Dcbabrief the Journal of the Dupage County Bar Association Volume 32, Issue 8

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DCBABrief The Journal of the DuPage County Bar Association Volume 32, Issue 8 | June 2020

Illinois Contract Law in the Age of COVID-19

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Volume 32, Issue 8 June 2020 Table of Contents

The cast of Judges’ Nite 2020 taking a bow. See full recap inside. Christopher J. Maurer Editor-in-Chief Editor’s Message President’s Message Dexter J. Evans 3 5 Associate Editor Editorial Board Anthony Abear Articles Jolianne W. Alexander Brian M. Dougherty 10 Illinois Contract Law on Force Majeure, Impossibility, Alex Fawell 54 Thank You Notes to End the Year Anne C. Fung Impracticability and Commercial Frustration in The Age of - By Robert Rupp Timothy A. Hickey Covid-19 Raleigh D. Kalbﬂeisch - By Richard J. Nogal and Brian M. Dougherty 55 Duffers of the World, Unite! Timothy J. Klein Andrea L. Kmak Rachel E. Legorreta 16 Piercing the Corporate Veil During the Time of COVID-19 56 Meet the New DCBA Board of Directors’ Members Clarissa R.E. Myers - By Azam Nizamuddin Jane E. Nagle 58 Special Feature: Joseph K. Nichele 20 Navigating Section 607.6 of the IMDMA: The Use of Azam Nizamuddin DuPage Legal Aid Annual Report John J. Pcolinski, Jr. Counseling Communications in Litigation Jay M. Reese - By Lisa Giese and Melissa Marin 62 You’re a Grand Old Flag Arthur W. Rummler - By Terry Benshoof James L. Ryan 26 Relationship Building and Zealous Advocacy of Jordan M. Sartell 66 Judges’ Nite Soars High David N. Schaffer LGBTQ Clients - By John Pcolinski Edward R. Sherman - By Sarah Schriber and David Fischer 69 ISBA Update Jacki Hamler 36 Five Essential Differences Between Medical Malpractice - Kent A. Gaertner Publication Production and Nursing Home Neglect Cases Ross Creative Works - By Matthew Heimlich 72 Eulogies Graphic Design

40 The Litigation Mineﬁeld: How to Avoid Being A Casualty 79 Classiﬁeds Fuse/Kelmscott Printing From The Circuit Court To The Appellate Court 80 Where to Be - By Edward R. Sherman with DCBA

44 An Analysis of the Small Business Reorganization Act of 2019 - By Joshua Greene

48 Illinois Law Update - By Andrea L. Collins, Brian Dougherty, and Jordan Sartell

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DCBA_Brief_June_2020.indd 2 6/1/20 12:23 PM From the Editor Social Animals, Masks and High Tech Lawyering By Christopher Maurer

Is anyone else tired of the phrase, these diffi- allowed us to stay productive. Through cult times, or variations thereof? I know I am. It remote court calls, Zoom meetings, and certainly feels trite and meaningless, especially remote document witnessing, we are keep- when it’s coming from an ad trying to sell you ing the wheels of justice moving in the right a new car. Nevertheless, our present circum- direction. Where just a year ago, lawyers stances do remind me of the old apocryphal would jokingly talk about Facetiming or Christopher J. Maurer is a partner curse, “May you live in interesting times.” Skyping into court instead of making the with the law firm of Anderson & murderous trek to the Daley Center as some Associates, P.C., and practices Aristotle was correct when he said that man pie-in-the-sky dream, now remote court calls in the areas of divorce, domestic is by nature a social animal. It is against our are becoming the norm. The pandemic and relations law, and probate nature to be walled off from our friends, the resulting restrictions have required us to litigation. Christopher is the extended families and colleagues. For many of embrace technology. Most of us agree that Editor-in-Chief of the DCBA Brief, an active member of the us, these stay-at-home orders are tantamount remote lawyering will be with us from now DuPage County Bar Association, to a “Big Gubmint” parent telling us “You’re on, even after this crisis has passed. and a Director of the DuPage grounded! Indefinitely! Go to your room!” Bar Foundation. Christopher is I am pleased at how the DuPage Bar has Guardian ad Litem and certified To add insult to this injury against our social come together at this time. The DuPage Bar Mediator for the 18th Judicial natures, when we do go out for “essential” pur- Foundation is stepping up to the plate to Circuit Court. He practices in poses, we are told we have to dress like bank help attorneys in need. Judges, attorneys, and DuPage, Cook, Kane, Will, Lake, robbers. To hide our very faces. The evolution court administrators are working together to McHenry, and Kendall County, and received his J.D. from Loyola of our species is such that facial expressions find solutions to our inability to be physical- University School of Law, Chicago, are vital to our social communication. There ly present at the courthouse. There are many in 1997. are twenty different types of muscles in our signs of kindness, compassion, and courage faces that help us communicate nonverbally in and around the legal community. You may with others – my favorite being the Zygomat- not be able to see it behind my mask, but my icus major, which allows us to smile – but the Zygomaticus majors are flexing. point is, by requiring our faces to be covered in public, we are muting our ability to convey I’d like to thank Matthew Heimlich, Ed meaning to others. These restrictions may be Sherman, Joshua Greene, David Fisch- epidemiologically necessary, but that doesn’t er, Sarah Schriber, Brian Dougherty, make them any less crushing on the psyche. Richard Nogal, Lisa Giese, Melissa Marin and Azam Nizamuddin for their article However, one thing we can all be grateful submissions in this issue, as well as Anne Fung, for is the technology that allows us to stay Rachel Legorreta and Clarissa Myers for connected. Necessity is the mother of inven- their work as Articles Editors, also Andrea Col- tion, and we have gotten creative. Who hasn’t lins, Brian Dougherty and Jordan Sartell for had a Zoom happy hour or two (or twelve). their work as case law editors for this extended Who hasn’t had a 6-foot-distance gathering issue, and Jacki Hamler for her tireless work in with family or friends? getting the Brief put together and out the door.

As lawyers, judges and legal professionals, Stay strong and stay safe! we also must be grateful that technology has

DCBA Brief June 2020 3

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DCBA_Brief_June_2020.indd 4 6/1/20 12:23 PM President’s Message Flying, Soaring, and Just Simply Arriving By Stacey McCullough

Today I write to you at the very tail-end of dicial Circuit Pro Bono Committee and Illinois my presidential year. When I was sworn in on Supreme Court Justice Robert R. Thomas at the June 7, 2019, I was determined to “Not Just inaugural Spirit of Pro Bono Breakfast; provided Fly, Soar” through the months ahead. You assistance online through Illinois Free Legal An- were invited to join me on that adventur- swers; helped 60 people with legal issues during ous flight that I hoped would find us filled the Ask a Lawyer Day; presented an engaging with more positivity, routinely acting out of GAL Training; honored our Veterans with a kindness, and sharing in the wealth of giving spirited luncheon program; headed up north to back. SOARING. That was my theme. The Unwind at Lynfred Winery, and heralded the DCBA President Stacey A. flight plan, quite evidently, was destined to be Inaugural Grand Holiday Gala at Harry Caray’s McCullough is an attorney at rewritten. ARRIVING. That is my reworked with Justinians and DAWL, thanks in no small Mirabella, Kincaid, Frederick & Mirabella, LLC in Wheaton, theme, I’ve embraced it, and I hope you will part to their respective presidents. We were well where she focuses on criminal, too. on our way! juvenile and school law litigation. She received her J.D. Let’s go back in time to take-off and the The New Year saw us halfway to our destination, from Loyola University Chicago ascent. After departing from Prairie Land- and Lawyers Lending a Hand arranged invalu- in 1994. Stacey serves on ing, we volunteered with Lawyers Lending a able CPR training and organized a successful PILI’s 18th Judicial Circuit Pro Hand at PADS, Northern Illinois Food Bank blood drive just as the turbulence began; we Bono Committee; the Board and Western DuPage Recreation Association; fondly remembered those members and DuPage of Directors of the Lawyers Trust Fund of Illinois; the ISBA assisted countless pro se litigants at the Ask a dignitaries we have lost at our memorial program General Assembly and Traffic Lawyer Help Desk; gathered at Granite City with the DuPage Bar Foundation; networked Laws and Courts Section for CLE and the “first” monthly Happy Hour; to new heights with the Illinois CPA Society; Council; and the Leadership proudly accepted the John C. McAndrews Pro socialized with NIU law students and alumni; Council of Haymarket Center. Bono Award; joined our DuPage Foundation launched the fundraising efforts of Legal Aid friends at the historic Chicago Golf Club to at the Unwind at Weber Grill; flew too close to benefit CASA of DuPage; built camaraderie the sun as we enjoyed an evening of generosity at our Board Retreat and lakeside reception; and laughter at Judges’ Nite, and finally, with the trained our section and program leaders at dedicated collaborative efforts of Public Interest Pinstripes; let birdies soar with a beautiful day Law Initiative and Prairie State Legal Services, of golf at Cantigny, and celebrated the inau- introduced the inaugural DuPage Expungement gural Unwind at stunning Santo Cielo. Clear Clinic, the conclusive goal of my presidency. Or skies were on the horizon! so I thought, as it was here that the flight plan veered wildly off course. Reaching cruising altitude, we volunteered with Lawyers Lending a Hand at the Our flight has been forced into an unexpected DuPage Care Center, gathered countless holding pattern, circling not for hours or days, coats and cold weather gear, and donated a but for months. The Biscoff cookies, mini pretzels room full of toys to those in need; welcomed and every refreshment except Diet Rite Cola are judges to a reception in their honor at Sogno; long gone, not to mention the true, ahem, “essen- treated members and their families to a day tials” that weren’t stocked in anticipation of this at the Morton Arboretum; joined the 18th Ju- extraordinary delay. (Continued on page 71)

DCBA Brief June 2020 5

DCBA_Brief_June_2020.indd 5 6/1/20 12:23 PM The DCBA BRIEF is a publication of the DuPage County Bar Association 126 South County Farm Road Wheaton Illinois 60187 (630) 653-7779

DCBA Brief welcomes members’ feedback. Please send any Letters to the Editor to the attention of Christopher Maurer, at [email protected]

Stacey A. McCullough Aaron E. Ruswick President Secretary/Treasurer

Wendy M. Musielak Charles W. Wentworth President-Elect Assist. Treasurer

Kiley M. Whitty Directors: 2nd Vice President Mark S. Bishop Patrick L. Edgerton Angel M. Traub James S. Harkness 3rd Vice President Karen R. Mills John J. Pcolinski, Jr. J. Matthew Pfeiffer Jay M. Reese Immediate Past President Arthur W. Rummler James L. Ryan Richard J. Veenstra Bradley N. Pollock Alissa C. Verson General Counsel Amanda M. Zannoni

James J. Laraia Kent A. Gaertner Assoc. Gen’l Counsel ISBA Liaison

Robert T. Rupp Executive Director

The DCBA Brief is the Journal of the DuPage County Bar Association (“DCBA”). Unless otherwise stated, all content herein is the property of the DCBA and may not be reprinted in whole or in part without the express permission of the DCBA. ©2020 DCBA. Opinions and positions expressed in articles appearing in the DCBA Brief are those of the authors and not necessarily those of the DCBA or any of its members. Neither the authors nor the publisher are rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. Publication Guidelines: All submitted materials are subject to acceptance and editing by the Editorial Board of the DCBA Brief. Material submitted to the DCBA Brief for possible publication must conform with the DCBA Brief’s Writers Guidelines which are available at dcbabrief.org. Advertising and Promo- tions: All advertising is subject to approval. Approval and acceptance of an advertisement does not constitute an endorsement or representation of any kind by the DCBA or any of its members. Contact information: All Articles, comments, criticisms and suggestions should be directed to the editors at [email protected].

6 DCBA Brief June 2020

DCBA_Brief_June_2020.indd 6 6/1/20 12:23 PM 10 Illinois Contract Law on Force Majeure, Impossibility, Impracticability and Commercial Frustration in The Age of Covid-19 - By Richard J. Nogal and Brian M. Dougherty

16 Piercing the Corporate Veil During the Time of COVID-19 - By Azam Nizamuddin

20 Navigating Section 607.6 of the IMDMA: The Use of Counseling Special Double Communications in Litigation - By Lisa Giese and Melissa Marin

26 Relationship Building and Zealous Advocacy of LGBTQ Clients Issue Articles - By Sarah Schriber and David Fischer 36 Five Essential Differences Between Medical Malpractice and Nursing Home Neglect Cases - By Matthew Heimlich

40 The Litigation Mineﬁeld: How to Avoid Being A Casualty From The Circuit Court To The Appellate Court - By Edward R. Sherman

44 An Analysis of the Small Business Reorganization Act of 2019 - By Joshua Greene

48 Illinois Law Update - By Andrea L. Collins, Brian Dougherty, and Jordan Sartell

Articles Editors Rachel Legorreta Clarissa R.E. Myers Rachel Legorreta is an associate with the law ﬁrm of John J. Malm & Clarissa R.E. Myers received her Juris Doctorate from DePaul University Associates, P.C., where she focuses her practice on personal injury College of Law. Clarissa owns Myers Law LLC and practices in the areas litigation. She graduated magna cum laude from Northern Illinois of criminal and family law. She has held the positions of DuPage Bar University College of Law and is a current member of the DCBA Brief Foundation President, DCBA Editorial Board Member, and multiple DCBA Editorial Board. section positions. She also regularly volunteers as a mock trial judge.

Anne C. Fung Anne C. Fung holds a certiﬁcate in Child and Family Law from Loyola University. Following a clerkship with Federal Magistrate Judge Morton Denlow, Anne practiced at a litigation ﬁrm in Chicago. Currently, she is with Anderson & Associates, P.C in Wheaton, practicing in the area of family law including divorce, custody, and probate matters. She also serves as a member of the Editorial Board for the DuPage County Bar Association.

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Introduction The stay-at-home orders, social distancing, and other protocols arising from the COVID-19 pandemic (collectively, “COVID-19 Orders”), have impacted many parties’ abilities to comply with existing contractual responsibilities, schedules, and costs. Previously largely unknown and boilerplate “force majeure,” “acts of God,” impossibility, impracticability, and frustration of purpose contractual doctrines are now being analyzed to determine the COVID-19 Orders’ impact on contractual obligations. Fortunately for legal practitioners, the courts in Illinois have a rich history of examining the impact of foreseeable and unforeseeable epidemics, wars, Illinois Contract Law on Force Majeure, prohibition, blizzards, depressions and recessions, and change in governmental regulations that offer analogous guidance on Impossibility, Impracticability and how courts will view the deleterious effect of COVID-19 Orders on contractual obligations and the relative responsibility for any Commercial Frustration inability to perform. This article explores the case law in Illinois on force majeure, impossibility and related doctrines that are rel- in The Age of Covid-19 evant to how the courts in Illinois will evaluate the COVID-19 Orders’ potential ramiﬁcations on contractual duties in general, By Richard J. Nogal and Brian M. Dougherty and speciﬁcally in construction contracts and leases.

Overview of Force Majeure, Impossibility and Related Illinois Precedent Relevant to COVID-19 Contractual Issues The long-standing general contract rule in Illinois is that a party is bound to perform a promised act unless rendered impossible “by the act of God or the public enemy.”1 Mere difﬁculty in performing and economic loss are no excuse for non-performance.2

Parties often include terms in a contract excusing performance if certain unforeseen circumstances occur. Such provisions, commonly known as force majeure clauses, can relieve a party from contractual liability upon the occur- rence of a stipulated event.3 “Force majeure” has been defined as “[a]n event or effort that can be neither anticipated nor controlled. The term includes both acts of nature

1. Dehler v. Held, 50 Ill. 491, 493 (1869). 2. Id. 3. Consolidated Coal Co. of St. Louis v. Schneider, 163 Ill. 393, 400 (1986); Veath v. Specialty Grains, Inc.,190 Ill. App. 3d 787, 797-98 (5th Dist. 1989).

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(e.g. floods and hurricanes) and acts of people (e.g. riots, parties, the contract may be dissolved.11 However, the law strikes and wars).”4 favors the preservation of contracts and a suspension of the contract while the war lasted was the preferable remedy.12 The common law doctrine of impossibility of performance may Accordingly, the Seventh Circuit in Patch found that the also relieve a party to perform where the facts establish that government order prohibiting the manufacture of washing an unforeseeable event has rendered one side’s performance machines suspended, but did not nullify, the contract at issue “objectively impossible.”5 The doctrines of impracticability and until the government ban was lifted.13 commercial frustration, as seen below, are closely related to impossibility. Force majeure clauses in a contract supersede the Evaluating the impact of the COVID-19 Orders on contrac- common law doctrine of impossibility.6 tual duties is a fact-specific analysis that relies heavily on the language and intent of the agreements. The Illinois courts Early Illinois cases focused on the common law doctrine of clearly do not favor voiding contracts based on force majeure, impossibility to determine whether a party is excused from impossibility, or related doctrines. However, where unforeseen performance. For example, in the COVID-19 age analogous government action thwarts the ability of a party to perform its case of Phelps v. School Dist. No. 109, Wayne County,7 schools end of the bargain, such as the COVID-19 Orders, there is a were closed by the State of Illinois due to an influenza epidem- cogent argument to be made that impacted agreements may ic. A teacher claimed pay for the time the school was closed, be suspended, potentially voided, or costs re-negotiated as the but the school district refused to pay the teacher because class- facts may warrant. es were canceled due to a public epidemic. The Supreme Court of Illinois in Phelps affirmed that a contagious disease was not Applicability of Force Majeure and Impossibility to an “act of God” that would relieve the school district from a Construction Contracts Due to COVID-19 Orders duty to pay the teacher, where the teacher was ready and will- Construction contracts are particularly vulnerable to adverse ing to perform his duties under the contract.8 effects due to the COVID-19 Orders. Project impacts range from shutdown, delays attributable to social distancing and The Court was more sympathetic to a frustration and related health precautions, cost increases caused by these pro- impossibility defense to the enforcement of a contract in Patch tocols, and labor or material shortages. Many construction con- v. Solar Corporation.9 Patch involved a contract to produce washing machines during the early years of World War II. In 1942, the War Production Board issued an order prohibiting the manufacture of washing machines. The question for the Seventh Circuit was whether the order prohibiting the manu- About the Authors facture of washing machines canceled the contract. Richard J. Nogal is chair of the commercial litigation practice at the Burr Ridge, Illinois, The Seventh Circuit in Patch opined that there is an implied law firm of Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd. He received undergraduate and contractual condition of impossibility or frustration that can law degrees from Northwestern University. He excuse a party from performance, either entirely or suspend- is active in community leadership, and served 10 ing the contract, depending on the facts. If the impossibility as president of two public school boards and lasted long enough to frustrate entirely the intent of the chairman of the board of a suburban hospital.

4. Stepnicka v. Grant Park 2 LLC, 2013 Ill. App. (1st) 113229-U, ¶ 6 & n.2, citing Black’s Law Dictionary (9th ed. 2009) at 718. Brian M. Dougherty is a partner in the litigation 5. YPI 180 N. LaSalle Owner, LLC v. 180 N. LaSalle II LLC, 403 Ill. App. 3d 1, 4 (1st Dist. 2010). group at Goldstine, Skrodzki, Russian, Nemec and 6. Commonwealth Edison Company v. Allied-General Nuclear Services, 731 F. Supp. 850, 855 (N.D. Ill. 1990). Hoff, Ltd. His practice area includes representing 7. 302 Ill. 193 (1922). 8. Id. at 194. employees and employers in employment disputes 9. 149 F.2d 558 (7th Cir. 1945). arising under state and federal law, commercial 10. Id. at 560. landlord-tenant matters and business torts. 11. Id. at 560. 12. Id. at 561. Brian is a member of the DCBA Editorial Board. 13. Id .; David Rutter & Co. v. State of Illinois, 3 Ill. Ct. Cl. 69 (1916) (party allowed to recover increased cost of transporting coal after railway enjoined from using tracks); cf. Village of Midlothian v. Village of Robbins 81 Ill. App. 2d 22 (1st Dist. 1967) (contract to purchase water rendered impossible to perform due to subsequent statutory action).

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tion of a Walmart store due to a zoning dispute and ensuing liti- Evaluating the impact of the gation. The underlying agreement included a force majeure clause that allowed extension of the completion date if “performance is delayed by government regulations, civil riot, and unusually COVID-19 Orders on contractual severe weather conditions.”16 After the zoning litigation ended, the contractor had not commenced construction for more than duties is a fact-speciﬁc six (6) months later, causing Walmart to terminate the contract. The Seventh Circuit reversed the verdict in favor of the contrac- “ tor and ordered a new trial on whether the delay in commencing analysis that relies heavily construction was “directly and proximately related to the force majeure” event – the governmental regulations or zoning lit- on the language and intent of igation.”17 The court ruled that construction should have commenced within a reasonable time after the impossibility the agreements. The Illinois caused by the zoning litigation ceased to exist.18

As in Glen Hollow, the COVID-19 Orders could very well be courts clearly do not favor construed as force majeure government action justifying the delay in performance of a construction contract. Care should voiding contracts based on be taken in carefully documenting the cause and extent of any such claimed delays.

force majeure, impossibility, or There is a greater amount of authority in Illinois applying the doctrine of impossibility to a diverse array of construction related doctrines. contracts. For example, a contractor agreed to erect a steel lumber bridge in the case of State Improvement Co., Inc. v. State of Illinois.19 The contract specified the types of concrete pylons tracts contain force majeure or analogous clauses, no damages and required method of installation. The specifications, how- for delay, and strict notice requirements. Each construction ever, were impossible for the contractor to follow. Accordingly, contract needs to be examined closely for such provisions. the Court of Claims excused the contractor from performance. The court did not award lost profits to the contractor or dam- There are few Illinois cases construing force majeure clauses in ages to the State of Illinois since neither party was at fault due the context of construction contracts. Modern contracts, such to the impossibility to perform. as those published by the American Institute of Architects (AIA), do not use the term “force majeure,” but include claus- A variety of other interesting cases provide a potential glimpse es allowing the contractor to claim extensions and recovery into how courts may interpret contractual impossibility claims of damages for delay based on causes beyond the contractor’s caused by the COVID-19 Orders. In Fisher v. U.S. Fidelity & control.14 In Glen Hollow Partnership v. Walmart Stores, Inc.,15 the Guaranty Co.,20 a contractor was relieved of performing under court considered the reasonableness of the delay in construc- a contract for construction of a movie theater where the project

16. Id. 17. Id. at *5. 18. Id.; cf. Northern Illinois Gas v. Energy Co-op, Inc., 122 Ill. App. 3d 940, 949 (3rd Dist. 1984) (force majeure clause excusing non-performance caused by circumstances beyond the control of the party, including compliance with direction of governmental authority, was not triggered by ICC rate order). 14. AIA Form A-201, § 8.3. 19. 26 Ill. Ct. Cl. 1 (1967). 15. 139 F.3d 901 (7th Cir. 1998) (unpub. opinion). 20. 313 Ill. App. 66 (1st Dist. 1942).

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was in violation of an ordinance. Similarly, in Moffitt v. City of obtained a court order. The client died, but his property was Rock Island,21 the State of Illinois assumed control of a road owned in joint tenancy and so it passed to his daughter. The rendering it impossible for the City of Rockford to comply with attorney wanted to collect his fee claiming that his perfor- an agreement to complete the project within five (5) years. The mance was excused as a result of the client’s death. The Court court held that Rockford was relieved of its obligations under disagreed, stating that when the law casts a duty, it may be the agreement to complete the road due to the supervening excused by an Act of God; if the contract imposes the duty, impossibility of performance. In language applicable to the the promisor is held to, since he could have provided against COVID-19 Orders, the court in Moffit stated: the contingency.25 Here, the contract could have been drafted so that the attorney was paid his money in the event of the The “takeover” by the State was wholly unforeseeable and client’s death, although not foreseen or within the control of not in any manner the fault of the City. Courts now grant the attorney.26 relief to parties involved in this situation by discharging promisor of his obligation rendered impossible to perform In Deibler v. Bernard Bros.,27 the principle was put to test in where a supervening impossibility of performance occurs.22 a lease agreement. The tenant’s business was an automobile dealership. Certain governmental restrictions prevented the Pursuant to the authorities cited above, contractors therefore tenant, however, from thereafter operating as a dealership and may be able to claim force majeure or impossibility to excuse the tenant defaulted under the terms of the lease. The tenant performance, obtain schedule extensions, or cost increases in ap- claimed that performance was rendered impossible, but the plicable circumstances arising from the COVID-19 Orders. The Illinois Supreme Court disagreed. The Court first noted that COVID-19 Orders were unforeseeable and not the fault of any the lease did not specify the purpose for which the premises party. The stay-at-home and social distancing requirements23 are could be used.28 The tenant’s only argument was that business unprecedented in modern times and Illinois courts have granted was made more difficult by governmental restrictions on the contractual relief in less egregious circumstances in the past. manufacture and sale of automobiles.29 The Court also stated that no provision was inserted in the lease excusing the lessee Doctrines of Impossibility and Impracticability from the performance thereof because of any condition which as Applied to Leases In the COVID-19 Context might thereafter arise, affecting the volume of, or the profits The COVID-19 Orders have had a dramatic adverse impact on from, its business, or its financial convenience or ability to pay commercial lease agreements. Businesses leasing commercial the rent.30 The Court went on to state that as the law is con- space have closed because they are not essential business (e.g. cerned, if the contract depends on the continued existence of restaurants, bars) or because of a lack of foot traffic brought in some object or thing, then the non-existence of that object or by other tenants. Even if a lease does not explicitly specify the thing will render performance impossible, which shall excuse reasons why a tenant could not render performance under a performance.31 In what could be deemed prophetic language in lease (viz. paying rent), the common law doctrines of impossi- the age of COVID-19, the Court reasoned: bility and commercial frustration may apply. It is common knowledge that retail business, generally, and Early Illinois Supreme Court cases were quite strict on this of every kind, has been made more difficult and, no doubt, principle. In Bunn v. Prather,24 an attorney was to be paid funds on the whole, less profitable, by innumerable restrictions arising out of the client’s sale of property after the attorney and governmental regulation. If all such merchants and

21. 77 Ill. App. 3d 850 (3rd Dist. 1979). 22. Id. at 854; see also Harmswood Stables North, Inc. v. Semrow, 100 Ill. App. 3d 219 (1st Dist. 1981) (contract to repair building discharged because extraordinary snowfall of 1979 made it impossible to comply with the contractual obligation to repair building); Waldinger Corp. v. CRS Group Engineers, Inc., Clark Dietz Div.,775 F.2d 781 (7th Cir. 1985) (contractor excused from performing contract pursuant to doctrine of commercial impracticability where it was unable to obtain equipment speciﬁed in contract, and such event was unforeseeable); cf. Joseph W. O’Brien Co. v. Highland Lake Const. Co., 17 Ill. App. 3d 237 (1st Dist. 1974) (subcontractor not entitled to invoke impossibility defense to agreement to install storm sewer pipe where contractor was able to accomplish what subcontractor deemed impossible). 25. Id. at 218. 23. Practitioners should be especially mindful of OSHA guidance that affects construction workers. See, 26. Id. at 219. e.g, https://www.osha.gov/Publications/OSHA4000.pdf (last visited Apr. 29, 2020) 27. 385 Ill. 610 (1944). 24. 21 Ill. 217 (1859); Summers v. Hibbard, Spencer, Bartlett & Co., 153 Ill. 102, 111 (1894) (“There is a 28. Id. at 613-14. principle of the law that in contracts in which the performance depends on the continued existence of a 29. Id. at 613. given or speciﬁed person or animal or thing, a condition is implied that the impossibility of performance 30. Id. at 614-15. arising from the perishing of the person, animal, or thing shall excuse the performance.”) 31. Id. at 15-16.

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other, for that reasons, are to be relieved of the obligations of their contracts, then every butcher, grocer, merchant and other dealer, could abandon the lease with impunity.32

Deibler is interesting because what the lease was missing was a permitted use for the premises; had that use been included and the facts remained the same, then the Court’s reasoning about the object or thing being destroyed could have come into play and the result may have been different.

The Supreme Court in Leonard v. Autocar Sales & Service Co.33 extended the impossibility doctrine to encompass a frustration of purpose under a lease. There, the parties had a written lease for a term. The Federal government, through condemnation proceedings, was granted temporary use and possession of the premises for World War II war efforts. compensated for that portion of the leasehold appropriated by The tenant refused to pay rent as a result. One of the issues the Government.38 before the Supreme Court was whether the doctrine of frustration of purpose or commercial frustration was applica- An example of where the tenant prevailed on impossibility ble.34 Citing prior precedent, the Court then articulated the is Levy v. Johnston & Hunt,39 but the facts were a bit extreme. “doctrine of frustration:” if the parties must have known that The tenant leased premises as a saloon and importantly, the some condition or thing was required in order to perform, the lease provided that the premises could not be used for any parties are deemed to have made their bargain on the continued other purposes. Congress passed a law prohibiting the sale of existence of that thing, and thus the contract must be construed as liquor and the Eighteenth Amendment soon followed. So the being subject to an implied condition that the parties shall tenant’s operations obviously faltered. In upholding judgment be excused in case performance becomes impossible from for the tenant, the appellate court held that impossibility of such condition or state of things ceasing to exist.35 The Court performance due to intervening domestic legislation is a good noted that the history of this rule came after World War I when defense for failing to perform one’s contractual obligations.40 contracts for the sale of certain materials or for shipments on The general rule is that performance is excused where it speciﬁc vessels or to speciﬁc ports was made impossible by war becomes impossible owing to a change in domestic law after restrictions, embargoes, or seizure of vessels.36 the making of the contract, provided that the promisor has not expressly assumed the risk of such change.41 Thus, since there Applying this rule, the Supreme Court in Leonard found that was no indication that the tenant expressly assumed the risk the tenant’s leasehold was not destroyed by the Government’s of a change in the law and the premises could not be used for use and its use did not extend during the entire term of the any other purpose except a saloon, the tenant prevailed under tenant’s lease.37 The Court also noted the tenant would be this defense.

32. Id. at 617. 33. 392 Ill. 182 (1945). 34. Id. at 186. 38. Id. at 191. 35. Id. at 187-88. 39. 224 Ill. App. 300 (1922). 36. Id. at 188. 40. Id. at 305. 37. Id. at 190. 41. Id. at 305-06.

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In Smith v. Roberts,42 the appellate court set forth a two-part tial” (e.g. distillery modifying operations to produce hand sanitizer; test for commercial frustration. It ﬁrst noted that the commer- hobby store making face masks). Juxtaposing this argument is that cial frustration doctrine was not to be applied liberally, and the COVID-19 Orders are not expected to be permanent legislation; then set forth both elements, which it noted were rigorous: (1) at some point it will cease. In that event, the temporary cessation of the frustrating event was not reasonably foreseeable; and (2) non-essential business operations will not have been totally or near the value of counter-performance by the lessee had been totally totally destroyed. The circumstances could, of course, be different or near totally destroyed by the frustrating cause.43 if the lease is set to terminate during the period of time that the COVID-19 Orders are likely to be in place. In that case, the tenant’s The COVID-19 Orders have resulted in the closing of non-es- continued performance under the lease may be totally vanquished. sential businesses, including restaurants, retail shopping centers and stores, movie theaters, entertainment and sporting Conclusion venues, and many more. Many of these establishments lease The COVID-19 Orders are likely to afford contracting parties their premises. some modicum of relief pursuant to force majeure, impossibility, impracticability, and commercial frustration in appropriate circum- A possible impediment to the application of the impossibili- stances. Parties must be diligent in invoking these doctrines, placing ty/frustration doctrines is the covenant to pay rent clause in the other side on notice, documenting the reasons for delay, mitigat- a lease, which generally provides that the payment of rent is ing any delays or damages, and diligently performing when any con- independent of any other obligation under the lease. Thus, if tractual impediments are resolved. Contractual language and intent the lease requires the tenant to remain open during certain must be scrutinized. Courts in Illinois will construe these defenses business hours during the week, but the tenant cannot because narrowly and endeavor to enforce contracts to the fullest possible of governmental regulations, the contractual duty to pay rent extent, even where these doctrines may be found applicable. stands on its own. In contracts executed in the post-COVID-19 Orders world, parties Tenants may be able to argue that the COVID-19 Orders are inter- should consider adding contractual language to protect themselves vening domestic legislation that was not contemplated by the parties from future uncertainties caused by the pandemic or its resur- when a lease was executed. This would, of course, assume that the gence. The COVID-19 Orders are no longer unforeseen or unknown tenant did not assume this risk in a commercial lease. Commercial conditions and arguably parties have been on notice of COVID-19 leases today are much different than early 20th century leases and no since as early as December 2019.46 Common knowledge of adverse doubt, because the parties are much more sophisticated and expe- conditions will defeat a claim that a situation was “unforeseeable” rienced in the perils of leasing, are able to account for many more and will require parties to make appropriate provisions in their contingencies.44 Assuming a change in domestic legislation was not agreements for these potentially-anticipated events.47 assumed by a tenant, one issue is whether the lease has a “permitted use” clause. Landlords do not want competing businesses in shopping Illinois has survived past pandemics, wars, natural disasters, centers, for instance, so such clauses are common.45 In the absence of and unforeseen government action. The law of contracts in such a clause (or with the landlord’s permission, and assuming it does Illinois has evolved to protect parties from these unforeseen not interfere with other tenants’ leases in a shopping center context), calamities while preserving the integrity of bargained-for a business may be able to change its operations to one that is “essen- agreements.

46. What is now known as COVID-19 was reported to the World Health Organization on December 31, 2019. https://www.who.int/emergencies/diseases/novel-coronavirus-2019/events-as-they-happen. On January 7, 2020, Chinese officials confirmed this was the novel coronavirus. https://www.who.int/csr/ don/12-january-2020-novel-coronavirus-china/en/. The first confirmed COVID-19 case in the U.S. was 42. 54 Ill. App. 3d 910 (4th Dist. 1977). reported on January 20, 2020. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7092802/. On Janu- 43. Id. at 913. ary 31, 2020, President Trump declared COVID-19 a public health emergency. https://www.npr.org/ 44. This likely explains why parties specifically include force majeure clauses that take various shapes sections/health-shots/2020/01/31/801686524/trump-declares-coronavirus-a-public-health- and forms. emergency-and-restricts-travel-from-c 45. This may also be called an “exclusive use” clause. A shopping center tenant’s lease may provide that it 47. Ner Tamid Congregation of North Town v. Krivoruchko, 638 F. Supp. 913 (N.D. Ill. 2009) (party that entered only sell pizza and related items. A new tenant that moves in and serves hamburgers and fries would contract in 2007 could not claim real estate recession as unforeseeable in light of prior predictions and likely be permissible. publications in trade literature).

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Piercing the Corporate Veil During the Time of COVID-19

By Azam Nizamuddin

With the current COVID-19 crisis, the effects on the economy lawyers and accountants will typically advise their clients to have been dramatic. Monthly government figures have been form a corporation or LLC in order to limit, or in most instances surprisingly devastating. The private sector lost more than 20 eliminate, personal liability, and for tax benefits. million jobs in April of this year alone.1 What is often forgotten, or not discussed, is that the separation In order to stave off any devastation of small business, of a corporate entity from its shareholders or directors from Congress recently enacted the CARES Act to provide low the avoidance of liability for the debts of the corporation or interest loans and the Paycheck Protection Program (PPP) LLC can be overcome through an exception. That exception is through the Small Business Administration, to small business- broadly known as Piercing the Corporate Veil (“PCV”). es so that they can keep running.2 What is uncertain at this time is to what degree the COVID-19 pandemic will impact The PCV doctrine is a creature of common law and is an operators of small businesses and companies. In particular, equitable doctrine which permits a claimant to seek personal what if businesses and companies are unable to meet their liability for the debts and financial obligations of a corpora- contractual or financial obligations? Does this mean more tion or LLC. Each state has its own variation of the PCV doc- litigation and bankruptcies are inevitable? These concerns led trine. The doctrine of PCV was fully discussed by the Illinois this author to consider the impact of foreseeable litigation on Supreme Court in Superior Coal Co v. Department of Finance,5 individual and family-owned businesses. whereby the Court refused to disregard the corporate entity to reach the shareholders by stating: “The doctrine of corpo- A basic foundation of the modern corporate enterprise system rate entity is one of substance and validity; it should be ignored is that a business operating as a legally recognized entity is with caution, and only when the circumstances clearly justify separate and distinct from its owners.3 Under current law, this it. The theory of the alter ego has been adopted by the courts principle is not limited to corporations, but extends to limited to prevent injustice, in those cases where the fiction of a cor- liability companies, limited liability partnerships, and limited porate entity has been used as a subterfuge to defeat public partners in limited partnerships. The corporate form was cre- convenience or to perpetrate a wrong; it should never be ated to allow shareholders to invest without incurring personal invoked to work an injustice, or to give an unfair advantage.”6 liability for the acts of the corporation.4 But note that the PCV doctrine actually stems much further back in Illinois legal history.7 It has become a natural business practice for people to operate a business through the corporate vehicle of a cor- In reviewing dozens of cases in Illinois, it appears that the poration or limited liability company (“LLC”). Transaction result of applying the PCV doctrine runs the gamut of

1. Ana Swanson, Noam Scheiber, Kate Conger, Ben Casselman, Sapna Maheshwari, Matina Stevis-Gridneff, Adam Satariano, Marc Tracy, Neal E. Boudette, Jack Ewing, Carlos Tejada, Kevin Williams, Niraj Chok- shi, Mohammed Hadi, Lin Qiqing, Katie Robertson and Kevin Granville, U.S. Businesses Take Steps to Reopen, The New York Times (May 6, 2020), https://www.nytimes.com/2020/05/06/business/ stock-market-today-coronavirus.html?type=styln-live-updates&label=economy&index=1&action =click&module=Spotlight&pgtype=Homepage. 2. U.S. Department of the Treasury, The CARES Act Provides Assistance to Small Businesses, https://home. 5. Superior Coal Co v. Department of Finance, 377 Ill. 282 (1941). treasury.gov/policy-issues/cares/assistance-for-small-businesses. 6. Id. at 295-296. 3. Main v. Baker, 86 Ill. 2d 188, 205 (1981). 7. See Lachman v. Martin, 139 Ill. 450 (1891); Donovan v. Purtell, 216 Ill. 629 (1905). But also see, Dregne 4. Neil A. Helfman, Establishing Elements for Disregarding Corporate Entity and Piercing Entity’s Veil v. Five Cent Cab Co., 381 Ill. 594 (1943); Carrillo v. O’Hara, 400 Ill. 518 (1948); and Tilley v. Shippee, 12 (American Jurisprudence Proof of Facts 3d, 2013). Ill. 2d 616 (1958).

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application. A recent commentator argued that Illinois courts tion and the individual no longer exist; and (2) circumstances have applied the PCV in a “conservative manner.”8 But is this must exist that adherence to the fiction of separate corporation really the case? According to various studies, the national existence would sanction a fraud or promote injustice.”13 The average whereby courts pierce the corporate structure is under Second District viewed the following facts as evidence for 50 percent.9 Illinois courts generally operate a range of 42% to piercing, including the fact that: 52%.10 This article is not an exhaustive analysis of Illinois courts with respect to PCV, but is limited to the Second District in A. The individual defendant was the dominant force con- Illinois. Of the 18 cases analyzed in the Second District trolling the transaction with Kreisman and the restaurant which discussed PCV since the late 1970s, courts pierced the construction; corporate veil ten times. This represents a rate of about 55%, much higher than the national average. It also clearly contra- B. She was the principal beneficiary of the trust holding legal ti- dicts the statement that Illinois courts apply the PCV doctrine tle to the restaurant property which the trustee furnished as in a “conservative” manner.11 security for the construction loan from which the improvements and equipment costs were to have been paid; One of the early cases to allow piercing and to discuss the PCV doctrine in the Second District was B. Kreisman & Co v. First C. She also entered into the escrow agreement on behalf Arlington Nat. Bank of Arlington Heights.12 In Kreisman, the of the trustee under which all disbursements of funds plaintiff entered into a contract worth approximately $208,000 required her approval; with a restaurant to install and supply restaurant equipment. The corporation which operated the restaurant was unable to D. The corporation had filed for bankruptcy protection; and pay the full amount of the contract and ultimately filed bankruptcy. However, the plaintiff also filed the claim against the E. She filed a counterclaim and third-party action against other sole shareholder under the doctrine of piercing the corporate parties describing herself as “Ruth Mayer, individually and veil. The trial court dismissed the claim against the individual d/b/a Le Grand Chalet,” and sought personal damages shareholder, but the appellate court reversed. Kreisman was really the first Second District case to lay out the elements of piercing the corporate veil in Illinois. In order for a claimant About the Author to pierce the corporate veil with respect to a corporation or a limited liability company, there must be: “(1) [A] unity of inter- Azam Nizamuddin is General Counsel with est in ownership that the separate personalities of the corpora- the American Trust Corporation and Chief Compliance Officer of Allied Asset Advisors in Oak Brook, Illinois. Previously, he practiced commercial litigation and family law. He also served on the ISBA Corporate Law Section and ISBA ARDC Committee. He was appointed to 8. Stephen B. Presser, Piercing the Corporate Veil 303 (Thomson Reuters, 2019). the Illinois Supreme Court Access to Justice 9. See Buckley v. Abuzir, 2014 IL App (1st) 130469. Commission, Language access Committee. 10. Id. 11. Supra Presser. 12. B. Kreisman & Co., v. First Arlington Nat. Bank of Arlington Heights, 91 Ill. App. 3d 847 (2d Dist. 1980). 13. Id. at 851 (relying on Stap v. Chicago Aces Tennis Team, 63 Ill. App. 3d 23, 27-28 (1st Dist. 1978)).

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for incomplete and defective work in the construction facade through which Garrett, as the dominant stockholder, delays and for injury to her business reputation. conducted business.

The Second District concluded that not piercing the corporate Relevant for our purposes, the court made an interesting veil would sanction a fraud upon the creditor. What exactly was distinction between claims brought for breach of contract the fraud here? The court never bothered to explain whether and tort by citing the 10th Circuit Federal Appeals Court. It there were any misrepresentations or even the failure of follow- quoted from Cascade Energy & Metals Corp. v. Banks, where ing corporate formalities by the sole shareholder.14 It appears the 10th Circuit stated, “the fact that a company is undercap- that the court seemed determined to punish Mayer (the in- italized can be overcome in many contractual settings, because dividual shareholder) for merely being a single and dominant the parties can allocate a risk of financial failure as they shareholder and for trying to avoid responsibility for paying the see fit. But in nonconsensual cases, there is ‘no element of amount owed for services and equipment. But should that be voluntary dealing, and the question is whether it is reasonable the sole concern when courts pierce the corporate structure? for businessmen to transfer a risk of loss or injury to mem- Why should the claims for breach of contract and mechanic bers of the general public through the device of conducting liens not suffice to accord relief to the claimant? business in the name of a corporation that may be marginally financed.’”16 (Emphasis added). Compare Kreisman with a much later case called Fiumetto v. Garret Enterprises,15 where the court reversed the denial of In other words, in Fiumetto, the Second District felt the partial summary judgment by the trial court with respect case for piercing was more compelling because the claims to piercing the corporate veil. In Fiumetto, the plaintiff filed involved a statutory violation and a tort which were non-con- claims relating to her filing unemployment benefits, which in- sensual. Whereas, if the claim was a negotiated contractual cluded retaliatory discharge and tortious interference. In order arrangement which was subsequently breached, the case for to determine whether the unity of interest of ownership prong piercing the corporate veil would be less decisive. The author was met, the court looked at eight separate factors including: agrees with this important discussion, particularly in today’s (1) inadequate capitalization; (2) failure to issue stock; (3) uncertain economic climate. failure to observe corporate formalities; (4) nonpayment of dividends; (5) insolvency of the debtor corporation at the time; In another Second District case, the trial court pierced the cor- (6) nonfunctioning of other officers or directors; (7) absence of porate veil by focusing on both prongs of the PCV doctrine.17 corporate records; and (8) whether the corporation was a mere In Fontana, the trial court determined that the defendant facade for the operation of dominant stockholders. corporation lacked adequate capitalization, failed to observe certain corporate formalities, failed to pay dividends, commin- The court focused its analysis on capitalization of the defen- gled corporate and personal assets, provided a non-functioning dant company. It determined that an initial capitalization of officer or director in the defendant’s wife, affirmatively caused $1,000 with a payroll of five employees was wholly inadequate. insolvency of the corporation, and failed to have adequate cor- Furthermore, the corporation did not hold any directors’ meet- porate records. Second, the trial court concluded that failure to ings, albeit there was only one shareholder and director. Plus, pierce the corporate veil would be tantamount to sanctioning many corporate documents were not executed until after the fraud or injustice. The Second District affirmed and noted that litigation began. The court then concluded that the lack of the defendant began selling off the remaining assets of the cor- corporate formalities indicated corporate neglect which poration while the underlying lawsuit was pending in order to created an inference that the corporation was a mere avoid liability. In fact, when the lawsuit began, the corporation

14. For example, see Fiumetto v. Garrett Enterprises, 321 Ill. App. 3d 946, 959-60 (2d Dist. 2001). 16. Cascade Energy & Metals Corp. v. Banks, 896 F.2d 1557, 1577 (10th Cir. 1990). 15. Id. 17. Fontana v. TLD Builders, 362 Ill. App. 3d. 491 (2d Dist. 2005).

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had assets of $1.8 million, but ended the year with virtually no non-directors. In the Steiner case, in reviewing the factors assets.18 The trial court then concluded: for the unity of interest prong, the court provided a long analysis of the adequate capitalization factor. However, in I think that all of these factors taken together are clear doing so, the court over-emphasized the opinion of a finan- and convincing that Mr. DiCosola is the dominant force cial expert. In particular, the court relied upon the financial behind this corporation, that the corporation is little more expert’s understanding of a corporation being inadequately than a shell which was established to shield him from capitalized due to increasingly negative income and retained liability. I think the fact that he signed the contract with earnings over the last five years of the sister company’s his own individual signature in two places, while it is existence. There was no attempt by the shareholder/director certainly not dispositive, it is just one more indication that to affirmatively undercapitalize or remove assets of either this business is Mr. DiCosola and that the corporation, in corporation. Rather, the court was moved by the fact that the words of the Macaluso case, should be disregarded and the corporation at issue suffered financial losses over time. the veil of limited liability pierced because it would be an Consequently, the trial court pierced the corporation and obstacle to the protection of private rights and because the the First District affirmed. corporation is merely the alter ego or business conduit of Mr. DiCosola who is the governing and dominating per- It is clear that Illinois courts have broad discretion to utilize sonality in this business enterprise.19 the equitable doctrine of piercing the corporate structure of corporations and LLCs. Given that discretion, however, In Fontana, the defendant had argued that as he was not a comes a tremendous amount of responsibility. Small or fam- shareholder of the corporation, but merely an officer, and as ily owned businesses do not have the financial resources such, he could not be held personally liable. The Second Dis- or sometimes the corporate sophistication to operate the trict rejected this argument and affirmed the piercing of the business as a top 500 financial firm would. It is common corporate veil of limited liability. Clearly what irked the trial that corporate formalities are overlooked, particularly if the court and the Second District was that the defendant failed to enterprise is a one-person operation. Courts would be well complete the construction project, placed his wife as signatory advised to avoid piercing the corporate structure, specifi- of many documents on behalf of the corporation, but with cally in cases which are based upon a commercial, arms- little to no authority, and then began to dissipate assets as legal length transaction based on contract. Many of the foregoing liability mounted. cases where the courts pierced the corporate veil were just these types of situations where no torts were involved, but While our focus in this article is on the Second District rather creditors merely trying to enforce or satisfy financial Appellate opinions with respect to the PCV doctrine, the judgments. It is not the job of courts to remedy the risk recent First District cases of Buckley v. Abuzir20 and Steiner that businesspeople undertake in engaging in contractual v. Maniscalo,21 are worth some brief comments. What makes commercial relations. Not every unsatisfied judgment the Buckley case especially worrisome for small business requires personal liability by those that have worked hard owners is that one can still be personally liable for the to start and sustain a business for many years only to have a debts of a corporation despite not being a shareholder or court impose personal liability due to financial losses. With director or officer of a corporation. After surveying many the looming threat of thousands of small businesses fail- state jurisdictions, the First District concluded that Illinois ing due to the COVID-19 pandemic, courts should observe authority is in line with the majority of jurisdictions apply- restraint, and be more stringent in their application of the ing the PCV doctrine to non-shareholders, non-officers, and doctrine of piercing the corporate veil.

18. Id. at 509. 19. Id. at 500. 20. Buckley v. Abuzir, 2014 IL App (1st) 130469. 21. Steiner v. Maniscalco, 2016 IL App (1st) 132023.

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Introduction and Background Domestic relations cases can be emotionally charged, especially those cases involving minor children. In cases involving disputes over allocation of parental responsibilities, parenting time and other child-related issues, it is not uncommon to see a parent or child(ren) involved in individual therapy, treatment programs, family counseling or reuniﬁcation therapy. Coun- seling is frequently directed by court order, either through the parties’ agreement or after the court conducts a hearing. Sec- tion 607.6 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) gives the court the authority to order parties and their child(ren) to participate in counseling in certain instances. However, the statute also expressly prohibits the use of said counseling in litigation.

Navigating Section As a brief review of the statute, in January of 2006 the Illinois legislature added section 608(f) to the IMDMA, which pro- 607.6 of the IMDMA: vided as follows: “All counseling sessions shall be confidential. The communications in counseling shall not be used in any The Use of Counseling manner in litigation nor relied upon by any expert appointed Communications in Litigation by the court or retained by any party.”1 In 2016, the IMDMA underwent a significant reconstruction, and Section 608 was By Lisa Giese and Melissa Marin repealed. Therefore, from 2016 to 2017, there was no similar provision contained within the IMDMA. In 2017, the Illinois legislature expanded the provisions dealing with the confidentiality of counseling and added them back into the statute. This provision is now encompassed in section 607.6(d) of the IMDMA.

Under section 607.6, a court may order individual counseling for a child, family counseling for the parties and the child, or parental education for one or more of the parties.2 Speciﬁ- cally, courts can order counseling if it ﬁnds one or more of the following: (1) both parties or all of the parties agree, (2) the child’s physical health is in danger and/or the child’s emo- tional development is impaired, (3) parenting time abuse has occurred, or (4) one or both parties have violated the allocation judgment with regard to conduct affecting or in the presence of the child.3

This article will focus on subsection (d) of section 607.6 which mirrors the language used in section 608(f) prior to the 2016 amendment of the IMDMA. Section 607.6(d) provides, “all counseling sessions shall be conﬁdential. The communications

1. 750 ILCS 5/608(f). Repealed by P.A. 99-90, eff. Jan. 1, 2016. 2. 750 ILCS 5/607.6(a). 3. Id.

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in counseling shall not be used in any manner in litigation nor Section 607.6(d) may be difficult to interpret, particularly as relied upon by any expert appointed by the court or retained by it relates to the implications on GALs and custody evaluators. any party.”4 Thus, section 607.6(d) allows the court the author- The plain language interpretation of section 607.6(d) does not ity to order counseling but restricts the court’s ability to use allow an evaluator or other expert to consider any part of court those confidential communications in the litigation process. ordered counseling when determining the best interests of the child(ren) or when issuing recommendations to the court. A There is a lack of resources which specifically delineate the more thorough analysis into section 607.6(d) raises many ques- policy behind section 607.6(d), however, courts have previ- tions that have yet to be answered by the courts. For example: ously acknowledged the importance of the physician-patient Is a GAL considered an expert? What constitutes “counseling” privilege. Specifically, the court in In re Marriage of Lombaer under the statute? Are there any exceptions to the statute? Can explained that the purposes of “psychiatry” can only be fully this provision be waived by the parties? This article will analyze realized when the patient knows that what is revealed in the the different interpretations of section 607.6(d) and its implica- evaluation conferences or communications are free from tions on a GAL’s ability to determine what is in the best interest judicial scrutiny…”5 Another important policy consideration of the minor child(ren). It will also explore whether a waiver of behind section 607.6(d) is likely the legislature’s attempt to pre- the provision is enforceable, either expressly or implicitly. vent parents from utilizing counseling to gain an advantage in litigation. In other words, preventing parents from influencing Section 607.6(D) Conflicts with Other Statutes and what their child says or does during their counseling sessions, Superior Authority in Illinois in That it Impedes the and then using those records in support of their claims regarding Role of a Gal parenting time or allocation of parental responsibilities. A GAL has two major functions in a family law case: first, to investigate the facts of a case to determine what is in the best In enacting section 607.6(d), the legislature was also presum- interest of the minor child(ren), and second, to give opinions and ably attempting to prevent experts from relying too heavily to make recommendations to the court in accordance with his on therapists’ opinions when conducting their investigation or her best interest determination. Specifically, section 506(a) and issuing recommendations to the court. For a number of (2) of the IMDMA states: reasons, therapists are not the most qualified people to make recommendations regarding a child’s best interest to the court. For one, since a therapist’s duty is to treat their client, their recommendations are typically made in accordance with their duty to the patient’s mental health, which may be different About the Authors than the best interest factors of the IMDMA. For example, a Lisa M. Giese is a partner in the law firm therapist is less likely to consider the role another parent played of Kollias & Giese, P.C. in Wheaton, Illinois in failing to facilitate the relationship between a child and the practicing in the area of domestic relations. other parent, since their focus is not on the cause but rather She received her undergraduate degree from the effect on the child. Second, a therapist may only speak Michigan State University and her J.D. from with the child(ren) and not the parents or other third parties. Loyola University Chicago, with a certificate in Child and Family Law. Lisa is chair of the Therefore, they may not have an entire picture of the parties or Children’s Advocacy Committee for DCBA. facts. Third, the therapist may not be qualified or specialize in therapy with children or families, and they may not know Melissa Marin is an Associate Attorney at Kollias whether a parent has attempted to manipulate what the child & Giese, P.C. in Wheaton, Illinois practicing says or does during their therapy sessions. Finally, the therapist in the area of domestic relations. Melissa may not understand the personal motives of the child’s parents received her undergraduate degree from DePaul and in what way they intend to use the information obtained University in 2015. She later received her Juris from the counseling sessions. Doctorate from DePaul University College of Law in May 2019, with a certificate in family law.

4. 750 ILCS 5/607.6(d). 5. 5 In re Marriage of Lombaer, 200 Ill.App.3d 712, 558 N.E.2d 388, 394 (1st Dist. 1990).

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The plain language reading of section 607.6(d) would sug- Thus, section 607.6(d) gest that its reach is broad and unequivocal. It provides that “all counseling sessions shall be confidential” and that “the allows the court the communications in counseling shall not be used in any manner in litigation.”7 The Illinois Supreme Court has found that authority to order when interpreting a statute, “[i]t is improper for a court to depart from the plain statutory language by reading into the statute ex- “ ceptions, limitations, or conditions that conflict with the clearly counseling but restricts expressed legislative intent.”8 As such, under the plain language the court’s ability to reading of the statute, without exception, counseling sessions are not accessible to a GAL nor are they admissible in court for any purpose, as clearly the GAL role falls within the scope of use those confidential litigation in that they are appointed by the court. The argument could be made that if a GAL were to consider counseling com- communications in the munications, it would circumvent section 607.6(d) entirely.

litigation process. However, the plain language of the statute directly conﬂicts with superior authority, namely, Supreme Court Rule 907. Supreme Court Rule 907 states, in relevant part:

(b) Every child representative, attorney for a minor child and guardian ad litem shall have the right to interview his The guardian ad litem shall testify or submit a written report or her client(s) without any limitation or impediment. to the court regarding his or her recommendations in accor- Upon appointment of a child representative, attorney for dance with the best interest of the child. The report shall be the child or guardian ad litem, the trial court shall enter made available to all parties. The guardian ad litem may be an order to allow access to the child and all relevant called as a witness for purposes of cross-examination regard- documents.9 ing the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and The Illinois Supreme Court has found that “[a] statute is interview the child and the parties.6 ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses.”10 One way that GALs investigate the facts is by relying on third While some may argue that the provisions of section 607.6(d) party collateral witnesses, who often provide thorough and are clear under the plain language interpretation, others could unbiased information. Counselors, particularly those with an argue that it is actually quite ambiguous. For example, there is established history with a child or family, can prove to be an no deﬁnition of what constitutes an expert nor is it clear whether invaluable resource and point of reliance for GALs. However, a GAL would qualify as an expert. Further, section 607.6(d) section 607.6(d) limits a GAL’s ability to use those resources as is a statutory rule of evidence governing the admissibility of a part of his or her investigation which conﬂicts with the GAL’s counseling sessions in family law litigation. Case law provides role and impedes their ability to act in the child’s best interests. that, “[i]t is well settled in Illinois that where a supreme court

7. 750 ILCS 5/607(d). (Emphasis added). 8. In re Marriage of Goesel, 2017 IL 122046, 102 N.E. 3d 230, 235 (2017). 9. Ill. Sup. Ct. R. 907 (emphasis added). 6. 750 ILCS 5/506(a)(2). 10. Goesel, 102 N.E. 3d at 235.

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rule conflicts with a statute on the same subject, ‘the rule will obtained information from being used at trial.16 The father prevail.’”11 further argued that although the tapes were properly barred from being admitted into evidence, they were effectively used Supreme Court Rule 907 creates an affirmative obligation for as evidence because the trial court allowed the GAL to use the court to give the GAL access to “all relevant documents” those tapes to prepare their recommendations to the court.17 related to the child(ren). Sections 602.5 and 602.7 of the The GAL in that case felt that the children were being improp- IMDMA expressly state “the mental and physical health of all erly influenced by their father and that the tapes were relevant to individuals involved” are to be considered in determining the their investigation.18 The Appellate Court upheld the decision of best interests of the minor child(ren) as it relates to allocation the trial court and held that: of parenting time and decision making responsibilities.12 As such, “all relevant documents” must include confidential coun- Section 506 of the Illinois Marriage and Dissolution of seling communications such as therapist notes, reports, and Marriage Act requires the GAL to defend and protect the other documents prepared by a treating provider. Arguably, best interest of the child whom he or she represents. In dis- the child(ren)’s wishes, another best interest factor, could also charging his or her duty, the GAL will review or consider be ascertained from counseling communications, further sup- all kinds of information regarding the child, both admissi- porting the relevancy of these documents. ble and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might The language used in Supreme Court Rule 907 mirrors lan- cause the child psychological or physical harm. We fail to guage that has been used in Illinois Supreme Court case see any prejudice where the GAL listens to information precedent related to GALs. The Illinois Supreme Court has that may be inadmissible at trial. Compelling reasons of repeatedly held that “[w]hen determining the best interests of public policy dictate that the GAL perform duties essen- a child, the circuit court should hear any and all relevant tial to the health and welfare of the child whom the GAL evidence.”13 Again, this language seems to be directly in represents.19 conflict with the language of section 607.6(d) in that counseling sessions in which a child is engaged are surely relevant to the As such, if a GAL is allowed to listen to illegally obtained GAL’s investigation of the child(ren)’s best interest. recordings in order to defend a child’s health and welfare, a strong argument could be made that a GAL should be allowed The conflict between 607.6(d) and superior Illinois authority to access information from counseling sessions in which a child is analogous to the issue in In re Marriage of Karonis, wherein is engaged because counseling sessions are directly related to the Illinois Eavesdropping statute prohibited the use of cer- the child’s health and welfare. Even though the information tain evidence, yet the GAL was permitted to use the evidence may not be otherwise admissible as evidence at trial, a GAL obtained in violation of the statute in his or her investigation. could still rely on the information when determining and In Karonis, the Illinois Appellate Court held that a GAL is advocating for the child’s best interests. permitted to hear illegally taped recordings between a father and his children.14 In that case, the father argued that the tri- Furthermore, the Illinois Supreme Court has held that the legal court improperly allowed the GAL to listen to recordings islature cannot usurp the authority of the Court by enacting of telephone conversations between him and his children statutes that conflict with Illinois Supreme Court precedent.20 that violated the Illinois Eavesdropping statute.15 The Illinois For example, the legislature cannot, via statute, prohibit the Eavesdropping statute specifically prohibits the use of illegally discovery of evidence that Supreme Court precedent or rules

14. In re Marriage of Karonis, 296 Ill. App. 3d 86, 639 N.E. 2d 1282, 1284 (2d Dist. 1998). 15. Id. at 1285. 16. 720 ILCS 5/14-5. 11. Dalan/Jupiter, Inc. ex rel. JRC Midway Marketplace, L.P. v. Draper and Kramer, Inc., 372 Ill. App. 3d 362, 17. Karonis, 639 N.E. 2d at 1285. 865 N.E.2d 442, 450 (1st Dist. 2007). 18. Id. 12. 750 ILCS 5/602.5; See also 750 ILCS 5/602.7. 19. Id. at 1286. 13. In re Marriage of Collingbourne, 204 Ill.2d 498, 791 N.E.2d 532, 545 (2003). (Emphasis added). 20. Kunkel v. Walton, 179 Ill. 2d 519, 689 N.E.2d 1047, 1051-55 (1997).

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allow. Therefore, section 607.6(d) presumably exceeds its impediment to a GAL’s ability to access all relevant in- authority in that it directly conflicts with the Illinois Supreme formation regarding the child(ren) when conducting their Court rules and case law that permits a GAL to rely on any investigation and issuing recommendations to the court. relevant evidence. Not only does section 607.6(d) conflict with Illinois Supreme Court Rule 907, but it also conflicts with Illi- Additionally, other Illinois laws related to counseling allow for nois case law and the Mental Health and Developmental the disclosure of confidential counseling records under limited Disabilities Confidentiality Act, which allow an exception circumstances. Specifically, the Mental Health and Develop- for a GAL to access confidential information when it is mental Disabilities Confidentiality Act allows a GAL access relevant and related to the health and welfare of the to counseling records.21 Although it is widely recognized that child(ren) during his or her investigation. individuals participating in therapy, including minor children, undoubtedly have a strong interest in maintaining the confi- Section 607.6 Does not Address Whether Waiver of its dentiality of their communications with their therapists, for Provisions is Possible or Enforceable minors over the age of 12, but under the age of 18, confiden- Given the lack of case law in Illinois discussing section 607.6(d), tiality with their therapist is limited.22 Section 110/4(a) of the another issue yet to be addressed by the court is the possibility Act provides, in relevant part: of waiver, express or implicit. Proponents of a plain language reading of the statute would argue that section 607.6(d) does [t]he following persons shall be entitled, upon request, to not discuss waiver at all. As such, if the legislature intended inspect and copy a recipient’s record or any part there- the statute to be subject to the possibility of waiver, it would of…(5) an attorney or guardian ad litem who represents a have provided for a provision allowing waiver. However, section minor 12 years of age or older in any judicial or administra- 607.6(d) does not expressly state that these communications tive proceeding, provided that the court or administrative are privileged, non-discoverable, or inadmissible, and there- hearing officer has entered an order granting the attorney fore the statute is not absolute. The Illinois Supreme Court in this right.23 Klain v. Southern Illinois Hosp. Services, explained “…to create a privilege, the plain language of the statute must explicitly state The Mental Heath and Developmental Disabilities Confiden- that the information that is confidential is also privileged, tiality Act allows a GAL to inspect a copy of the child(ren)’s non-discoverable, or inadmissible.”24 mental health records even if they are older than 12 and have not consented, if the court grants them permission to do so. If it is assumed, for the sake of argument, that the provisions However, this provision, among others, is in direct conflict of section 607.6(d) are not absolute and that waiver is possible, with section 607.6(d), which precludes a GAL from access- it still remains unclear what language would be necessary to ing a minor’s confidential counseling records and using those effectuate a proper waiver and in what forms a waiver could communications with their therapist in litigation when the take place. For example, is it required that the parties execute counseling was court ordered. an agreed order expressly waiving the provisions of section 607.6(d)? Or do the parties implicitly waive section 607.6(d) by The conflict between 607.6(d) and superior Illinois au- signing a release for the GAL to speak with a counselor other- thority such as Supreme Court Rule 907, creates a serious wise protected under 607.6(d)?

21. 740 ILCS 110/4(a)(5). 23. Id. 22. 740 ILCS 110/4. 24. Klain v. Southern Illinois Hosp. Services, 2016 IL 118217, 47 N.E.3d 966, 971 (2016).

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Notably, the Nineteenth Judicial Circuit Child Representation Although the possibility of waiver may not be expressly Order already contains provisions that provide for the release delineated in section 607.6(d), the language of the statute does of mental health information to the GAL in accordance with not necessarily rule out the possibility of waiver because it the Mental Health and Developmental Disabilities Confidenti- does not state that counseling communications are privileged, ality Act. Specifically, Paragraph 7 of the Child Representation non-discoverable, or inadmissible. If waiver is possible, attor- Order provides for two releases: neys will likely need to be very specific in the language they use to effectuate the waiver. In practice, this means that it must be 1. If one or more of the children herein is over the age of clear to the parties, the GAL, and the court, the therapists with 12 and is or has been the recipient of mental health or whom the GAL may communicate and what information the developmental disabilities services, the attorney appointed GAL may access from them. Further, the waiver must allow herein is given leave to file a motion requesting an order the GAL to not only access the confidential communications, authorizing him or her to inspect and copy any record kept but also use that confidential information when determining by the therapist or agency in the course of providing such the best interests of the child(ren) and issuing their recommen- services pursuant to 740 ILCS 110/4(a)(5). dations to the court.

2. If one of more of the children herein is under the age of 12 and Conclusion: Section 607.6 Is Vague and is Therefore is or has been the recipient of mental health or developmen- Being Inconsistently Applied by the Court tal disabilities services, the attorney appointed herein is given Although the intent and policy behind section 607.6(d) is leave to file a motion requesting an order directing one of the legitimate, the way the statute is written creates a significant parents to sign releases authorizing him or her to inspect and problem concerning the scope of the statute. In turn, this copy any record kept by the therapist or agency in the course makes section 607.6(d) difficult for practitioners to interpret of providing such services pursuant to 740 ILCS 110/4(a)(1). and understand when it applies to their case. With so many unanswered questions, clarification of the statute’s provisions An unpublished case on this topic suggests waiver of sec- should be of paramount concern for Illinois courts and practi- tion 607.6(d) is possible in instances in which attorneys have tioners. If clarification is not provided, the provisions of section carefully crafted an agreed order. The agreed order would 607.6(d) could be applied inconsistently, making it extremely have to name with whom the GAL may communicate, what difficult for lawyers to know when and how section 607.6(d) records the GAL may access, and allow the GAL to use that might impact their cases. Going forward, it is clear that lawyers information in the litigation when determining the child(ren)’s must be extremely careful when drafting court orders, especially best interest and making recommendations to the court. This if they are seeking to obtain a potential waiver of the section suggests an implied waiver cannot exist, however, there is no 607.6(d) provision. Further, given the importance of GALs direction on what happens if a GAL communicates with a in family law cases, section 607.6(d) should provide more counselor in violation of the 607.6(d). Presumably you cannot details regarding whether they are exempt from considering un-ring the bell (i.e. remove it from consideration in forming an confidential counseling communications when preparing their opinion in the best interests of the child). Therefore, if a GAL recommendations to the court. had knowledge of information prohibited by statute, it could potentially be grounds for the removal of a GAL.

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DCBA_Brief_June_2020.indd 25 6/1/20 12:23 PM ARTICLES Relationship Building and Zealous Advocacy of LGBTQ Clients

By Sarah Schriber and David Fischer

Among the hundreds of offerings for CLE credits, you many to us individually and as members of our communities. It is have seen the acronym LGBTQ or some variations such as important to note that terminology is subjective and evolves LGBTQI, LGBTQQIAAP, and LGBTQ+. You may know that with the progression of history, social movements and even LGBTQ represents the terms Lesbian, Gay, Bisexual, Trans- scientiﬁc advances. A “Golden Rule” related to sexuality and gender, and Queer/Questioning. gender identity is to let people self-identify.

Lawyers should have a working knowledge of identities as they “Sex” is the biological status of male, female, or inter- relate to gender and sexual orientation because knowing the sex, based upon the appearance of external genitalia.2 broader context of a client’s life may illuminate their intentions, Biological sex is the result of a combination of chromosomes, motivation, needs, and priorities, and thus, may strengthen the gonads, hormones, internal reproductive anatomy, and exter- representation. nal genitalia.

This article will discuss key concepts and terminology related Intersex, Disorders of Sex Development to gender and sexuality, including research and statistics that Disorders of Sex Development (DSD), more commonly known illuminate the need for LGBTQ-competent lawyers, important as Intersex, are congenital conditions in which a person is born law and policy regarding LGBTQ clients, so lawyers can more with reproductive or sexual anatomy or chromosomal patterns zealously represent these clients.1 This topic is important to that do not ﬁt typical deﬁnitions of male or female. DSD is lawyers across all areas of practice, as LGBTQ clients are im- an umbrella term covering at least 60 different conditions in pacted in multiple areas of their lives, from the criminal justice which biological sex is not clear at birth. People with DSD may system to workplace discrimination. or may not identify as Intersex.

Key Concepts & Terminology Primer The following concepts are key because they apply to everyone. Everyone has a sex that was assigned to them at birth (people INTERSEX/DSD TERM TO AVOID: often exclaim: “It’s a boy! or It’s a girl!), a gender identity (expressed “Hermaphrodite”: a term that is no longer used by medical professionals with pronouns), and a sexual orientation. because it is stigmatizing and inaccurate. It is appropriate to use the term “intersex” or to say that a person has DSD (or to refer to the speciﬁc The following terms are key because they help describe how name of the disorder itself, such as Androgen Insensitivity Syndrome). the key concepts of birth sex, gender, and sexuality apply

1. In this article, for the purpose of consistency, we will use the acronym “LGBTQ” to refer to people who do NOT identity as straight and/or cisgender. The acronym LGBTQ itself may not be inclusive of people who identify their gender and sexuality in myriad other ways and is not intended to be exhaustive. When necessary, such as when certain research only refers to LGB people, we have foregone the acronym and have written out the terms. 2. Intersex conditions are more accurately known as Disorders of Sex Development.

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Sexual Orientation Relationship Building GENDER-RELATED TERMS TO AVOID: Sexual orientation is a person’s physical, sexual, romantic, “Transsexual”: a term that has been used to pathologize transgender peo- or intimate attraction to other people. Most people begin to ple. If you need to describe a client’s experience of identifying as a gender and Zealous Advocacy of LGBTQ Clients explore and understand their sexual orientation between the that differs from the sex they were assigned at birth, it is appropriate to ages of 11-14.3 Examples of sexual orientation are: refer to them as transgender. Gay: a man who is attracted to some other men “Boy who thinks he’s a girl,” “girl who thinks she’s a boy”: Afﬁrming a person’s gender identity means referring to their gender identity, not to Lesbian: a woman who is attracted to some other women the sex they were assigned at birth. Bisexual: a person who is not exclusively attracted to one gender “Transgenderism”: a term used by anti-transgender activists to dehu- manize transgender people and reduce who they are to “a condition”; Straight: a person who is attracted to people of the other gender instead, refer to being transgender.

SEXUAL ORIENTATION TERMS TO AVOID: “Sex change,” “Pre/post-op”: terms that oversimplify the complex pro- “Lifestyle”, “sexual preference”: these terms imply that a person has cess of gender transition and inaccurately suggest that a person must chosen their sexual orientation, when many gay, lesbian, and bisexual have surgery in order to transition gender; instead, refer to a person’s people feel strongly that their sexual orientation is an inherent part of transition. their identities and not a decision they made. “Biologically male/female,” “genetically male/female,” “born a man/ “Homosexual”: a term that has been used to pathologize gay and lesbian woman”: terms that oversimplify the complex process of gender transi- people; instead, use the terms gay or lesbian. tion; instead, use “assigned male at birth,” “assigned female at birth.”

Gender Identity Gender identity is a person’s sense or experience of belonging to a particular gender category as a man or a boy, woman or a girl, or an identity outside of those categories. Gender identity About the Authors develops early in life, between ages of 3-6.4 Following are some Sarah Schriber is Executive Director of Prevent foundational terms related to gender identity:5 School Violence Illinois, which transforms school culture, reduces bias-motivated aggression, and Transgender: an umbrella term for a person whose fosters conditions for learning and development. gender identity or expression is different from that typi- Previously, Sarah was Policy Director at the cally associated with the sex they were assigned at birth. Illinois Safe Schools Alliance and an attorney NOTE: Some, but not all, transgender people desire medical at the ACLU of Illinois. Sarah graduated from changes to their bodies as part of their gender transition process.6 Northwestern University School of Law.

Cisgender: a person for whom gender identity matches the sex David Fischer is an advocate who works to they were assigned at birth. transform systems that impact the lives of marginalized youth. A consultant with Quo Vadimus, LLC, he works alongside the juvenile 3. Fisher, Poirier, & Blau, 2012 justice, child protection, health, and education 4. Craig, Pepler, Connolly, & Henderson, 2001; Heinze & Horn, 2014; Pascoe, 2011. systems to address the needs of youth and 5. For more information about gender identity-related terminology, see GLAAD Media Reference Guide (10th Ed.), available at https://www.glaad.org/reference. adults using a holistic and transformational 6. Grant, Jaime M., Lisa Mottet, Justin Edward Tanis, Jack Harrison, Jody Herman, and Mara Keisling. In- approach. justice at every turn: A report of the National Transgender Discrimination Survey. National Center for Transgender Equality, 2011.

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SEX, GENDER, IDENTITY & GENDER EXPRESSION Gender Non-Conforming: describes a person whose gender expression (e.g., clothing, mannerisms) differs from conven- Sex Assigned at Birth tional expectations of masculinity and femininity. NOTE: Not all gender non-conforming people identify as Male Female transgender and not all transgender people gender non-con- Gender Identity forming.

Man Gender Expression Woman Non-binary, genderqueer: terms used by some people who experience their gender identity and/or gender expression as falling outside the gender categories of man and woman. They Masculine Feminine may define their gender as falling somewhere in between man and woman, or they may define it as wholly different from Pronouns matter because our assumptions are not always these terms. correct, and a person’s pronouns are an important reflection of who they are. Getting it right can be the difference between connecting with a person and throwing up a brick wall. Asking ARE PRONOUNS IMPORTANT TO YOU? means you’ll get the right answer. Find someone you can talk to about what you did last weekend. Include where you were, what you did, and with whom you did it. Did you go to a Illuminating the Need for LGBTQ-Competent Lawyers party? Whose party? Or maybe a movie? Did you go with another person or A rich body of data drawn from research on the lived expe- a group? Who was in the group? When you are finished, have your partner riences of LGBTQ youth and adults reveals that they often do the same. experience higher rates of harassment, discrimination, violence, and criminalization in their families, in school, in child welfare, Here’s the hitch: you must describe your weekend activities without using at work, in healthcare and in the criminal justice systems, than a single pronoun or other gender-identifying word – that is, no “she and people who are straight and gender conforming. Furthermore, I went to a movie,” “my boyfriend and I went to our friend’s party for her such adverse experiences are compounded when race/ethnic- promotion,” or “Billy? He’s my sister’s son.” ity, ability status, and socioeconomic status are taken into account. People theorize that the conscious and unconscious After you’ve finished, consider how it felt to avoid using pronouns or in- bias against LGBTQ people (which surfaces not only in inter- dicators of gender. Was it challenging? Imagine how it might feel if you personal interactions but in structural and systemic contexts, were a person who felt you had to intentionally avoid such disclosures including law and policy) is at the root of such mistreatment to avoid outing yourself or your relationships? How might it feel to be and manifests in school bullying, punitive school discipline mis-gendered at work? At the grocery store? At church? and push out, family rejection, unemployment, homelessness, perpetration of survival crimes (e.g., trading sex for money, selling drugs, theft), and involvement with the child welfare Pronouns and criminal justice systems.7 The cycle continues as LGBTQ Have you noticed that people have begun to include their people often struggle to find services to address these adverse pronouns in their email signature blocks? Or that at meetings, experiences that are affirming and safe.8 people ask for participants to share their names and pronouns? Or that the pronoun “they” appears in the dictionary alongside Taken together, these data illuminate the need for LGBTQ-com- “she” and “he” as singular? petent lawyers. The following statistics can assist lawyers in

7. For example, see Ilan H. Meyer, PhD, Andrew R. Flores, PhD, Lara Stemple, JD, Adam P. Romero, JD, Bianca D.M. Wilson, PhD, and Jody L. Herman, PhD., Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate Survey, 2011–2012, American Journal of Public Health 107:2, 234-40 (2017). 8. Movement Advancement Project, 2016

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Everyone has a sex that percent of out transgender students were verbally harassed, 25% were physically attacked, and 13% were sexually assaulted was assigned to them in K–12 because of being transgender.12 20% faced such severe mistreatment as a transgender person that they left a K–12 at birth (people often school.13 “ Lesbian, gay, and gender non-conforming youth are three times exclaim: “It’s a boy! or more likely than their straight and gender conforming peers to experience punitive discipline at school, especially girls14 It’s a girl!), a gender Evidence is emerging that these disparities are more severe for LGBTQ youth of color and LGBTQ youth with disabilities.15 identity (expressed with Youth experience disproportionate rates of involvement with the child welfare and juvenile justice systems. pronouns), and a sexual In the U.S., approximately 20% of youth in the child welfare system identify as LGBTQ or gender nonconforming.16 In Illi- orientation. nois, a recent study of the comprehensive well-being of youth in the custody of the Department of Children and Family Services found that 21.8% of youth age 12 to 17 identified as their understanding of their LGBTQ clients’ specific issues, something other than straight.17 Approximately 20% of youth needs, and struggles. Lawyers will gain knowledge that will in the juvenile justice system in the U.S. identify as LGBTQ.18 equip them to better represent their LGBTQ clients compas- Many of these youth are involved in both systems. In contrast sionately and zealously. to these figures, approximately 8% of adolescents in the general population in the U.S. identify as lesbian, gay, or bisexual,19 and LGBTQ youth experience disproportionately high rates of bullying, 1.8% as transgender.20 harassment, and punitive discipline at school. Extensive research documents that gay, transgender, and Adults experience disproportionate rates of contact with the criminal gender nonconforming youth experience higher rates of bul- justice system, and of violence and discrimination once in the system. lying and harassment at school compared to their straight and In Illinois, 69% of transgender people who interacted with gender conforming peers.9 In Illinois in 2017, 72% of LGBTQ police or other law enforcement officers experienced some form students reported verbal harassment, 25% reported physical of mistreatment.21 This included being verbally harassed, re- harassment, and 12% reported assault in school based on sexual peatedly referred to as the wrong gender, physically assaulted, orientation. Sixty-one percent of LGBTQ students reported or sexually assaulted, including being forced by officers to verbal harassment, 22% reported physical harassment, and 10% engage in sexual activity to avoid arrest.22 reported assault based on gender expression.10 Eighty percent of people who were out or perceived as transgender at some point between Kindergarten and Grade 12 (K–12) experienced some form of mistreatment, such as being verbally harassed, 12. Id. 13. Id. prohibited from dressing according to their gender identity, 14. Carter, Fine, & Russell, 2014; Himmelstein & Bruckner, 2011; Poteat, Scheer, & Chong, 2016. disciplined more harshly, or physically or sexually assaulted 15. Chmielewski et al., 2016; Skiba, 2016 16. (Fish, Baams, Wojciak & Russell, 2019) 11 because people thought they were transgender. Fifty-eight 17. Cross, T.P., Tran, S., Hernandez, A., & Rhodes, E. The 2017 Illinois Child Well-Being Study Final Report. Urbana, IL, p. 18: Children and Family Research Center, University of Illinois at Urbana-Champaign. 18. Journal of Gender, Social Policy & the Law, 2016. 19. Kann L., PhD, McManus, T. MS, Harris, W. MM, et al., Youth Risk Behavior Surveillance — United States, 2017. MMWR Surveill Summ 2018; 67 (No. 8):8. 20. Johns MM, Lowry R., Andrzejewski J., et al. Transgender Identity and Experiences of Violence Victimiza- 9. Russell, Sinclair, Poteat, & Koenig, 2012; Berlin, Corliss, Field, Goodman, & Austin, 2010; Kosciw, Grey- tion, Substance Use, Suicide Risk, and Sexual Risk Behaviors Among High School Students — 19 States tak, Zongrove, Clark, & Truong, 2017; Poteat, 2017. and Large Urban School Districts, 2017. MMWR Morb Mortal Wkly Rep 2019; 68:67–71. 10. GLSEN. (2019). School Climate in Illinois (State Snapshot). New York: GLSEN. 21. 2015 U.S. Transgender Survey: Illinois State Report. (2017). Washington, DC: National Center for Trans- 11. 2015 U.S. Transgender Survey: Illinois State Report. (2017). Washington, DC: National Center for Trans- gender Equality. gender Equality. 22. Id.

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While lesbian, gay, and bisexual adults make up approximately ple have not been paid equally or promoted at the same rate 3.5% of the U.S. general population, 5.5% of men in prisons as their peers.32 are gay or bisexual and 33.3% of women in prison are lesbian or bisexual.23 During incarceration, lesbian, gay, and bisexual While employed, LGBTQ people continue to face harassment adults were three times more likely to have been sexually vic- and discrimination. Recently, research conducted by the Hu- timized than other inmates,24 and to experience sanctions like man Rights Campaign found that 1 in 10 employees have heard administrative segregation and solitary confinement.25 their own supervisor make negative comments about LGBTQ people.33 Over half (53%) of LGBTQ employees heard lesbian As compared to 5% of the general population, approximately and gay jokes at work, while 37% heard bisexual jokes and 41% 16% of transgender and gender nonconforming people report heard transgender jokes and nearly one fifth of LGBTQ workers being incarcerated at some point in their lifetimes.26 This rate reported that someone at work has made sexually inappropriate increases to 47% for black transgender people.27 More trans- comments to them because their coworker thought their sexual gender women report experience with incarceration than orientation or gender identity made it okay.34 Thirteen percent transgender men (approximately 21% and 10%, respectively).28 of LGBTQ people were concerned they would be fired because their workplace was unwelcoming of LGBTQ people.35 Regarding the experiences of incarcerated transgender adults, transgender inmates have been shown to be ten times more In the U.S., between 11% and 28% of lesbian, gay, and bisexual likely to report experiencing sexual assault.29 The National employees report losing a promotion because of their sexual Center for Transgender Equality found that 23% were physi- orientation. More than 25% of transgender people have lost cally assaulted by staff or other inmates and 20% were sexually a job due to bias and more than 75% have experienced dis- assaulted.30 Thirty-seven percent (37%) of transgender adults crimination, refusal to hire, privacy violations, harassment, and who were taking hormones before their incarceration were physical and sexual violence in the workplace.36 These numbers prevented from taking their hormones while incarcerated. are higher for transgender people of color.37

LGBTQ people experience high rates of harassment and discrimina- In Illinois, 28% of transgender people who held or applied for a tion in accessing employment and in the workplace. job reported being fired, being denied a promotion, or not be- LGBTQ people face a broad range of experiences in the em- ing hired for a job they applied for because of their gender iden- ployment area that reveal bias, harassment, and discrimina- tity or expression. Fifteen percent of transgender Illinoisans tion related to their sexual orientation or gender identity. In reported losing a job in their lifetime because of their gender the U.S., 20% of LGBTQ people have experienced discrim- identity or expression.38 In 2015, while the national unemploy- ination based on sexual orientation or gender identity when ment rate was 5% and the poverty rate was 11%, transgender applying for jobs, with LGBTQ people of color (32%) more Illinoisans experienced rates of 11% and 21%, respectively. likely to experience this type of discrimination than white LGBTQ people (13%).31 Twenty-two percent of LGBTQ peo- Transgender Illinoisans reported being verbally harassed (18%), physically attacked (1%), and sexually assaulted (2%) at work because of their gender identity or expression. Twen- 23. Ilan H. Meyer, PhD, Andrew R. Flores, PhD, Lara Stemple, JD, Adam P. Romero, JD, Bianca D.M. Wilson, ty-six percent of those who had a job also reported other forms PhD, and Jody L. Herman, PhD., Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate Survey, 2011–2012, American Journal of Public Health 107:2, 234-40 at 238 (2017). of mistreatment based on their gender identity, such as being 24. Beck, A. J., Berzofsky, M., Caspar, R., & Krebs, C. (2013). Sexual Victimization in Prisons and Jails forced to use a restroom that did not match their gender iden- Reported by Inmates, 2011–12. Washington, DC: Bureau of Justice Statistics. 25. Id. 26. Grant, J. M., Mottet, L. A., Tanis, J., Harrison, J., Herman, J. L., & Keisling, M. (2011). Injustice at Every Turn: A Report of the National Transgender Discrimination Survey. Washington, DC: National Center for Transgender Equality & National Gay and Lesbian Task Force. 27. Id. 32. Id. 28. Id. 33. Fidas, Deena and Liz Cooper, A Workplace Divided: Understanding the Climate for LGBTQ Workers Na- 29. Beck, A. J. (2014). Sexual Victimization in Prisons and Jails Reported by Inmates, 2011–12: Supple- tionwide: p. 7 (2018). Washington, D.C.: Human Rights Campaign Foundation. mental Tables: Prevalence of Sexual Victimization Among Transgender Adult Inmates. Washington, DC: 34. Id. at 16. Bureau of Justice Statistics; Beck, A. J., Berzofsky, M., Caspar, R., & Krebs, C. (2013). Sexual Victimiza- 35. Id. at 17. tion in Prisons and Jails Reported by Inmates, 2011–12. Washington, DC: Bureau of Justice Statistics. 36. Sandy E. James, Jody L. Herman, Susan Rankin, Mara Keisling, Lisa Mottet, and Ma’ayan Anafi, National 30. James, S. E., Herman, J. L., Rankin, S., Keisling, M., Mottet, L., & Anafi, M., (2016). The Report of the Center for Transgender Equality (2016), The Report of the 2015 U.S. Transgender Survey: p. 148. 2015 U.S. Transgender Survey, p. 191. Washington, DC: National Center for Transgender Equality. 37. Id. at 150. 31. National Public Radio, the Robert Wood Johnson Foundation, and The Harvard T.H. Chan School of Public 38. 2015 U.S. Transgender Survey: Illinois State Report. (2017). Washington, DC: National Center for Trans- Health, Discrimination in America: Experiences and Views of LGBTQ Americans (2017): p. 1. gender Equality.

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tity, being told to present in the wrong gender in order to keep ly attacked when accessing a restroom. Fifty-eight percent of their job, or having a boss or coworker share private informa- respondents avoided using a public restroom because they tion about their transgender status with others without their were afraid of confrontations or other problems they might permission.39 experience, and 28% limited the amount that they ate or drank to avoid using the restroom.45 LGBTQ people experience high rates of harassment and discrimination while accessing services, such as healthcare and applying for driver’s licenses, or using restrooms. LGBTQ-Affirming Statutes, LGBTQ people often avoid seeking healthcare and experience Caselaw, and Policies that harassment and discrimination once they access healthcare. In research conducted by Lambda Legal, 9% of lesbian, gay, and Every Lawyer Should Know bisexual people reported being concerned about being refused medical services when they need them, and over half of transgender and gender nonconforming reported this concern.40 Sexual orientation and gender identity impact many areas of When accessing healthcare, nearly 8% of lesbian, gay, and legal practice, such as employment, insurance, education, child bisexual people reported being refused medical care outright. custody, divorce, personal injury, housing, and criminal defense This rate rose to 27% for transgender and gender nonconform- and prosecution. Additionally, your clients may have needs relating.41 While seeing a healthcare provider, approximately 10% ed to their sexual orientation and gender identity that go beyond of lesbian, gay, and bisexual people reported having harass- your representation but impact it nonetheless, including the ing language used toward them and 11% reported that health need for correct identity documents (e.g., driver’s license, birth professionals refused to touch them or used excessive pre- certificate, passport), access to services (e.g., domestic violence cautions.42 Again, these rates increased for transgender and shelters, substance abuse facilities), and medical care. The fol- gender nonconforming people, 21% of whom reported lowing are a sampling of the federal, state and local laws, caselaw, being subjected to harsh or abusive language and 8% of and policies to protect and support LGBTQ people. whom reported experiencing physically abusive treatment from a healthcare professional.43 Workplace Harassment and Discrimination LGBTQ also experience bias, harassment, and discrimination Statutory Law while accessing services such as procuring identity documents Title VII of the Civil Rights Act of 1964, 42 U.S.C. such as a driver’s license or a same-gender marriage license, 2000e et seq. Title VII prohibits employment discrimination applying to change their gender markers on birth certificates, based on race, color, religion, sex and national origin. While and going to court to procure a name change. For example, 34% Title VII does not explicitly include sexual orientation or gen- of transgender people in Illinois reported being harassed, denied der identity in its list of protected bases, the U.S. Equal Em- benefits or service, asked to leave or assaulted when their gender ployment Opportunity Commission, which is responsible for presentation didn’t match their identity documents.44 enforcing federal employment discrimination laws, consistent with United States Supreme Court case law and other court In Illinois, 9% of transgender people reported that someone decisions, “interprets the statute’s sex discrimination provision denied them access to a restroom in the past year, 11% report- as prohibiting discrimination against employees on the basis of ed being verbally harassed, and 1% reported being physical- sexual orientation and gender identity.”46

39. Id. 40. When Health Care Isn’t Caring: Lambda Legal’s Survey of Discrimination Against LGBT People and People with HIV. New York: Lambda Legal, 2010, p. 6. 41. When Health Care Isn’t Caring: Lambda Legal’s Survey of Discrimination Against LGBT People and People with HIV. New York: Lambda Legal, 2010, p. 5. 42. Id. at 5. 45. 2015 U.S. Transgender Survey: Illinois State Report. (2017). Washington, DC: National Center for Trans- 43. Id. at 5-6. gender Equality. 44. 2015 survey from the National Center for Transgender Equality 46. https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm#applicable

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The Illinois Human Rights Act47 The Illinois Human transgender plaintiff, assigned male at birth, stated a claim of Rights Act (IHRA) prevents discrimination based on sexual sex discrimination under the Equal Credit Opportunity Act orientation and gender identity (gender identity is included in by alleging that she was denied a loan application because she the statute’s definition of sexual orientation) in public accom- was dressed in traditionally female attire. modations (i.e., facilities, goods, and services available to the public), employment, real estate transactions, financial credit, Identity Documents and primary, secondary, and high school education. Statutory Law The Illinois Identification Card Act, 15 ILCS 335/5. EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 Amended in 2019, the Illinois Identification Card Act F.3d 560 (6th Cir. 2018). Termination of employee on the (IICA) requires that the Illinois Secretary of State permit basis of transgender status violates Title VII. people making applications for driver’s licenses or state identification cards to choose “male”, “female”, or “non- Hively v. Ivy Tech Cmty, Coll. of Ind., 853 F.3d 339 (7th binary” as their gender marker, which will then be Cir. 2017) (en banc). The Seventh Circuit agreed with the displayed on their identification card. (NOTE: The EEOC that Title VII’s prohibition on sex discrimination in- amended law may not be implemented until 2024 due to corporates a prohibition on sexual orientation discrimination, the State’s six-year contract with the vendor it uses for its overruling its contrary prior precedent. Glenn v. Brumby, identification cards). 663 F.3d 1312 (11th Cir. 2011). Termination of employee defendant because she was transitioning from male to female The Illinois Vital Records Act (410 ILCS 535/1). As of is sex discrimination under Title VII. The court also found that January 1, 2018, people may amend the gender markers in discrimination based on sex stereotypes is subject to height- their birth records to reflect their gender identity and not their ened scrutiny under the Equal Protection Clause, and govern- sex assigned at birth.48 ment termination of a transgender person for his or her gender nonconformity is unconstitutional sex discrimination. Education Statutory Law Baldwin v. Dep’t of Transportation, EEOC Appeal Title IX of the Education Amendments of 1972, 20 No. 0120133080 (July 15, 2015). U.S.C. ch. 38 § 1681 et seq. Title IX protects people from A claim of discrimination on the basis of sexual orientation discrimination based on sex in education programs or activi- necessarily states a claim of discrimination on the basis of sex ties that receive Federal financial assistance. under Title VII. Equal Access Act of 198449 The Equal Access Act forbids Discrimination in Accommodations public schools from receiving federal funds if they deny stu- and Services dents the First Amendment right to conduct meetings because Statutory Law of the content of speech at the meetings. If a school permits The Illinois Human Rights Act (see above). students to form non-curricular clubs like the Key Club or the Rosa v. Parks W. Bank & Trust Co., 214 F.3d 213 (1st Cir. drama club, it also must permit students to form Gay-Straight 2000). Citing Title VII case law, the court concluded that a Alliances.50

49. 20 U.S.C. § 4071(a) (The Equal Access Act of 1984 forbids public schools from receiving federal funds if they deny students the First Amendment right to conduct meetings because of the “religious, political, philosophical, or other content of the speech at such meetings”). 50. Morrison v. Boyd County Bd. of Educ. (2007); see also Gay-Straight Alliance of Okeechobee High Sch. v. 47. 775 ILCS 5/ et seq. Okeechobee Sch. Bd. (2007); White County High School PRIDE v. White County Sch. Dist. (2006); Franklin 48. For more information or access to the forms necessary to correct identity documents in Illinois, go Central Gay/Straight Alliance v. Franklin Township Community School Corp. (2002); Colin v. Orange Uni- to: http://www.dph.illinois.gov/topics-services/birth-death-other-records/birth-records/gender- ﬁed School Dist. (2000); East High School Prism Club v. Seidel (2000); East High Gay/Straight Alliance reassignment v. Board of Education of Salt Lake City (1999).

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Illinois Human Rights Act (see above). expressing their gender identity even if that expression does not Illinois Prevent School Violence Act51 The Illinois conform to their sex assigned at birth. Prevent School Violence Act (IVPA) prohibits bullying in all school districts, charter schools, and non-public, non- Child Welfare sectarian elementary and secondary schools.52 The IVPA B.H. v. Smith, 88 C 5599 (N.D. Ill.). B.H. is an active case defines bullying as “any severe or pervasive physical or (consent decree) that has sought improvements to the Illinois verbal act or conduct, including communications made in foster care system through a series of court-ordered reforms, writing or electronically, directed toward a student or stu- such as reducing caseloads, improving the safety of children, dents.”53 In addition to bullying that takes place at school or protecting adequate agency funding, implementing better at school-sponsored activities, the statute applies to bullying training for caseworkers and private agency staff, and reorga- behavior that occurs through the transmission of informa- nizing DCFS systems of supervision and accountability. The tion from a “nonschool-related location, activity, function, case specifically includes targeted advocacy for LGBTQ youth or program or from the use of technology or an electronic in care. device that is not owned, leased, or used by a school district or school if the bullying causes a substantial disruption to the Agency Policies and Directives educational process or orderly operation of a school.”54 The Illinois Department of Children and Family Services (DCFS) has a directive that addresses the housing, health and Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. v. Whitaker, wellness, and medical needs of LGBTQ youth in its care, as well 858 F.3d 1034 (7th Cir. 2017). The Seventh Circuit held as require proper training for DCFS workers and caregivers that requiring individuals to conform their behaviors to gender on the needs of LGBTQ youth.56 stereotyping (in this case, requiring a transgender male student to use the bathroom designated for girls) is a form of sexual Criminal and Related Law discrimination prohibited by Title IX of the Education Amend- Statutory Law ments Act and the Equal Protection Clause of the Fourteenth The Prison Rape Elimination Act, 28 C.F.R. § 115.42- Amendment of the U.S. Constitution.55 43. The Prison Rape Elimination Act (PREA) mandates analysis of the incidence and effects of prison rape in Federal, State, Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996). and local carceral institutions and immigration detention The Equal Protection Amendment of the U.S. Constitution facilities, and policies, procedures, and training to reduce such requires that schools protect students who are bullied because incidences.57 PREA contains standards specific to the care and of their sexual orientation just as they must protect students custody of LGBTQ people. It is important to note that protec- bullied based on race or other protected categories. tions for youth and adults under PREA are similar, with the exceptions highlighted below. Henkle v. Gregory 150 F. Supp. 2d 1067 (D. Nev. 2001). Students have the right to be “out” at school. PREA: Housing and Classification. Housing classification and other screening processes jails and prisons use to determine Doe v. Yunits, No. 001060A (Mass. Cmmw. Feb. 26, a person’s risk for experiencing sexual assault must be made 2001). Schools may not discipline transgender students for on a case-by-case basis and must consider the person’s sexual

51. 105 ILCS 5/27-23.7 et seq. 52. While the Illinois Prevent School Violence Act does not include a cause of action, it is well settled that schools must protect students who are bullied because of sexual orientation and gender identity (see, e.g., L.W. v. Toms River Regional Schools (2007); Flores v. Morgan Hill Uniﬁed School District (2003); Henkle v. Gregory (2002); Nabozny v. Podlesny (1995). 53. 105 ILCS 5/27-23.7(b) (to rise to the level of bullying, the behavior must have or be reasonably predicted to have the effect of one or more of the following: “(1) placing the student or students in reasonable fear of harm to the student’s or students’ person or property; (2) causing a substantially detrimental effect on the student’s or students’ physical or mental health; (3) substantially interfering with the student’s or students’ academic performance; or (4) substantially interfering with the student’s or students’ 56. Illinois Department of Children and Family Services Procedures 302 – Appendix K – (1) 302. APPENDIX ability to participate in or beneﬁt from the services, activities, or privileges provided by a school”). K Support and Well-Being of Lesbian, Gay, Bisexual, Transgender and Questioning (LGBTQ) Children 54. 105 ILCS 5/27-23.7(a)(4)(emphasis added). and Youth, available at https://www2.illinois.gov/dcfs/aboutus/notices/documents/procedures_302_ 55. See also Adams v. School Board of St. Johns County, 318 F.Supp.3d 1293 (M.D. Fla. Jul. 26, 2018) appendices.pdf. (holding that excluding transgender student from school restrooms consistent with his gender identity 57. National PREA Resource Center, available at http://www.prearesourcecenter.org/about/prison-rape- constituted sex discrimination under Title IX and the Equal Protection Clause). elimination-act-prea Accessed October 11, 2015.

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orientation and gender identity (i.e., a person’s genitalia or sex individuals, regardless of the existence of any other motivating assigned at birth cannot be the sole criterion for determining factor or factors,” he or she commits one or more criminal acts placement). A person’s own articulated sense of safety must as defined in the Illinois Criminal Code.60 The statute’s defini- also be considered. tion of “sexual orientation” mirrors that in the Illinois Human Rights Act (see above). In the case of juveniles, PREA states that sexual orientation and gender identity cannot be the sole justification for a hous- R.J. v. Mueller, 12-CV-07289 (N.D. Ill.). R.J. v. Mueller is ing classification decision. Furthermore, juveniles cannot be an active case (consent decree) brought on behalf of a class placed in dedicated LGBT-specific housing units. of juveniles incarcerated at juvenile correctional facilities, alleging unconstitutional conditions and services, among them In contrast, adults may be placed in LGBT-specific housing nonexistent or insufficient policies protecting and supporting units if: (1) the person voluntarily chooses such housing or the LGBTQ youth. decision is made after taking other considerations into account; (2) the housing unit includes other vulnerable populations; or Fields v. Smith, 653 F. 3d 550 (7th Cir. 2011). The Court (3) the housing unit was established as part of the resolution ruled that the Wisconsin law barring prison doctors from of a lawsuit. pursuing the best course of treatment for transgender inmates by denying them access to any type of hormone therapy or sex PREA: Showering. Transgender, gender non-conforming, reassignment surgery while in state custody violated the U.S. and intersex people must be allowed to shower individually Constitution rights to equal protection and freedom from cruel regardless of where they are housed. and unusual punishment.

PREA: Protective Custody. Facilities may only use protective Agency Policies and Directives custody (i.e., isolated custody for the sake of an inmate’s safe- Illinois Department of Corrections and Illinois Department of ty) of LGBT adults as a last resort and not for longer than 30 Juvenile Justice. The Illinois Departments of Corrections and days. LGBT adults in protective custody must be given access Juvenile Justice have LGBTQ-affirming policies that address to programs and services. the housing, health and wellness, and medical needs of LGBTQ inmates. LGBT juveniles may not be placed in protective custody based on their sexual orientation or gender identities. Cook County Jail and the Cook County Juvenile Temporary Deten- tion Center. Both the adult and juvenile jails in Cook County PREA: Searches and Pat Downs. Facilities may not search or have LGBTQ-affirming policies that address the housing, health otherwise examine inmates to determine their “genital status”. and wellness, and medical needs of LGBTQ inmates. PREA prohibits “cross-gender” searches; the statute is unclear about how this provision relates to transgender, gender non- DuPage County Jail. The DuPage County Sheriff’s Office has conforming, and intersex inmates.58 stated the following policy on their website, “The DuPage County Sheriff’s Office is committed to providing a safe and Illinois Hate Crime Statute59 Hate crime law applies when healthy environment for staff and inmates. The DuPage County “by reason of the actual or perceived race, color, creed, reli- Sheriff’s Office has a zero-tolerance policy with regard to sex- gion, ancestry, gender, sexual orientation, physical or mental ual abuse and sexual harassment of inmates, either by staff disability, or national origin of another individual or group of members or other inmates. Inmates have the right to be free

58. The PREA Resource Center suggests that best practice is for transgender, gender nonconforming and intersex inmates choose the gender of staff they feel most comfortable with to perform searches. 59. 720 ILCS 5/12-7.1 et seq. 60. Id. at 5/12-7.1(a).

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from sexual abuse, from sexual harassment and from retal- witnesses, advocates, and other people involved in your cli- iation for reporting such incidents. Sexual acts or conduct ent’s case and in the courtroom treat your client with respect. between inmates or between inmates and any staff member, This may mean advocating that everyone uses the names even if consensual are prohibited and are subject to adminis- and pronouns that your client uses (regardless of what is in trative and disciplinary sanctions as well as possible criminal documentation) and educating them about LGBTQ issues. action.” • Be ready to address issues that arise regarding your client’s appearance or clothing. Relationship Building and Zealous • Be prepared to address bias toward LGBTQ clients in jury Representation selection Now that we’ve illuminated need for LGBTQ-Competent lawyers and identified some of the key legal supports, consider Detention and Incarceration some of the ways you can best represent your LGBTQ clients’ • Be prepared to educate opposing counsels, police, jail/ needs. prison staff, and others about LGBTQ issues. • Advocate that incarceration be used as a last resort for your Your Attorney-Client Relationship client, given the significant safety risks LGBTQ individuals • During your intake interview, ask your client’s name(s) and face in jails and prisons. pronouns. Realize that they may differ from those on their • Work with pre-trial services, probation, parole, and jail/ driver’s licenses or identification cards, arrest records, and prison staff and opposing counsel to obtain the LGBTQ- other documentation. affirming services for your client while incarcerated and in - It is okay to ask. the community after release. - It is okay to get it wrong. Apologize and let your client self-identify. Collateral Issues • Discuss with your client how they would prefer to be • Become familiar with the range of services that may help addressed in meetings with you, in meetings with others, in your client to increase their health, safety, and well-being as court, and in documents. it relates to your representation of them and beyond. Such - Your client may wish for you to address them a particular services might include: way but to be addressed another way in court or in legal • Help your transgender clients get their names/gender mark- documents. ers corrected on identity documents or connecting them - Be prepared to advocate that judges and others involved with someone who can. in the representation use names and pronouns that differ • Identify and become familiar with affirming health and other from those in the documents before them. services for your LGBTQ clients. • Endeavor to learn your client’s social history, particularly • Advocate for safety and support in school settings. the experiences that led them to the situation about which • Advocate that your young client be placed with an they have sought your assistance. As with any client, it is LGBTQ-affirming foster family, group home, or other set- likely that the detailed context of their story will illuminate ting. the situation for which they have sought your assistance and will enable you to better represent their interests. Thus, lawyers can use these practical applications, the statutes and case law, and their knowledge of gender and sexuality, Meetings, Discovery, and the Courtroom to better understand a LGBTQ client’s needs and priorities and to • Advocate that judges, lawyers, security, opposing counsel, ensure a competent and zealous representation.

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The litigation of nursing home abuse and neglect cases has increased dramatically in recent years. The most recent statistics from the Center for Disease Control show that as of 2015 more than 1.3 million people reside in nursing homes in the United States.1 According to the American Health Care Association, over the next three decades the United States will see unprecedented growth in its senior population as the “baby boomer” generation ages, with increases in healthcare demands across the industry, including nursing homes.2

In addition to having more people enter nursing homes, the Five Essential Differences role of the nursing home has changed within the context of Between Medical our overall healthcare system. Nursing homes are no longer simply residential facilities for relatively stable elderly patients. Malpractice and Nursing Nursing homes are increasingly taking on patients with more complex medical issues, including patients who require dialy- Home Neglect Cases sis, tracheostomy and cardiac care.3 This increase in the acuity By Matthew Heimlich of the nursing home resident population has placed additional, and more consequential, responsibilities on the nurses and certiﬁed nursing assistants charged with ensuring the safety of these residents.

When injuries do occur in a nursing home setting, it is important to understand the differences between the laws and regulations governing skilled nursing facilities and those applicable to hospitals or other medical providers. This article will serve to highlight ﬁve major differences in the legal framework for claims of neglect or abuse in a nursing home, as opposed to claims for injury occurring in a hospital or other medical setting.

Nursing Home Care Act v. Healing Arts Malpractice Act The Nursing Home Care Act (“NHCA”)4 is a comprehensive statute that regulates nursing homes in Illinois. The General Assembly enacted the NHCA amid concern over “inadequate, improper and degrading treatment of patients in nursing homes.”5 It was described by one of its main sponsors as a “full reform of the nursing home industry.”6 A principal component

1. https://www.cdc.gov/nchs/fastats/nursing-home-care.htm 2. https://www.ahcancal.org/research_data/Pages/LTC-Patient-Projections.aspx 3. https://skillednursingnews.com/2019/09/why-hard-to-place-patients-are-a-challenge-and-an- opportunity-for-snfs/ 4. 210 ILCS 45/1, et. seq. 5. Harris v. Manor Healthcare Corp., 111 Ill.2d 350, 357-58, 489 N.E.2d 1374, 1377 (1986) 6. Harris, 111 2d. at 358, 489 N.E.2d at 1377.

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of the NHCA is the residents’ “bill of rights”, under which nurs- neglect. However, these regulations are national standards that ing home residents are guaranteed certain rights, inter alia, need to be met in order for facilities to receive Medicare bene- the right to be free from abuse and neglect by nursing home fits. In addition, if a facility is found by the Illinois Department personnel. 7 of Public Health (“IDPH”) to be noncompliant with OBRA, the facility can be fined, have their license to operate censured On the other hand, claims of malpractice against physicians, or suspended, or both. Therefore, facilities will generally ac- hospitals and other medical providers are governed by the knowledge that they are required to operate in accordance Healing Arts Malpractice Act (“HAMA”). 8 The HAMA was with the OBRA regulations. enacted in an attempt to “reduce the burdens existing in the health professions as a result of the perceived malpractice On the other hand, hospitals are not subject to a comparable crisis.”9 set of state or federal regulations. To show negligence, injury cases in medical settings usually require expert testimony that It does not appear that our legislature intended for negligence the individual medical provider at issue fell below the applicable occurring at nursing homes to be encompassed by HAMA, standard of care. In addition, pursuing an institutional negli- because by the time the HAMA was enacted in 1985, the gence case against a hospital or other medical facility generally NHCA had already been in effect for approximately five (5) requires separate allegations and additional expert testimony. 13 years. While there are many reasons why hospitals and nursing These separately pleaded allegations must implicate the hospi- homes operate under different regulatory schemes, the Illinois tal’s failure to meet its duty in performing its managerial and Supreme Court pointed out that “persons usually are hospi- administrative roles, along with the enforcement of its rules and talized for only brief periods of time, whereas nursing home regulations. 14 residents may be dependent upon the facility operator for a period of years. Thus, the potential for long-term abuse and Physician Reports neglect is far greater for nursing home residents than it is for Under the HAMA, medical malpractice plaintiffs must file hospital patients.”10 with their complaint a written report certifying the merits of their claim.15 This report (“a 2-622 report”) must be State and Federal Regulations authored by a licensed physician, knowledgeable about the issues In addition to the NHCA, nursing homes in Illinois must also involved in the case, who has practiced or taught within the maintain compliance with other applicable state and federal last six years in the same area of medicine, and is qualified by regulations. Additional state regulations pertaining to nursing experience or demonstrated competence in the subject matter homes are found within the Illinois Administrative Code.11 of the case.16 While many of these mirror NHCA provisions, there are additional and more specific requirements within the code. The NHCA has no such requirement. Our Supreme Court identified the inherent inconsistency of imposing HAMA The federal regulations pertaining to nursing homes were requirements on a case brought pursuant the NHCA. “If a enacted by the Omnibus Budget Reconciliation Act of 1987 (“OBRA”).12 These regulations created a set of minimum standards of care and rights for nursing home residents. The OBRA regulations do not contain a private right of action, and About the Author therefore violating these regulations is not per se evidence of Matthew Heimlich represents victims and their families in nursing home negligence and other 7. 210 ILCS 45/2-101 through 2-113; Eads v. Heritage Enterprises, Inc., 204 Ill.2d 92, 97, 787 N.E.2d 771, personal injury cases. His extensive knowledge 774 (2003); Harris, 111 Ill.2d at 358, 489 N.E.2d at 1377 of nursing home regulations and the long- 8. 735 ILCS 5/2-622 9. Bernier v. Burris, 113 Ill.2d 219, 252, 497 N.E.2d 769, 779 (1986) term care industry has resulted in numerous 10. Harris, 111 Ill.2d at 372, 489 N.E.2d at 1384 settlements in the six and seven-figure range 11. 77 Ill. Admin. Code 300.110, et. seq. for his clients. He is currently at the law firm of 12. 42 C.F.R. § 483 13. Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965). Walsh, Knippen & Cetina, Chtd. in Wheaton. 14. Frigo v. Silver Cross Hosp. and Medical Center, 377 Ill.App.3d 43, 876 N.E.2d 697 (1st Dist. 2007) 15. 735 ILCS 5/2-622(a) 16. 735 ILCS 5/2-622(a)(1)

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plaintiff’s private right of action for damages were bound by to be proportionate to the recovery achieved. In one case, the the terms of section 2-622, it would likewise be bound by the appellate court afﬁrmed a trial court’s award of $85,000.00 in other statutes directed at medical malpractice which were in- attorney fees, even though the verdict obtained by the resident serted into the Code of Civil Procedure by the legislature when was only $7,478.96, less a reduction of 50% for the resident’s it adopted section 2-622, there would be no principled way to comparative fault.22 Recently, in the Grauer v. Clare Oaks case, differentiate between the various statutory restrictions... Core the First District appellate court awarded attorneys’ fees in ex- provisions of the Nursing Home Care Act would be rendered cess of $1 million in a NHCA case pursuant to a 1/3 contingent inoperable.” 17 The court continued, “Had the General Assem- fee agreement.23 The court reasoned that under a fee-shifting bly wished to subject claims against nursing home owners and statute, the objective is to award plaintiff’s counsel the market licensees to section 2-622’s requirements, it could easily have rate for the services reasonably required to produce the victory, included them in the statute’s provisions, just as it did with and determined that a 1/3 contingency fee was a reasonable hospitals. It did not.”18 award for attorneys’ fees pursuant to the NHCA under the circumstances.24 The Supreme Court has also noted that while claims under the NHCA may sometimes involve a resident’s medical care, they The court in Grauer also clariﬁed the issue of what costs could do not directly implicate individual health-care providers. The be recovered pursuant to the NHCA. The court awarded costs only defendants liable for damages, costs and attorneys’ fees of $147,471.55 to the prevailing plaintiff, including reimburse- under the NHCA are the owners and licensees of the nursing ment for testifying experts’ fees, trial exhibits, trial technology home.19 and video editing, obtaining medical records, court costs, fees of court reporters and videographers for depositions, fees of However, complaints made against nursing homes that court reporters at the trial, production expenses for a day- fall outside of the NHCA (i.e. Wrongful Death Act) may in-the life video and expenses of travel for an out-of-state require a 2-622 report. Whether or not a 2-622 report would be expert deposition.25 required is dependent upon the nature of the allegations against the facility. If the allegations only involve the failure to Punitive Damages provide personal care and services, a physician’s report may not Under HAMA, punitive damages are expressly prohibited by be required. Alternatively, if the allegations involved failures statute.26 By contrast, punitive damages may be available in in nursing or medical care, a physician’s report would likely be certain circumstances in nursing home cases. Our Supreme required. Court has held that Plaintiffs may recover common-law punitive damages upon a showing of willful and wanton misconduct Attorneys’ Fees and Costs Shifting by the Defendant.27 However, claims for punitive damages do Like most causes of action, cases brought pursuant to the not survive the death of the nursing home resident on whose HAMA require each side to bear its own attorneys’ fees and behalf the cause of action was brought.28 costs. The NHCA is notable because it has a fees and costs shifting provision, awarding “actual damages and costs and CAUTION – Limits of the Nursing Home Care Act attorneys’ fees” to a prevailing plaintiff in the event of a judg- The Nursing Home Care Act applies to skilled nursing fa- ment.20 However, the NHCA is silent as to how fees are to cility “owners and licensees” ONLY. Negligence allegations be calculated. There are several cases where the court has against an individual healthcare provider or facility adminis- approved an hourly calculation pursuant to the Lodestar trator for acts or omissions at a nursing home would fall outside method.21 These attorney fee awards do not necessarily have the scope of the NHCA and may be subject to the HAMA.

22. Berlak, 284 Ill.App.3d at 244, 671 N.E.2d at 776 17. Eads, 204 Ill.2d at 105, 787 N.E.2d at 778 23. Grauer v. Clare Oaks, 434 Ill. Dec. 375, 418, 136 N.E.2d 123, 166 (1St Dist. 2019). 18. Eads, 204 Ill.2d at 107-08, 787 N.E.2d at 779-80. 24. Grauer 434 Ill. Dec. at 414-17, 136 N.E.2d at 162-66. 19. 210 ILCS 45/3-601, 3-602 25. Grauer, 434 Ill. Dec. at 419, 136 N.E.2d at 167. 20. 210 ILCS 45/3-602 26. 735 ILCS 5/2-1115 21. Berlak v. Villa Scalabrini Home for the Aged, Inc., 284 Ill.App.3d 231, 671 N.E.2d 768, 776 (1st Dist. 27. Dardeen v. Heartland Manor, Inc., 186 Ill.2d 291, 300, 710 N.E.2d 827, 832-33 (1999) 1996) 28. Vincent v. Alden-Park Strathmoor, Inc., 241 Ill.2d 495, 506, 948 N.E.2d 610, 616 (2011)

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Similarly, allegations of wrongdoing by a corporate manage- it is important to ment company, pharmacy or vendor would not be governed by understand the the NHCA. Conclusion differences between the Nursing home facilities have a unique position within our healthcare industry. As such, they operate within a speciﬁc “ legal and regulatory framework, which is substantially different laws and regulations from those applicable to hospitals and other medical providers. It is essential for attorneys representing abused or neglected governing skilled nursing nursing home residents to have a thorough understanding of these essential differences. Fully asserting all of the rights that facilities and those have been endowed by law to nursing home residents will serve to further their interests and hold the facility accountable for applicable to hospitals or abuse or neglect. other medical providers.

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DCBA_Brief_June_2020.indd 39 6/1/20 12:23 PM ARTICLES The Litigation Mineﬁeld: How to Avoid Being A Casualty From The Circuit Court To The Appellate Court

By Edward R. Sherman

Few of us are perfect and losing is part of the life of a trial asserted as a motion to dismiss under 735 ILCS 5/2-619(a) and appellate attorney. We may lose because our client was (9) at the outset of a case.2 Apart from these issues, attorneys not credible or there just was not enough evidence to convince need to be mindful to amend their pleadings throughout their a trier of fact. We may also lose because we are trailblazing a case as additional facts and theories develop because “proof novel issue of law. These losses occur and while they may lead without pleadings is as defective as pleadings without proof,” to disappointment with clients, they are acceptable. which can result in losing an appeal.3 Finally, when drafting a verified complaint, be mindful that any admissions against On the other hand, there are some losses that are avoidable, a party’s interest (i.e. a definitive statement of an amount of unacceptable and can be traps for the unwary. The most damages or an action by a plaintiff) may be considered a judi- well-known relate to deadlines, failure to raise arguments or cial admission such that a particular point is conceded for the comply with court rules. While some of these can be overcome rest of the lawsuit.4 based on a court’s general preference to have a case tried on its merits, they are minefields for the unguarded that attorneys In the event a motion to dismiss, motion for judgment on the prefer to avoid. This article explores these minefields at the cir- pleadings or a motion for summary judgment is presented in cuit court level that may impact a party’s success on appeal, as response to a complaint, attorneys should consider asking for well as initial appellate steps that require extra caution. leave to amend or seek discovery as an alternative to setting a briefing schedule. While courts have discretion in granting Pleadings – leave to amend a complaint, leave is to be freely given and Don’t Lose A Limb Trying to Get in the Door courts that fail to do so can be found to have abused their dis- The first minefield relates to the governing document of all law- cretion, especially early in a case.5 suits: the complaint. Illinois is a fact pleading jurisdiction, and failure to set forth sufficient facts can result in the dismissal Discovery – of a case at its beginning.1 Additionally, attorneys should Think On Your Feet So You Don’t Risk Losing Them anticipate possible affirmative defenses that may be raised The second minefield relates to discovery. While most attor- when drafting a complaint as affirmative defenses can also be neys think about facts they need to prove their case at trial, it

2. See 735 ILCS 5/2-619(a)(9). 3. American Standard v. Basbagill, 333 Ill.App.3d 11, 15, 775 N.E.2d 255, 258-59 (2nd Dist. 2002). 4. Shelton v. OSF Saint Francis Medical Center, 372 Ill. Dec. 241, 245-47, 991 N.E.2d 548, 552-54 (3rd Dist. 2013. 5. Bd. Of Educ. of Chicago v. Bd. of Trustees of Public Schools Teachers Pension, 395 Ill.App.3d 735, 741, 917 1. Alpha School Bus Co., Inc. v. Wagner, 391 Ill. App.3d 722, 735, 910 N.E.2d 1134, 1148 (1st Dist. 2009). N.E.2d 527, 532-33 (1st Dist. 2009).

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is also important to ensure the facts being developed will be motion be presented and a briefing schedule set at least 45 days admissible as well. Make sure to think about how to authen- before trial.11 ticate documents and establish foundations for admission, as well as how to avoid exclusionary rules such as hearsay and For a party opposing a summary judgment motion, developing relevance. Also, treat evidence depositions as “trial” because disputed facts during depositions on issues that may form the there is no opportunity to take a second bite at the apple to basis of a summary judgment motion is crucial. Additionally, admit evidence from a witness who is not present. a pause should be taken before agreeing to a briefing schedule. This ensures that all discovery needed to respond has been These rules are important not only for trial, but also at the obtained. If additional discovery is needed, a request should be summary judgment stage because Supreme Court Rule 191(a) made to enter and continue, if possible. If discovery is unattain- requires documents in response to a motion for summary judg- able, consideration should be given to filing a Supreme Court ment be authenticated and be admissible at trial.6 Rule 191(b) affidavit setting forth the discovery that cannot be obtained and the reasons why it cannot be obtained.12 This Mandatory Arbitration – will at least provide a record of additional evidence that can be Don’t Forget Your Ammunition argued as a basis for reversal on appeal. Finally, if oral While not all cases proceed with mandatory arbitration un- argument is granted, the nonmoving party should generally der Supreme Court Rules 86 through 95, as well as 222, close consider obtaining a court reporter in any county where one attention must be paid to the rules in situations when arbi- is not provided so that the appellate court will have all argu- tration is applicable. First, Supreme Court Rule 222 requires ments made to the circuit court, including arguments that may certain disclosures be made without request from an opposing be made for the first time at oral argument in response to a party.7 Undisclosed evidence results in a mandatory exclusion movant’s reply brief. at trial except by leave of court and with good cause shown.8 Furthermore, no discovery is allowed after the arbitration Trial Motions – Be Prepared For Battle hearing and before trial unless good cause is shown.9 Finally, Motions in limine are important for excluding evidence that the failure of a party to appear at an arbitration hearing consti- should not be heard at trial. Don’t let hard work go to waste by tutes a waiver of the right to reject an award.10 failing to enforce motions in limine at trial. Failure to enforce a motion in limine may constitute a waiver. Also, if a motion Pretrial Motions – Build A Shield To Protect Yourself in limine results in important evidence being excluded, make Summary judgment motions are based on a combination of an offer of proof as to what the evidence would have shown at the law underlying the legal theories being presented and trial and assert arguments as to why exclusion was improper. the facts developed in discovery. For a party attempting to Crucial evidence that is excluded can be a good argument for obtain summary judgment, it is important to keep question- reversal on appeal if it is material to the outcome of the case. ing, during depositions and other discovery devices, focused on the issues on which you are seeking summary judgment. Maintaining focus ensures that answers to interrogatories and deposition transcripts are clear and provide undisputed facts that you need to prevail on a particular legal theory. Also, for attorneys practicing in Cook County, keep in mind that Cook About the Author County Local Rule 2.1(f) requires that a summary judgment Edward R. Sherman is an attorney in the Oak Brook firm of Lillig & Thorsness, Ltd. His practice includes civil litigation and appeals. 6. See JPMorgan Chase Bank, N.A. v. E.-W. Logistics, L.L.C., 380 Ill. Dec. 854, 874, 9 N.E.3d 104, 124 (1st He is a member of the Appellate Lawyers Dist. 2014)(requirement that documents be authenticated in support of a motion for summary judg- Association, Illinois Association of Defense ment); Robidoux v. Oliphant, 201 Ill.2d 324, 344, 775 N.E.2d 987, 998-99 (Ill. 2002)(Rule 191(a) is not a technicality). Trial Counsel, as well as the Defense Research 7. Ill. Sup. Ct. R. 222(d). Institute’s Appellate Advocacy Committee. 8. Ill. Sup. Ct. R. 222(g). 9. Ill. Sup. Ct. R. 89. 10. Ill.. Sup. Ct. R. 91. 11. Cook County L.R. 2.1(f). 12. Ill. Sup. Ct. R. 191(b).

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application of existing law.”13 Of the three bases, error in ap- ...attorneys need to be plication of existing law is the most commonly asserted. It is not proper to raise new issues, but a party is not constrained to mindful to amend their repeat previous arguments verbatim. Additionally, in the event new material is presented on a motion to reconsider, it is the pleadings throughout circuit court’s discretion to consider additional material.14 It is important to get a ruling on a motion to reconsider because “to “ preserve an issue for review, a litigant must first obtain either their case as additional a ruling on the issue or a refusal to rule on it from the [circuit] facts and theories develop court.”15 While motions to reconsider are important, they do not because “proof without apply in every situation. Examples of orders to which motions to reconsider do not apply include: injunctions, orders compelling pleadings is as defective arbitration, receivers, mortgagees in possession, termination of parental rights and eminent domain proceedings.16 as pleadings without Final And Appealable Orders – proof,” which can result Get Ready To Seek Vindication In order to appeal, it is first necessary to have a final and appealable order. Certain orders such as judgments are final and in losing an appeal. appealable, while other orders first require a finding by a circuit court.

Examples of orders that are automatically final and appealable Having a second chair or appellate counsel observe and assist include: 1) judgments, 2) status of parties in guardianships/ at trial can prevent these issues from inadvertently being over- estates, 3) final judgments affecting rights of parties relating looked. to receiverships and similar proceeding not appealable under Rule 307(a)(304(b)(2), 4) section 2-1401 petitions and Motions To Reconsider – Treat Your Wounds 2-1402 citation final orders/judgments, 5) friendly contempt to Motions to reconsider are an important tool, but it is import- challenge discovery orders, and 6) judgments that determine ant to know when and how to use them. “The purpose of a parental custody.17 Additionally, as set forth above, appeals re- motion to reconsider is to bring to the court’s attention newly lating to injunctions, orders compelling arbitration, receivers, discovered evidence which was not available at the time of the mortgagees in possession, termination of parental rights, and hearing, changes in the law or errors in the court’s previous eminent domain proceedings are all immediately appealable.18

13. Korugluyan v. Chicago Title and Trust Company, 213 Ill.App.3d 622, 627, 572 N.E.2d 1154, 1158 (1st Dist. 1991). 14. Greer v. Yellow Cab Co., 221 Ill.App.3d 908, 915, 582 N.E.2d 1292, 1296-97 (1st Dist. 1991). 15. Raintree Homes, Inc. v. Village of Kildeer, 302 Ill.App.3d 304, 306, 705 N.E.2d 953, 954 (2nd Dist. 1999). 16. Ill. Sup. Ct. R. 307(a); Royal Indemnity Company v. Chicago Hospital Risk Pooling Program, 372 Ill.App.3d 104, 107, 865 N.E.2d 317, 321 (1st Dist. 2007) (stating that an order compelling arbitration is analogous to a motion for injunctive relief). 17. Ill. Sup. Ct. R. 303(a); Ill. Sup. Ct. R. 304(b). 18. Ill. Sup. Ct. R. 307(a); Royal Indemnity Company v. Chicago Hospital Risk Pooling Program, 372 Ill.App.3d at 107, 865 N.E.2d at 321 (1st Dist. 2007) (stating that an order compelling arbitration is analogous to a motion for injunctive relief).

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Examples of orders needing special permission include: 1) under Rule 306 have a 14-day deadline, while appeals under interlocutory appeals under Rule 306 relating to granting Rule 308 have a 30-day deadline.26 new trials, 2) forum non conveniens/venue, 3) personal jurisdiction, 4) parental custody orders, and 5) disqualifi- The second important issue as part of initial appellate pro- cation of counsel.19 Additionally, if an order is entered that ceedings is seeking a stay, if one is desired. For monetary disposes of claims against one party or less than all claims, a judgments, stays require posting of a bond or other security.27 circuit court can enter a finding that there is no just reason While the amount needed for a stay is generally the amount for delaying enforcement or appeal. The circuit court’s of the judgment plus anticipated post-judgment interest, the order, however, must be express and apply to a claim.20 circuit court can consider the maximum amount available to Finally, a circuit court can certify an issue where there is a the judgment debtor and fashion a specific remedy allowing substantial ground for difference of opinion, and an imme- a judgment debtor to proceed with the appeal.28 Stays should diate appeal may materially advance the ultimate termina- also be considered if there is an appeal of a foreclosure because tion of the litigation.21 if a property is sold to a third party during the pendency of an appeal, a reversal of a foreclosure judgment will not affect the Initial Appellate Procedures – sale to a third party during the pendency of an appeal.29 Getting Your Foot In The Door Again Once a determination has been made that there is a final and Once the issues of the notice and stay are addressed, it is import- appealable order, it is important to know when and what action ant to docket the timeframe and tasks for all remaining parts of needs to be taken. The most important issue to address an appeal. Different types of appeals have different time frames initially is when and where to file a notice of appeal/applica- for filing and particular attention should be paid with respect to tion/petition. the rules for the type of appeal being pursued. For example, an appeal of a final judgment has a briefing schedule of 35/35/14 A notice of appeal is the method for conferring jurisdiction days, while an appeal under Rule 307(a) has a briefing schedule of an appeal with the appellate court and if it is not timely of 7/7/7 days.30 Additionally, it is important to request any tran- filed an appeal will fail.22 For judgments and final orders, the scripts of proceedings early on to ensure the timely provision of notice should be filed with the circuit court within 30 days of the record by the circuit court to the appellate court.31 However, the entry of the judgment being appealed.23 For interlocutory it is also important to keep in mind that in DuPage County, the appeals under Rule 307(a), the notice of appeal should be clerk of the circuit court typically transmits the record on ap- entitled “notice of interlocutory appeal” and also must be filed peal once all transcripts of proceeding are received. This means within 30 days with the circuit court, however, a supporting that the quicker the transcripts of proceeding are requested and record also must be filed with the appellate court within the provided, the quicker an appellant’s brief on appeal will be due. same 30-day timeframe.24 For appeals seeking permission under Rule 306 and certified questions under Rule 308, the In conclusion, we all make mistakes. However, after reading appeal is filed directly with the appellate court in the form this article, the unacceptable kind that all attorneys dread can of the petitions/applications actually being made.25 Appeals hopefully be better avoided.

19. Ill. Sup. Ct. R. 306. 20. Ill. Sup. Ct. R. 304(a); John G. Phillips & Assoc. v. Brown, 197 Ill.2d 337, 339, 757 N.E.2d 875, 877 (Ill. 2001). 26. Id. 21. Ill. Sup. Ct. R. 308. 27. Ill. Sup. Ct. R. 305(a). 22. First Bank v. Phillips, 379 Ill.App.3d 186, 188, 882 N.E.2d 1265, 1267 (2nd Dist. 2008). 28. Id. 23. Ill. Sup. Ct. R. 303(a), 304(a), 304(b). 29. Ill. Sup. Ct. R. 305(k). 24. Ill. Sup. Ct. R. 307(a). 30. Ill. Sup. Ct. R. 343; Ill. Sup. Ct. R. 307(a). 25. Ill. Sup. Ct. R. 306, 308. 31. Ill. Sup. Ct. R. 323, Ill. Sup. Ct. R. 326.

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DCBA_Brief_June_2020.indd 43 6/1/20 12:23 PM ARTICLES An Analysis of the Small Business Reorganization Act of 2019 By Joshua Greene

In a rare act of bipartisanship, Congress recently enacted the and streamlining of the bankruptcy process may be sufficient Small Business Reorganization Act of 2019 (“SBRA”), which to entice a debtor to choose to proceed under the new SBRA. took effect on February 19, 2020. The SBRA, which is en- In order to qualify to proceed under Subchapter V, the Debtor compassed in a special Subchapter V of Chapter 11, makes must have no more than $7,500,000 in total secured and unse- substantial changes to the way small business reorganizations cured debt.2 One element that may discourage a debtor from are treated under the Bankruptcy Code. The purpose of the filing under the new amendments, however, is the appointment SBRA is to make it easier and less costly for small businesses to of a third party trustee. reorganize under Chapter 11. This article provides an analysis of some of the most important amendments and how these Appointment of Trustee amendments may impact future small business Chapter 11 One of the primary highlights of the SBRA is the appoint- filings, both good and bad. ment of a trustee.3 The trustee oversees the bankruptcy case, investigates the debtor’s assets and financial affairs, makes Debtor Must Make Election recommendations on the debtor’s plan of reorganization, en- At the outset, it’s important to note that the chapter 11 debtor sures that the debtor makes timely payments under the plan of is not required to proceed under the new rules at all. Amended reorganization, and ensures that the debtor is complying with Section 103(i) provides that “Subchapter V of chapter 11 of all appropriate applicable provisions of the Bankruptcy Code. this title applies only in a case under chapter 11 in which a The trustee is entitled to compensation for services rendered in small business debtor elects that subchapter V of chapter 11 a similar fashion to trustees in other types of bankruptcy cases. shall apply.”1 Thus, the Debtor has the ability to choose wheth- The role of the trustee under the SBRA appears to be similar to er to proceed under the small business provisions of chapter 11 the role of a chapter 12 or chapter 13 trustee in that the trustee which were enacted in 2005, or the new amendments. Debt- does not operate the business of the debtor or liquidate assets. or’s counsel must carefully analyze the differences between Rather the trustee acts in an oversight role and ensures that the two statutes and how they may impact the potential ability the debtor performs the duties required under the Bankruptcy of the debtor to reorganize. While a debtor is not required to Code. Importantly, the SBRA requires the trustee facilitate the proceed under the new amendments, the potential cost savings development of a consensual plan of reorganization.4

2. 11 U.S.C. §101(51). The debt limit was recently increased in the CARES Act to $7,500,000. This increase is temporary, however, and expires in one year from the enactment of the CARES Act, in March 27, 2021, at which point the debt limit will decrease to $2,725,625. 3. 11 U.S.C. §1183 1. 11 U.S.C. §103(i). 4. 11 U.S.C. §1183(b)(7)

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No Creditors’ Committee Only Debtor May File a Plan Prior to the enactment of the SBRA, in many cases, a commit- The prior chapter 11 provisions allowed the debtor an tee of unsecured creditors would be appointed by the court. exclusivity period of 180 days within which to file a plan of The purpose of the creditors’ committee is to represent the reorganization. After this point, creditors could file a plan as body of unsecured creditors, investigate the assets of the debt- well. Quite often, this led to costly litigation over competing or, and make recommendations to the court. Quite often, the plans of reorganization. The SBRA eliminates the exclusivity fees of the creditors’ committee were paid by the debtor, which period and provides that only a debtor may file a plan of could prove quite expensive. The new amendments provide reorganization.6 The Debtor must act quickly to file its plan that a committee is not appointed in a case where the debtor within 90 days, however, as the SBRA allows extensions only in elects to proceed under the SBRA.5 The chapter 11 trustee’s extremely limited circumstances, providing that the court oversight will likely replace the role of the creditors committee. should only extend the deadline to file a plan “if the need for the extension is attributable to circumstances for which the No Quarterly Fees to the U.S. Trustee debtor should not justly be held accountable.”7 Prior to the SBRA, the chapter 11 debtor was required to pay quarterly fees to the U.S. Trustee’s Office, a branch of the De- No Requirement of a Disclosure Statement partment of Justice charged with overseeing bankruptcy cases. In addition to eliminating the exclusivity period, the SBRA The fees were based on the debtor’s disbursements during each further eliminates the requirement for the debtor to file a applicable quarter. The quarterly fees could be quite costly for disclosure statement.8 Section 1125 of the Bankruptcy a debtor that was required to spend a substantial amount of its Code normally requires a disclosure statement that provides revenues on supplies, outside vendors, and other costs. That is because the quarterly fees were based on the debtor’s disbursements and not the debtor’s profit. By eliminating the requirement that the debtor pay quarterly fees to the U.S. Trustee’s About the Author Office, the SBRA may save the debtor substantial amounts of Joshua D. Greene is a member of Springer money depending on the nature of the debtor’s business. Larsen Greene, LLC, in Wheaton, Illinois. The firm focuses its practice in bankruptcy law and insolvency. Mr. Greene has specialized in bankruptcy law, insolvency and bankruptcy litigation for over twelve years and represents debtors, creditors and bankruptcy trustees in 5. 11 U.S.C. §1181(b) chapter 7 and 11 bankruptcy proceedings. 6. 11 U.S.C. §1189(a) 7. 11 U.S.C. §1189(b) 8. 11 U.S.C. §1187(c)

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substantial time and energy familiarizing themselves with the The Debtor has the ability facts of the case.

to choose whether to Elimination of Absolute Priority Rule The Absolute Priority Rule, set forth in Section 1129 of the proceed under the small Bankruptcy Code, provides that in the event one class of creditors votes against a plan, creditors in a lower class could not “ retain property under a plan unless creditors of a higher class business provisions of were paid in full.11 The practical impact of this section is that individual shareholders, being the lowest possible class of cred- chapter 11 which were itors, could not keep their interests in a small business unless all creditors were paid in full. In cases where all creditors were enacted in 2005, or the unable to be paid in full, individual shareholders were required to contribute substantial sums to repurchase their shares, new amendments. called “new value.” In Section 1191(c)(1), the SBRA eliminates the absolute priority rule altogether, which may streamline confirmation of a plan and save the shareholders of a closely held business substantial sums of money.12 adequate information regarding the debtor’s plan of reorganization and implementation of the plan of reorganization. This Administrative Expenses Paid Through Plan section often generated substantial litigation about wheth- The prior version of the Bankruptcy Code provided that er the disclosure statement provided adequate information. administrative expenses must be paid in full on the The potential for such litigation is reduced under the SBRA effective date of the plan, which was usually at or around the because the debtor is not required to file a separate disclosure date that the plan is confirmed. For a debtor with substan- statement. Instead, the Debtor is required to file certain infor- tial administrative expenses, this made confirming a plan of mation along with its plan of reorganization that would have reorganization very difficult due to the financial barriers to previously been included in the disclosure statement, such as a raising a substantial lump sum. The SBRA, instead allows liquidation analysis and projections.9 the debtor to pay administrative expenses over the life of the plan, which would allow the debtor to pay those administra- Attorneys Not Disqualified For Being tive expenses over the course of several years, rather than a Owed Money By the Debtor lump sum.13 In an effort to avoid bankruptcy, quite often, small businesses will hire attorneys to represent them in an attempt to work out Conclusion their financial problems. In the event this doesn’t work, debt- The Small Business Reorganization Act includes many new ors were often forced to engage new counsel to file a Chapter provisions designed to make it easier and less costly for small 11 petition. Due to their pre-bankruptcy work, the original businesses to reorganize under the Bankruptcy Code. It attorney often became a creditor and was therefore conflicted remains to be seen whether the SBRA will actually have the out of the debtor’s continued representation. The SBRA rec- impact intended by Congress, as courts have yet to interpret ognizes this conundrum and provides that an attorney is not most of its provisions. A debtor that is considering filing for disqualified from representing a debtor in a small business case Chapter 11 should carefully review, with their counsel, the if they are owed less than $10,000.10 This allows a continuity various provisions of the SBRA and the standard Chapter of representation for the debtor and saves the debtor money 11 provisions to determine the most appropriate course of by avoiding the situation where a new attorney has to expend action.

11. 11 U.S.C. §1129(b)(2)(B) 9. 11 U.S.C. §1190 12. 11 U.S.C. §1191(c)(1) 10. 11 U.S.C. §1195 13. 11 U.S.C. § 1191(e).

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DCBA_Brief_June_2020.indd 47 6/1/20 12:23 PM ARTICLES Illinois Law Update Editors Andrea L. Collins, Brian Dougherty, and Jordan Sartell

Defendant Water Reclamation District Not Entitled service providing that Hoskins was served by leaving a copy to Tort Immunity on Summary Judgment of the summons and complaint with his grandmother, Jon- Andrews v. The Metropolitan Water Reclamation nett, who resided with him. District of Greater Chicago, 2019 IL 124283 In Andrews, the Defendant, Metropolitan Water Reclama- Hoskins filed a motion to quash service. In doing so, he tion District of Greater Chicago (District), partnered with attached an affidavit from Jonnett stating that she resided contractors for a project at one of its Chicago plants. The at the address where service was allegedly perfected for 60 contract provided that the general contractor was responsible years, and had never been served with any documents related for procedures and methods for the work, and for all temporary to the Plaintiff’s lawsuit. The trial court granted the motion structures and safety equipment. Plaintiff employee, Jeffrey to quash, and after additional service attempts dismissed Andrews, was assigned to this project. He filed suit alleging the case for want of prosecution. Hoskins subsequently filed severe injuries, after falling from a wooden ladder on the site. a motion to dismiss pursuant to Rule 103(b), alleging lack of Plaintiff alleged that the District, contractors, and district diligence in service. The court granted this motion. engineer were negligent. Plaintiffs argued on appeal that the trial court erred in grant- The trial court granted summary judgment in Defendant’s ing the motion to dismiss absent an evidentiary hearing, and favor. It reasoned that the engineer was immune because he erred in dismissing pursuant to Rule 103(b). The appellate was exercising discretionary authority to make policy determi- court found that the trial court could not make a determina- nations for a governmental entity. The First District Appellate tion of whether defendant had been properly served without Court reversed and remanded, reasoning that the engineer holding an evidentiary hearing. Given this finding, it did not testified he was never aware of the configuration, not that have to rule on rule 103(b) dismissal. he exercised discretion in approving it. The Supreme Court agreed, finding that Defendant failed to prove its employee Decedent’s Discovery Deposition Admissible exercised discretion and made a policy determination, as as Evidentiary Testimony required by Section 2-201 of the Tort Immunity Act. Eyster v. Conrad, 2020 IL App (5th) 180261 In Eyster, plaintiff filed a personal injury suit against Evidentiary Hearing Required to Determine Defendant for injuries Plaintiff allegedly sustained in a motor if Defendant Had Been Served vehicle accident. Defendant passed away while the suit was Mayfield v. Smith, 2019 IL App (1st) 181899 pending, and a special representative was appointed. Defen- In Mayfield, plaintiff filed a complaint alleging negligence dant moved for summary judgment, arguing that Plaintiff against Defendants in an auto accident. A special process could no longer establish that the decedent was negligent, server (Gatewood) was appointed to effectuate service on because decedent and Plaintiff were the only witnesses, and Defendant Hoskins and Defendant Smith. After several Plaintiff was barred from testifying about the facts of the continuances for proper service spanning over the course accident and conversations with decedent pursuant to the of approximately 1 year, Gatewood filed an affidavit of Dead-Man’s Act. The trial court granted summary judgment.

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Plaintiff argued on appeal that summary judgment was improper, because Defendant waived the protections afforded by the Dead-Man’s Act, and because discovery deposition testimony from decedent was admissible as sub- About the Editors stantive evidence of his negligence under Rule 212(a). The Andrea L. Collins is an Associate Attorney at appellate court found, consistent with Rule 212(a), that SpyratosDavis, LLC in Lisle, Illinois. She is a 2013 allowing admission of the discovery deposition testimony graduate of Elmhurst College, where she majored would do substantial justice between the parties, and that in Business Administration and Political Science, the totality of the circumstances warranted admission. and played on the women’s soccer team. Andrea graduated from The John Marshall Law School in January 2016.

Appellate Court Affirms Trial Court’s Denial of Child Support Modification Brian M. Dougherty is a partner in the litigation In re Marriage of Connelly, 2020 IL App (3d) 180193 group at Goldstine, Skrodzki, Russian, Nemec and In Marriage of Connelly, the parties to a divorce entered Hoff, Ltd. His practice area includes representing into a parenting agreement (JPA) and marital settlement employees and employers in employment disputes agreement (MSA), awarding residential custody of the arising under state and federal law, commercial landlord-tenant matters and business torts. Brian parties’ children to mother, Stacy, and requiring father, is a member of the DCBA Editorial Board. Ryan, to pay child support. Ryan filed a petition to increase his parenting time less than one year later, which the court granted. One year thereafter, Ryan filed a petition to modify child support, reasoning that his annual salary had Jordan M. Sartell’s class action litigation practice increased by $10,000, Stacy’s income had increased by 50%, with Francis Mailman Soumilas, P.C. focuses on and citing his additional parenting time. The court denied consumer protection claims arising from inaccurate criminal background checks and consumer Ryan’s petition to modify child support, and Ryan appealed. credit reports. He graduated from the DePaul University College of Law and does pro bono The appellate court affirmed. It agreed with the trial court work with local legal aid and consumer that Ryan’s salary increase was not a substantial change advocacy groups. in circumstances, and that Stacy’s increase in income was not a windfall of additional income to her, and that it was considered by the parties at the time of the MSA. It further found that Ryan’s increase in parenting time was only for an additional 22 nights per year, and did not constitute a substantial change.

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Insurance Policy Covering Claims for “Personal Injury” filed a mortgage foreclosure lawsuit claiming the mortgage was Applied to Biometric Information Privacy Act Claim in default. Alleging a Publication of Material that Violated a Consumer’s Right to Privacy The circuit court granted summary judgment in favor of plain- West Bend Mutual Insurance Company v. Krishna tiff on her action for specific performance. The circuit court Schaumburg Tan, Inc., 2020 IL App (1st) 191834 found that intervenor had actual knowledge of plaintiff’s law- In West Bend Mutual Insurance Company, the insurer issued a suit and thus her interest was subordinate to plaintiff’s interest. policy of insurance that covered “personal injury”, which was Plaintiff filed a petition for attorney’s fees against defendant, defined as bodily injury arising out of oral or written publi- which she supplemented approximately a year later. The circuit cation of material that violates a person’s right to privacy. A court granted plaintiff’s fee petition against defendant. consumer filed suit against the insured claiming it violated the Illinois Biometric Information Privacy Act (BIPA) when the Defendant appealed the fee award, arguing that the purchase consumer’s fingerprints were scanned and her prints were sold agreement did not provide for an award of attorney’s fees in to a third party without her consent. The insured sought cov- plaintiff’s favor. The appellate court agreed, but noted that the erage under the policy. The insurer sought a declaration that it while American Rule generally prohibits one party from recov- had no duty to defend. The circuit court granted the insured’s ering attorney’s fees against the other party in litigation, if the motion for summary judgment and the insurer appealed. The wrongful acts of the defendant cause the plaintiff to engage in appellate court affirmed. litigation with third parties, then such attorney’s fees are recoverable as damages by the plaintiff. The attorney’s fees are merely The parties agreed that whether the insurer had a duty to a form of damages that are recoverable from the defendant. The defend turned on the meaning of the term “publication” in the American Rule does not prohibit a plaintiff from recovering losses insurance policy. Looking to the definition of “publication”, directly caused by the defendant simply because those losses that term could mean the broad sharing of information to mul- happen to take the form of attorney’s fees. tiple recipients or a more limited sharing of information to a third party. Because the sharing of information under BIPA Here, plaintiff was required to expend attorney’s fees in her could be a privacy violation and a publication when shared with litigation with the intervenor as a result of defendant wrong- a third party, there existed the potential that the claims against fully encumbering the real estate with the intervenor’s the insured were covered under the insurer’s policy, and thus, mortgage, which violated the representations and warranties the insurer had a duty to defend under the “personal injury” in the purchase agreement. Thus, plaintiff was allowed to coverage provision. recover the attorney’s fees she incurred in her lawsuit after intervenor intervened and also the fees incurred in intervenor’s As An Exception to the American Rule, Attorney’s Fees foreclosure lawsuit. Award Upheld Where Plaintiff Was Protecting An In- terest in Real Property in Litigation With a Third Party Section 1981 Requires “But For” Causation Chung v. Pham, 2020 IL App (3d) 190218 To Be Shown At All Stages of the Case In Chung, plaintiff, as buyer, and defendant, as seller, entered Comcast Corp. v. National Association of African into a purchase agreement for commercial real estate. Defen- American-Owned Media, No. 18-1171 (Mar. 23, 2020) dant failed to perform and plaintiff filed suit for specific per- In Comcast Corp., the United States Supreme Court formance. While the suit was pending, defendant obtained a held that a cause of action under 42 U.S.C. § 1981 re- loan from his sister (intervenor) to pay off the mortgage on his quired “but for” causation to be shown at all stages of a property. Intervenor then filed suit to intervene in plaintiff’s case. Section 1981 prohibits race discrimination in the lawsuit claiming an interest in the real estate. Intervenor also making and enforcement of contracts and was intended to

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vindicate the rights of former slaves after the Civil War. Sec- tion 1981 creates an implied cause of action where someone is intentionally discriminated against in the making and enforcement of contracts on the basis of race. Section 1981 has been historically interpreted to require “but for” causation: had the victim been white, would have the tort- feasor responded in the same way? If the answer was yes, no discrimination exists.

Plaintiff ﬁled suit under Section 1981 claiming that Defen- dant discriminated against it by refusing to carry Plaintiff’s channels. Plaintiff did not dispute that during negotiations, Defendant offered legitimate business reasons for not wanting to carry Plaintiff’s channels, but argued that Defendant’s reasons were pretextual. The district court dismissed the complaint after various attempts were made by Plaintiff to state a claim. The Ninth Circuit reversed, and in doing so, held that a plaintiff, at the pleading stage, need only show that race played a motivating role in the defendant’s decision-making. The U.S. Supreme Court reversed the Ninth Circuit.

Plaintiff argued that Section 1981 should be read consistent with Title VII, which employs a statutory “motivating factor” causation standard. The Court declined to do so, noting that Title VII’s amendments in 1991 did not change the causation standard in Section 1981, a separate statute. Indeed, Section 1981 was amended in 1991, but the causation standard was not changed by Congress. Slip op. at 10.

Plaintiff also argued that Section 1981 was amended by chang- ing some language indicating that the contracting process be free from discrimination. Slip op. at 10. But the mistake, as noted by the Court, was the assumption that the contracting process be analyzed under a “motivating factor” standard, as opposed to the higher “but for” standard, of which there was no evidence to support Plaintiff’s textual interpretation. Slip op. at 11.

Thus, the Court’s holding was that under Section 1918, “a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.” Slip op. at 13.

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52 DCBA Brief June 2020

DCBA_Brief_June_2020.indd 52 6/1/20 12:23 PM News & Events 54 Thank You Notes to End the Year - By Robert Rupp

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March Bar Notes

Thank You Notes to End the Year By Robert Rupp

As we continue the long journey back Thanks to our CLE team, Section your monetary support and participatory to normal, we put the punctuation on leaders and speakers who answered the commitment. the end of another bar year. More than call to continue CLE programming and ever, this year has proven that the DCBA adjust to remote delivery of our local Finally, as many of you know I am now has the strength, fortitude and drive to programs. These programs have gone a proud and happy to call DuPage County thrive through challenges and rise to any long way to holding us together as a com- home. Thanks to everyone who provided moment. What we accomplished and the munity. We have learned great lessons assistance and support in my relocation work that continues would not be possi- from this that will only enhance our CLE from the city. After any move, you never ble without the efforts of so many, and I delivery going forward and allow broader want to think of moving again. That is would like to take this moment to express participation in our programs during the certainly true in this case, but I have several well deserved thank yous. best of times when our biggest worry is many more reasons to put down roots cross-county trafﬁc at noon. and start calling you all neighbors as well Thank you to Stacey McCullough for as colleagues and friends. being the Bar President we needed for this Thank you to the DCBA and DuPage moment. You have been an incredible part- Bar Foundation Boards who stepped I look forward to enjoying whatever this ner in the day to day management that was up to fund the COVID-19 Recovery restricted summer brings with you all truly day to day if not moment to moment. Lawyers Assistance Fund to which so and look even more forward to a full year The DCBA owes you a debt of gratitude. many of you have donated. This fund ahead. continues to help members of our legal Thank you to the DCBA Staff who community through the hardest of times. welcomed the DCBA’s business into This fund reminds us all yet again of the their homes during the closure of the strong bonds that hold our community About the Author Bar Center ofﬁces. Armed with person- together and the lengths to which we will Robert Rupp is the Executive Director of al and association-issued technology, the go to support each other. the DuPage County Bar Association. He has worked in professional association phones were answered every day to man- management since 1994, serving a variety age member questions, provide lawyer Thanks to each of you who have renewed of national and international medical and referrals and continue the operation of your support of all this work through legal associations, including the American the Driver Improvement School without your dues for the 2020-2021 Bar Year. Bar Association. disruption. None of this work gets done without

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Duffers of the World, Unite!

Welcome

Welcome to the new DCBA members. The annual DCBA Golf Outing will be club near your fellow lawyers and judges, going back to another favorite venue alone, is worth the price of admission! New Attorney Members: this year, the Naperville Country Club. Legal Aid will once again be selling their Dominic J. Buttitta, Jr., Buttitta Law Group, This is a fantastic course, great facility, wrist bands to help you “play through” LLC; George Grant Dixon, III, Dixon Law and has been a big success in the past, the special holes that add some fun and Office; Matthew D. Elster, Beermann LLP; and once again will be helping to raise challenge to the game. Simul Jhaveri, Beermann LLP; Robert funds for the DuPage Bar Foundation D. Kent, Robert D. Kent Attorney at Law; and DuPage Legal Aid. Sponsorships are available, and all spon- Bomie Leonard, Huck Bouma, PC; Roy sorship names will be included in all mar- F McCampbell, McCampbell Law Group; Whether you are a scratch golfer, or keting materials. See the DCBA website Mark C. Shea, Law Office of Mark C. Shea, high-handicapper, the event is for for further details and to register or email P.C.; Christine A. Thurston, Thurston Law everyone. The opportunity to swing a Robert Rupp at [email protected]. Firm; Philip J. Tortorich, Actuate Law, LLC; Margaret H. Weging, Law Offices of Margaret H. Weging; Joseph B. Tumminaro, DCBA Golf Outing Thursday, August 26 Office of the State’s Attorney; Benjamin Cole; Michelle R. Craig, Law Office Naperville Country Club, 25W570 Chicago Ave of Brenda Murzyn; Cristina Martinez, Box Lunch: 12:30 p.m. Single golfer: $250 Immigration Legal Center; Kaya A. Mazon.

Shotgun Start: 1:30 p.m. Foursome: $900 New Student Members: Jennifer Armstrong; Michele Boveri; Cocktails and Dinner Buffet: 6:30 p.m. Includes golf, cart, bag service, range, Megan Fitzgerald; Jacob Lirtzman; Nick on-course food and beverage and a full Milkovich; Will Owens; Allison Piper Rafﬂe Draw: 7:30 p.m. dinner buffet with cocktails following Geber; Mitchell Pollard; Taylor Spooner; the round. Joseph Upchurch; Nicole Powers; Louise Seiler; Edgar Zuno. Dinner Only: $50; $35 for Government and New Lawyers (5 years or less)

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Meet the New DCBA Board of Directors’ Members

DCBA Election Declared by Acclamation – Pursuant to the DCBA Bylaws, the following individuals have been deemed elected by virtue of the number of candidates nominated for these positions not exceeding the number to be elected to these positions.

Third Vice President

Rick Veenstra is the chief legal ofﬁcer of the City of Aurora. Prior to that, Rick was an Assistant State’s At- torney in DuPage County for more than 11 years, including 7 years as a deputy chief. A DCBA member since 2003, Rick is presently a member of the DCBA’s Board of Directors and previously served as its General Coun- sel and chair of the Local Government Law Section. He is a member of the Illinois State Bar Association and is a member of its Assembly as well as one of its standing committees and section councils. He is also a member of the Chicago Bar Association, the Kane County Bar Association, and the Prosecutors Bar Association. Rick is a graduate of Elmhurst College and DePaul University’s College of Law, a former Addison Township Trustee and a former 12-year member of the Village of Addison’s Planning and Zoning Commission.

Board of Directors

Mark Bishop is Managing Member of the Law Ofﬁces of Mark S. Bishop, LLC. His ﬁrm focuses on business litigation, contested estate and trust litigation, and personal injury and wrongful death cases. Mark began his legal career at Huck Bouma PC in Wheaton in 1999 where he was a member of the Litigation Practice group. He has continued practicing in DuPage County throughout his career and launched his own litigation practice in 2016. Mark has been an active member of the DCBA for over twenty (20) years. This will be Mark’s second full term as Director after previously serving as the DCBA’s General Counsel, Associate General Counsel, LRS Committee member, Budget Committee member, and Chair of both the Civil Law and ADR Sections.

Rebecca Krawczykowski is an active participant in the DuPage County legal community. She concentrates her practice in divorce and family law. She has wide-ranging experience from uncontested divorces to inter-state custody disputes to divorces involving businesses and high net worth estates. She also frequently helps high income earners to develop maintenance buy-out options and alternatives. She joined Fay, Farrow & Associates, P.C. as a legal secretary in 2002 and worked closely with John Fay and Mark Farrow as a secretary and law clerk for a decade before becoming a licensed attorney. Rebecca has served on the board of the DuPage Association of Women Lawyers since 2015 and is currently the President of DAWL. Rebecca was an integral part in unifying the DCBA, DAWL and the Justinians for the 2019 Inaugural Grand Holiday Gala. Rebecca respects the importance of preserving association traditions, while at the same time she will strive to incorporate fresh ideas. Rebecca can be depended on to implement association plans to beneﬁt the community.

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Ronald D. Menna, Jr. is a principal of Fischel & Kahn, Ltd. His LRS Stats primary areas of practice are civil appeals, commercial litigation 3/1/2020 to 3/31/2020 and chancery actions, and he represents a wide variety of individ- The Lawyer Referral & Mediation Service uals and corporate clients, as well as banks, corporate ﬁduciaries received a total of 680 referrals, including 42 and individuals in guardianship and trust proceedings. Ron has in Spanish (581 by telephone, and 99 online extensive trial experience in both State and Federal Courts and referrals) for the month of March. has successfully argued before the Illinois Appellate Court and the U.S. Seventh Circuit Court of Appeals. Ron’s commercial liti- We receive calls in the following areas but gation matters have included contract, labor, ERISA, bankruptcy, currently have no attorneys in these areas: Civil Rights, Health Care Law and Mental mortgage foreclosures, breach of guaranty, replevin, attorney Health. If you practice in these areas and malpractice defense, injunctions, accounting, partition, partner- would like to join LRS or add them to your ship dissolution, mechanics liens, probate, zoning variances, quiet existing LRS proﬁle, please call Tim Doyle title, and collection matters. He has been appointed by the Illinois at (630) 653-7779 or email tdoyle@dcba. Supreme Court to be a member of the Committee on Character org. and Fitness, Second District. If you have questions regarding the service, attorneys please call or email Tim. Please refer clients to call (630) 653-9109 or request a referral through the website at www.dcba.org.

Administrative Law ...... 1 Animal Law ...... 0 Appeals ...... 0 Bankruptcy/Credit Law ...... 14 Business ...... 12 Supporting the judicial process since 1986, Lexitas professionals work with Collection ...... 50 attorneys, legal staff and corporate departments to deliver the following services: Consumer Protection ...... 6 Contract Law ...... 0 Criminal Law ...... 165 Elder Care ...... 16 Medical Records Employment Law ...... 58 National Court Day-in-the-Life Medical Records Retrieval Services Reporting and Videos and Retrieval Services Estate, Trusts and Wills ...... 43 for Workers’ Legal Video Trial Presentation IRU3ODLQWL΍ Compensation Family Law ...... 129 Services Services Defense Counsel Cases Federal Courts ...... 2 Government Beneﬁts ...... 1 ...the same great people, the same outstanding services. Immigration Law ...... 1 REALTIME TEXT STREAMING | VIDEO SYNC & EDIT | VIDEOCONFERENCING Insurance Law ...... 13 FIELD PHOTOGRAPHY | CONFERENCE FACILITIES | DEMONSTRATIVES Intellectual Property Law ...... 0 Mediation ...... 0 180 N. LaSalle St., Suite 2800 • Chicago, Illinois 60601 Modest Means ...... 1 Local: 312.236.6936 • Toll Free: 888.893.3767 • [email protected] Personal Injury ...... 61 www.lexitaslegal.com Real Estate Law ...... 94 School Law ...... 3 Tax Law ...... 4 Workers Compensation ...... 6

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2019

58 051 DCBA 1 Brief June 2020 ,

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fiscal year, and continued to build our epress my gratitude to our volunteer visual identity within the community attorneys for all of their efforts. Our and measure the impact DLA has on our community is stronger because of our community. volunteer attorneys efforts to serve our neighbors in need. Every year I am humbled by the over volunteer attorneys that dedicate their Attorneys that gave over 1 hours to our time and talents to help DLA clients. Our clients in 21 Daniel Walker, Deanna volunteer attorneys continue to embody Rosinski, Barbara Corrigan, Josette the pro bono aspect of lawyering and Allen, and Gregory Adamo. contribute to our program and our community by serving individuals that are Attorneys that contributed over hours of limited means or financial resources. Susan ONeill Alvarado, Michael Hudzik, These volunteers graciously provide free, David Schaffer, and Frank Valenti. highuality legal assistance in family law cases including Orders of Protection, Attorneys that provided over hours Divorce, Parentage, and Guardianship Brett Williamson, Marlene Siedlarz, During the 21821 fiscal year, our cases as well as Bankruptcy cases. This Leah Setzen, Darius J. Sethna, Jane program continued to conduct legal year was no different, but I was oored Nagle, Robert A. McNees, Daniel J. Kol- clinics with Loaves and Fishes in by the number of cases our volunteer lias, Kathryn Harry, Nicholas Galasso, Naperville and with Family Shelter Service base accepted. Thanks to our financial and Jesse V. Barrientes. at the West Chicago Police Department. donors, we were able to add an additional DuPage Legal Aid (DLA) continued to staff attorney this year. Thanks to her We would also like to take the time to enoy a close relationship with the DuP- added efforts, DLA staff handled cases. thank the Eighteenth Judicial Circuit, age County Bar Association (DCBA) the Lawyers Trust Fund, DuPage County and screen for their Modest Means and Despite changes in staff towards the end Human Services Grant Fund, Naperville Veterans Initiative Program. We are of this fiscal year, DLA (programwide) Echange Club, and Wayne Township for very grateful to the DCBA for all of the helped more clients than last year. financially supporting our program and efforts they put forth in supporting and 1 cases were handled this fiscal year. I the individuals that we help. helping raise funds for DLA. Judges Nite am pleased to report that number is an 21 continued to break fundraising alltime high. If you are inclined to volunteer or donate records and thanks to the DCBA to our program or have any suggestions, membership, our dedicated Board of In years past we have honored our vol- concerns, or uestions for us, please do Directors, and Fundraising Committee, unteers at the annual DCBA Law Day not hesitate to call (212) or raised over ,. DLA also contin- Luncheon the following year, but this visit us at dupagelegalaid.org. ued to make strides in implementing year the event was canceled due to the the Strategic Plan finalized the previous COVID1 pandemic. I would like to Cecilia Naera, Eecutive Director

1 5 1

01 1 Order of Protection/Domestic Violence 5 Divorce 1 1 5 10 Parentage 101 1 Guardian Ad Litem 10 Guardianship 5 Bankruptcy/Consumer 5 Miscellaneous Legal* 1 5 Support (Maintenance) 1 Housing Issues** 1 5 Total Cases 1 Wills & Estates*** 1 1 59 1 5

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1 5 1

DCBA_Brief_June_2020.indd 59 6/4/20 7:02 AM 01 1 01 1 01 1

1 ,0

05 0 1 1 1 1 5 0 1 1 1 10 15 1 , ,5 0 11 1 0

DLA focuses on supporting our clients and providing them with the legal link to a brighter future. A former client, who had fled domestic violence and lived in a shelter with her two daughters, once thought her situation hopeless. She questioned whether she would be able to care for her children. After her divorce, she was granted the ability to relocate her children back home to Florida where she had support. She returned to school. Today, she is attending college for nursing and currently works as a CNA. I am very humbled by what she says about DLA…

60 DCBA Brief June 2020

DCBA_Brief_June_2020.indd 60 6/1/20 12:24 PM DuPage Legal Aid is dedicated to enlisting the pro bono aspect of lawyering by connecting DuPage County residents to high quality, compassionate legal representation. We educate and support individuals, families and community partners, and we provide our clients with the legal link to a brighter future.

Board of Directors Thank you to our Donors! $10,000 and Staff 2018-19 Anonymous Attorney Donor 1

Officers $1000+ President: Connie Gessner Anonymous Donor 2, Chad Husnick, Wendy Musielak, Emily Rapp, Joseph Cho, Andrew Cores, Greg S. Wildman Vice-President: Lisa Murphy Secretary: Lisa Giese $500+ Treasurer: Mary Downard Aaron Stanton, Huck Bouma, Burke, Warren, McKay & Serritella, Monahan Law Group, Mary McSwain, P.C., Law Offices of Kim DiGiovanni, Hon. James McCluskey, Jim Reichardt, Directors John Cooney, Denise Pcolinski, Hon. Bonnie M. Wheaton Todd Gosden Heather Jamieson $100 - $499 John W. Demling John M. Mulherin, Lisa L. Clay, Hon. Rodney Equi, John G. Locallo, Lisa Marie Woodson, Maria McTarnaghan Scott Hollmeyer, McNees & Associates, Christina Morrison, Jeffrey York, Eileen Fitzgerald Caryn Prall Joseph Fortunato, Cameron Goodman, Kathy Ryding, Cam Russell, Kimberly Verest, Jim Sean M. McCumber Lowry, James Butkus, Tricia Buhrfiend, Mark Bishop, Sara Scharaga, Josh Sorkin, Virginia Jeff York Stein, Stacey McCullough, Tim Wildman, Hon. William Ferguson, Joel Fina, Carol Doris, Sarah Poeppel, Dykema Gossett, PLLC, Daniel Kuhn, Kristin Louis Office Staff Cecilia Najera, Executive Director/Managing Attorney Less than $100 Brenda Carroll, Staff Attorney (PT) Timothy J. Ritchey, Kimberly A. Davis, Joshua Sorkin, James Sethna, John P. Killacky, Robin Slattery, Staff Attorney (PT) James S. Harkness, Rachel Boehm, Chantelle Porter, Joe Macaluso, Lisa Murphy, Robin Roe, Office Manager Margaret Stein Kodzik, Sonni Williams, Cerena Fischer, John Demling, Robin Roe, Lucy Cortez, Intake Coordinator Obrill Family, Network for Good, Laurie Bart Maribel Rodriguez, Office Coordinator Melissa Chandler, Administrative Assistant (PT) Grants Ann Russell, Staff Attorney (PT) DuPage County Bar Association 18th Judicial Court Civil Filing Fee Grant Interns Human Services Grant Fund Nicholas McTarnaghan Lawyers Trust Fund Naperville Exchange Club Grant Wayne Township 61 dupagelegalaid.org | 630.653.6212 | 126 South County Farm Road, Wheaton Illinois

DCBA_Brief_June_2020.indd 61 6/1/20 12:24 PM News & Events You’re a Grand Old Flag By Terry Benshoof

At dawn on April 19, 1775, a force of no distinguishing uniforms of a single became the basis for the first of what be- 700 British Regulars confronted 77 armed force. Forces of nation-states in came known as the Stars and Stripes. No militiamen on the green at Lexington, the 1700s, in Europe, marched to battle formal action in that regard took place Massachusetts. The commander of the under the flag of the nation or its mon- in 1775. Redcoats ordered the rebels to disperse, arch. The American colonials had no but before anything else could take unified force, nor flag. In May of the following year, Washing- place, someone unknown fired a musket ton, Robert Morris, and George Ross shot, the British troops fired a volley, and Ships normally fought under a battle flag, met in Philadelphia, with Ross’ wid- seven colonists lay dead. The militiamen or ensign, to help lookouts |identify and owed niece by marriage, Betsy Ross. At dispersed, and the British, under the distinguish the ships of the line. Our co- Washington’s behest, she sewed a flag lead of their Union Jack flag, marched lonials also had ensigns of varying types of 13 alternating red and white stripes, off towards their target: the colonials’ prior to April, 1775, such as the Pine with 13 white five-pointed stars in a field munitions at Concord. Tree Flag, or the famed Gadsden Flag. of blue to the upper left. The stars and These banners often carried slogans, the stripes represented the 13 original At Concord Bridge, the Redcoats were such as “Appeal to Heaven” on the Pine colonies. It is said that Washington confronted by more of the Minutemen. Tree Flag, and the famous yellow field wanted six-pointed stars, but she, being Fired upon by the British, the Minute- of the Gadsden Flag’s coiled rattlesnake an expert seamstress, showed him that men returned fire. The “Shot heard emblazoned with the words “Don’t Tread the five-point star could be made simply ‘round the World” signaled the onset on Me.” with a few folds, and a single cut. Weeks of the American Revolutionary War. later, the Continental Congress adopted The now-emboldened, and angered, As April turned into May, and the the Declaration of Independence. Minutemen, reinforced, began to follow colonials gave thought to organizing an the British back towards Boston, and Army, (which they did by raising infan- It took the new Congress nearly a full soon, disregarding old-style tactics, be- try companies, on June 14, 1775, now year thereafter to adopt the Betsy Ross gan to fire on the Redcoats from behind considered the Army Birthday) selecting flag as the national colors, with enact- trees and fences, ultimately chasing the George Washington as one of its leaders, ment of the First Flag Act.1 The First British back to Boston. it became apparent that the new hope- Flag Act designated that the national ful nation needed a banner. Massachu- flag would have 13 stripes, alternating There was not yet a United States of setts had its Liberty Tree, cut down by red and white, beginning with red, and America. The Minutemen were essen- the British, so the colonists erected a a blue field of 13 five-pointed stars in a tially colonial militias from the various Liberty Pole, topped with a flag of 9 al- circle. nearby colonies. In 1775, each of these ternating red and white vertical stripes. militia forces fought under their own The British outlawed that flag, so the By 1794, two more colonies had joined colonial colors, or none at all. There were colonists turned it on its side. That flag the fledgling nation, and so the flag was

1. Journals of the Continental Congress, 1774-1789, 8:464

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modified. In the Second Flag Act, two attempt to secure the release of Dr. Wil- which fixed the number of stripes at 13, more stripes, one of each color, were liam Beanes, who was held on the ship, alternating red and white, and set the added to the flag, along with two stars and sentenced to be executed, for refus- concept that as new states were admit- in the field.2 Of course, this change had ing to quarter British troops in his home. ted, additional stars would be added, come after adoption of the Constitution, The Key delegation met with Admiral but the original 13 stripes, representing and we were officially the United States Cockburn, and successfully negotiated the original 13 colonies, would no longer of America. The Bill of Rights had been Beanes’ freedom, but then the three were change.4 added as of December 15, 1791, and not allowed to go ashore, to prevent them unsurprisingly would later have consid- from providing information to the Fort. By 1818 the United States had a Flag, erable involvement with the Flag. and by 1931 a National Anthem related Watching the horrendous shelling to it. The Flag, despite the Flag Acts By 1812, the United States was back on a through the night, Key feared the worst. and its prominence in America’s military war footing. Once again, it was a war with conflicts, was honored for decades pri- Great Britain. The British had attacked A year earlier, Major Armistead had marily by military and patriotic organi- and burned the capital at Washington, commissioned the sewing of two flags zations, but had no other special honors. DC on August 24, 1814. Their goal was to for the Fort. One was a fairly standard In 1916, President Wilson established split the country by taking the port city of sized storm flag; but the second, a garri- June 14th as Flag Day. After the Second Baltimore, but Baltimore was protected son flag, was unusually large, 30 feet by World War, Congress finally acted, and by Fort McHenry and its garrison. Its 42 feet. During the shelling of the 13th, established Flag Day under the United strategic position prevented access to the the smaller flag had borne the brunt of port, and so the British prepared to attack the battle, and on the morning of the and knock out the Fort. 14th, Armistead ordered it lowered, and replaced by the larger flag. About the Author The Fort’s commander, Major George Armistead, prepared for an attack on As the skies cleared on the morning of Terrence J. Benshoof practices the Fort by land and naval forces. That September 14, 1814, Key was amazed to from Glen Ellyn. He graduated attack commenced on September 13, see the huge garrison flag flying at the from the University of Illinois at 1814, with British ships firing on the top of the Fort. He knew that the Fort Chicago with a B.A. in Political Science. He earned his J.D. from De Fort for 27 hours. Cannons, rockets, had held. Inspired, Key wrote a poem, Paul University. He earned an LLM and exploding bombs battered the Fort “The Defense of Fort McHenry,” which (Taxation) from DePaul, and has throughout the day and night. On a was later set to music, and adopted on practiced extensively in property tax British ship in the harbor was a young March 3, 1931 as the national anthem.3 litigation and other Federal, State lawyer, Francis Scott Key. Key and a The Fort McHenry Battle also inspired and Local tax matters. Colonel John Skinner had rowed out to the Third Flag Act, on April 4, 1818,

3. 36 U.S.C. §301 2. 1 Stat. 341 4. 3 Stat. 415

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States Code.5 That Act placed Flag Day for advertising purposes. It also prohibits and properly lighted if out overnight. The in the umbrella of Patriotic and National mutilation of the Flag, or parts of it, by Act requires that the Flag be displayed on Observances, Ceremonies and Organi- placing words, different colors, pictures, or near the main administration building zations. It is not a National Holiday in designs, or advertisements on the Flag or of public institutions; at all polling places terms of work. its parts. Curiously, this section, on its on election days; and during school days, face, applies only to the District of Co- in or near every schoolhouse.12 While the Flag has its Day, and as such lumbia. It also provides for misdemeanor deserves national respect and honor, in penalties for violation.9 Often, in the course of a year, there are just what manner is this symbol of the occasions where the Flag is publicly United States of America to be honored Sections 5 through 9 discuss codification displayed: parades, churches, speeches and treated respectfully? And, in the of the rules and customs of non-govern- or funerals. When someone of promi- event that the Flag is not treated with mental entities into the Act, and then nence dies, the question might be raised respect and dignity, what, if any, conse- follows in detail with the times and as to whether the decedent’s memory quences are codified? occasions to display the Flag; the position should be honored by flying the Flag at and manner for display; proper respect for half-staff, or covering the casket with The answer to the first of these questions the Flag; and conduct during the hoisting, the Flag. Section 7 of the Act deals with lies in the United States Code. Only 10 lowering, or passing of the Flag.10 those situations.13 Sections long, the United States Flag Code details the description of the Flag, Section 5 draws into the Flag Act in- The display of the Flag in the color guard its use and display, respect for the Flag, dividuals who are not in the Armed of a parade is generally covered by the and the Pledge of Allegiance.6 Taking Forces, or their groups and organizations, color guard itself and should pose no these in no particular order, the parts of or, essentially, everybody else. The Armed concern. But what of displays of the the Flag Code are examined. Forces, other executive agencies and Flag on a car, truck, or boat? Essentially, departments will generally have internal the Flag should never be displayed on a The wording of the Pledge of Allegiance regulations concerning matters covered vehicle, or parade float, unless displayed is set out in Section 4.7 The section in the Flag Act. Civilian organizations, or on a fixed or tightly clamped staff. It is notes the proper manner of standing civilians in general, would not be bound never to be draped on the vehicle itself.14 for the Pledge, that head gear should be by these rules, if not brought under the When the Flag is displayed on stage, or removed if not a religious item, and the ambit of the Act by this section. 11 on staffs with other flags, it is always placement of the hand. As a result of to be the most prominent. If on a level recent changes, it is deemed proper for For those who might wonder about dis- stage, it is to the Flag’s own right (the members of the Armed Forces, and vet- play of the Flag, with respect to time, viewer’s left).15 erans not in uniform, to render a proper weather, specific dates, or locations, military salute while reciting the Pledge.8 Section 6 is the place to look. Generally, The rules on flying the Flag at half-staff, the section suggests display every day, and for use to drape the casket at a Section 3 of the Act discusses prohibi- during daylight hours, in good weather, funeral, are currently honored more in tion against using the Flag, or parts of it, unless the Flag is of all-weather material, the breach than as prescribed. The law

5. 36 U.S.C. §110 12. Id., §6 6. 4 U.S.C. §1 et seq. 9. 4 U.S.C. §3 13. Id., §7 7. 4 U.S.C. §4 10. 4 U.S.C. §§5-9 14. 4 U.S.C. §7(a) and (b) 8. Id. 11. Id., §5 15. Id., §§7 (c) through (l), (o),

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states rather clearly that the flying of the the military, first responders, or mem- the respect due that Flag. It has a Flag Flag at half-staff is an honor reserved for bers of military organizations.17 Protection Act that allows for criminal principal government figures, current or penalties for disrespect to the Flag. But former; members of the Armed Forces Lastly, when the Flag is being hoisted there are virtually no prosecutions, no on active duty, and first responders. The or lowered, or as it passes in a parade judgments, no penalties, for disrespect time for flying the Flag at half-staff is or review, those present should remove for or desecration of our Flag, which also limited to 30 days for a President headgear, stand at attention, and place seems to create an anomaly. Keeping in or former President; 10 days for the the right hand over the heart. Persons mind that the Flag is a symbol of Amer- Vice-President, Chief Justice, or Speaker present in uniform should render a mil- ica and what it stands for, and that the of the House; the day of death until in- itary salute, and members of the Armed Flag came into being alongside the Bill terment for an Associate Justice, former Forces and veterans not in uniform may of Rights, the anomaly disappears. Vice-President, or a governor; and 2 days also render a military salute.18 The same for members of Congress. That is the en- would apply during the playing and/or The Bill of Rights, and particularly the tire group; no sports figures, musicians, singing of the National Anthem. First Amendment, affords protection veterans, other government employees, to free speech; the right to disagree. or the local mayor. If the decedent’s One might ask what penalties can ensue Accordingly, the Supreme Court has, casket is covered by the Flag, the union, for failing to obey the restrictions of the in a series of decisions, held repeatedly or field, is to the top left, and is never to Flag Act under the Provisions of the Flag that disrespect to the Flag, while it be buried with the casket.16 Protection Act of 1989. That particular may be offensive to many, is part of the punitive act allows for misdemeanor protected right of freedom of speech.20 The Flag is a symbol representing the treatment, and up to one year imprison- In fact, even outright desecration of the United States of America. It is due, ment relating to physical destruction or Flag and criminal laws in that regard, and should be shown, respect for what damage to a Flag, deliberately leaving the would not withstand First Amend- it represents. The Flag is never to be Flag on the ground, or trampling it. The ment scrutiny in protection of symbolic dipped to any person, thing or other Act appears to provide concurrent juris- speech.21 flag. It should never be allowed to touch diction to states and territories. Most the ground, a floor, water, or merchan- interestingly, the Act provides direct We have a Flag, and it’s a grand old dise. All those shirts, jackets, shorts, appeal to the United States Supreme Flag. It’s a symbol of America and what caps and other clothing items should Court from a decision of a District America stands for, to be respected by not be made of a Flag. There should Court ruling on the constitutionality of a all, but without fear of consequence never be any markings, drawings, let- prohibited act, and requires the Supreme relating to the freedom of speech and tering, figures or designs put on the Court to take jurisdiction on an expedited expression it symbolizes. Flag. Nothing should ever be carried basis of any matter on which it has not in the Flag, nor should it be used for previously ruled.19 And that’s why we have Flag Day. advertising. It is not to be part of a cos- tume nor athletic uniform, although it The United States has a Flag. It has may be a patch used on the uniform of a Flag Act that prescribes its use and

20. West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943); Street v. New York, 394 U.S. 576 (1969); Spence v. Washington, 17. 4 U.S.C. §8 418 U.S. 405 (1974). 18. 4 U.S.C. §9 21. Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 16. Id,.§7 (m) and (n) 19. 18 U.S.C. §700 496 U.S. 310 (1990).

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DCBA President, Stacey McCullough welcoming Richard Mallen, Hon. Brian McKillip, Illinois Supreme Court Justice Michael J. Burke and Honorable Dorothy French-Mallen Judges’ Nite Soars High By John Pcolinski

February 28, 2020 was a fantastic success “The Silent Auction raised $15,566, the tim contestant on a game show entitled: for the cast, crew and Judges’ Nite Band, Live Auction raised $8,300, the 50-50 Survivor Wheaton. The show included both in performance and in accomplishing Rafﬂe yielded $1,310 while the Funds for scenes with an out of control host and the goal of the production. This year’s show, A Brighter Future Cash Call generated customized “campaign commercials” entitled “Flying Too Close to the Sun,” set $13,962 for a heartwarming and exciting from the seemingly dozens of Circuit modern era records in terms of the number total of $39,130 exclusive of ticket sales,” Court Judge candidates. of tickets sold and the funds raised to sup- said Legal Aid Executive Director, Ce- port the DuPage Legal Aid Foundation. cilia Najera. “We are so grateful for all ”Our Judges’ Nite Fundraising Com- of the efforts of the DCBA, cast, crew, mittee puts in a tremendous amount Ticket sales have trended upward over and Judges’ Nite Band as well as donors of work and is the reason why the auc- the last several years with a total of 370 and sponsors. Another spectacular year!” tions and fundraising continue to grow. sold this year. In addition to gross tick- We owe a big thanks to Lisa Giese, et revenue of approximately $55,000, Highlights of the show included good Jess Deﬁno, Christina Morrison, the additional sources of sponsorship sport, Judge Kavita Athanikar, Mary Downard, Robin Slattery, and advertising dollars and the auction accepting the Deep Gavel Award for Kasey Wheeler, Heather Jamieson and items made the show very successful. Emily Rapp’s portrayal of her as the vic- Nicole Janssen,” says Najera.

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It is truly an honor to be part of this long-standing tradition. I am humbled by the support we get from the DCBA and the Judiciary and I hope they all know the respect we have for them. We are in a high stakes, high pressure profession. I have always viewed Judges’ Nite as an opportunity to step back for one night and laugh at ourselves, the legal community and the world. I think that can be cathartic and also unite us as a professional community. Just remember, it’s entertainment.

Band and Cast Finale wishing long-time Producer, Christina Morrison good luck in her new job. Every year, the cast, crew and band step up to put on a heck of a show with very little preparation time Director and Head writer Nick Nelson I can’t say enough about Producer available. It just astounds me how said: Christina Morrison. Not only has dedicated they are.” she been the hardest working mem- “The show has been creative and ber of the group, she is an essential Even as this year’s final expenses are funny for decades, but Producer part of the reason behind the suc- not yet in, the writers’ group (or at least Christina Morrison really drove the cess of the auctions and fundraising. those who fancy themselves as creative) effort to raise money and make a big She is moving on in her career to has already begun harassing Nelson with difference for Legal Aid. When we be Director of Development of the new ideas for songs and skits. Here’s to can accomplish the dual purposes West Suburban Humane Society hoping the show can go on and be even of entertainment and supporting a and will be stepping down as Pro- more successful in 2021. good cause, the DCBA communi- ducer. We hope to have her consid- ty embraces the show. It is incred- erable onstage talents as part of the ibly rewarding to see the amazing cast for the foreseeable future. When results on show night after months Christina told me she was going to of hard work and exceptional time be stepping back from the Producer sacrifices by the cast, crew and band. role, I was concerned because I This year, we had a shortened time- could rely on her to do an amazing line and a few new challenges; but it job; but then two things happened was a great show. We are so grateful that eased my mind. First, we to everyone who attends. The ener- expanded the pool of involvement gy from the audience is an addictive with more people getting involved thrill that elevates our performance. and delegating tasks for the organiz- Show attendance continues to trend ing and fundraising. Second, Rachel upward, I hope we can continue that Boehm agreed to fill the role of Pro- next year. I really want to thank Sta- ducer. Rachel has really embraced cey McCullough and the DCBA the culture and enthusiasm of Judges’ board who were fantastic about pro- Nite. I think she is ready to build on Judge Kavita Athanikar receives the Deep Gavel Award moting the show and selling tickets. the foundation we have in place. from her alter ego, Emily Rapp

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ISBA Update

ISBA Hunkered Down Like Everyone By Kent A. Gaertner

Like everyone else, the ISBA is As I write this article on April 15th, a amination. They will also consult scrambling to adapt to the new normal decision on this matter will be made with the Executive Committee. A of remote operations and rescheduling very soon. The latest information can recommendation would then be of events. Meetings of Section Councils always be found on the ISBA website. sent to the Illinois Supreme Court and Committees are now being done by committee. conference calls or Zoom type arrange- • A decision regarding the upcoming ments. The staff of ISBA are still avail- Washington D.C. Supreme Court The ISBA will continue to follow the able to assist members with whatever admissions trip will be made by April Governor’s orders regarding personal matters may come up. 20. As you know the Supreme Court interactions, meetings and social distanc- building is currently closed. ing. Hopefully Illinois will see a decrease The free CLE offered by ISBA has been in the number of new COVID-19 cases expanded to allow members with a • ISBA has recorded a number of “quick over the coming weeks and we can slowly June 30 CLE report date to meet their takes” videos regarding practicing law and carefully return to our normal way requirements and the MCLE Board has during the COVID-19 crises. These of doing things. Stay safe. Wear a mask. extended the date for reporting. Please have now been posted on the website Keep your distance. Wash your hands. take advantage of this great opportu- and others are in preparation. Stay home. nity. The number of hours of free CLE accessed on the website has increased • The roll-out of an ISBA health dramatically over the last few months. insurance proposal has been moved Other items of note include: back to the end of June due to the About the Author COVID-19 situation. Kent is the Eighteenth Judicial Circuit’s • The Executive Committee and staff representative on the ISBA Board of Governors. He is the principal of Kent A. Gaertner P.C. and are still looking into options regard- • The Legal Education, Admission “Of Counsel” to Springer Brown, LLC. where ing the Annual Meeting in June in St. and Competence committee is he concentrates his practice in bankruptcy Louis. The staff is looking into a pos- meeting on April 15 to discuss and workouts. He was president of the DCBA in sible reschedule to late September. issues regarding the July bar ex- 2009/2010.

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ISBA Update

ISBA Hunkered Down Like Everyone By Kent A. Gaertner

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President’s Message (Continued from page 5)

We have been inundated with informa- try, but we can look to their example in and donations to the fund are being action, daily briefings, minute by minute finding our way back to the controls. cepted at www.dcba.org/reliefdonate. updates on tv, radio, social media plat- Positivity, kindness and sharing lighting forms, emails, speculation, facts, fake Soaring simply has to take a temporary up the runway. stories, opinions, suggestions, offers of seat in economy row 30E, the middle seat assistance and cries for help. To accom- of three, all the way in the back, against This year, this adventurous flight, is company all of that, we are experiencing the wall so as to prevent reclining of ing to an end. I owe so much gratitude to a slew of emotions - shock, grief, fear, more than an inch. The focus from here our amazing section leaders and DCBA loneliness, panic, loss. Some may be on out is on arriving, and we are well on staff who presented 75 CLE programs feeling the opposite, gratitude or hap- our way after a slight delay. The DuPage as we soared, and have changed course piness over the ability to spend more Expungement Clinic switched to a virtu- to present another 25 plus virtual CLE time at home with family, excitement al platform, and we have so far been able programs upon arrival. Arriving IS the over the opportunity to start a project to help 40 out of the 130 potential clients new “exceptional,” so please reach out if that had been put off for years, dis- who pre-registered seeking assistance I can help you in getting there with me. I cover a new hobby, start that exercise in clearing their criminal record. The am grateful for the support of my friend program, and achieve the previously in-person event will happen in epic fash- and President-Elect, Wendy Musielak. unachievable. Maybe I would make up ion in due time. The DCBA staff jumped I truly couldn’t have asked for a stron- for precious lost time with my children, on the Zoom virtual meeting bandwag- ger co-pilot, and I know together we will or tackle the article writing that regret- on, allowing our fabulous CLE programs continue to do great things. As a final fully was pushed aside. Maybe our as- to resume in earnest, and connecting our announcement, I want to dedicate this sociation would be a leader out of the membership with the judiciary through President’s Page to the true-life adven- gate in the dissemination of all things panel Q & A sessions. Lawyers Lending ture shared by two great men, two of pandemic-related, or pioneer something a Hand volunteers donned face masks the finest lawyers in DuPage County epic during the response stage. Or may- and practiced social distancing to help whose legacies will live on endlessly. On be, we would find ourselves devoid of Northern Illinois Food Bank provide August 3, 2019, we mourned the loss of energy or the ability to concentrate, our over 4000 meals to hungry families, and John Kincaid. On January 26, 2020, sense of motivation elusive, replaced is searching for safe projects to continue we mourned the loss of Joe Mirabella. by bouts of disengagement, negativity, giving back. The DCBA leadership and I will forever treasure the short time I sadness, and far too much comfort food staff are working on a relief and recov- shared in their presence at Mirabella, that isn’t, in fact, comforting. Even with ery webinar series to assist and inform Kincaid, Frederick & Mirabella, LLC. fortunate good health, I found myself our members as we prepare for the legal There can be no greater heartfelt or searching for support, and discovered landscape of the future. Most of all, I am unambiguous sentiments to illustrate that it’s okay to bemoan the loss of Law bursting with pride over the swift and these pillars of our legal community Day, Derby Day, vacations, college life, compassionate efforts of the Boards of than those spoken by their dear friend, high school prom, graduation, social the DuPage County Bar Association and Appellate Court Second District Justice dinners and even donuts in the ARC. the DuPage Bar Foundation to estab- Ann B. Jorgensen. With her gracious Legitimize those feelings, and use them lish the COVID-19 Lawyers Assistance permission, Justice Jorgensen’s eulogies to shift your focus. We can’t all be su- Fund. Member attorneys who find them- in honor of John and Joe follow, and I perheroes like the workers making sure selves faced with financial hardship due hope you each find a peace that car- we have food on our tables and those to the pandemic are encouraged to apply ries and inspires you through the year saving lives in the health care indus- for a grant at www.dcba.org/reliefapply, ahead.

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Joe Mirabella and John Kincaid celebrating their retirement.

I read on… “No superlatives if you can dignity and professionalism more than avoid that.” I could hear him thinking – Mr. John Kincaid. none of that grandiose stuff – making me larger than life… now that I’m gone. He was the example of how a lawyer is supposed to act, speak and practice; a So, while I will try to honor this request model for every new lawyer to witness John Kincaid with unadorned words – kind and true. I and emulate. won’t say – that he was one of the best. John lived life as he practiced law – al- I will simply give you recollections of the My earliest recollection of John Kincaid ways prepared for any contingency and lawyer, the man from Wheaton and you the lawyer – is that he was the reserved every eventuality. This inevitable day was will draw that conclusion yourself. half of Mirabella & Kincaid. Mr. Kincaid no exception. was the tall, aloof, stoic one, so proper I will try. No promises. and composed; Mr. Mirabella not so John sent me a hand-written letter, one much. It stretched credulity that these of the courtesies he continued long after There was a time when the greatest trial two could be partners - but - oil and the rest of us abandoned pen and post- lawyers in DuPage numbered in single vinegar make a great salad and this un- age. His letter conveyed a request that I digits – John Kincaid always made the likely couple became an exceptional ﬁrm consider “giving a few words about him cut. True advocates to be sure – but pro- with a superb reputation for doing the and the law.” fessional and civil. No one epitomized right thing for the right reasons. A ﬁrm,

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I might add, that has not only held its seriously – he didn’t think he was special is your reputation, your friends and most place in the legal community – but has and never asked for preferential treat- of all your family. That was John Kincaid grown exponentially. Then again... could ment. I saw this first-hand. every day. you imagine a more interesting and sur- My first days as a judge were spent in prising adventure in the practice of law small claims court. One morning Mr. John Kincaid the lawyer worked hard than working with John Kincaid and Joe Kincaid walked into the courtroom. and did the right thing – he also gave Mirabella every day? Was he lost or looking for someone? He back. He gave back a lot. couldn’t have a case here – the maxi- As a young lawyer, I thought Mr. Kin- mum recovery in small claims was $1500 He was a mentor to many. By word caid was so smart! I was right. He knew dollars. But – he sat down and waited and by example, he taught what was ex- the law – and was well versed in nuances his turn. When his case was called, he pected of a good lawyer. If you wanted I hadn’t even considered! In his presence stepped up and asked for a trial. His to learn – he was your willing teacher. I found myself just nodding a lot, lest client had a rightful claim – and it wasn’t So generous with his knowledge, expe- I should say something stupid and Mr. about the money – it was the principle of rience and time, no question was too Kincaid think the less of me. I know now the matter. John Kincaid was going to try basic, no review too tedious. Just as im- that would never have been his response the case over the principle. portant, no lack of confidence was left – but then I just nodded. un-coached. He was the gentle nudge John Kincaid certainly did right by his [and sometimes the not so gentle push] When you saw Mr. Kincaid in the hall- clients. But that was only half the story. encouraging you to get out there, con- way or at a bar event, a smile would For, it was the way he did it that made vincing you to do more than you thought sweep over that stern face and you knew him truly top of the class. He was you could. he was genuinely happy to see you. always - the consummate gentleman When he spoke with you, you were his in the courtroom and in the hallway. Beyond honing legal skills, he shaped sole focus. He made you feel that you He was dignified, calm and deliberate. characters. Look at the young lawyers were the most interesting and most im- There were no theatrics, no raised voice, in his professional legacy, fine attorneys portant person in the room. He put you no drama. He knew the truth, – a good with sharp legal minds and conviction of at ease, asking always what was new lawyer doesn’t need to resort to such character – due in no small part to JBK’s with you. He might share some news circuses – and John Kincaid was a good council. about “his” Sharon, or a proud moment lawyer. about the family – but it was never an I can’t help but mention his influence in opportunity for him to talk about him- I saw Mr. Kincaid differently after that promoting women. self. No, to the contrary, to get JBK to case - he became just John Kincaid, the talk about himself was an art form that regular guy and my friend. The father of three daughters who are few ever achieved. extraordinarily strong women, he was an That friendship allowed me to see John early champion of women in our profes- By the way – it wasn’t just me; he gave as a really good person, and that being sion. I and many others, benefitted from everyone his undivided attention. a good person is what helped him be a that support. In 1991, President - Elect good lawyer. That meant work hard, John Kincaid asked a brand new female Though he was one of the best lawyers do the right thing, give back and never associate judge to preside at his installa- in the county, he never took himself too forget that what’s really important in life tion and swear him in as President of the

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Bar Association. It was his night – yet beautiful girl wearing a polka-dot dress their birth, to first milestones, to school, he shared the spotlight with Sharon and who caught his eye. He was smitten and sports, driving, and college...and beyond. with me. It was a moment I never forgot. would remain so for all his days. That was He took pro bono cases, too many to apparent to anyone around them. Again, I asked Tara’s oldest boy what he thought count, where those represented by John not in words – though there was that too he had learned from Papa. He paused Kincaid received the full measure of his – Rather it was the way he looked at her, and said he’d have to get back to me work ethic – and the same time and atten- the way he spoke about her that told the on that...I saw the glint of a tear in his tion afforded the most valued client. love story. She was a very lucky girl in- eye, and I realized that all that they had deed. learned was sitting in front of me. Papa’s John Kincaid did much for others outside life lessons had been woven into their our profession. Some of you may know He was a dad – interested, engaged, en- character. His influence was already that John never served in the Armed couraging; he was a teacher, coach and there in those wonderful boys – in who Services – a twist of fate, denied his supporter. He celebrated his proudest they were now and in who they would eligibility. He never served in war time. accomplishment - his daughters. become. I am sure the same is true for Instead, he gave countless volunteer Claudia and Amelia and Zach. hours to those who had served – our vet- John Kincaid mastered the balance in erans. John provided transportation to life that many of us still strive to find. NO ONE is perfect – even in their vets as far away as South Bend Indiana, He had it all along – even in the tough- eulogy, but John B. Kincaid is close. driving them to Hines VA hospital in est days of early practice, he never Maywood for medical care – then taking brought work home. Even when he His life, was a life well lived. them home? He spent countless hours at knew he’d have to go back to work lat- Hines – just volunteering to wheel hospi- er, he didn’t miss an evening with his He was a very rich man – rich in every- tal-bound vets from place to place in the little girls. He came home to be with thing that really matters in life - This rich hospital giving them his trademark, full them, to have dinner, help with bath man leaves a personal legacy in his wife, and undivided attention as a break in the time and read a bed-time story. As they his daughters and his grandchildren that monotony of life in a VA Hospital. Few grew up, he was there for homework most would envy. knew of his service because what John and sports and their father-daughter did for others he did without fanfare or talks. In short, whatever was on their He was a lawyer I respected and a man notoriety. plate was on his plate, too. As a result, I admired. It was my honor to consider he built a relationship with each of his him a colleague and my good fortune to It comes down to this, John Kincaid was girls that will remain with them all the call him my friend. one of the finest men I’ve ever known. days of their lives. God speed my friend - to a rest well My recollection of John Kincaid, the He was Papa a role he embraced with earned. man, begins with his story of how he met much enthusiasm as he experienced Sharon, about being at a wedding and a the wonder of the next generation from

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about his new pal in ten minutes. The Joe was top of the list. Joe was a lawyer’s point is, he never met a stranger. lawyer – zealot for his clients and just as ardent an advocate for his profession – a Always curious and interested, he made profession he loved and honored – every it his business to know what was happen- day. ing with everyone’s life. From his family, Joe Mirabella to the office, the local restaurant and the I admired his commitment. courthouse staff...even his local garbage I am honored to speak this morning collector. He cared about each of them. His clients loved him; they became emo- about a man, a great man, a one of a tionally attached to him. He was more kind. – I hope my words do him justice He loved young people and always found than just their lawyer, in their eyes he this one last time. a way to connect with them through walked on water because he listened sports or food, and even poetry. There to them – completely, openly and with Joe Mirabella lived his life to the fullest. was always room at the dinner table for genuine interest in their story. To his last adventure and his final breath, one more. he grabbed for all the gusto. I admired My early recollection of Joe Mirabella him for who he was, what he accom- Then, he’d encourage every one of them was that he was the divorce half of plished, and how he lived his life. to enroll in the University of Illinois. If Mirabella & Kincaid. Always the snappy words alone were not enough to carry the dresser, he was unabashedly sure of him- Joe Mirabella loved people and their life day…he would burst into song - regaling self and unapologetic for his approach. stories. them with the U of I fight song. He was a force of nature in the courtroom and as I came to know later – in his He would seek out any stranger in a for- He loved history and prided himself on life outside the law. eign surrounding. An early morning walk his memory of dates and facts. He never in Florida or Mexico or even Wheaton… stopped reading and learning. He appre- John Kincaid was his partner in the great would result in a new friend – just some- ciated fine art and loved to paint - when Mirabella & Kincaid, the firm that was a one he encountered along the way and in he had the time. He was a true Renais- fixture on Front Street for so many years. a few minutes, he learned their life story. sance Man – one of the last. Many wondered how these two could be We all know he did that by posing the partners, John Kincaid and Joe Mirabella. quintessential Joe Mirabella questions. Joe Mirabella lived his life as he prac- He’d ask, how much do you make? Where ticed law - honestly, loudly and with The answer is simple. Their opposite you live? Do you like your job? What tax great panache. styles complimented one another to a tee rate do you pay? He’d ask the value of – and at their core, they were very much their house and whether they had a dog. When the finest lawyers in DuPage the same. Both were men of integrity And … thus learn all there was to know County numbered in the single digits, and fairness. Lawyers who were honest,

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professional – and true champions for The gumption and confidence that has He knew what was important and why it their clients. Both remained committed become the hallmark of the Mirabella mattered. I admired his priorities. to a shared belief that it was their women didn’t happen by accident. It was obligation to teach and mentor the next due in no small measure to Joe Mirabella. Joe Mirabella was proud of his faith, his generation of lawyers. Italian heritage, his family, and his won- So, while he did get feminism, Political derful life. There may never be such a pair again. Correctness was simply too much. He just couldn’t do it. Joe would say the He was a true and steadfast friend. Our Joe Mirabella was brash and irrev- most inappropriate things. You would Though he would not seek a favor for him- erent to be sure – but infinitely endear- hear it – then – stop and think...did he self, he would leave no stone unturned to ing, kind, and very funny. He was who he just say that? help his family or a friend. If Joe was your was. I admired his confidence. friend – you were fortunate indeed. But it was never mean spirited. On the Mr. Mirabella and feminism...just hear- contrary, his poking and teasing was en- He had faith, a strong and enduring ing Joe Mirabella and feminism in the dearing. In fact, in some circles, it was a faith. Perhaps that’s why he always saw same sentence may make you laugh. Per- privilege to be teased by Joe, because it the glass half full. That is not easy for a haps you smile at this final bit of poetic meant he approved. Humor was his mea- guy who overcame more obstacles and justice that a woman lawyer, worse, a sure of fondness, and the more he poked adversities than most of us could ever woman judge, is having the last word on fun of you, the more he liked you. I must imagine. And…Joe did it with grace, Mr. Joe Mirabella. have been a favorite! courage, grit and faith.

But the truth is Joe Mirabella was a fem- No one ever really knew how he got away I would see him occasionally at 7:30 inist, though he would never admit it out with it – Perhaps it was that unspoken... mass – seated toward the back of church, loud. He practiced law in an area where but understood grant of immunity given over to the side – we sinners don’t seek women’s rights mattered – the divorce only to him. The perpetual “hall pass” or the front rows. Joe was here to quietly courts. No one fought harder for his Presidential Pardon that followed him. talk to his God, to again and again give client. Joe achieved very favorable – just thanks for the gift of just being alive a results – especially when his client was the We all have our favorite Joe Mirabella little bit longer. wife. story – the one that just makes us laugh. I heard more than a few tales about Joe – This was his 7th brain surgery – the Same is true closer to home where he was the lawyer – last night. But he was so much first nearly a quarter century ago. Many the dad to three extraordinary women. more - he was an extraordinary man, dad, would say he lived on borrowed time. I Just look at his beautiful, strong willed, in- and grandpa. For, in the final analysis, it choose to think it wasn’t borrowed; it was dependent, successful daughters, and his is not what he did in the courthouse or for a gift. God had more for Joe to finish; amazing and talented granddaughters. his profession – it is the mark he left on more days and years with Sharon, more those he loved that matters most. love to be given; more days and years to

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be dad and grandpa, more memories to – he and I would play golf”. Because a Sharon was quite simply the love of be made. round of golf was an opportunity to talk. his life – It was evident in how he talk- ed about her, the way he looked at her I asked some of the grandkids what they One of the youngest summed it up by and all the things he did – except build remembered most about Grandpa Joe saying, “He was just my favorite.” her another pool. They had a bond that - their favorite memory – The first one many would envy - through thick and said, “It was going fishing in Minnesota.” The common thread in all these mem- thin, tempers and tenders, it is the stuff That struck a chord with the rest as ories is that Grandpa Joe was there. He of epic love stories, and theirs was one of they all agreed that going fishing with spent the time to know each one and the greatest. grandpa in Minnesota – was the best. Of made each of those kids feel important. course, part of the ritual of catching fish Contrary to the persona, Joe was a very was also learning to clean and cook that Those weeks – every summer – in humble man. If he could see this crowd, fish. Joe was quite the cook, learning the Minnesota were sacred – not to be he would be stunned; he’d ask What are skill from his mom, he was eager to pass missed, because nothing was more im- they all doing here? Are they here for me? it on. portant than time together. On those Yes, Joe they are here for you. They are a trips he taught the kids to relish life – to sample of the people you’ve loved, the lives Another said “Grandpa Donuts” because give freely and be generous, to enjoy your you touched, the wrongs you righted and every Sunday morning he would bring family and friends, and to appreciate the all that you leave better than you found it. us donuts. They all chimed in...yes he simple pleasures like the anchovy olives. would go to Dunkin’ Donuts and bring There will never be another Joe Mirabel- us donuts. One editorialized by adding There was one more lesson. la – We will miss you and I will wish you that sometimes he just left them at the god’s speed...But – one last thing before door because no one was awake! We Joe taught his kids and grandkids what I go. all know that is because Joe was up at it meant to love someone truly, deeply crack of dawn and at Dunkin Donuts and forever by the way he loved his Dove Thank you, Joe, for adding so richly to before it opened. But the point is...they Bird. “My Sharon Ann” he called her, she my life – for bringing laughter to my all remember the donuts, that the donuts was his bed rock and he hers. So sound ordinary days and magic to my special meant “I love you”. and steadfast that no matter what hap- moments and giving me an example of pened...whatever they were called upon what it means to be a world class grand- Another said his favorite memory was to overcome, they would prevail. parent. “grandpa, with his gin martini and anchovy olives, just sitting on the porch Anyone can love a regular, average guy, May God bless you and hold you in the together.” He showed those kids how to a steady and true. But it is a lucky girl palm of his hand. appreciate life’s simple pleasures. indeed who meets a guy like Joe, wins his heart [or lets him win hers] and shares a God’s Speed my friend. Another smiled and said, “It was Tuesdays life that is one adventure after another.

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Where to Be with DCBA

Presidents Ball and Celebration of New Ofﬁcers and Directors

Pending allowance Docket e-newsletter for confirmation registration information in the Thurs- for groups over 50 and other details as they become avail- day Docket newsletters and on the dcba. and the approval able. Pursuant to the DCBA Bylaws, this org website. Those being feted include of the County, the will also serve as the Annual Meeting of incoming President, Wendy Musi- official swearing the Association. elak, President-Elect, Kiley Whitty, in and installa- 2nd Vice President, Angel Traub and tion of President All are invited to celebrate together newly elected 3rd Vice President, Rick Wendy Musielak during the Presidents Ball on the Veenstra. Also celebrating, will be and other officers new date of Friday, September 18th. re-elected director, Mark Bishop Wendy Musielak and directors will This will be a casino-themed affair and newly elected directors, Rebecca take place in the shadow of the Bauer and all are welcome to attend. The Krawczykowski and Ronald Menna Bust in the courthouse courtyard on location will be the DoubleTree by Hil- who will be joining the Board of Friday, June 19 at noon. Please watch ton Lisle/Naperville off Warrenville Directors. for email notices and check the weekly Road. Watch for additional details and

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