that they paid the fees involuntarily and under duress because they would have been denied their constitutional right to challenge interlocutory orders and would have suffered detrimental consequences and adverse judgments against them if they had not paid the fees.33 The First District Appellate Court in Midwest Medical reversed, concluding that duress existed because the plaintiffs “could not avail themselves of the judicial process without payment” and that the “[p]laintiffs’ refusal to pay the fee would have immediately resulted in loss of access to the courts to challenge orders entered against them.”34 The Supreme Court in Reuben Walker agreed that the duress exception applied in that case as well. In that regard, the Court observed: Clearly, when a filing fee is required for filing a mortgage foreclosure, the fee implicates access to the court system, and plaintiffs would have lost reasonable access to the judicial process without payment. Plaintiffs’ refusal to pay the fee would have resulted in loss of access to the courts to pursue a mortgage foreclosure, a property right.

In our view, when a mandatory filing fee is required to access the judicial process, duress may be implied.35 The Supreme Court thus held that the Voluntary Payment Doctrine did not bar the Plaintiffs from challenging the constitutionality of the statutes at issue.

THE STATUTES AND FEES ARE UNCONSTITUTIONAL Turning next to the constitutional challenges, the Supreme Court first examined the contention that the legislation violated the right to obtain justice freely, under Article I, section 12 of the Illinois Constitution, known as the “free access” clause.36 That clause provides: “[e]very person shall find a certain remedy in the laws for all injuries and wrongs which he receives….”37 The Court observed that similar provisions had been present in all prior Illinois Constitutions, that such clauses have “long been foundational principles in English and American jurisprudence,” and they can be traced back to the Magna Carta.38 The Court also concluded that a rational basis test, rather than strict scrutiny review, should be applied, as 32 Midwest Medical, 2018 IL App (1st) 163230, ¶¶ 3-4.

33 Id., at ¶ 7.

34 Walker v. Chasteen, 2021 IL 126086, at ¶ 32.

35 Id., at ¶ 28.

36 Id., at ¶ 32.

37 Id. 38 Id., at ¶ 33.

16

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the test generally applicable to claims involving court filing fees.39 Applying that test, and noting that the central issue in such a claim is whether the legislature may impose a fee on a limited group of plaintiffs when the funds went to the state treasury to fund a general welfare program, the Court held the Act to be unconstitutional.40 Although the charge is called a “fee,” the Supreme Court held it was, in fact, a litigation tax.41 The Court rejected the arguments that the fee was reasonably related to court operations and maintenance because they were designed to reduce foreclosures, and their attendant social problems, and reasonably related to reducing the courts’ caseloads because the grant program could mitigate many ill effects of property abandonment that give rise to litigation. The Court said the relationship was too remote because the fee “has no direct relation to expenses of a petitioner’s litigation and no relation to the services rendered.”42 Rather, the fees were a revenue-raising measure designed to fund statewide social programs and to finance such things as cutting grass, 39

40 41 42

Id., at ¶¶ 35-37, citing, among others, Crocker v. Finley, 99 Ill. 2d 444 (1984), where the Court applied a rational basis test to a claim that a filing fee violated the free access and due process clauses of the Illinois Constitution.

Id., at ¶¶ 36-42.

Id., at ¶ 43.

Id.

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tree trimming, and rehabilitating abandoned residential property.43 The Court thus concluded: The benefits for foreclosure prevention programs are indirect at best and have no direct relation to the administration of the court system. Any relation of the filing fee to maintenance and operation of the courts is too attenuated and represents the type of social welfare program tax that [was] prohibited by the free access clause. The grants for repair and rehabilitation of abandoned properties, cutting grass, picking up trash, etc., were even further removed than the counseling services from the operation and maintenance of the courts.44 The Court thus further concluded that “the $50 fee unreasonably interferes with foreclosure litigants’ access to the courts.”45 Under the free access clause, court fees must be related to services rendered by the courts or maintenance of the courts.46 Since these fees were not sufficiently related, there was no rational basis for imposing them on these litigants, requiring them to bear the cost of maintaining a social welfare program, while excluding other classes of taxpayers and litigants from the same burden.47 The statutes therefore violated the free access clause.48 Because it concluded the Act was facially unconstitutional, the Court did not address the other constitutional arguments raised.49 Justice Theis dissented.50 The dissent offered the viewpoint that the majority in effect applied a heightened scrutiny rather than the proper rational basis standard, and thus failed to analyze the nature and history of the litigation under the proper test. In support of that point, the dissenting opinion analyzed the legislative history of the Act and the nature of the foreclosure crisis in depth. On that basis, Justice Theis concluded that the majority had engaged in an “untenable and unprecedented departure from our traditional notions of rational basis review.”51 The Supreme Court’s decision makes clear that the fees have been collected under an unconstitutional statute and thus in violation of the law. The immediate consequence is that this mode of funding for the statewide social welfare programs is no longer available. In addition, the Clerks of the Circuit Courts now will likely be required to refund all of the fees they had collected since 2010. It is doubtless those reimbursements will total in the millions of dollars.

Send inquiries to: info@lawjtlg.com Johnston Tomei Lenczycki & Goldberg, LLC 350 N. Milwaukee Avenue, Suite 202 Libertyville, IL 60048 847-549-0600 www.lawjtlg.com

18

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43 44 45 46 47 48 49 50 51

Id., at ¶¶ 43-46.

Id., at ¶ 46.

Id., at ¶ 47.

Id. Id., at ¶ 48.

Id. Id., at ¶ 49.

Id., at ¶¶ 54-80.

Id., at ¶ 80.

World War II, Korea, Vietnam, Iraq, Afghanistan &

VETERANS of Other Conflicts

WE WANT YOU! to Participate in the 2021 Veterans History Project Thursday, November 11, 2021 at the Lake County Courthouse, Waukegan, Illinois *Check in begins at 8:00 am Registration is now open for the Annual Veterans History Project. Registered participants will be interviewed by volunteer lawyers regarding their wartime experiences. These oral histories will be recorded and transcribed by court reporters, and then archived in the Library of Congress.

Once archived, these first-hand accounts of American war veterans will be accessible online to serve as both an inspiration for generations to come, and to be available for use by researchers so that Americans can better understand the realities of war.

Civilians who were actively involved in supporting war efforts (war industry workers, such as “Rosie the Riveter,” USO workers, civilian flight instructors and pilots, medical personnel, etc.) are also invited to share their valuable stories.

Space is limited to 28 veterans. Breakfast and other refreshments will be provided courtesy of volunteer organizations. Registered veterans are welcome to bring family members.

To register for this event, please contact Lorena Hernandez at 847.377.3771 or lhernandez@lakecountyil.gov.

2019 Veterans

September 2021

19

Bringing the Dark into the Light

Eradicating Sexual Misconduct in the Courthouse to Foster a Legal Community that Promotes Respect, Safety, and Equality

T

BY LINDSAY B. COLEMAN AND JUDGE DEBRA B. WALKER WITH EDITING ASSISTANCE FROM KELLY T. BENNETT

he profound Martin Luther King, Jr. said, “Darkness cannot drive out darkness: only light can do that.” Many legal professionals are alarmingly unaware that sexual harassment1 continues to cause serious issues in courtrooms and courthouses.

In fact, sexual harassment still affects attorneys at all levels, including judges and named partners. In 2020, many of us became aware of two prominent Illinois legal professionals, an attorney and judge, who were charged with sexual misconduct allegations. As we move into 2021, sexual misconduct needs to be brought into the light so it can be eradicated to foster a legal community 1

1

Sexual harassment, sexual discrimination, sexual assault/violence, and sexism in all forms are referred to herein as “sexual misconduct.”

Lindsay B. Coleman operates Coleman Law, P.C., with a practice focusing on domestic relations and criminal law in Cook and Lake counties. In addition to practicing law, Lindsay serves on a handful of boards of directors and volunteers her time on pro bono legal services and with charitable work close to her heart.

20 The Docket

that promotes respect, safety, and equality.

In the summer of 2020, a study was released by the Women Lawyers on Guard, a national nonprofit organization focusing on equality and justice.2 This study ana2 See an executive summary of the study, Still Broken: Sexual Harassment and Misconduct in the Legal Profession, Women Lawyers On Guard, https://womenlawyersonguard.org/wp-content/uploads/2020/03/Still-Broken-Executive-Summary-FINAL-3-14-2020.pdf (last visited on July 30, 2021). The study is based on an August 2019 survey, disseminated through bar associations, online groups, and individuals’ networks. More than 2,100

Hon. Debra Walker is a Circuit Judge in Cook County, where she hears cases in the court’s Domestic Relations Division.

Judge Walker was the Chairman of the Illinois Supreme Court Commission on Professionalism for the past six years.

Kelly Thames Bennett is a Partner at Greenberg and Sinkovits, where she focuses on complex family law matters. She was the 2019-2020 Chair for the Standing Committee on Women and the Law of the ISBA, and also a founding board member of FLASH (Force of Lawyers Against Sexual Harassment).

lyzed the results from its survey of attorneys. The survey respondents were asked to list the time frame in which such harassment occurred going back 30 years. The survey found that sexual harassment by partners and supervising partners does not appear to have lessened in the last 30 years but simply shifted. It alarmingly showed that although the percentage of “sexual assaults, threats, and bribes for sex decreased, the percentage of sexually offensive jokes, ogling or leering, rating of attractiveness and sexualized name-calling” increased.

Also, the study revealed that such “inappropriate comments” said to attorneys in their 20s from male law firm partners are simply perceived as “normal,” explaining that the young, victimized attorneys remain scared and never report the offenders. This also perpetuates the prevalence of sexual harassment and sexual discrimination. As such, we may considerably eradicate sexual misconduct by reporting the offender. However, this is easier said than done.

Most legal professionals do not report sexual misconduct for fear of job loss, negative career repercussions such as being blacklisted in the legal community, and doubts about whether they will be believed.3 Half of the respondents to the study released

by Women Lawyers on Guard said that even when they reported harassment, the offender did not suffer any consequences,4 and horrifically in 4% of the cases, the harassment worsened after reporting.5 The results of this survey lead to the “inescapable conclusion that the system for addressing sexual harassment in the legal profession is still broken.”6 The results of this survey challenge us to unite and solve the problem together.

An inspiring group of women attorneys who primarily practice in domestic relations, affectionately

called Lady Lawyers Who Lunch (“LLL”), are diligently raising awareness of sexual misconduct in our profession and proposing solutions. LLL invited Judge Debra B. Walker, a Cook County Domestic Relations Judge as well as a past Chair of the Illinois Supreme Court Commission on Professionalism, to speak because of her writings and teachings on this subject. On December 16, 2020, over Zoom, Judge Walker engaged in a dialogue with LLL. Judge Walker describes victims as survivors.

Sexual misconduct is not about sex but about power.

Reporting sexual misconduct is a potent way to take back the power and to bring sexual misconduct into the light. Exposing offenders and bringing their misconduct to light discourages further misconduct by the offenders and motivates other professionals to not be shamed in their careers. This is how change happens over time. For those who are not ready to report, the need for allies is critical, especially in a courthouse, where judges may immediately address such uncivil conduct.

Judge Walker’s suggested methods for attorneys to eradicate sexual misconduct include: • If the misconduct occurs in court, inform the judge, and ask the judge to admonish the offender; • If you witness misconduct in the courthouse, report it. If you see something, say something; • Write to the judge (caveat: ensure there is not any ex parte communication about the case); • Report misconduct to a supervisor, human resources, or someone of equal or higher rank to the offending attorney, if there are no such human resource-like departments; • Write articles for bar journals and other legal and/ or professional organizations; • Volunteer to be a mentor to younger attorneys; and • Report the offender to the ARDC or JIB even if it may not result in discipline by these entities. They maintain records of prior complaints.

Judges have a duty to make their courtrooms safe for everyone.7 Judges must set consistent expectations for

Most legal professionals do not report sexual misconduct for fear of job loss, negative career repercussions such as being blacklisted in the legal community, and doubts about whether they will be believed.

people responded to the survey; 92% of them identified as female.

3 See id. at p. 7 4 Id. 5 Id. at p. 8 (discussing how the survey found that sexual harassment has long-term negative effects. 61% percent of the respondents reported anxiety about their careers or workplaces; 40% feared retaliation; 37% experienced a loss in productivity; and 28% reported a negative impact on their careers. Only 18% reported no impact.).

6 Id. at p. 9.

7

“A judge having knowledge of a violation of these canons on the part of a judge or a violation of Rule 8.4 of the Rules of Profes-

September 2021

21

all attorneys in all courtrooms.8 For any uncivil behavior, including sexual misconduct, all judges must take immediate action to nip it in the bud at inception, leading by example, to set the tone for civil conduct. This is a non-exhaustive list of tools that Judge Walker suggests all judges have at their disposal to immediately put a stop to sexual misconduct in the courtroom: • Strongly admonish the offender in open court; • Put attorneys in a “timeout” by sending them into the hallway (or Zoom waiting room) until they can demonstrate respect for the presiding judge, the litigants, and the lawyers; • Bring the offenders immediately into chambers (or a breakout room for Zoom) to speak with attorneys about their misconduct and how to eliminate such behavior (caveat: ensure there is not any ex parte communication about the case); • If such misconduct occurs while a witness is being questioned, then an attorney should make an objection on the court’s record; • If such misconduct occurs during a deposition, call the presiding judge, put him/her on speakerphone, and inform the judge of the misconduct. Alternatively, attorneys may request for a deposition to be taken in the judge’s conference room, providing the judge with the ability to rule instanter and address immediately any attorney’s behavior; • Judges should have Civility Rules on display in their courtrooms; sional Conduct on the part of a lawyer shall take or initiate appropriate disciplinary measures.” See CANON 3 Rule 63 - Canon 3 of the Code of Judicial Conduct, Ill. Sup. Ct. R. 63. This Canon requires a judge to take or initiate appropriate disciplinary measures where he or she has knowledge of a violation of Rule 8.4.

“It is unprofessional for a lawyer to: “…engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” See Model Rules of Prof’l Conduct R. 8.4(g).

8

• Attorneys may speak with the presiding judge of the division or with a chief judge if a judge engages in such misconduct or allows such misconduct to occur in their courtroom; and • Attorneys may also prepare a motion regarding misconduct in a case at bar and notice it for the court to address.

Judge Walker unequivocally states that third parties, including judges and other attorneys, must also come forward to report sexual misconduct. On June 6, 2019, the Illinois Judicial Inquiry Board filed a Complaint with the Illinois Courts Commission (“Commission”) against former Cook County Circuit Judge Mauricio Araujo (“Araujo”), which alleges he engaged in unwanted sexual advances, inappropriate and harassing advances, and inappropriate and sexually suggestive comments and conduct toward women9. Also, “[t]he complaint further alleges that through the described pattern of inappropriate conduct toward women respondent encountered in a professional setting and through each incident, respondent violated Rules 61, Canon 1, Rule 62, Canon 2(A), and Rule 63, Canons 3(A)(3) and (A)(9).”10 Multiple women came forward to report him, demonstrating, in part, the importance of reporting offenders. Araujo resigned in late September 2020 after the Commission found Araujo’s conduct as proved by clear and convincing evidence, was “prejudicial to the administration of justice and brought the judicial office into disrepute toward women.”11 Because Araujo resigned, the Commission need not have written such a thorough Opinion. Illinois Supreme Court Justice Theis, Chair of the Courts Commission, issued one anyway. This powerful Opinion, in part, should serve as a warning to judges that this is a new era, and that sexual harassment will not be tolerated.

It is 2021 and while everyone should “know bet9 See In re Araujo, Case No. 19 CC 1 (Nov. 6, 2020) 10 See Id. 11 See Id.

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22 The Docket

ter,” sexual misconduct continues to be a pervasive issue that requires more effective measures to eradicate. Attorneys and judges must genuinely commit to stand united, strategize, cultivate allies, mentor the younger generations, and continue to collaborate, so that together, our legal community will truly achieve fundamental and long-lasting change. We need to pave the way for seamlessly reporting sexual misconduct in our legal profession, regardless of whether it occurs in courtrooms, law firms, or bar associations. We need to

adopt a zero-tolerance standard. Collectively, we must bring the dark behavior of sexual misconduct into the light and make sexual misconduct a shameful behavior that has real consequences, so that attorneys and judges together may create a profession that promotes respect, safety, and equality. The future of our profession depends on it!

Reprinted with permission. This article first appeared in the ISBA’s Bench and Bar newsletter from March 2021.

TEK Tuesday resumes the 4th Tuesday of the month, visit www.lakebar.org for upcoming topics.

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Pop in, Zoom in, Join in – This Little Committee is Doing Fine

BY KARISSA ANDERSON

T

he Community Outreach and Diversity Committee wishes to thank all of our LCBA members for their support during the past year. Thank you to everyone that participated in our meetings, Call-In Clinics, CLE Presentations, and Food Drives. With your support, we were able to help numerous members of the local community gain access to legal advice, have open conversations with one another regarding race, and

24 The Docket

donate over 2,000 pounds of food to three different organizations in Lake County.

We meet on the first Tuesday of each month at 12:15 p.m. Meetings last one hour or less! We welcome ideas to promote Community Outreach and Diversity within the LCBA. If you cannot make our meetings, we have more events planned for this upcoming bar year. We hope you can join us!

2020 – 2021 FOOD DRIVES BENEFITED THE FOLLOWING ORGANIZATIONS Avon Township Food Pantry Round Lake Park COOL Food Pantry Waukegan Highwood Public Library Food Bank

CHECK OUT OUR UPCOMING EVENTS: (More information available on the LCBA website) CLE – September 22, 2021 FALL KICK OFF – September 30, 2021 FOOD DRIVE – Coming October 2021 WAYNE FLANIGAN AWARD PRESENTATION – October 19, 2021 CALL-IN CLINIC – November 18, 2021

September 2021 25

Board of Directors’ Meeting

The

Meeting Minutes

BY DANIEL HODGKINSON SECRETARY

July 15, 2021 CONSENT AGENDA Minutes A motion was made and seconded to approve the consent agenda. The

motion was unanimously approved.

DISCUSSION ITEMS Treasurer’s Report

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A motion was made and seconded to add the building fund as a line item in the budget.

Fall Luncheon Schedule Discussion was had concerning the fall luncheon schedule and dates of September 21, October 19 and November 16 were selected.

Budget A motion was made and seconded to pass the budget.

Holiday Party Discussion was had about the scheduling of the Holiday Party and if it were to be somewhere other than the Bar Building. A committee was set up to look into the issue.

Discussion concerning a Member Survey A motion was made and seconded to approve a committee being set up to draft a member survey to

26 The Docket KGW_1/4page_AD_2021_2.indd 1

8/16/21 3:10 PM

be sent to all membership in the Fall.

Executive session was called 12:52 to 1:08.

The meeting concluded at 1:10.

BOARD MEMBERS PRESENT Joseph Fusz President Daniel Hodgkinson Secretary Hon. Patricia Cornell Past President Dwayne Douglas Director Craig Mandell Director Hon. Jacquelyn Melius Director Jeremy Harter Director Jeff O’Kelley Director Greg Weider Executive Director

LAWYER REFERRAL SERVICE

WHY SHOULD YOU JOIN? 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.

ATTORNEYS NEEDED IN THE FOLLOWING CATEGORIES • Administrative • Bankruptcy • Commercial • Consumer • Employment • Environmental • Estate Planning, Wills, Trusts and Probate Visit lakecountylawyer.info for a complete list of available categories.

CONTACT THE LCBA AT 847.244.3143 OR INFO@LAKEBAR.ORG

LAKECOUNTYLAWYER.INFO

Monthly

Committee Meetings

DAY

GO TO

WWW.LAKEBAR.ORG FOR THE MOST UP-TO-DATE CALENDAR INFORMATION.

Bar

Bulletin Board

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

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

Family Law

VUFN

12:00-1:00

LCBA Board of Directors

VUFN

12:00 noon

VUFN

5:30-6:30

VUFN

5:15-6:15

1st Thursday (Even Mo.)

3rd Wednesday

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

28 The Docket

3rd Thursday 3rd Thursday As Needed

Debtor/Creditor Rights Employment Law

• 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.

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

MEMBER RECEPTION

MEMBER RECEPTION SPONSORSHIP OPPORTUNITIES

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

Your $500 sponsorship includes: ecognition in advertising before the event and on signage at the event •R • Reception from 4:30 – 6:30 p.m. omplimentary beer and wine. Upgrades available for additional fee.

•C

Contact info@lakebar.org to add your name to a reception.