Celebrate the Spirit of Giving

Volume 30, Issue 4 December 2017

The Journal of the DuPage County Bar Association www.dcbabrief.org

Volume 30, Issue 4 Table of Contents December 2017

Come Celebrate with DCBA at the Holiday Party on December 6. Azam Nizamuddin Editor-in-Chief Brian Dougherty Associate Editor 3 Editor’s Message Editorial Board Anthony Abear Terrence Benshoof 5 President’s Message 39 I nBrief Annette Corrigan - By Terrence Benshoof Dexter Evans Peter Evans Raleigh D. Kalbfleisch 40 School Law Section Timothy Klein - By Josette Allen, Section Chair Christopher J. Maurer James F. McCluskey Articles 41 The Pragmatist Judge Christine McTigue Clarissa R.E. Myers - By Brian Dougherty & Peter Evans 8 Tilting at Windmills: Foundation for a Constitutional Jane Nagle Joseph K. Nichele Challenge Against a Criminal Statute 44 DCBA Update John J. Pcolinski, Jr. - By Wayne Brucar - By Robert T. Rupp Jay Reese Arthur W. Rummler 16 An Employer’s Guide to Copyright Law’s Work for Hire Doctrine James L. Ryan 45 Legal Resources: Jordan Sartell - By Andrew Murphy Top Web Links for Lawyers David N. Schaffer Michael R. Sitrick 20 Member and Manager Authority After the 2017 Illinois Limited Jolianne Walters 48 ISBA Update Eric R. Waltmire Liability Company Act and its Effect On Real Estate Transactions - By Kent A. Gaertner - By Ken Clingen and Tom Sisul Jacki Hamler 49 Legal Aid Update DCBA Liaison/Advertising 26 The Battle Over Rule 23: Authority v. Precedent - By Cecilia Najera - By Paul E. Wojcicki, Sara R. Strom, Jaime L. Padgett, and Ross Creative Works Graphic Design Patrick F. Sullivan 51 Classifieds Kelmscott Communications Printing 32 Illinois Law Update 52 Where to Be in December - Editor Jordan Sartell

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2 DCBA Brief December 2017 From the Editor Tis the Season By Azam Nizamuddin

Azam (“Az”) Nizamuddin is General Counsel with the American Welcome to the December issue of the DCBA For our December issue, we would like to Trust Corporation and Chief Brief. By now, we are well into the winter sea- thank Associate Editor Brian Dougherty as Compliance Officer for Allied son in DuPage County. As I write this essay, the Articles Editor. As usual, we have several Asset Advisors in Oak Brook, we eagerly anticipate the first snowfall of the important articles this month. We begin with Illinois. Previously, he practiced season. On the other hand, I’d rather be in a our trend of constitutional issues with Consti- commercial litigation and family warmer climate. Speaking of warmer climates, tutional Challenges by Wayne Brucar. Next law with large firms, small firms, I was in New Orleans last month for a trial. up is a timely article on the Copyright Law’s and as a solo practitioner. He is an active member of the DCBA, Unlike any other time I had been involved Work for Hire Doctrine by Andrew Murphy and serves on the DCBA Busi- in a trial, I was not directing or cross-exam- where he provides a nice history of the Copy- ness Law Section. He also serves ining witnesses. Rather, as general counsel, I right Act. Transaction attorneys Ken Clingen on the ISBA Corporate Law was the one on the witness stand. I was the and Tom Sisul help unwrap the thorny Section and previously served one being led through direct examination by issue of member-managed and manager- on the ISBA ARDC Committee. my counsel and then grilled on cross by my managed LLCs under the recently revised He was appointed to the Illinois client’s opponent. It was a peculiar position to Illinois LLC Act. We conclude our articles Supreme Court Access to Justice be in, but one I actually enjoyed. I think my with a comprehensive discussion of the Commission, Language Access Committee. He is also Adjunct litigation background prepared me to testify role of Supreme Court Rule 23. Thanks to Professor at Loyola University with comfort and confidence. Of course like Paul E. Wojcicki, Sara R. Strom, Jaime L. and frequently lectures on the anything else, being prepared and being Padgett, and Patrick F. Sullivan for provid- intersection of law and religion. familiar with the facts and documents helps. ing a terrific overview of this important Rule. We appreciate their timely and helpful con- Last month, we talked about mentorship, tribution to the DCBA Brief. Thanks also to this month is the time of holidays, family, our colleague Jordan Sartell for the case law and feasting. December offers the DCBA updates in December. legal community many opportunities to spend some quality time with members of the As a reminder, keep those substantive articles legal profession. On December 6, the DCBA coming! Also, you can earn necessary MCLE will be having its annual Holiday party. In credits for your contribution. conjunction with the holiday party, Lawyers Lending a Hand will be having its annual Have a wonderful holiday season and a safe Toy Drive. Just bring any new, unwrapped toy and joyous new year. and drop it off at the Holiday Party or DCBA office by December 18. Finally, the DuPage Bar Foundation has its annual breakfast on December 14, 2017.

DCBA Brief December 2017 3 In our prosecution and defense of class actions throughout the United States in We enter into referral and Federal and State Courts, we are proud of our recent accomplishments, which co-counsel agreements with include the following: attorneys who assist us in prosecuting class action or whistleblower claims. Breach of Warranty Claims for Consumer Products We have obtained class certification or are pursuing class actions in numerous state and national product defect cases involving products such as automobiles, faucets, infant car seats, laptops, and windows. We achieved trial, appellate and state Supreme Court victories in We are also investigating some of these cases affirming class certification and have entered into settlements in a number of these cases that benefitted class members. the following Potential Data Breach and Privacy Violation Cases Claims: We are currently representing consumers in class action cases involving data breach and privacy violation claims affecting tens of millions Violations of Federal and State wage claim laws if not hundreds of millions of consumers. by failing to pay overtime to salaried employees, forcing employees to work off the clock or failing Junk Text Messages and Autodial Voicemail Solicitations to pay minimum wages. Represented a national settlement class of consumers who received alleged junk text messages from various national chains or corporations such as Domino’s Pizza, Cox Media, Burger King and Mattel. Each class member who made a claim to receive $105 or their pro Whistleblower claims involving fraud on the rata share of the fund if there were not sufficient funds to pay $105. The total settlement fund was $16,000,000. government or securities purchasers. Overcharges in Consumer Invoices Such as Phony Tax Charges Manufacturers, retailers and advertisers who Court certified a class of all customers of a national hotel chain’s large hotel. Following successful interlocutory appeal, judgment in favor materially misrepresent how a product works or of the class for millions of dollars in damages, prejudgment interest and all attorneys’ fees. Affirmed on appeal. Class received in excess of performs or who knowingly sell a materially 90% of overcharges with monies being mailed to each class member following win on appeal. Settled identical cases on a class-wide basis defective product. against numerous other national hotel chains.

Vocational School Violation of Illinois Law Requiring Accurate Disclosure of Employment Statistics Junk text messages received from national or Court certified class seeking millions of dollars in refunds and other damages for all students who took a medical sonography course but well-established companies. did not obtain jobs in the field. The class claimed that Defendant violated the Consumer Fraud Act’s provision for vocational schools by failing to disclose that very few graduates obtained jobs. Appellate and Supreme courts refused to hear an appeal of class certification order. Areas of Interest:

Breach of Contract and Gift Card Cases Wage & Hour Overtime and Minimum Wage Represented national class of consumers that received a $25 purchase reward card that allegedly did not contain an expiration date but Violations which defendant claims should have contained an expiration date and will no longer honor. Class action certified by District Court and 7th Whistleblower (Qui Tam) Claims Circuit denied request for interlocutory appeal of class certification. In separate state court suit, class certification approved by New Jersey Unfair Check Overdraft Fees appellate court. Healthcare Product Fraud Shareholder Derivative Lawsuits Defective Car & Vehicle Products We have or are representing shareholders of various corporations in shareholder derivative lawsuits involving claims against management Insurance Fraud including cases against DeVry, Cole Taylor Bank, and Nalco. Fair Credit Reporting Act – FCRA Fair Debt Collection Practices Act – FDCPA Unpaid Overtime Class Actions Representing putative class members in a number of cases against employers seeking repayment of alleged unpaid overtime or for other Privacy Violations wage and hour violations such as failure to pay minimum wages. We have obtained favorable class-wide settlements in wage and hour and Violation of Car Repossession Statutes overtime cases. Vocational School Deception Excessive Late Charges Auto Repossessions Class certification order affirmed by the Appellate Court. 365 Ill.App.3d 664. Represented class with co-counsel in claims involving alleged Infomercials & Deceptive Advertising violations of Illinois automobile repossession laws. Case settled with each of the over 7,600 class members able to claim up to $2000. In addition to the damages payment, debt totaling $6.5 million was forgiven as to all class members as part of the settlement.

Hidden Voice Mail Charges in Telephone Bills Court certified consumer fraud claims for failure to disclose hidden voicemail charges. In 2005, Crain’s Chicago Business listed the settlement as the third highest settlement/verdict in Illinois.

Class Action Defense Defended national marketing company in four Fair Credit Reporting Act class claims seeking over $100,000,000 brought in federal courts in Chicago and Maryland. Defended national residential mobile home rental chain in consumer fraud claims. Defend a number of large to mid-size companies in class claims throughout the country including defending a landlord in class claims alleging violations of Illinois security deposit laws, a municipality in claims involving alleged illegal fines, and a medical services finance company regarding alleged illegal loans for plastic surgery procedures. Also act as advisors and co-counsel with attorneys who have asked us to assist them in defending their clients against class claims.

DiTommaso Lubin Austermuehle. Principal Counsel: Vincent L. DiTommaso, Peter S. Lubin and Patrick Austermuehle 17W220 22nd Street, Suite 410, Oakbrook Terrace, Illinois 60181 | Tel: 630-333-0000 | Fax: 630-333-0333 E-mail: [email protected] website: www.ditommasolaw.com President’s Message Happy DCBA New Year! By Gerald Cassioppi In our prosecution and defense of class actions throughout the United States in We enter into referral and Federal and State Courts, we are proud of our recent accomplishments, which co-counsel agreements with include the following: attorneys who assist us in prosecuting class action or whistleblower claims. As we head into the holiday season, we find With that in mind, there continues to be many Breach of Warranty Claims for Consumer Products time to re-connect with colleagues, friends and upcoming opportunities offered by the DCBA We have obtained class certification or are pursuing class actions in numerous state and national product defect cases involving products Gerald Cassioppi is the current such as automobiles, faucets, infant car seats, laptops, and windows. We achieved trial, appellate and state Supreme Court victories in We are also investigating relatives. Hopefully, this time of year offers to maximize your membership benefits at this DCBA President and is a Partner some of these cases affirming class certification and have entered into settlements in a number of these cases that benefitted class members. the following Potential opportunities to view our busy lives from time of year. with Momkus McCluskey Roberts Data Breach and Privacy Violation Cases Claims: different perspectives. LLC, in Lisle. He counsels We are currently representing consumers in class action cases involving data breach and privacy violation claims affecting tens of millions Violations of Federal and State wage claim laws We have a 2-part Basic Skills seminar, coming businesses, not-for-profits and if not hundreds of millions of consumers. government entities. He received by failing to pay overtime to salaried employees, First, and most importantly, we should up on December 1 and 8 that will improve forcing employees to work off the clock or failing his law and undergraduate Junk Text Messages and Autodial Voicemail Solicitations be grateful for those we have in our lives. the skills of new bar admittees and seniors to pay minimum wages. degrees from the University of Represented a national settlement class of consumers who received alleged junk text messages from various national chains or Having attended last month’s Lawyers’ Assis- alike. The Domestic Relations’ GAL training corporations such as Domino’s Pizza, Cox Media, Burger King and Mattel. Each class member who made a claim to receive $105 or their pro Illinois, is also a CPA and is Whistleblower claims involving fraud on the rata share of the fund if there were not sufficient funds to pay $105. The total settlement fund was $16,000,000. tance Program Annual Dinner, it is clear that returns with part 1 on January 15, and part 2 government or securities purchasers. active in community leadership, organizations like this reflect the fact that none on February 3 as part of Mega Meeting. including the Naperville District Overcharges in Consumer Invoices Such as Phony Tax Charges Manufacturers, retailers and advertisers who Court certified a class of all customers of a national hotel chain’s large hotel. Following successful interlocutory appeal, judgment in favor of us makes it through life alone. While the 203 School Board and as DuPage materially misrepresent how a product works or of the class for millions of dollars in damages, prejudgment interest and all attorneys’ fees. Affirmed on appeal. Class received in excess of love of our families is primary, and our work All members are invited to participate in the County Ethics Commission performs or who knowingly sell a materially 90% of overcharges with monies being mailed to each class member following win on appeal. Settled identical cases on a class-wide basis Chairman. Gerry was recognized defective product. family provides further support, a key goal of networking opportunities provided by the against numerous other national hotel chains. as DCBA Lawyer of the Year for the DCBA is to provide the mutual interaction DCBA. There is no Happy Hour scheduled for 2012 and also served as DCBA Vocational School Violation of Illinois Law Requiring Accurate Disclosure of Employment Statistics Junk text messages received from national or that benefits all our members. Further, through December but this popular event will return well-established companies. General Counsel and on its Court certified class seeking millions of dollars in refunds and other damages for all students who took a medical sonography course but our many programs we reach out to others in in January, 2018. Join your fellow DCBA did not obtain jobs in the field. The class claimed that Defendant violated the Consumer Fraud Act’s provision for vocational schools by Board of Directors. our community that need our bolstering. Life members at our annual Holiday Party on failing to disclose that very few graduates obtained jobs. Appellate and Supreme courts refused to hear an appeal of class certification Areas of Interest: order. is a challenging journey we cannot make alone, December 6 at Elements at Water Street

Breach of Contract and Gift Card Cases Wage & Hour Overtime and Minimum Wage but by connecting with those around us, we (Hotel Indigo), Naperville. Bring a new, Represented national class of consumers that received a $25 purchase reward card that allegedly did not contain an expiration date but Violations can continue to have hope and inspiration. unwrapped toy for a child and receive a drink which defendant claims should have contained an expiration date and will no longer honor. Class action certified by District Court and 7th Whistleblower (Qui Tam) Claims ticket. All toys will be donated to local non- Circuit denied request for interlocutory appeal of class certification. In separate state court suit, class certification approved by New Jersey Unfair Check Overdraft Fees appellate court. Second, we should be grateful for those profit agencies. Healthcare Product Fraud successes we have had during the past year. I Defective Car & Vehicle Products Shareholder Derivative Lawsuits am proud of everything that the DCBA and Continue into the New Year with the 2018 We have or are representing shareholders of various corporations in shareholder derivative lawsuits involving claims against management Insurance Fraud including cases against DeVry, Cole Taylor Bank, and Nalco. Fair Credit Reporting Act – FCRA our members achieved in 2017. While our DCBA Mega Meeting, scheduled for February Fair Debt Collection Practices Act – FDCPA DCBA softball team did not “win” the game 3 at the Sheraton in Lisle. The Mega Meet- Unpaid Overtime Class Actions Representing putative class members in a number of cases against employers seeking repayment of alleged unpaid overtime or for other Privacy Violations against the KCBA team, we did have success ing will provide a great opportunity to connect wage and hour violations such as failure to pay minimum wages. We have obtained favorable class-wide settlements in wage and hour and Violation of Car Repossession Statutes by raising over $2900 for our DuPage Legal professionally and build members’ network. overtime cases. Vocational School Deception Aid at the event. At our DCBA Golf outing, Excessive Late Charges Auto Repossessions $1800 was raised for the DuPage Bar Founda- And of course there is the annual Judges’ Nite Infomercials & Deceptive Advertising Class certification order affirmed by the Appellate Court. 365 Ill.App.3d 664. Represented class with co-counsel in claims involving alleged tion and another $1600 for Legal Aid. fundraiser at the McAninch Arts Center at violations of Illinois automobile repossession laws. Case settled with each of the over 7,600 class members able to claim up to $2000. In addition to the damages payment, debt totaling $6.5 million was forgiven as to all class members as part of the settlement. College of DuPage on March 3, always a crowd Our many Sections and Committees contin- pleaser that supports DuPage Legal Aid. Hidden Voice Mail Charges in Telephone Bills ue to devote significant personal time to keep Court certified consumer fraud claims for failure to disclose hidden voicemail charges. In 2005, Crain’s Chicago Business listed the settlement as the third highest settlement/verdict in Illinois. our organization vibrant. Another reason to celebrate this year was Lawyers Lending a So remember to keep gratitude and joy in Class Action Defense Defended national marketing company in four Fair Credit Reporting Act class claims seeking over $100,000,000 brought in federal courts in Hand which continues to make unique and your heart this holiday season, and cherish the Chicago and Maryland. Defended national residential mobile home rental chain in consumer fraud claims. Defend a number of large to positive contributions to our community and moments with friends and family. I know I mid-size companies in class claims throughout the country including defending a landlord in class claims alleging violations of Illinois helps relieve the stresses of our profession by speak for the entire staff of the DCBA when security deposit laws, a municipality in claims involving alleged illegal fines, and a medical services finance company regarding alleged illegal loans for plastic surgery procedures. Also act as advisors and co-counsel with attorneys who have asked us to assist them in offering members a way to give back in non-law I wish you and your families a joyous holiday defending their clients against class claims. related ways. We should all be grateful to be season and best wishes for a safe, healthy and part of our strong and productive membership. prosperous new year.

DiTommaso Lubin Austermuehle. Principal Counsel: Vincent L. DiTommaso, Peter S. Lubin and Patrick Austermuehle DCBA Brief December 2017 5 17W220 22nd Street, Suite 410, Oakbrook Terrace, Illinois 60181 | Tel: 630-333-0000 | Fax: 630-333-0333 E-mail: [email protected] website: www.ditommasolaw.com Gerald A. Cassioppi Tricia Buhrfiend President Secretary/Treasurer

J. Matthew Pfeiffer Jeffrey M. Jacobson President-Elect Assist. Treasurer

Stacey A. McCullough Directors: 2nd Vice President Terrence Benshoof The DCBA BRIEF is a publication of the Mark S. Bishop DuPage County Bar Association Wendy M. Musielak Ashley M. Bump 126 South County Farm Road 3rd Vice President Patrick L. Edgerton Wheaton Illinois 60187 David S. Friedland (630) 653-7779 Ted A. Donner James S. Harkness Immediate Past President John J. Pcolinski, Jr. Amalia M. Romano DCBA Brief welcomes members’ feedback. Arthur W. Rummler Please send any Letters to the Editor to the attention Richard J. Veenstra James L. Ryan of Azam Nizamuddin at [email protected] General Counsel Kiley M. Whitty

Charles G. Wentworth Kent A. Gaertner Assoc. Gen’l Counsel ISBA Liaison

Robert T. Rupp John Pankau Executive Director Legislative Liaison

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. ©2017 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 Promotions: 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 December 2017 Articles Editor Brian Dougherty agencies. federal courts,appellatecourtsand administrative primarily onemploymentlitigationinthestateand Hoff, Ltd.inBurrRidge,Illinoiswherehefocuses firm Goldstine,Skrodzki,Russian,Nemecand of theDCBABrief.Heisapartnerwithlaw Brian DoughertyisthecurrentAssociateEditor Articles 32 26 20 16 8Tilting atWindmills:FoundationforaConstitutional - ByWayne Brucar Challenge AgainstaCriminalStatute - EditorJordanSartell Illinois LawUpdate - The BattleOverRule23:Authorityv. Precedent - ByKenClingenandTom Sisul Liability CompanyActanditsEffectOnRealEstateTransactions Member andManagerAuthorityAfterthe2017IllinoisLimited - ByAndrewMurphy An Employer’s GuidetoCopyrightLaw’s Work forHireDoctrine Patrick F. Sullivan By PaulE.Wojcicki, SaraR.Strom,JaimeL.Padgett,and

ARTICLES

The constitution is under attack. Just because a law is passed does not mean it conforms with the requirements of the basic foundation of the structure of our government. Now more than ever, every criminal defense attorney must look to the constitution when devising a defense for their client.

As Don Quixote “impossibly” proposed to fight worldly injustice by making his utopian vision a reality, so can legal injustice be fought by constitutional challenge to the law under which it is wrought. While an extraordinarily difficult and complex endeavor, a properly fashioned constitutional challenge can yield results not only for the case at issue but potentially thousands of others. When championing a criminal case in which defense seems hopeless, an examination and challenge of the law under which prosecution is advanced can often yield a positive and far reaching result.

What is a Constitution? Tilting at Windmills: It is essential to truly understand what a constitution is and Foundation for a Constitutional how it is supposed to function before it can be used in a challenge to litigation. The answer to the question is not as obvious Challenge Against a Criminal Statute as it seems. By Wayne Brucar The modern U.S. Constitution is based upon the concept of rule of law – that promulgated law should govern a nation or state rather than the capricious will of authoritarian figures. As a participant in drafting the 1780 Massachusetts constitution, John Adams forwarded the concept of a government of laws not men. As such, government should be based on the application of clearly written laws generated by those to which they apply.

Popularized in the 19th century by British constitutional scholar A. V. Dicey, the rule of law holds that every citizen is subject to the law, including law makers themselves. It stands in contrast to any system of government where the rulers are held above the law. The framers of the original state and federal constitutions of the United States drafted their respective documents with this as their goal.

The written constitution itself is a system for implementing the rule of law – a schematic of rules about making rules to exercise power. It creates and governs the relationships between the

8 DCBA Brief December 2017 ARTICLES judiciary, the legislature and the executive branches of govern- an interpretation of Congressional intent – what was the mean- ment. Inspired by John Locke, the fundamental constitutional ing of “State” in interpreting tax credits for “State” operated principle is that the individual can do anything but that which exchanges. The question of interpretation involved what the is forbidden by law, while the state may do nothing but that statute meant, what was Congresses intent in promulgating it which is authorized by law. Locke expressed the novel view at and how should it be applied? the time that government is morally obligated to serve people by protecting life, liberty, and property. The Affordable Care Act required the creation of an “Exchange” in each State – basically, a marketplace that allows Chief Justice Warren Burger in United States v. Nixon1 people to compare and purchase insurance plans. The Act gave explained this process: each State the opportunity to establish its own Exchange, but provided that the Federal Government will establish “such Our system of government ‘requires that federal courts on Exchange” if the State does not. The challenge involved four occasion interpret the Constitution in a manner at variance individuals who lived in Virginia, which had a Federal with the construction given the document by another branch… Exchange. They did not wish to purchase health insurance. In And in Baker v. Carr…the Court stated:‘(D)eciding whether a their view, Virginia’s Exchange did not qualify as “an Exchange matter has in any measure been committed by the Constitu- established by the State”. The Supreme Court held the legislation to another branch of government, or whether the action of tive intent is to treat the Federal option in the same manner as that branch exceeds whatever authority has been committed, the state option – an interpretation of a statute. is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the In Obergefell v Hodges3 the Supreme Court analyzed a consti- Constitution. ‘Notwithstanding the deference each branch tutional challenge to a ban on gay marriage, i.e. did the statute must accord the others, the ‘judicial Power of the United States’ forward a legitimate state interest in a constitutional manner: vested in the federal courts by Art. III, s 1, of the Constitution can no more be shared with the Executive Branch than the The dynamic of our constitutional system is that individuals Chief Executive, for example, can share with the Judiciary the need not await legislative action before asserting a fundamental veto power, or the Congress share with the Judiciary the power right. The Nation’s courts are open to injured individuals who to override a Presidential veto. Any other conclusion would be come to them to vindicate their own direct, personal stake in contrary to the basic concept of separation of powers and the our basic charter. An individual can invoke a right to constitu- checks and balances that flow from the scheme of a tripartite tional protection when he or she is harmed, even if the broader government…We therefore reaffirm that it is the province and public disagrees and even if the legislature refuses to act. The duty of this Court ‘to say what the law is’ with respect to the idea of the Constitution “was to withdraw certain subjects claim of privilege presented in this case. (citations omitted) from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them Nixon ultimately held the President himself was subject to the as legal principles to be applied by the courts.” …This is why subpoena power of Congress.

What is a Constitutional Challenge? The difference between statutory interpretation and a constitutional challenge must be made clear. Two high visibility cases About the Author from 2015 illustrate this point. Wayne Brucar is currently a Supervising Assistant at the DuPage County Public Defender’s Office. In King v Burwell,2 a challenge to the application of the Afford- He previously engaged in the private practice of able Care Act, the United States Supreme Court was asked for criminal defense, administrative law and insurance defense. Wayne has taught legal writing at John Marshall Law School and has given continuing legal education seminars throughout his career in both 1 418 U.S. 683 (1974) civil and criminal law practice. 2. 135 S. Ct. 2480 (2015) 3. 135 S. Ct. 2584 (2015)

DCBA Brief December 2017 9

ARTICLES

“fundamental rights may not be submitted to a vote; they Constitution and has adopted what it refers to as the “limited depend on the outcome of no elections.” It is of no moment lockstep” approach of interpretation: whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the This approach has been described as one under which a court Court here is the legal question whether the Constitution pro- will “ ‘assume the dominance of federal law and focus directly tects the right of same-sex couples to marry. (citations omitted) on the gap-filling potential’ ” of the state constitution…Under this approach, this court will “look first to the federal constitu- The Supreme Court held the right to marry is a fundamental tion, and only if federal law provides no relief turn to the state right inherent in the liberty of the person, and under the Due constitution to determine whether a specific criterion – for Process and Equal Protection Clauses of the Fourteenth example, unique state history or state experience – justifies Amendment, couples of the same-sex may not be deprived of departure from federal precedent.” (We) shall refer to it, for that right and that liberty – an application of the constitution. lack of a better term, as our “limited lockstep approach”.

Standing Caballes held a dog sniff of a vehicle during a routine traffic Who can make a constitutional challenge to a law? Before stop did not implicate the privacy clause of the Illinois Consti- bringing a constitutional challenge, a party must be in a tution so federal constitutional precedent would apply. position to do so legally. The doctrine of standing is intended to ensure that issues are raised and argued only by those Statutory Construction parties with a real interest in the outcome of the controversy.4 What makes a statute unconstitutional? The rules of statutory To have standing to challenge the constitutionality of a statute, construction provide that the starting point in reviewing the the challenger must have suffered or be in immediate danger constitutionality of statutes is that statutes as promulgated by of suffering a direct injury as a result of enforcement of the the legislature are presumed constitutional and all reasonable challenged statute.5 doubts must be resolved in favor of upholding their validity. The hearing court must construe acts of the legislature so as As a rule, if there is no constitutional violation in the applica- to affirm their constitutionality and validity if it can reasonably tion of a statute to a litigant, they do not have standing to argue be done.9 that it would be unconstitutional if applied to third parties in hypothetical situations.6 A limited exception has been recog- It is the party challenging the constitutionality of a statute nized for statutes that broadly prohibit speech protected by that bears the burden of clearly establishing the constitutional the First Amendment. This exception has been justified by the violation.10 The only exception is when a statute infringes on overriding interest in removing illegal deterrents to the exercise a First Amendment right where the State has the burden of of the right of free speech.7 proving constitutionality beyond a reasonable doubt.

Lockstep When construing a statute, the reviewing court’s fundamental A person may have wider constitutional protections under objective is to give effect to the legislature’s intent. The best the Illinois Constitution than the United States Constitution. indication of legislative intent is the plain and ordinary mean- The concept of lockstep refers the requirement of the states to ing of the statutory language. However, a reviewing court may adhere to federal decisional law when it comes to constitutional also consider the underlying purpose of the statute, the evil interpretation. In Illinois, People v. Caballes8 explains the appli- sought to be remedied, and the consequences of construing the cation of the Illinois Constitution in light of the United States statute in one manner versus another. It is always presumed

4. Chicago Teachers Union, Local 1 v. Board of Education of the City of Chicago, 189 Ill.2d 200 (2000) 5. People v. Greco, 204 Ill. 2d 400 (2003) 6. Broadrick v. Oklahoma, 413 U.S. 601 (1973) 7. Gooding v. Wilson, 405 U.S. 518 (1972) 8. 221 Ill. 2d 282 (2006) 10. People v. Bales, 108 Ill.2d 182 (1985) 9. People v. Steffens, 208 Ill.App.3d 252 (4th Dist. 1991) 11. People v. Garcia, 241 Ill.2d 416 (2011)

DCBA Brief December 2017 11 ARTICLES

Constitutional Challenge Issues Facial and As Applied There are two types of constitutional challenge to a law: a It is essential to truly under- “facial challenge”, alleging that on its face the law is unconstitutional in all contexts and an “as applied challenge”, alleging stand what a constitution the law is unconstitutional as applied to the challenger alone.

is and how it is supposed In a facial challenge, the party challenging the statute contends that there is no set of circumstances exist under which it would “ 13 to function before it can be validly applied. When a statute is held facially unconstitutional, (i.e., unconstitutional in all its applications) it is said be used in a challenge to to be void ab initio from its inception. Such a challenge to a statute will be significantly more difficult than challenging a litigation. The answer to the specific application. In an as applied challenge, the party challenging the statute question is not as obvious contends that the application of the statute in the particular context in which the challenger has acted, or in which he as it seems. proposes to act, would be unconstitutional. An as applied challenge requires a party to show that the statute violates the that the legislature did not intend to cause absurd, incon- constitution as it applies to them.14 If a statute is unconstitu- venient, or unjust results. Furthermore, statutes must be tional as applied, the State may continue to enforce the statute construed in the most beneficial way which their language will in circumstances where it is not unconstitutional.15 permit so as to prevent hardship, injustice, or prejudice to the public interest.11 In City of Los Angeles, Calif. v. Patel16 Justice Sotomayor made clear that facial challenges under the Fourth Amendment are When the language of the statute is clear and unambiguous, it not categorically barred or especially disfavored: must be applied as written without resort to extrinsic aids or tools of interpretation. If the language of a statute is ambigu- Under the most exacting standard the Court has prescribed ous, determination of legislative intent includes consideration for facial challenges, a plaintiff must establish that a “law is of the purpose of the law, the evils it was intended to remedy, unconstitutional in all of its applications.” ...But when assessing and relevant legislative history. Multiple statutes relating to the whether a statute meets this standard, the Court has considered same subject are presumed to have been intended to be consis- only applications of the statute in which it actually tent and harmonious. authorizes or prohibits conduct. For instance…the Court struck down a provision of Pennsylvania’s abortion law that A statute should be read as a whole and construed so as to give required a woman to notify her husband before obtaining an effect to every word, clause, and sentence; a statute must not abortion. Those defending the statute argued that facial re- be read so as to render any part superfluous or meaningless. lief was inappropriate because most women voluntarily notify However, the court is not bound by the literal language of a their husbands about a planned abortion and for them the law statute if that language produces absurd or unjust results not would not impose an undue burden. The Court rejected this contemplated by the legislature.12 argument, explaining: The “[l]egislation is measured for

14. People v. Garvin, 219 Ill.2d 104 (2006) 12. People v. Hawkins, 2011 IL 110792 (2011) 15. People v. Brady, 369 Ill. App. 3d 836 (2nd Dist. 2007) 13. People v. Blair, 2013 IL 114122 (2013) 16. 135 S. Ct. 2443 (2015)

12 DCBA Brief December 2017 ARTICLES consistency with the Constitution by its impact on those whose tiny analysis and will uphold the statute only if it is narrowly conduct it affects...The proper focus of the constitutional tailored to serve a compelling State interest. If the statute inquiry is the group for whom the law is a restriction, not the does not affect a fundamental constitutional right or involve a group for whom the law is irrelevant.” suspect classification, the rational basis test applies, requiring the statute bear a rational relationship to the purpose the legis- Similarly, when addressing a facial challenge to a statute lature intended to achieve by enacting it.19 authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually A third tier of constitutional scrutiny lies between rational authorizes, not those for which it is irrelevant. If exigency or a basis and strict scrutiny analyses. Intermediate scrutiny has been warrant justifies an officer’s search, the subject of the search applied to review classifications based on gender, illegitimacy, must permit it to proceed irrespective of whether it is autho- and those classifications that cause certain content-neutral, rized by statute. Statutes authorizing warrantless searches incidental burdens to speech. To withstand intermediate scru- also do no work where the subject of a search has consented. tiny, the legislative enactment must be substantially related to Accordingly, the constitutional “applications” that petitioner an important governmental interest.20 claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute. Due Process - Procedural and Substantive (citations omitted) Under substantive due process, a statute is unconstitutional if it impermissibly restricts a person’s life, liberty or property Patel clarifies that a law must not be shown to be unconstitu- interest. Substantive due process limits the state’s ability to act, tional in every context but only where it impacts conduct. irrespective of the procedural protections provided.21 Under the banner of its police power, the legislature has wide discretion Due Process and Equal Protection to fashion penalties for criminal offenses, but this discretion Due process and equal protection are two distinct types of is limited by the constitutional guarantee of substantive due challenges. Each concept requires a different inquiry which process, which provides that a person may not be deprived of emphasizes different factors. The concept of due process liberty without due process of law.22 emphasizes the fairness of the relationship between the state and the individual, without regard to similarly situated individuals. Procedural due process asserts that the deprivation at issue is On the other hand, equal protection places emphasis on the constitutionally invalid because the process leading up to it was state’s disparate treatment of groups of individuals similarly deficient. Whereas substantive due process limits the state’s situated.17 ability to act, irrespective of the procedural protections provided, procedural due process governs the procedures employed to Strict Scrutiny and Rational Basis deny a person’s life, liberty or property interest. A procedural The first step in challenging statutes under either due process due process claim asserts that the deprivation at issue is con- or equal protection requires the same analysis for the standard stitutionally invalid because the process leading up to it was of review to be applied. It is the nature of the right affected that deficient.23 dictates the level of scrutiny employed in determining whether the statute meets constitutional requirements.18 In Griswold v. Connecticut24 Justice Douglas illustrated the nature of a substantive constitutional right: If the challenged statute implicates a fundamental right or discriminates based on a suspect classification of race or The present case, then, concerns a relationship lying within the national origin, the court subjects the statute to strict scru- zone of privacy created by several fundamental constitutional

19. People v. Shephard, 152 Ill.2d 489 (1992) 17. To Accomplish Fairness and Justice: Substantive Due Process, 30 J. Marshall L. Rev. 95, James W. Hilliard 20. Napleton v. Village of Hinsdale, 229 Ill.2d 296 (2008) (1996) 21. People v. Cardona, 2013 IL 114076 18. People v. Kimbrough, 163 Ill.2d 231 (1994) 22. People v. Madrigal, 241 Ill. 2d 463 (2011)

DCBA Brief December 2017 13

Thank you to DCBA 2017-2018 Sustaining Members

Anthony Abear Robert K. Downs Anita Kontoh Sco� Hon. S. Louis Rathje Hon. Robert J. Anderson Brigid A. Duffield Daniel J. Kordik E. James Raymond Irene F. Bahr Hon. Edward R. (Ted) Duncan Mary E. Krasner Jay M. Reese Hon. George J. Bakalis Hon. Mark W. Dwyer Lynne C. Kristufek Hon. Thomas J. Riggs Hon. William J. Bauer Michael P. Edgerton Maxine Weiss Kunz Mark A. Ritzman Gregory B. Beggs Joseph F. Emmerth IV Pamela J. Kuzniar Roger A. Ritzman Thomas V. Benno Hon. Rodney W. Equi Gregory F. Ladle David F. Rolewick Terrence J. Benshoof John L. Fay E. Paul Lanphier David W. Rosenberg Mark S. Bishop Richard D. Felice James J. Laraia Steven M. Ruffalo Monika M. Blacha George S. Frederick Joseph M. Laraia Arthur W. Rummler Richard F. Blass Mary Kay Furiasse Edward J. Leahy Kathleen R. Ryding Elizabeth J. Boddy Kent A. Gaertner Hon. Patrick J. Leston Michael J. Scalzo Thomas T. Boundas Mary Gaertner Hon. Richard A. Lucas David R. Schlueter Robert D. Boyd Glenn R. Gaffney Kevin M. Lyons William J. Sco�, Jr. Sco� D. Bromann Robert J. Galgan, Jr. Lee A. Marinaccio Sherby D. Scurto Tricia Buhrfiend Jeffrey A. Garbu� Mark W. Mathys Darius Sethna Michael J. Calabrese James A. Geraghty Markus May Ma�hew G. Shaw Richard J. Caldarazzo Brian A. Grady Sean M. McCumber John M. Sheahin Hon. Thomas E. Callum E. Barry Greenberg Hon. Brian R. McKillip Junie L. Sinson Kevin P. Camden W. B. Mar�n Gross Colleen McLaughlin Thomas J. Sisul Ma�hew T. Caruso Juli Gumina Kevin K. McQuillan Jefferey R. Sostak John P. Casey John D. Gutzke Mary E. McSwain Hon. George J. Sotos Gerald A. Cassioppi William E. Hardesty Hon. Ronald B. Mehling Natalie M. Stec Joseph T. Cesario Vincent Headington Steven H. Mevorah Lawrence A. Stein Michael S. Ce�na Richard A. Heidecke, Jr. Kevin H. Millon John P. Stock, III David W. Clark Hon. Donald J. Hennessy Lynn Mirabella William J. Stogsdill, Jr. Augusta R. Clarke Richard L. Hirsh Gary M. Moore Joseph P. Storto Ernest J. Codilis, Jr. Kathleen J. Hi�le Brian T. Morrow Maureen Sullivan Taylor Lee Ann Con� Eleonora R. Holmes John M. Mulherin Edward N. Tiesenga Andrew P. Cores Terra Costa Howard Jeffrey D. Muntz Dennis R. Torii Lawrence J. Czepiel Patrick B. Hurley Wendy M. Musielak Salvatore J. Tornatore Lee A. Daniels Walter R. Jackowiec, III Donald S. Nathan Angel M. Traub Dion U. Davi Jeffrey M. Jacobson Daniel M. Nelson Joan Van Oss Umberto S. Davi William E. Jegen Nicolas R. Nelson Edward J. Walsh Kimberly A. Davis Robert E. Jones Thomas M. Newman Douglas B. Warlick Timothy M. Daw Hon. Ann B. Jorgensen Chris�ne M. Ory Win Wehrli Joseph de LaVan Raleigh D. Kalbfleisch A. John Pankau, Jr. Michael B. Weinstein Karen L. Delveaux Hon. Bruce R. Kelsey John J. Pcolinski, Jr. Hon. Bonnie M. Wheaton Frank J. DeSalvo Thomas G. Kenny Roy I. Peregrine Timothy P. Whelan Hon. Brian J. Diamond Laura M. Urbik Kern J. Ma�hew Pfeiffer William P. White, III Paul P. Didzerekis Barry A. Ke�er Melissa M. Piwowar Robert H. Wier Hon. Peter J. Dockery John B. Kincaid Sarah L. Poeppel Patrick J. Williams John F. Donahue David A. King Bradley N. Pollock David J. Winthers Ted A. Donner James H. Knippen, II Elizabeth A. Pope Joyce L. Wixson Stephen M. Komie Paul J. Prybylo ARTICLES guarantees. And it concerns a law which, in forbidding the use children in public schools solely on the basis of race, even of contraceptives rather than regulating their manufacture or though the physical facilities and other tangible factors may sale, seeks to achieve its goals by means having a maximum be equal, deprives the children of the minority group of equal destructive impact upon that relationship. Such a law cannot educational opportunities, is in contravention of the Equal stand in light of the familiar principle, so often applied by this Protection Clause of the Fourteenth Amendment: Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not To separate them from others of similar age and qualifications be achieved by means which sweep unnecessarily broadly solely because of their race generates a feeling of inferiority as and thereby invade the area of protected freedoms.’… Would to their status in the community that may affect their hearts we allow the police to search the sacred precincts of marital and minds in a way unlikely ever to be undone. bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the Conclusion marriage relationship. While the championing of constitutional rights in the face of perceived injustice may seem quixotic, it should never be We deal with a right of privacy older than the Bill of Rights – abandoned. In 1986, Justice White declared Georgia’s sodomy older than our political parties, older than our school system. statute did not violate the fundamental rights of homosexuals Marriage is a coming together for better or for worse, hopefully and that the Federal Constitution did not confer the funda- enduring, and intimate to the degree of being sacred. It is an mental right upon homosexuals to engage in sodomy.30 In association that promotes a way of life, not causes; a harmony 2003, Justice Kennedy overruled Bowers and held that a Texas in living, not political faiths; a bilateral loyalty, not commercial statute making it a crime for two persons of the same sex to or social projects. Yet it is an association for as noble a purpose engage in certain intimate sexual conduct was unconstitutional as any involved in our prior decisions. (citations omitted) as applied to adult males who had engaged in the consensual act of sodomy in the privacy of their home.31 In 2015, Justice Equal Protection Kennedy held that the right to marry is a fundamental right Equal protection requires that similarly situated individuals be inherent in the liberty of the person and under the Due Process treated in a similar manner.25 The equal protection clauses of and Equal Protection Clauses of the Fourteenth Amendment the United States and Illinois Constitutions do not deny the couples of the same-sex may not be deprived of that right and State the power to draw lines that treat different classes of peo- that liberty. 32 ple differently, but prohibits the State from according unequal treatment to persons placed by a statute into different classes It is often said in the defense of a criminal case, “If you don’t for reasons wholly unrelated to the purpose of the legislation.26 have the facts, pound the law, if you don’t have the law, pound the facts, and if you don’t have either, pound the table!” A To state a cause of action for a violation of equal protection, better alternative to the defense of a case bereft of facts or a challenger must allege that there are other people similarly law is to pound the constitution. Analyze the statute your situated to him, that these people are treated differently than client is charged with, see if it’s been challenged in a particular him, and that there is no rational basis for this differentiation.27 constitutional way consistent with your issue and if not chal- A hearing court uses the same analysis in assessing equal pro- lenge it. A determination of whether a statute is facially tection claims under both the state and federal constitutions.28 unconstitutional or unconstitutional as it is applied requires both legal and evaluative analysis as well as a determination of In Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan.29 Chief how it affects human affairs. In doing so, fear not to go tilting Justice Warren for the majority held that segregation of at windmills!

23. In re Marriage of Miller, 227 Ill.2d 185 (2007) 24. 381 U.S. 479 (1965) 25. People v. Reed, 148 Ill.2d 1 (1992) 26. People v. Shephard, 152 Ill.2d 489 (1992) 27. Safanda v. Zoning Board of Appeals, 203 Ill.App.3d 687 (2nd Dist. 1990) 30. Bowers v. Hardwick, 478 U.S. 186 (1986) 28. People v. Guyton, 2014 IL App (1st) 110450 31. Lawrence v. Texas, 539 U.S. 558 (2003) 29. 347 U.S. 483 (1954) 32. See note 3, supra

DCBA Brief December 2017 15 ARTICLES An Employer’s Guide to Copyright Law’s Work for Hire Doctrine

By Andrew Murphy

Your company just launched a new website. Great. Now the The Copyright Act of 1909 question is who owns the copyright in that website? The answer Works created prior to 1978 are governed by the Copyright Act – as with most legal questions –is that it depends. The general of 1909. Although the 1909 Act used the term work for hire, rule in copyright law is: you create it; you own it. The “work for it did not define the term. Courts interpreted this as a codifi- hire” doctrine also known as the “work made for hire” doctrine cation of the judicially created “work for hire” doctrine. Under is a statutory exception to the general rule. this doctrine, copyright ownership presumptively belonged to the commissioning party, not the creating party, and the onus In the case of a work for hire, the owner of the copyright is was on the creating party to rebut this presumption.10 someone other than the work’s creator.1 Designating a work as a work for hire has a number of copyright ramifications beyond ownership. It determines the copyright’s duration2, the owner’s renewal rights,3 the owner’s termination rights,4 the right to Some of the greatest developments to the “work for hire” import certain goods bearing the copyright,5 and whether doctrine have come from comic books. Back in the day, artists certain “moral rights” attach to the work.6 who created comic book characters largely were not employees of the publishers but were paid on a per character or per page Section 101 of the Copyright Act of 1976 (“Copyright Act”) basis. Often, a character would not become popular for many defines a work for hire as: (1) a work created by an employee years after the artist created it. When a character did become in the scope of his employment; or (2) a work, falling into one popular, the artist and publisher would fight over the rights of nine enumerated categories, created by an independent to the character (and more importantly to the money earned contractor pursuant to a written work for hire agreement.7 If from use of the character). Under the 1909 Act, publishers a work meets one of these definitions, “the employer or other frequently won these battles because the characters were person for whom the work was prepared is considered the created “at the instance and expense” of the publishers, mean- author” for purposes of copyright law.8 Parties are free to alter ing the publishers requested and paid for the characters. This, this statutory default in a written, signed agreement.9 courts held, made them works for hire.11

1. 17 U.S.C. § 201(b). 2. 17 U.S.C. § 302(c). 3. 17 U.S.C. § 304(a). 4. 17 U.S.C. § 203(a). 5. 17 U.S.C. § 601(b)(1). 9. Id. 6. 17 U.S.C. § 106A. 10. Real Estate Data, Inc. v. Sidwell Co., 809 F.2d 366, 371 (7th Cir. 1987). 7. 17 U.S.C. § 101. 11. See, e.g., Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 141-43 (2d Cir. 2013); In re Marvel Entm’t Grp., 8. 17 U.S.C. § 201(b). Inc., 254 B.R. 817, 828-30 (D. Del. 2000).

16 DCBA Brief December 2017 ARTICLES

The Copyright Act of 1976 and CCNV v. Reid Who is an “Employee”? With the Copyright Act of 1976, Congress attempted to swing The Copyright Act does not define the term “employee.” This the pendulum back in favor of the artists by creating a statutory is where the Reid factors come into play. The Reid factors can work for hire doctrine to supplant the judicially created one. be lumped into three basic groups: (1) control over the work Under this statutory doctrine, the work’s creator presumptively (i.e. does the employer have the right to control the outcome owns the work and the burden is on the commissioning party of the final product?); (2) control over the worker (i.e. does the to establish that the work qualifies as a work for hire – reversing employer have the right to control the actions of the worker?); the presumption under the then-existing doctrine. and (3) the employer’s status and conduct (i.e. how does the employer treat the worker for tax purposes and is the work something the employer regularly makes?). After analyzing the The seminal case on works for hire is Community for Creative factors, courts decide whether the balance of factors weighs in Non-Violence v. Reid.12 In Reid, a nonprofit organization hired favor of finding that the individual is an employee. an artist to create a statute for the annual Christmastime Pageant of Peace in Washington, D.C. Upon completion, both The Reid court rejected the notion that the term “employee” parties attempted to copyright the statute. The primary issue is limited to formal employment relationships. Courts instead for the Reid court was whether the statute was a work for hire. consider the realities of the relationship and often find indi- Since the statutory definition has different requirements for viduals to be employees for copyright purposes in the absence works created by employees and works created by independent of formal employment relationships – particularly in small contractors, the court first had to determine whether the artist start-ups or non-traditional industries like technology.16 was an employee or independent contractor. The circuits had developed a number of tests for making this determination. While none of the Reid factors are determinative, provision The Reid court endorsed the Fifth and D.C. Circuits’ approach of employee benefits and tax treatment are two factors that of using a multi-factor test based on common law agency generally carry the greatest weight.17 The rationale is that it principles.13 After laying out a non-exhaustive list of factors would be inequitable to allow an employer to treat someone as (frequently referred to as the “Reid factors”) and weighing a contractor for benefits and tax purposes while treating him as each one, the Reid court concluded that the artist was not an an employee for copyright purposes. Failing to provide benefits employee for copyright purposes.14 Federal courts around the or paying payroll taxes, however, does not automatically make country still rely on the Reid factors to this day. one an independent contractor.18

Works created by employees What is “in the Scope of Employment”? To be a work for hire under § 101(1), two requirements must Like the term employee, the Copyright Act does not define be met: (1) the work’s creator must be an employee; and the term “scope of employment.” Courts look to agency law to (2) the employee must create the work in the scope of his define this term as well.19 Under agency law, a work is created employment.15 within the scope of employment if: (1) it is of the kind of work

12. 490 U.S. 730 (1989). 13. Id. at 750-51. 14. The factors identified by the Reid court were: (1) the skill required in the particular occupation; (2) who supplies the instrumentalities, tools; (3) the location of the work; (4) the duration of the relationship between the parties; (5) the method of payment, whether by the time or by the job; (6) whether or not About the Author the work is a part of the employer’s regular business; (7) whether the employer is or is not in business; (8) whether the hiring party has the right to assign additional projects to the hired party; (9) the extent Andrew C. Murphy is an associate at DiTommaso of the hired party’s discretion over when and how long to work; (10) the hired party’s role in hiring and paying assistants; (11) the provision of employee benefits; and (12) the tax treatment of the hired Lubin Austermuehle in Oakbrook Terrace where he party. Id. at 751-52. focuses on complex commercial and intellectual 15. 17 U.S.C. § 101(1). property litigation. In addition, he advises clients 16. Gaiman v. McFarlane, 360 F.3d 644, 650 (7th Cir. 2004); see, e.g., JustMed, Inc. v. Byce, 600 F.3d 1118, 1128 (9th Cir. 2010) (the absence of many hallmarks of a formal employment relationship was due to in general corporate law matters. Andrew received the start-up nature of the company and did not make the individual an independent contractor). his JD from Chicago-Kent College of Law in 2011 17. Aymes v. Bonelli, 980 F.2d 857, 862-63 (2d Cir. 1992) (explaining that the hiring party’s treatment of and his BA from Oral Roberts University in 2008. benefits and payroll taxes is a “virtual admission” of the nature of the parties’ relationship). 18. JustMed, 600 F.3d at 1128; see, e.g., Huebbe v. Oklahoma Casting Co., 663 F. Supp. 2d 1196 (W.D. Okla. 2009). 19. Reid, 490 U.S. at 739-40.

DCBA Brief December 2017 17 ARTICLES

the employee was employed to create; (2) it occurs substantially Works created by independent contractors within authorized work hours; and (3) it is created, at least in If the work’s creator is an independent contractor, three part, to serve the employer.20 requirements must be met for a work to qualify as a work for hire under § 101(2): (1) the work must be “specially ordered” or “commissioned”; (2) the parties must sign a written work To be a work for hire under for hire agreement; and (3) the work must fall into one of nine enumerated categories of works.24 § 101(1) of the Copyright Is the Work “Specially Ordered” or “Commissioned”? To be “specially ordered” or “commissioned,” the independent Act, two requirements must contractor must be hired to create something new – a pre- existing work that is later sold is not specially ordered or “ be met: (1) the work’s cre- commissioned. 25 The hiring party need not specifically request creation of the work or exercise control over its creation; it is ator must be an employee; sufficient that the hiring party is the “motivating factor” for the work’s creation.26 and (2) the employee must Did the Parties Sign a Written Work for Hire Agreement? create the work in the A work for hire agreement does not require any magic language; however, a few key elements are needed to make one enforceable. First, it must be written; oral agreements are not scope of his employment. enforceable.27 Second, it must clearly convey the parties’ intent to designate the work as a work for hire.28 Finally, it must be signed by all parties to the agreement.29 A work for hire agreement need not be a formal contract though.30 Under the Elec- tronic Signatures in Global and National Commerce Act, it is Courts normally rely heavily on an employee’s job description possible – although not advisable – to have an enforceable work to determine if the work is the kind that the employee was for hire agreement that consists entirely of a series of emails.31 employed to create.21 They will disregard vague or overly broad job descriptions, however. Courts do not give much weight to The law is clear that the parties must designate a work as one where and when a work is created and regularly find that works for hire before starting the work.32 The law is less clear on when created entirely at an employee’s home after hours were creat- such an agreement must be reduced to writing and signed ed in the scope of employment.22 The main concern is whether though.33 In the Seventh Circuit, a work for hire agreement the employee created the work to benefit the employer (or to must be written and signed before the work is started to be make the employee’s job easier).23 valid.34

24. 17 U.S.C. § 101(2). 25. TCA Television Corp. v. McCollum, 839 F.3d 168, 190-91 (2d Cir. 2016) (comedy routine created three years before the alleged work for hire could not be specially ordered or commissioned). 26. Playboy Enterprises, Inc. v. Dumas, 53 F.3d 549, 561-63 (2d Cir. 1995). 27. Gaiman, 360 F.3d at 649-50. 28. 17 U.S.C. § 101(2); Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1140-42 (9th Cir. 2003). 29. Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 412 (7th Cir. 1992). 30. See, e.g., Playboy, 53 F.3d at 560 (legend stamped on the back of check satisfied §101(2)’s writing requirement). 31. 15 U.S.C. § 7001 et seq. (broadly defining the term “electronic signature” and providing that an agreement containing an electronic signature must be given the same effect as an agreement with a physical signature). 32. Playboy, 53 F.3d at 559; see, e.g., Billy-Bob Teeth, Inc. v. Novelty, Inc., 329 F.3d 586, 591 (7th Cir. 2003) (fact that novelty teeth were created before the company existed precluded “an advance agreement . . 20. Restatement (Second) of Agency §228 (1958). . that they would be commissioned works”). 21. City of Newark v. Beasley, 883 F. Supp. 3, 8 (D.N.J. 1995). 33. Compare Schiller, 969 F.2d at 412-13 (work for hire agreement must be signed before the work is creat- 22. See Le v. City of Wilmington, 736 F. Supp. 2d 842, 849-50 (D. Del. 2010) (collecting cases). ed) with Playboy, 53 F.3d at 559 (agreement may be signed after work is created). 23. Id. 34. Schiller, 969 F.2d at 412-13.

18 DCBA Brief December 2017 ARTICLES

Does the Work Fall into One of the Nine Categories thing for you, update the employee’s job description to expressly Enumerated in §101(2)? include creation of that work. Not all works meeting the first two requirements of § 101(2) will qualify as works for hire. Only those that fall into one of Include work for hire and copyright assignment provisions in all the nine categories listed in § 101(2) are eligible.35 Even if a contractor agreements. By including both work for hire and work does not fall into one of the categories, the hiring party assignment provisions, this ensures that you will own the copy- may nonetheless still own rights in the work as a joint author.36 rights in any works falling into one of § 101(2)’s nine categories Alternatively, the hiring party may still own the copyright in a and also in works that do not. To ensure that the provisions are work that does not qualify as a work for hire if the parties have enforceable, it is important that both you and the contractor signed a copyright assignment.37 sign the agreement before any work is started.

Considerations for Employers Make certain contractors have permission to use pre-existing works. Include a copyright assignment provision in all employment agree- Contractors often use pre-existing works to avoid having to ments. Even though employers own copyrights in works created reinvent the wheel for every project (e.g. using existing soft- by employees in the scope of their employment, you should still ware code or modules). Ensuring that the contractor has include a copyright assignment provision in all employment permission to use these pre-existing works is important for agreements. The provision should provide that the employee a couple of reasons. First, copyright infringement is a strict assigns all copyrights in: (1) works created by the employee liability tort – meaning you don’t have to intend to infringe during his employment; and (2) works created by the employee someone’s copyright to be liable.40 Second, if the new work is prior to his employment that he uses in connection with his an unauthorized derivative work of a pre-existing work, your work. The assignment of copyrights in works created during the company will not even own a copyright in that new work.41 employee’s employment is a belt-and-suspenders approach that protects you even if the employee is later determined to have In some instances, it simply is not feasible to monitor a been an independent contractor. The assignment of copyrights contractor’s work to ensure that he has permission to use all in pre-existing works protects you from claims of infringement pre-existing works. In such instances, your contractor agree- for using the employee’s pre-existing works (or demands to pay ment should at least include a representation and warranty that to license such works from the employee).38 As with a work for all pre-existing works are used with permission. Additionally, hire agreement, a copyright assignment must be in writing and the agreement should include a provision providing that the signed.39 contractor will indemnify your company if a third party asserts a claim for infringement. Create a written job description for each employee or position and update it regularly. Creating and maintaining a detailed job description makes it easier to prove that a work was created By understanding the work for hire doctrine and adding a few in the scope of one’s employment. If you ask an employee to provisions to your agreements, you can avoid a potentially costly create something or learn that the employee is creating some- (and distracting) dispute over copyright ownership.

35. The nine categories of works in § 101(2) are: (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, or (9) an atlas. 36. See Reid, 490 U.S. at 753 (concluding that sculpture was not a work for hire but remanding case for determination of whether hiring party could be considered a joint author of the sculpture). 37. In the absence of any assignment agreement, the hiring party may still have permission to use the work if a court determines that the work’s creator gave the hiring party an implied license to do so. 38. See, e.g., Berg v. CI Investments, Inc., No. 15 C 11534, 2017 WL 1304082 (N.D. Ill. Apr. 7, 2017) (contractor argued that software program was not work for hire because it included code that he had written 40. Buck v. Jewell-La Salle Realty Co., 283 U.S. 191, 198 (1931); EMI Christian Music Grp., Inc. v. MP3tunes, before being hired). LLC, 844 F.3d 79, 89 (2d Cir. 2016). 39. 17 U.S.C. § 204; Gaiman, 360 F.3d at 650. 41 Pickett v. Prince, 207 F.3d 402 (7th Cir. 2000).

DCBA Brief December 2017 19 ARTICLES Member and Manager Authority After the 2017 Illinois Limited Liability Company Act and its Effect On Real Estate Transactions

By Ken Clingen and Tom Sisul

Illinois substantially amended its Limited Liability Act authority of managers. If no managers are listed, the 2017 Act effective July 1, 2017.1 A recent DCBA Brief article summarized defaults to a member-managed LLC. However, how does this the major changes wrought by the 2017 Act.2 This article adopts reconcile with the statutory language that asserts that member a narrower focus by exploring the ways in which the 2017 Act are not agents of the LLC? The Uniform Limited Liability Act changed the prior “member managed and “manager managed” (“ULLCA”)9 and its commentary provide some answers. regime and how that affects the authority of LLC members and managers to act on behalf of the LLC, particularly with Many of the 2017 Act changes are substantially adopted from respect to real estate transactions. We also include insight from the ULLCA, including specifically the revisions to those Richard Bales3 of Chicago Title on how these changes affect sections dealing with agency, which were borrowed almost real estate title and diligence issues. verbatim from the ULLCA.10 The ULLCA recognized that LLC’s designated by statute as “member managed” or “manager Member and Manager Agency Under the Amended Act managed” created a scenario of “statutory apparent authority” Prior to the 2017 Act, each member of a member-managed that had the potential to mislead third parties interacting with LLC was an agent of the LLC.4 In a similar way, any manager the LLC. The ULLCA also recognized that LLCs – a hybrid of a manager-managed LLC was an agent of the LLC.5 The form of entity sharing corporate and partnership attributes, 2017 Act deletes these provisions and expressly states that a needed different treatment than partnerships: member is not an agent of the LLC solely by reason of being a member.6 The 2017 Act further stresses that nothing in the “The concept [of statutory apparent authority] still makes 2017 Act effects other law, including the law of agency.7 These sense both for general and limited partnerships. A third are significant changes that affect anyone interacting with party dealing with either type of partnership can know LLCs. It also changes statutory reporting for LLCs. by the formal name of the entity and by a person’s status as general or limited partner whether the person has Prior to July 1, 2017, an Illinois LLC filed articles of organi- the power to bind the entity. Most LLC statutes have zation that designated the LLC as “member managed” or attempted to use the same approach but with a fun- “manager managed.”8 These designations have now been damentally important (and problematic) distinction. removed from the current Articles of Organization. In place of An LLC’s status as member-managed or manager- the former designation, the LLC organizer must now list the managed determines whether members or managers names and addresses of the managers and members with the have the statutory power to bind. But an LLC’s status as

1. Public Act 99-637 the Amended Limited Liability Act, Limited Liability Company Act, 805 ILCS 180/1-1 et seq. 2. Gregory M. White, “Key Points of the Revised Illinois Limited Liability Company Act”, Journal of the DuPage County Bar Association Vol 30, September, 2017. 3. Assistant regional counsel, Chicago Title Insurance Company. 4. Former 805 ILCS 180/13-5(a)(1). 5. Former 805 ILCS 180/13-5(b)(1). 9. 2006 Revised Uniform Limited Liability Company Act (last Amended 2013), National Conference of Com- 6. 805 ILCS 180/13-5(a). missioners on State Laws. 7. 805 ILCS 180/13-5(b). 10. Robin Heiss, “Institute of Illinois Business Law Comments to the Amendments to the Illinois Limited 8. Illinois Secretary of State Form LLC-5.5 prior to July 1, 2017. Liability Company Act”, March, 2017.

20 DCBA Brief December 2017 ARTICLES

member- or manager-managed is not apparent from the In keeping with the freedom of contract theme, the 2017 Act LLC’s name. A third party must check the public record, includes the following statement: Subject to subsection (b) of which may reveal that the LLC is manager-managed, Section 15-5 (specific sections of the Act that the operating which in turn means a member as member has no power agreement cannot modify) it is the policy of this Act to give to bind the LLC. As a result, a provision that originated maximum effect to the principles of freedom of contract and to in 1914 as a protection for third parties can, in the LLC the enforceability of operating agreements.13 context, easily function as a trap for the unwary. The problem is exacerbated by the almost infinite variety of These changes, in tandem with the removal of statutory management structures permissible in and used by LLCs. apparent authority, elevate the importance of the LLC oper- The new Act cuts through this problem by simply eliminating ating agreement and freedom of contract. At the same time, statutory apparent authority.”11 additional freedom introduces uncertainty, which can be alleviated by a well written operating agreement that reflects The ULLCA commentary now explains the changes in the the interests of the LLC members. With respect to real estate 2017 Act and LLC statutory reporting. In the past, third par- transactions, the operating agreement should clearly detail the ties dealing with an LLC designated by statute as “member member or manager with the authority to bind the LLC. With- managed” or “manager managed” could assume that the mem- out a contrary provision, including one providing for manager ber or manager was authorized to act on behalf of the LLC. management, a majority of the members must consent to the The 2017 Act expressly rejects this view and admonishes that transaction.14 However, if real property constitutes substantially nothing in the 2017 Act affects the law of agency for mem- all of the assets of the LLC, and absent a contrary provision in bers. These changes elevate the importance of other means of the operating agreement, all of the members must consent to determining the agency authority of LLC members or managers - specifically the operating agreement and the newly introduced Statement of Authority.

LLC Operating Agreement About the Authors Those that deal with LLCs on a regular basis are familiar with an operating agreement and its importance to LLC affairs. Ken W. Clingen is the managing member of Clin- The 2017 Act, emphasized the freedom of LLC members to gen Callow & McLean, LLC and chairs the firm’s corporate department. His practice areas include define their contractual relationships, which are embodied in Mergers and Acquisitions, Tax, and Succession the operating agreement. The 2017 Act amended the definition Planning. of operating agreement, specifically:

“Operating agreement” means the agreement under Section 15- 5, whether or not referred to as an operating agreement and whether oral, in a record, implied, or in any combination thereof, of all of the members of a limited liability company, including a sole member, Thomas J. Sisul is a partner with Sisul & Ger- concerning the relations among the members, managers, and manier. LLC of Downers Grove. His practice includes business law, commercial and residential limited liability company. The term “operating agreement” real estate, and estate planning. He has recently includes amendments to the agreement.12 been honored by Illinois State Bar Association, as Distinguished Counselor for 50 years of practice.

11. ULLCA, §301 Comments. 12. 805 ILCS 180/1-5. 13. 805 ILCS 180/55-1(b). 14. 805 ILCS 180/15-1(c).

DCBA Brief December 2017 21 Millon Peskin ARTICLES

from the ULLCA.18 The key real estate related provisions of Prior to the 2017 Act, each the Statement of Authority provide:

member of a member managed (e) A certified copy of a statement of authority that grants authority to transfer real property held in the name of the LLC was an agent of the LLC. limited liability company and that is recorded in the office In a similar way, any manager of for recording transfers of the real property is conclusive in “ favor of a person that is not a member and that gives value in reliance on the grant without knowledge to the contrary. a manager managed LLC was (f) If a certified copy of a statement of authority containing a limitation on the authority to transfer real property held an agent of the LLC. The 2017 in the name of a limited liability company is recorded in the office for recording transfers of that real property, all Act deletes these provisions persons that are not members are deemed to know of the limitation. and expressly states that a (h) If the articles of organization state the authority or limitations on the authority of any person on behalf of a company, member is not an agent of the the authority stated or limited shall not bind any person who is not a member or manager until that person receives LLC solely by reason of being a actual notice in a record from the company that agency authority is stated or limited in the articles. If the authority member. stated or limited in the articles of organization conflicts with authority stated or limited in a statement of authority filed with the Secretary of State under this Section on the transaction.15 In view of the importance of the operating behalf of the company, the statement of authority is the agreement, it is puzzling that the 2017 Act specifically permits effective statement and a person who is not a member or oral and implied operating agreements. The Illinois Institute of manager may rely upon the terms of the filed statement of Business Law acknowledged this risk, but asserted that other authority19 notwithstanding conflicting terms in the articles law, such as the statute of frauds, should not prevent the en- of organization. forcement of an operating agreement.16 Like other changes to member and manager authority, the Statement of Authority ULLCA is the source of the Statement of Authority.20 Note The 2017 Act introduced an entirely new section entitled also that if the Statement of Authority is properly recorded Statement of Authority. Consistent with the other changes in with the recorder of deeds in the county in which the prop- the 2017 to remove the concept of statutory apparent agency, erty is located, then a third party without knowledge of any the Statement of Authority permits the LLC to file the State- limitations on the authority can rely upon the Statement of ment of Authority with the Illinois Secretary of State17 and Authority. Further, and adding evidence to the rejection of in the case of authority for real property transactions, in the the prior statutory LLC reporting, the 2017 Act provides that county in which the real property is located. The statutory the Statement of Authority is controlling over an inconsistent language in the statement of authority is again largely derived provision in the Articles of Organization.21

18. See ULLCA §302 (2006, as amended 2013). 15. 805 ILCS 180/15-1(d)(10). 19. 805 ILCS 180/13-15. 16. Comments to Section 1-5 of the 2017 Act by Institute of Illinois Business Law. 20. See ULLCA §302. 17. See Illinois Secretary of State Form LLC-13.15. 21. See 805 ILCS 180/13-15(h).

DCBA Brief December 2017 23 D&LAdforDCBA8.5x11.pdf 1 6/21/17 2:23 PM

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A DIVISION OF DUGAN & LOPATKA ACCOUNTING ARTICLES Statement of Denial The converse of the Statement of Authority is the Statement If the transaction is a sale or lease of all, or substantially all, of of Denial, which permits a person named in a statement of the property of the LLC, all of the members (not the managers) authority to deny the authority granted to the person in the must evidence their consent. See 805 ILCS 180/15-1(d)(10). Statement of Authority.22 With respect to real estate transac- The resolution should one, authorize the action that the LLC tions if the Statement of Denial is recorded in the same office will be taking (deeding or mortgaging the land of the LLC) in which the Statement of Authority was recorded, it operates and two, indicate who will be signing the deed or mortgage on as a restrictive amendment of the Statement of Authority.23 behalf of the LLC.

Insights from Richard Bales What is the Alternative to a Resolution? The 2017 radically alters prior thinking on who is authorized In the alternative, the LLC can file and record a statement of to act on behalf of an LLC. We discussed with Dick Bales how authority granting the authority of a member or manager to these changes affect title underwriting practices in real estate execute the deed or mortgage. transactions, particularly title issues. Conclusion What has changed in the underwriting process as a result The 2017 Act eliminated statutory apparent authority and of the 2017 Act? increased the importance of the LLC operating agreement. The 2017 Act changes removes statutory apparent authority These changes should prompt legal advisors to review their for both member and manager-managed LLCs. Therefore, the clients LLC operating agreements to confirm who is examiner cannot rely on the statute when determining whether authorized to act for the LLC consistent with each mem- a deed is properly executed. bers’ understanding. And finally, while permitted, it would be unwise to rely upon an oral LLC operating agreement! How will the examiner satisfy their underwriting with respect to who has the authority to act on behalf of the LLC? First, the examiner must review a copy of the articles of organization and the operating agreement. These documents may override the default member management and authority of the members to act on behalf of the LLC. These documents may expand or limit the authority of the managers to act on behalf of the LLC. Note, also that the preparation and execution of an operating agreement is not mandatory; it is merely optional. After determining who has the authority on behalf of the LLC, the examiner has two alternatives. One, the examiner can obtain a resolution signed by those authorized to approve the transaction. As an alternative, the examiner may rely on a recorded statement of authority.

If a Resolution is provided, what should it contain? The resolution should be executed in accordance with the consent requirements that are set forth in 805 ILCS 180/15-1(c)(2) and 805 ILCS 180/ 15-1(d)(10). That is, unless the transaction is a sale or lease of all, or substantially all, of the property of the LLC, any matter relating to a real estate transaction of the LLC may be decided by the manager (if there is only one manager) or by a majority of the managers (if there is more than one manager). Any resolution should be similarly prepared and executed.

22. 805 ILCS 180/13-20. 23. 805 ILCS 180/13-20.

DCBA Brief December 2017 25 ARTICLES

The Origin of Rule 23: An Expanding Directive to Meet The Battle Over Rule 23: Expanding Precedent Rule 23 was adopted in 1972 to address the ever-growing body of authoritative decisions composing Illinois law. In 1935, Authority v. Precedent Illinois District Appellate Court decisions became binding on lower courts for the first time,4 leading to an unprecedented By Paul E. Wojcicki, Sara R. Strom, Jaime L. Padgett, expansion of precedential opinions. As Illinois attorneys were and Patrick F. Sullivan ill prepared for such a rapid expansion of written authority, Rule 23 was devised as a means of tapering off the growth of written opinions to those that would have an impact on established precedent. The Rule thus allowed the Appellate Courts to dispose of cases with non-precedential orders only where there was no error of law, no precedential value to the opinion, and the underlying decision was supported by the manifest weight of the evidence.5 At the time of its inception, the Rule Richard Petty was arrested and charged with a DUI due to an seemed to provide a viable compromise limiting the workload anonymous 911 call, which was recorded by the police.1 Prior to of attorneys, while creating a presumption in favor of preceden- discovery however, the recording was inadvertently destroyed tial opinions so that the law could grow and develop to meet by the police. As any clever lawyer would do, Petty’s attorney the challenges of the ever changing world of litigation. honed in on this issue, diving into case law and uncovering another, recently decided case: People v. Karl.2 This was Petty’s Though fashioned with good intention however, the Rule ace in the hole and his ticket to freedom: a case concerning failed to stem the tide of precedential opinions as drafted, and an almost identical fact pattern that saw the arresting officer’s each subsequent amendment made to expand its reach and testimony suppressed due to a lost recording. Yet while the trial impact continually shifted the court’s preference toward non- court agreed with Petty, the appellate court refused to apply precedential opinions and orders. In 1994, the Rule was Karl to the case. Why might you ask? The appellate court did amended to include both written and summary order options not disagree with Petty’s analysis, nor did it find a distinguish- for disposition. At that time, Chief Justice Bilandic indicated ing factor which separated Petty’s case from Karl; rather, Karl that not only was the shift to shorter, non-precedential orders was an Illinois Supreme Court Rule 23(e) unpublished order consistent with trends across the nation in both State and with no precedential value, even as persuasive authority. As a Federal intermediary appellate courts, but that it was prudent result, Petty could not rely on Karl, and the appellate court was for members of the bar: forced to rule against him because he “cite[d] to no case with similar facts that support[ed] his contention.”3 So how could two defendants such as Karl and Petty, faced with the same The avalanche of opinions emanating from our Appellate discovery issue, find different treatment by the court? How Court has taxed the capacity of the members of that court could Karl be walking away as a free man, while Petty was left to read the opinions filed in all of the appellate districts. If to face a jury of his peers without even hearing the recorded the Justices who author these opinions are burdened, then conversation that led to his arrest? The answer counselors, is consider the plight of the members of the bar. With their Rule 23, which ultimately begs a few questions: why do have busy practices, it is almost impossible to keep up with the Rule 23, and is it worth the burden it places on litigants? Appellate Court output.6

1. People v. Petty, 311 Ill. App. 3d 301, 303, 724 N.E.2d 1059, 1061 (2d Dist. 2000). 4. Act of April 25, 1935 to Amend § 17 of the Act to Establish Appellate Courts, Il. Rev. Stat. Ch 37. 2. People v. Karl, 294 Ill. App. 3d 1099, 721 N.E.2d 851 (1st Dist. 1998) (Rule 23 opinion). 5. IL S. Ct. R. 23(e) Committee Notes. 3. Petty, 311 Ill. App. 3d at 303. 6. IL S. Ct. R. 23(e) Advisory Committee Notes.

26 DCBA Brief December 2017 ARTICLES

Chief Justice Bilandic viewed the move to non-precedential appellate decisions crafted by Rule 23(e) raises questions as to orders as “the only...alternative to return[ing] to the pre-1935 its rationality and value for litigators. What is the purpose and practice when Appellate Court opinions were not binding value of an opinion if it cannot be cited? In fact, what is the authority [and] [t]he only binding authority were the opinions purpose of taking the time to draft an opinion explaining the of the Supreme Court of this State.”7 Justice Heiple echoed rationality of a decision when it will have no bearing on future these concerns, indicating that the volume and length of the litigation? published opinions were rendering legal research “unnecessarily burdensome, difficult and costly” while failing to offer useful In application, Rule 23(e) fosters confusion instead of creating guidance to practitioners.8 The concern over the practical dif- certainty. This confusion stems from the established value and ficulties associated with the ever-growing body of law was so purpose of precedent in Illinois. The Illinois Constitution vests great that even numerical limits were imposed as to how many Illinois courts with the power to interpret and apply the law to published opinions each District could issue in a given year.9 a case,13 with the inherent limitation of “precedent” requiring judges to either follow or overturn recognized rules of law The most recent version of Rule 23 requires Illinois Appellate established through previous decisions.14 Precedent exists Court to decide a case in one of three ways: through an opin- to create confidence and efficiency in law by giving litigants ion, an order, or a summary order – with only opinions of the court being published.10 By the rule, an opinion should only be issued “when...the decision establishes a new rule of law or modifies, explains or criticizes an existing rule of law; or the decision resolves, creates, or avoid an apparent conflict of About the Authors authority within the Appellate Court.”11 If these limited Paul E. Wojcicki is a Shareholder at Segal McCambridge, criteria are not met, the appellate court must issue an order or and his practice focuses on complex commercial and summary order, with Rule 23(e) establishing the caveat that consumer disputes. He currently serves on the Board of orders and summary orders are “not precedential and may Directors of the Global Warranty and Service Contract Association. He earned his Bachelor’s degree from not be cited by any party except to support contentions of Columbia University and his J.D. from DePaul University. double jeopardy, res judicata, collateral estoppel, or the law of 12 the case.” Thus, Rule 23 has made a 180 degree turn from a Sara R. Strom is an associate at Segal McCambridge rule that attempted to limit unnecessary opinions in favor of focusing her practice on product liability and mass tort valuable precedent to a rule that quashes all but the most dra- litigation. She earned her J.D. from The John Marshall matic of changes to precedent. Law School, holds a B.A. from DePaul University, and has litigated general liability, insurance defense, and Criticism of Rule 23: Uncertainty at the Bar and the regulatory compliance matters in Illinois and other jurisdictions. Bench While Rule 23 was intended to makes the lives of practicing Jaime L. Padgett focuses her practice on products liability attorneys easier, it has been frequently criticized by members and general litigation actions. Ms. Padgett received her of the Illinois Bar due to its bright-line limitation on precedent. Bachelor’s degree from Dartmouth College and her J.D. In a nutshell, Rule 23(e) creates an apparent catch-22, from Notre Dame Law School. She was selected as an forcing litigants and their lawyers to support their arguments Illinois Super Lawyers Rising Star in 2016. with precedent while artificially barring them from using favorable, precedent-altering opinions. The inflexible approach to Patrick Sullivan is an associate with Segal McCambridge Singer & Mahoney, where he specializes in products 7. Illinois Supreme Court Administrative Order, M.R. No. 10343 (1994) (Bilandic, J., writing in support). liability and mass tort litigation. Patrick received his 8. Id. (Heiple, J., writing in support). undergraduate education at Bradley University and his 9. Id. 10. IL. S. Ct. R. 23. law degree from the John Marshall Law School. 11. IL S. Ct. R. 23(a). 12. IL S. CT. R. 23(e). 13. Ill. Const.1970, art. VI, § 1 (granting the courts “judicial power”), People v. Miller, 314 Ill. 474, 145 N.E.2d 685 (1925) (defining judicial power). 14. State Farm Fire & Cas. Co. v. Yapejian, 152 Ill.2d 533, 605 N.E.2d 539, 542 (1992).

DCBA Brief December 2017 27 ARTICLES

guidance as to how their potential legal conflicts will be viewed Instead, it creates an odd circumstance where an Illinois before the courts. In granting courts the freedom to bury litigant may cite to an interpretation of Illinois law by another decisions under a non-precedential label however, Rule 23(e) state’s court as persuasive, but may not offer a relevant Rule 23 tempts the judiciary to venture from precedent as its sees fit decision drafted by an Illinois appellate court. and thereby undermine the certainty of law by producing unfair and uneven results among similarly situated litigants like While Rule 23 has been challenged, the appellate courts have those seen in Petty and Karl above. avoided the issue of its constitutionality through reaching their decisions on other grounds.18 As such, Rule 23(e) continues to Moreover, Rule 23(a) requires the appellate courts to make create a rift between the rights of litigants and the rules of non-precedential rulings unless a decision “modifies, explains, precedent in Illinois that has created difficulties for Illinois’ or criticizes an existing rule of law,” leaving the ultimate deter- courts as much as it has for its attorneys. Over time, the mination on a ruling’s precedential value to the deciding court. application of Rule 23 has varied among trial courts, creating However, precedent limits judicial power by “permit[ting] further confusion as to whether non-precedential opinions can society to presume that fundamental principles are established be relied upon by litigators. In one case, the Third District in the law rather than the proclivities of individuals”15 Under Appellate Court had to dedicate part of its opinion to inform- Rule 23, precedential value is not determined by a ruling’s ing its trial courts on the proper use of Rule 23 decisions, as ultimate effect on the law; rather, it is determined by whether some of its lower courts were allowing litigants to rely upon an appellate judge believes that the ruling should have an effect Rule 23(e) decisions out of a fear of being overturned.19 In fact, on the law. This undermines the very purpose of precedent by even the appellate courts have had difficulty with the applica- allowing individual preference to arbitrarily conclude when law tion of Rule 23, as the Second District Appellate Court has is sufficientlynew or different to warrant a change in precedent. relied upon Rule 23 opinions as “illustrative” even though they The irrationality of this arbitrary assessment becomes apparent may not be cited. 20 when considering the reason for opinions, their concurrences, and their dissents. After all, for what purpose does a written Looking Ahead: The Future of Rule 23 decision serve other than to “modif[y], explain[], or criticize[] In the past thirty years, litigation has entered a digital age. an existing rule of law”? How can an order with an accompany- If Rule 23 was instilled to save the high costs of publishing ing dissent expressing disagreement with the majority opinion numerous lengthy opinions, it has had no effect on the practice possibly lack precedential value? Is a dissent not a criticism of of law today. Gone are expensive libraries filling the halls of an existing rule of law, a symbol of conflicting authority, or law firms, and here are expensive WestLaw and Lexis accounts a judge’s opinion that may in fact provide useful guidance to filling the computer screens of attorneys’ desktops. As the practitioners? volume of precedential and non-precedential opinions grows, so too does the average lawyer’s ability to effectively and Ultimately, an argument will succeed or fail based upon efficiently use electronic research to find and sort through precedent, and the U.S. Constitution prohibits the government relevant, current case law. Now, the problem is not one of having from limiting the right of individuals to freely speak and seek too much case law to review, but one of finding case law redress of grievances from the government.16 Yet even so, Rule on-point with the factual-scenario at hand. For many, the pro- 23(e) limits this right by preventing a litigant from citing to cess of searching for the right case is impeded by the presence relevant opinions strictly because they have been arbitrarily of Illinois’ voluminous record of Rule 23(e) decisions, which defined as non-precedential.17 This limitation does not distin- provide in-depth factual analysis of often complex litigation guish between citations to binding and persuasive authority. topics, but are completely without precedential value.

18. Lara v. Hyundai Motor America, 331 Ill. App.3d 53, 63-64, 770 N.E.2d 721, 729 (2d Dist. 2002), Valenti, 15. Chicago Bar Ass’n v. Illinois State Bd. Of Elections, 161 Ill.2d 502, 641 N.E.2d 525, 529 (1994), citing 332 Ill. App. 3d at 971-972, 773 N.E.2d at 1202. Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986). 19. See In re Donald R., 343 Ill. App. 3d 237, 244-245, 796 N.E.2d 670, 676 (3d Dist. 2003) (discussing the 16. U.S.Const. amend. I, see also Ill. Const. 1970, art. I, §§ 4. application of Rule 23 in detail due to the fact that circuit court judges were routinely considering Rule 17. Valenti v. Mitsubishi Motor Sales of America, Inc., 332 Ill. App. 3d 969, 972, 773 N.E.2d 1199, 1202 (1st 23(e) opinions as precedential out of a fear of being overturned). Dist. 2002). 20. Capital One, N.A. v. Chhabria, 2014 IL App (2d) 130262-U ¶ 5, n. 2, Not Reported in N.E.3d .

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As of May 31, 2011, the Illinois Supreme Court eliminated maturation of precedent and the ability to apply law to chang- the need to contractually publish and purchase official Illinois ing circumstances. court opinions in bound volumes to be printed in the official reporters.21 Instead, published opinions would become avail- According to the Fourth District Appellate Court, the clear able online, on the Illinois Supreme Court’s website, shortly intent of Rule 23 was to avoid the publication of a morass of after their release. “The changes are reflective of the way the dispositions which add nothing to the available body of sub- practice of law is changing,” noted Chief Justice Thomas L. stantive law or of legal precedence.27 So where do the courts Kilbride, because “[t]oday an attorney can search the name draw the line? Does not every written appellate decision offer of a case on a computer and read that opinion in a matter of some insight into how the courts should apply the law to a seconds, even from a smartphone, e-reader or epad. A lack of certain set of facts? This creates an important issue for mem- printed law reports is no longer a hindrance to legal research.”22 bers of the Illinois Bar regardless of which side of the bench on The same also goes for unpublished orders as Rule 23(b) orders which they find themselves. are now published and accessible to the public on the Illinois court system’s website.23 Legal search engines such as Westlaw However, Rule 23 was created to prevent the body of law from also provide search returns with Rule 23(b) orders. Yet even growing and developing too rapidly for the legal community to so, Justice Michael B. Hyman of the First District Appellate process, and, even with our modern technology and research Court notes that these uncitable Rule 23 orders “get little tools, there is no way to know if we will be able to process notice from the bar, the judiciary, the media, or the public.”24 the fluid change of precedent which may come from an out- This poses an interesting question as to why Rule 23 orders right abolition of Rule 23 in a digital era. Increased workloads lack authority and consideration when attorneys can cite to and publication requirements for Illinois Appellate Courts decisions from out-of-state courts, federal courts that may lead to a body of law that fosters greater confusion and address issues of Illinois law, treatises, restatements, law review conflict among our appellate courts as the different appellate articles, journals, and even blogs in their pleadings or briefs?25 jurisdictions simultaneously decide precedential cases involving similar and overlapping topics of law. As such, a directive The lack of precedential value and attention given to Rule 23(e) such as Rule 23 may still serve some purpose. decisions is especially concerning given their relative portion of the overall amount of written opinions decided each year. This conflict between the need for publication and the need for Since 2001, over 70% of appellate decisions in each of Illinois’ precedent has also affected jurisdictions outside of Illinois. The five Appellate District Courts have been made as non-prec- federal judiciary has attempted to resolve this issue through a edential decisions under Rule 23(e).26 Is it not shocking to truly centerline approach: changing its rules so that non-prec- imagine that over 70% of cases heard by our appellate courts edential opinions exist, but can still be cited as persuasive, offered nothing of precedential value to the field of law? Rule non-binding authority.28 A similar attempt at a hybrid solution 23’s express purpose is to limit the filing of appellate opinions; was offered in Illinois in early 2014, when the presidents of the however, in its current state, it appears to be limiting not just Appellate Lawyers Association, the Chicago Bar Association, the filing of opinions, but the development of precedent itself. and the Illinois State Bar Association delivered a letter to Illi- Appellate courts hear cases, in part, to ensure that established nois Supreme Court Chief Justice Rita B. Garman proposing rules of statutory and common law advance with the march a new Rule 23(e)(3).29 This new rule proposed that orders and of time and the progression of technology. But stringent rules summary orders may be cited as persuasive authority if that limiting the filing of opinions have a stifling effect on the order was filed on or after January 1, 2011.”30 This proposal was

21. Press Release, Illinois Supreme Court, Illinois Supreme Court Announces New Public Domain Citation System, Ending Era of Printed Volumes (May 31, 2011), available at http://www.illinoiscourts.gov/Me- dia/PressRel/2011/053111.pdf 22. Id. 23. Illinois Courts Website, Recent Appellate Court Written Orders Under Supreme Court Rule 23, http:// www.illinoiscourts.gov/R23_Orders/recent_R23_appellate.asp (last visited June 9, 2017). 24. Snow & Ice, Inc. v. MPR Mgmt., Inc., 2017 IL App (1st) 151706-U, ¶ 45. 27. Bradley v. Howard Hembrough Volkswagen, Inc., 89 Ill. App. 3d 121, 124, 411 N.E.2d 535, 537 (4th Dist., 25. Matthew Hector, The incredible, unciteable Rule 23 order, Illinois Bar Journal (June 9, 2017), https:// 1980). www.isba.org/ibj/2014/10/lawpulse/incredibleunciteablerule23order 28. Fed. R. Civ. P. 32.1. 26. Kirk Jenkins, How Often Does the Illinois Supreme Court Review Unpublished Decisions, Illinois Supreme 29. Matthew Hector, The incredible, unciteable Rule 23 order, Illinois Bar Journal (June 9, 2017), https:// Court Review, Sedgwick, LLP (March 17, 2015), http://www.illinoissupremecourtreview.com/2015/03/ www.isba.org/ibj/2014/10/lawpulse/incredibleunciteablerule23order how-often-does-the-illinois-supreme-court-review-unpublished-decisions-part-i/ 30. Id.

DCBA Brief December 2017 29 More jobs? Fairer taxes? Bigger paychecks? Proposed Tax Changes and Lawyers On September 27, the Unified Framework for Fixing Our Broken Tax Code was announced promising “More jobs/Fairer Taxes/Bigger Paychecks. Are we winners or losers? Of special interest should be the following concepts: 1) Reduce the maximum income tax rate for small and family-owned businesses defined as sole proprietorships, partnerships and S corporations Unfortunately, your law firm is not the sort of small or family owned business that will benefit from reduced income taxAD rates as proposed hereby the tax reform framework. Under Internal Revenue Code (IRC 1202) a “qualified trade or business” usually manufactures or sells something other than services. Your law firm is a service business. See the Code section above for more. No Win/No Loss for lawyers. 2) Repeal of federal estate and generation-skipping tax (GST) History demonstrates that estate taxes have always returned. If we assume that any estate tax and GST repeal is temporary (less than 10 years) and if we believe that future taxes will eventually be higher, then high net worth clients will work with attorneys and financial advisors to take advantage of a temporary respite by shoveling assets into dynasty trusts and short-term grantor retained annuity trusts (GRATs). These strategies are often grandfathered in, when and if the estate tax Diana Law, Rick Law & Zach Hesselbaum and GST returns. A Win for high net worth planning attorneys and financial advisors 3) Repeal of the alternative minimum tax (AMT) The AMT was enacted into law to prevent the very wealthy from avoiding all income tax by investing solely in municipal bonds. Unfortunately, the AMT which originally affected only 110 US taxpayers has grown like to monster and now affects almost 30% of all taxpayers with incomes above $200,000 per year. There are many attorneys whose joint marital income exceeds $200,000 per year. Death of the AMT is a Win for many attorneys. Rick L. Law, Esq. ARTICLES rejected. Nonetheless, this approach does not necessarily establish a perfect balance between these competing elements, as even Federal Rule of Civil Procedure 32.1 has received criticism from our nation’s highest court for its limitation on precedent.31

Rule 23 places an interesting issue before attorneys of the Illinois Bar; and, as we move forward into an increasingly digitized field, we will need to assess how best to handle the apparent conflict between established authority and the need for an ever growing body of precedent. The fact of the matter is that there should be no artificial distinction between “order” and “opinions” used to detail decisions from the same the judicial authority. Our judiciary should not be imposed with limitations on discussion and debate, which reduces the transparency of decision making and buries our courts’ decisions. Instead, we should be encouraging our judges to draft opinions in a more concise manner which cites controlling facts that compel their decisions. We should fight against any rule that withholds a litigant’s ability to use case law that is readily available, as such a rule unjustly produces inequality in the legal system. Could the solution be in another amendment or in a hybrid system like those used by other federal courts? Should we get rid of Rule 23 altogether accepting the fact that it has outlived its usefulness? Regardless of which approach we each may prefer, it is clear that we will have to develop a system which helps us meet the burdens of litigation in the years to come.

31. Plumley v. Austin, 135 S.Ct. 828, 831 (Mem) (2015) (Thomas, J. dissenting).

DCBA Brief December 2017 31 ARTICLES Illinois Law Update Editor Jordan Sartell Personal Injury - Health Care Liens IL Supreme Court reversed the appellate court in an effect on the validity of the lien as it had previously rejected ruling that the application of the Illinois Health Care other attempts to read unexpressed limitations into the Lien Services Lien Act permitted Stroger Hospital’s lien of Act’s language. See McVey v. M.L.K. Enterprises, LLC, 2015 IL $80,000 despite the age of the injured party and where 118143, ¶ 19. no medical expenses were awarded at trial. Manago v. The County of Cook, 2017 IL 121078 The supreme court also rejected the argument that no lien Examining the relationship between the Health Care services could attach without an assignment of the parent’s cause of Lien Act (“Lien Act”), 770 ILCS and the Family Medical action for medical expenses under the Expenses Act. Reasoning Expenses Act (“Expenses Act”), the Illinois Supreme Court that “the critical question” was “whether, in the absence of a held that “nothing in the Lien Act’s broad language suggests parental assignment, a statutory health care lien may attach to that its application is limited by either the age of the injured a minor’s tort recovery where that recovery does not explicitly plaintiff or the Expense Act’s parental liability provision” and include expenses for the minor’s medical care and treatment,” reinstated a public hospital’s medical lien against the estate of the supreme court affirmed earlier precedent that distinguishes a minor tort recovery recipient. the similar, but distinct remedies for creditors made available under the Lien Act (a direct one against tort recoveries) and At the age of 12, Akeem Manago was injured and treated at the Expenses Act (an indirect one chargeable to a minor’s Stroger Hospital. The hospital filed a notice of an approximately parents). $80,000 lien pursuant to the Lien Act. His mother brought a negligence suit against various defendants and, after Akeem’s contributory negligence was taken into account, recovered Evidence $200,000 in damages. The trial court did not expressly award IL Supreme Court affirmed Drew Peterson’s conviction any sums for medical expenses in its verdict. After trial, the under a exception to hearsay under the common law court granted a motion to extinguish the hospital’s lien and doctrine of forfeiture by wrongdoing, as opposed to a the hospital appealed. The appellate court ultimately affirmed legislative exception to hearsay. the invalidity of the hospital’s lien reasoning that the minor’s People v. Peterson, 2017 IL 120331 mother “did not assign her cause of action for medical expenses In affirming Drew Peterson’s conviction for first degree mur- to her son even though, pursuant to the [Expenses] Act, that der of his ex-wife Kathleen Savio, the Illinois Supreme Court action belonged solely to the minor’s parents, and (2) under reaffirmed the primacy of its rulemaking powers in the realm the Lien Act, liens may attach only to recoveries for medical of court procedure by holding that hearsay evidence admitted expenses, and here no medical expenses were awarded.” The against Peterson during his murder trial was proper pursuant hospital appealed to the supreme court. to the common-law forfeiture by wrongdoing doctrine rather than its legislative equivalent. Considering this matter one of “plain and unambiguous” statutory construction, the supreme court reversed the appellate At the time of Peterson’s trial, a unique legislative exception court and held that the lien was valid. Embracing the broad to the hearsay rule provided for a special pretrial hearing to language of the Lien Act that a hospital “shall have a lien upon determine if statements against the declarant’s murderer could all claims and causes of action of the injured person” and that be admitted at trial. The proponent of those statements needed the lien “shall...attach to any verdict, judgment, award, settle- to, among other things, prove by a preponderance of the ment, or compromise secured by or on behalf of the injured evidence that the party against whom the statements would be person,” the court rejected any argument that the age of the admitted had murdered the declarant to secure the declarant’s injured person or the express award of medical expenses had unavailability at trial.

32 DCBA Brief December 2017 ARTICLES

Civil Procedure A preexisting common-law doctrine of forfeiture by wrong- Reversed lower court denials of Motion to Dismiss for doing embodied the “equitable maxim that ‘no one shall be lack of personal jurisdiction based on general jurisdiction permitted to take advantage of his own wrong’” and provided due to mere registration to do business in Illinois. that “[a] statement offered against a party that has engaged Aspen American Insurance Co. v. Interstate Warehousing, or acquiesced in wrongdoing that was intended to, and did, Inc., 2017 IL 121281 procure the unavailability of the declarant as a witness” is “not Addressing the exercise of Illinois personal jurisdiction and excluded by the hearsay rule.” Ill. R. Evid. 804(b)(5). over out of state defendants, the Illinois Supreme Court reversed lower courts and held that an insurer’s attempt to In Peterson’s case, the trial court held a hearing pursuant to bring suit against an out-of-state defendant had failed to make the statutory exception and held that, for the purposes of the a prima facie sufficient for personal jurisdiction pursuant to the exception, he had indeed murdered Kathleen Savio and Stacey due process clause limitations of the federal constitution. Cales. However, the trial court declined to admit the women’s statements pursuant to the common-law exception. The State In a subrogation suit against a warehouse owner, an insurer appealed and obtained a ruling from the appellate court that alleged that the defendant “maintain[s] a facility in or near the statutory exception violated separation of powers princi- Chicago” when it filed suit in the circuit court of Cook County. ples and that the statements could be admitted pursuant to While the defendant does maintain a warehouse in the Joliet the common-law exception to the hearsay rule. The case pro- area, its corporate office is located in Fort Wayne, Indiana. ceeded to trial, various statements from the deceased women In its motion to quash service, the defendant did not dispute were admitted into evidence, and Peterson was convicted and its carrying on of business in Illinois, but argued that this was sentenced. insufficient to subject it to personal jurisdiction in Illinois given that it is not domiciled or “at home” in Illinois. See Daimler AG On appeal, the supreme court considered “whether the appel- v. Bauman, 571 U.S. ___, 134 S. Ct. 746 (2014). Defendant sub- late court erred...when it held that, under separation of powers mitted various affidavits in support of this position that went principles, the common-law doctrine of forfeiture by wrong- uncontradicted by the plaintiff. For its part, the insurer did doing...governed the admissibility of...hearsay statements, rather than [the statutory exception].” The court reasons that because the separation of powers clause of the Illinois Consti- tution provides that “[n]o branch of government shall exercise powers properly belonging to another”, court procedure comes About the Editor within the exclusive purview of the Illinois Supreme Court. Jordan M. Sartell is a graduate of the DePaul Thus, the common-law exception takes precedence over the University College of Law. His practice with statutory exception because the legislature had overreached Francis and Mailman, P.C. focuses on prosecuting when it included requirements of a show of reliability in the class action claims under the Fair Credit statutory exception beyond that which was already required by Reporting Act and other consumer statutes. the common-law exception. Jordan volunteers with the Willow Creek Commu- nity Church Legal Aid Ministry and is a member of the National Association of Consumer Advocates. The supreme court went on to affirm Peterson’s conviction against other challenges including the adequacy of the pre-trial hearing, whether the State had met its burden of proof, and whether certain additional statements were properly admitted at the hearing.

DCBA Brief December 2017 33 ARTICLES

not produce evidence of the defendant’s contacts with Illinois valid and, similarly, out-of-state entities do not agree to submit beyond a printout from the Illinois Secretary of State’s website themselves to general jurisdiction within Illinois simply by indicating that defendant had been registered to do business registering to do business in Illinois as required by the Business in Illinois for nearly three decades. The trial court denied the Corporation Act or appointing an agent for service of process. motion to dismiss and the appellate court affirmed.

In its opinion, the supreme court laid out an interpretation of federal constitutional principles that would be familiar to many Uniform Commercial Code a first-year law student because the Illinois long-arm statute Dismissal of breach of contract counts provides for personal jurisdiction on any “basis now or here- affirmed as barred by the Statute of Frauds. after permitted by the Illinois Constitution and the Constitu- Vanguard Energy Services, L.L.C. v. Shihadeh, 2017 IL tion of the United States.” In this matter, the insurer sought to App (2d) 160909 invoke all-purpose general jurisdiction, in which “the plaintiff The defendant entered into a long-term agreement to purchase may pursue a claim against the defendant even if the conduct a certain quantity of gas from the plaintiff for a fixed price. The of the defendant that is being challenged occurred entirely plaintiff filed suit for breach of contract when the defendant outside the forum state” as opposed to more targeted specific sought to terminate their agreement, causing damages to the jurisdiction, that in which a “plaintiff’s cause of action arises plaintiff who presumably quoted a lower price for a promised out of or relates to the defendant’s contacts with the forum volume of purchases over time. The plaintiff contended that state.” two exceptions to the Statute of Frauds applied, the merchant exception and the specially manufactured goods exception. The insurer argued that it had met its prima facie burden The court found that the exception for contracts between because it had demonstrated the defendant did business in merchants did not apply as the defendant, while a business- Illinois, but the supreme court, echoing the United States man, was not a merchant in the gas he purchased to heat his Supreme Court, held that “under the federal due process clause, own building. The specifically manufactured goods exception ‘[a] court may assert general jurisdiction over [a] foreign *** did not apply either because, though the gas in question was corporation to hear any and all claims against [it] when [its] specifically set aside for the defendant, there was nothing to affiliations with the State are so “continuous and systematic” as indicate that the gas could not be sold to another buyer. to render [it] essentially at home in the forum State.’” Daimler AG v. Bauman, 571 U.S. ___, 134 S. Ct. 746, 754 (2014). Those places in which a corporate defendant is “essentially at home” Insurance paradigmatically include the corporation’s place of incorpora- Lease agreement sufficient to trigger additional tion and its principal place of business and the insurer had not insured coverage under AI Endorsement requirement met its burden to show that any exceptional facts compelled a written contract. finding of general personal jurisdiction in Illinois. The Supreme Crum & Forster Specialty Ins. Co. v. Imperial Crane Court noted that if having a warehouse in Joliet was sufficient Servs., 2017 Ill. App. Unpub. LEXIS 1960 for general personal jurisdiction, the defendant would have A crane rental company provided a crane and operator for a been equally at home in any of the other eight states in which construction project. Under the lease, the crane operator was it maintained a similar presence. In Daimler, the United States to act as “agent, servant, and employee” of the subcontractor. Supreme Court expressly rejected this reasoning. The lease also required that the subcontractor provide insurance and name the crane company as an additional insured. The Illinois Supreme Court also rejected other arguments from The policy purchased included an AI endorsement providing the insurer. In light of Daimler, however, the insurer’s reading that another entity would be an additional insured “when of subsection (b)(4) of the long-arm statute providing for juris- required by contract.” Since the lease required the crane diction “in any action arising within or without Illinois against company to be an additional insured, it qualified as an insured any defendant ‘doing business within this State’” was no longer under the AI endorsement.

34 DCBA Brief December 2017 ARTICLES

Limited Liability Companies Dissolution of LLC was proper where (1) the members’ • a day or temporary laborer must be provided transportation vote is deadlocked; (2) the operating agreement gives from a job site when it is provided transportation by the ser- no means of navigating around the deadlock; and (3) vice agency to the site; and due to the financial condition of the company, there is effectively no business to operate. • a day or temporary laborer cannot be charged for a consumer In re GR BURGR, LLC, No. 12825-VCS (Del. Chanc. report, a criminal background check or a drug test. Aug. 25, 2017) Two shareholders each owned 50 percent of the company. The It is also important to note that already existing law requires LLC agreement, however, failed to provide for a tiebreaker. As clients of day and temporary laborer agencies to provide a a result, any action requiring a majority vote had to be unan- verification of employment for such workers who work for a imous. Unsurprisingly, the relationship between the shareholders single day, requires agencies to properly pay day and temporary deteriorated and the company became locked in a stalemate. laborers, requires third-party clients to properly pay service One shareholder filed for dissolution, which the court granted. agencies and imposes penalties upon agencies and third-party Dissolution was sought after the company, which operated a clients who violate day and temporary laborer protections. celebrity chef restaurant at Caesar’s in Las Vegas, lost its contract based on a felony charge against one of the shareholders. Mortgage Foreclosure The restaurant was owned by the other shareholder (Gordon Mortgage Foreclosure – Compliance with Section Ramsay) but licensed to the company. The court granted 203.604. A question of fact existed whether sending a dissolution because there was no way to resolve the deadlock, letter via FedEx complied with section 203.604. the shareholders were not speaking, and the business was U.S. Bank Trust National Association v. Hernandez, 2017 non-operational after the contract was canceled. IL App (2d) 160850 In this mortgage foreclosure case, the defendant raised two Legislative Update affirmative defenses. The first was that the plaintiff lacked Public Act 100-0517 – standing. The appellate court rejected this defense. The second The Responsible Job Creation Act defense was that the plaintiff failed to comply with 24 C.F.R. This new law, which was approved by Governor Rauner on September 22, 2017 and becomes effective June 1, 2018, adds protections for the approximately 850,000 day and temporary laborers that are employed from time to time in Illinois. The most notable terms of the new law include the following provisions:

• a day or temporary laborer service is required to attempt to place a current day or temporary laborer working with a third-party client when it learns that the client plans to hire a permanent employee for a similar position;

• a day or temporary laborer service is required to provide a day or temporary laborer with equipment, protective clothing and training the worker needs for any work the worker is asked to perform;

DCBA Brief December 2017 35 ARTICLES

§203.604, which requires that the mortgagee must make a (which as an aside makes good reading on this procedure). The reasonable effort to arrange a face-to-face meeting with the court concluded that the shipping label does not conclusively mortgagor, one element of which “shall consist of a minimum demonstrate that the plaintiff sent the defendants a letter offer- of one letter sent to the mortgagor by the Postal Service as ing the required fact-to-face meeting. Since a question of fact having been dispatched.” A letter was sent, but by FedEx. existed on this issue, the court remanded the case.

The court stressed that it was deciding whether the use of a In a concurring opinion, Justice Schostok remarked that the private carrier constitutes substantial compliance with the problem in the case could have been avoided had the plaintiff “attempt by letter” requirement of section 203.604. Instead, simply provided an affidavit stating that the letter required by the court found a question of fact as to whether the letter in section 203.604 had been sent, or provided some other proof this case was dispatched by FedEx. The court took judicial of dispatch. notice of the procedures for shipping packages with FedEx

36 DCBA Brief December 2017 News & Events at theBarCenterbyDecember18. Bring yourtoydrivedonationstotheHolidayPartyordropoff 52 WheretoBeinDecember 51 Classifieds 49 48 45 44 41 40 39 Top Web LinksforLawyers Legal Resources: - ByBrianDougherty&PeterEvans The PragmatistJudge - ByJosetteAllen,SectionChair School LawSection - ByCeciliaNajera Legal AidUpdate - ByKentA.Gaertner ISBA Update - ByRobertT. Rupp DCBA Update InBrief - ByTerrence Benshoof

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News & Events InBrief By Terrence Benshoof incorrectness, and wish all our readers a Happy Hannukah, a Merry Christmas, a Happy Boxing Day, a Happy Kwanzaa, a Happy Festivus, or if the reader doesn’t celebrate much of anything, just party because it’s December, and we haven’t had one in a year! In the Courts The DCBA welcomes Judge Christine Cody to the bench in late 2017. We also welcome our new Chief Judge, Daniel Guerin, to his role in the 18th Circuit judiciary, while wishing a fond farewell to outgoing Chief Kathryn Creswell START YOUR The DuPage County Board held a ceremony October 10th to honor the life and career who announced her retirement from the of DCBA past president, Honorable John Darrah. DCBA joined the County, ISBA, bench effective November 30. and the Illinois Senate in presenting resolutions of recognition to Judge Darrah’s family who were in attendance. In addition to members of the Darrah family are L to R: Senator Working on child support issues? Check Michael Connelly, ISBA President-Elect, James McCluskey, ISBA President, out the number crunching at calculators. C areer Right Honorable Russell Hartigan, DCBA President Gerry Cassioppi and DuPage County law/Illinois/child-support. They have Board President Dan Cronin. more fingers and toes to work with than Our New Lawyers Program protects you, your clients – and your financial future – against unintended you do. mistakes. It’s easy to apply and (really!) affordable. Your first year probably costs less than your annual The DCBA, with president Gerry Judges’ Nite 2018 returns to the Mac on Cassioppi leading the way, will hold March 2, 2018, with slightly off Broadway People, Places smartphone bill. Visit isbamutual.com/newlawyer or call 800 473-4722 to get coverage now! the annual Holiday Party on December Director Nick Nelson, and Producer The new City Attorney for the City of 6 at Elements at Water Street, in the Christina Morrison cranking out Naperville is Michael DiSantis. Well, Hotel Indigo, Naperville. The location yet another masterpiece. Join the new Mike isn’t actually new there. He’s For those who: is a brand new venue in the downtown cast when rehearsals begin in January. been with the City Law Department for Are claims-free Naperville area, with plenty of parking Talent is optional, but a sense of humor is several years, and was the Acting City available. Don’t forget to bring an un- mandatory! Attorney until they made it permanent. Are solo practitioners wrapped toy for children in need of some Passed the bar within the past 3 years holiday cheer! Meanwhile, the writers of the Grief will Chuck Roberts has re-formed his unleash their ribald humor on the DCBA practice, Roberts PC and is back in his On the 14th, the DBF will be sponsoring in April, with Jay Reese at the editorial previous location in Wheaton. the Holiday Breakfast in the ARC. This helm for that edition. Although not annual fundraiser for the Bar Foundation much has been going on in the courts, Suzanne Fitch has joined Keay & has exceeded expectations each year, so legal profession, or politics the past year Costello as an associate attorney. it’s important to get everyone out, and to (snark, snark), it promises to have the top last year’s record. Stop by between bar laughing their powdered wigs off! Featured in a recent edition of My Busi- court calls, and lighten your wallet to ness magazine was Raleigh Kalbfleisch, make room for a hot breakfast, holiday As is his custom, InBrief will once concerning her office being named a top camaraderie, and support a great cause. again reach for the heights of political family law practice. isbamutual.com/newlawyer DCBA Brief December 2017 39 News & Events School Law Section LRS Stats By Josette Allen, Section Chair 9/1/2017 - 9/30/2017

The Lawyer Referral & Mediation Service The DuPage County Bar Association member of the section or not, we are received a total of 1,158 referrals, includ- School Law Section is committed to always looking for your insight and input ing 63 in Spanish (999 by telephone, 15 providing quality information relevant into providing quality programming and walk-in, and 144 online referrals) for the to today’s legal issues regarding the field your attendance at the CLE’s is greatly month of September. of Education Law. Whether you are a appreciated. We are fortunate to have If you have questions regarding the service, seasoned practitioner in this field or just noted professionals volunteer their time attorneys please call Barb Mendralla at interested in learning something new to to educate us. Take advantage of this (630) 653-7779 or email [email protected]. expand your practice, you will benefit by great opportunity to expand your law Please refer clients to call (630) 653-9109 attending our MCLE “lunch and learns.” practice and personal knowledge in this or request a referral through the website at We have an exciting year planned with growing area as we are also one of the dcba.org. noted professionals, so save these dates: only bar associations in the surrounding area that offers MCLE credit in this area. Administrative...... 1 Appeals...... 4 • December 7, 2017 – Special Education Bankruptcy ...... 54 and the Discipline of Students, Speaker Business Law...... 31 Miranda Johnson of Loyola University Civil Rights ...... 0 School of Law and Rachel Shapiro of Collection ...... 75 Equip for Equality Consumer Protection...... 0 Welcome Contract Law...... 2 • February 1, 2018 - Legislative and Welcome to our new DCBA Members. Criminal...... 347 Case Law Updates in Education Law, Attorneys: Kris C. Tsitsis, Law Office of Kris Elder Law ...... 22 Employment Law ...... 85 Speaker Rupa Ramadurai of the Illi- Tsitsis; Marla L. Hudson; Joseph P Miller, Estate Law...... 65 nois State Board of Education (ISBE). Prairie State Legal Services, Inc.; Jennifer N. Family Law ...... 208 Abdo, Mulyk Laho Law; Ethan G. Zelizer, HR Federal Court...... 0 • March 1, 2018 – Fundamentals and Law Counsel; Peter-August P. Sweders, Sr., Government Benefits...... 4 Hot Topics of School Law, Speaker Law Firm of Peter-August Paul Sweders, Sr.; Health Care Law...... 0 Kathleen Hirsman of Loyola Univer- Leo J. Jordan; Robert E. Haney, Grogan Hesse Immigration...... 9 sity School of Law. & Uditsky, P.C.; Barbara D. Skurka; Kevin C Insurance...... 18 Intellectual Property...... 0 McSwain, Mary E. McSwain P.C.; Teresa Dettl- Mediation ...... 3 • May 3, 2018 – School Boards and off, Kollias & Giese, P.C. Mental Health ...... 0 Policies, Speaker Kimberly Small Students: Angelika Iwanicki; Vaughn Richard- Military Law...... 1 of the Illinois Association of School son; Gregory James Benson, Jr.; Martin Patrick Personal Injury...... 87 Boards (IASB). Foy; Cierra Degleffetti; Lori A. Swanson; Real Estate ...... 131 Josceline Nevarez; Nichole Lazcano; Amy School Law ...... 2 • June 4, 2018 – Students and Immigra- Social Security...... 9 Garechana. tion, Speaker Tejas Shah of Franczek Tax Law...... 0 Legal Community: Staci Vazquez, Rathje & Radelet P.C. Workers’ Compensation...... 0 Woodward, LLC.

Please also consider joining the School Law Section. Whether you are a

40 DCBA Brief December 2017 News & Events

The Pragmatist Judge By Brian Dougherty & Peter Evans Judge Richard Posner

On September 1, 2017, Judge Richard the failure to take reasonable precautions credits her time working for Judge Posner surprisingly announced his means when one acted negligently.3 Thus, Posner with shaping her career, most sig- retirement from the Seventh Circuit a rational person will drive within the nificantly her writing. Anyone who has Court of Appeals. Many know him as speed limit since the probability of death ever read a Posner opinion is familiar one of the most prolific jurists never to from an accident and that person suffer- with his unique style, merging law and sit on the United States Supreme Court. ing a financial loss are high. Variations of economics with his unique, dry wit in Those in litigation and appellate practice this tort duty can be seen today in court simple and concise language (something are certainly aware of his critical tone opinions when parties argue whether a all lawyers could learn from). But his on oral argument and his rather colorful legal duty to prevent a certain event from approach may surprise some. As Professor court opinions, the latter of which some- occurring exists. Allensworth describes it, “Posner is an times consisted of his doing his own anti-perfectionist. He writes first drafts research (e.g. Wikipedia) on parties An Insider’s Perspective quickly, and is a ruthless editor.”6 It leaves appearing before him. But many would In speaking with one of his former clerks, one wondering how he has managed to be surprised to learn that he is a com- Rebecca Haw Allensworth, currently produce thousands of judicial opinions pletely different man once the robe is off. a professor at Vanderbilt Law School and numerous books. who teaches antitrust law and a seminar Law and Economics titled “The Jurisprudence and Scholarship Notable Opinions Judge Posner wrote much about the of Richard Posner”, she paints a picture It is no surprise, though, that many of “law and economics” movement and its in stark contrast to his public persona.4 Judge Posner’s opinions, concurrences, influence on various legal bodies, such As Professor Allensworth describes him, and dissents have been some of the as antitrust and public utility regulation. “In chambers he is warm, funny, low-key. most significant in recent times, This theory tries to predict the behavior He always seemed to have all the time including the following: of those regulated by the law and pointing in the world for us, chatting about poli- out possibly unintended consequences tics, going to coffee, and getting lunch.”5 Illinois Concealed Carry Law. Judge of the law.1 The assumption is that In watching Judge Posner up-close-and- Posner’s opinion struck down Illinois’ people’s social interactions are based on personal, she saw a judge always interested concealed-carry law, reasoning that there rational decision-making.2 One of the in the context of a case. He immersed was no reason self-defense was more pro- most famous applications of law and himself in the facts. If the case involved nounced in one’s home, such as living in a economics theory is in the realm of tort a business, he learned all he could about fancy apartment building, as opposed to law when determining when one owes a the industry, why the dispute arose, and being out in public, especially those tra- legal duty. If the burden (B) is less than what it meant practically for the parties. versing the streets of some of Chicago’s the probability of the loss (P x L), then Unsurprisingly, Professor Allensworth most violent neighborhoods.7 (Continued on next page.) 1. Richard A. Posner, Values and Consequences: an Introduction to Economic Analysis of Law, John M. Olin Law & Economics Working Paper No. 53 (2d Series) at 2. 2. Id. at 3. 3. Id. at 4. 4. Email Interview with Professor Allensworth on Sept. 21, 2017. 5. Ibid. 6. Id.

DCBA Brief December 2017 41 News & Events

(Continued from previous page.) district court to set a January 1, 2006 Professor Allensworth describes as one Sexual Orientation Discrimination. discovery cut-off date that prevented a of her most memorable experiences. As He concurred in finding that Title VII discrimination plaintiff from uncover- she describes it, Judge Posner asked (or prohibited sexual orientation discrim- ing misconduct prior to that date in an asked to be asked) to sit by designation ination. He advocated for “judicial effort to show that she was disciplined on the Federal Circuit. Unsurprising to interpretive updating” to take into more harshly than male employees. He her, but perhaps surprising to others, account the political and cultural noted that the defendant’s disciplinary Judge Posner opted to write the opinion environment. Thus, “sex’ in Title VII policies never changed as of that date, on a patent infringement case involving did not just mean gender, which is what so that pre-January 1, 2006 misconduct glass dildos. The opinion is sprinkled Congress intended, but also sexual was indeed relevant and argued that the with typical “Posnerisms”, such as the orientation, which was not at the fore- logical cut-off date was when plaintiff following description of a portion of the front when Title VII was enacted.8 was hired.11 patent at issue: “By ‘lubricous’ – a word whose primary meaning, appropriate for Abortion. Judge Posner was skeptical Administrative Review of Social Secu- a sexual device, is ‘lecherous’ – the pat- of Wisconsin’s new abortion law that rity Benefits Denials. In recent years it ent means only ‘slippery,’ which is the required doctor’s to have admitting priv- seemed like Posner took an active inter- secondary meaning of the word.” As ileges at hospitals. Given that abortion est in these types of cases, overturning she described it, the oral argument on complications were extremely low and numerous decisions levied by adminis- the case was equally entertaining, with that other types of treatments posed a trative law judges where Social Security the then seventy-year-old judge having greater health risk to patients, he found benefits were denied.12 no shame in questioning the attorneys it somewhat specious that the law was about the sex toys. intended to look out for the health of Pro Se Litigants. Judge Posner has women.9 said that his colleagues on the Seventh Circuit have not given pro se litigants Lasting Effects Voter I.D. Law. The Seventh Circuit a fair shake, which apparently struck For all the criticisms that Posner endured upheld Wisconsin’s voter I.D. law which a nerve with him. In one of his last over the years, his recent opinions – sex required certain types of voter photo opinions, this became most clear. In toys notwithstanding – taking on divi- identification. Anen banc petition was reversing the district court’s judgment, sive social issues and looking out for the filed, which was denied, and Judge Judge Posner went to great lengths to marginalized may be the ones that he is Posner dissented from the denial. He show that the plaintiff (Davis) had a most remembered for, as opposed to his cited the lack of evidence (none in fact) substantially low I.Q that prevented decisions skeptical of class-action settle- showing that voter-impersonation fraud him from most likely understanding his ments and those infused with law and even existed in Wisconsin; that states opponent’s filings, which explained his economics theory. With his retirement, passing such laws were usually conser- dilatoriness in prosecuting his case. The we may also see his pragmatic approach vative and intended to suppress voter district court also denied Davis’ request to legal analysis go by the wayside, but turnout for the opposing party; and for appointment of counsel, and Posner, only time will tell. One thing we know for criticized the majority option which after considering Davis’ mental chal- certain, though: as the dust settles on his gave little weight to a study claiming it lenges, stated: “Davis needs help – needs career, Judge Richard Posner will be re- was not peer reviewed, and noting that it bad – needs a lawyer desperately.”13 membered alongside the great Learned neither are Supreme Court opinions.10 Hand, Henry Friendly, and Roger Tray- Sex Toys. The above, however, pale in nor as one of the most influential jurists Discovery. In dissent, Judge Posner comparison to the great judge’s work in American jurisprudence not to sit on claimed that it was arbitrary for the in Ritchie v. Vast Resources, Inc., which the Supreme Court.

7. Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). 8. Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017). 9. Planned Parenthood of Wisconsin v. Schimel, 806 F.3d 908 (7th Cir. 2015). 10. Frank v. Walker, 773 F.3d 783 (7th Cir. 2014). 11. Kuttner v. Zaruba, 819 F.3d 970 (7th Cir. 2016). 12. Dimmett v. Colvin, 816 F.3d 486 (7th Cir. 2016); Goins v. Colvin, 764 F.3d 677 (7th Cir. 2014). 13. Davis v. Moroney, No. 16-2471 (7th Cir. May 22, 2017).

42 DCBA Brief December 2017

News & Events

DCBA Update

Welcoming New Lawyers to the Team By Robert T. Rupp

The DCBA is a strong and close knit a new member or if you would like to making that happen. If you are a new community that is always happy to attend with a potential member, e-mail lawyer, your part is to show up, be welcome new lawyers. Attracting these DCBA Membership Director Cindy active, and engage in bar activities. The individuals to our bar team, welcoming Allston at [email protected] to add DCBA gives you an extra incentive to those who join us and engaging them as your name to the guest list. do this, cutting your dues in half for the teammates is a task that falls to all of us. two years following your free year if you The MCLE and PRMCLE provided by attend three CLE programs and one In November, our Membership Com- DCBA Sections is a powerful draw for paid social event each year. mittee launched a new program entitled new members and a huge resource to “Beer and Benefits” as an adjunct to our new lawyers. The annual DCBA Basic For the rest of you, when you volunteer monthly Happy Hour. This was launched Skills Course, being held over two to speak and write, creating content for as an extra way to welcome those new sessions in 2017 on December 1st and new lawyer consumption, you are play- lawyer members who joined DCBA at December 8th, is certainly one of the ing a part. When you take a new lawyer the District Two Admission Ceremony most prominent of those offerings (and under your wing at CLE programs or held November 9th in Elgin, taking I encourage anyone reading this to re- social events, or serve as a mentor, advantage of the full waiver of dues for view the program on the DCBA website you are playing a huge part. When you first year lawyers. New lawyers (and all and register ASAP!). Our Mentor/Men- encourage new lawyers in your firm to new members) were invited to come a tee program also provides a tremendous participate in DCBA activities and back little bit early, grab their beverage of opportunity for teaching and learning that encouragement with fiscal support, choice, and take part in a conversation for all involved. If you are interested in you are not only playing a part in bring- about themselves, the DCBA, and how participating in that program, contact ing along the next generation, you are we can grow together. After getting to Janine Komornick at jkomornick@ paying back all that was given to you. know each other, the group was ready dcba.org. Throughout the year, our New and eager to meet the rest of the team Lawyers Division and Practice Man- Help us help new lawyers and I am at the Happy Hour. By the end of the agement Section both provide valuable certain we will ALL grow together. evening, everyone, including the DCBA, training in establishing a new practice was richer for the experience. and a new legal career. Other Sections provide orientation in their respective About the Author We will repeat Beer and Benefits prior to areas of the law. In all these cases, the Robert Rupp is the Executive Director of the May Happy Hour, but new members goal is to bring new attorneys to profi- the DuPage County Bar Association. He don’t have to wait until then for a great ciency in the practice of law. has worked in professional association introduction into all the DCBA offers. management since 1994, serving a variety On January 2, there will be “Make the The call to make new lawyers “practice of national and international medical and Most of Membership” luncheon in the ready” is one that the DCBA takes legal associations, including the American Attorney Resource Center. If you are very seriously and you are all a part of Bar Association.

44 DCBA Brief December 2017 News & Events Legal Resources Top Web Links for Lawyers Blogs Illinois Business Litigator Blog by Mazyar Hedayat Practice Management Blog by Mazyar Hedayat https://www.illinoisbusinesslitigationlawyer.com http://www.practicehacker.com – Tools, tips, and tech for small firms and solos Business Law-related Blog http://paulporvaznik.com Trade Competition Disputes and Litigation by Ken Vanko http://www.non-competes.com Entrepreneur’s Legal Resource https://elrlaw.com/lw-blog – Employment, corporate Understanding the ADA by William Goren transactional and litigation, estate planning and probate issues. http://www.williamgoren.com/blog

Patent and Trademark Laws Employment Law Information Network http://www.waltmire.com – Inventing and creativity http://www.elinfonet.com Websites https://www.illinoislegalaid.org Website contains helpful information for pro se litigants as well as legal http://www.illinoischildsupportcalculator.com professionals. Under the Legal Professionals tab there are helpful practice Child Support Calculator for the State of Illinois. Includes statutory resources or search the website using common terms and find information guidelines, determining net income and has links to related articles. and instructions for filling out forms, with citations to the relevant statutes. This site provides helpful refreshers and quick reference guides. Incredibly easy to navigate www.discoverypilot.com This is the Seventh Circuit Court of Appeals Electronic Discovery Pilot www.ides.illinois.gov Program. This website contains useful resources on the handling of The IDES publishes the downloadable Illinois Unemployment Law Insurance e-discovery in litigation and resolving e-discovery disputes. It includes Handbook that contains the statute, regulations and Digest of Adjudication references to rules, model orders, webinars, speakers and other pub- Precedents, which are short summaries of decisions on various unemploy- lications. ment topics. The handbook is updated periodically and is a good resource for attorneys who represent employees and employers in such matters or are https://taxpayeradvocate.irs.gov looking for quick answers to questions. An independent organization within the IRS, TAS protects your rights as a taxpayer, and helps taxpayers with tax problems you can’t resolve http://www.illinoiscourts.gov/Forms/forms.asp on your own. On November 28, 2012, the Illinois Supreme Court adopted Supreme Court Rule 10-101, Standardized Forms, and entered an Administrative Order to These links and many more are available through the DCBA.org website About the Author set out a formal process for the development, review and approval of stan- under Legal Research/Links. Please help us bring more resources to our dardized forms for use in the Illinois courts by the Illinois Supreme Court members and the public by sharing your favorites. Send your links to Commission on Access to Justice. This site links to approved standardized [email protected] or [email protected]. forms, draft forms in progress and an option to suggest new standardized forms.

Here is the first installment of helpful legal resources submitted by members for members. Links submitted will appear in future DCBA Brief issues and will be added to the dcba.org website. Please help us continue by sending your favorite online research sites.

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ISBA Update

Wanted!! – A Few Good Lawyers for ISBA Leadership Positions By Kent A. Gaertner

As I write this, it’s a beautiful October ISBA members elect a new Third Vice ISBA also strives to have committees day. The Cubbies are at home this after- President. They also will fill six Board of and section councils be diverse groups noon against the Nationals and Mitch Governor seats, including from the 18th representing all Illinois practitioners. Be- Trubinsky is about to make his debut as Judicial Circuit, and twenty-two Assembly ing on a section council or a committee the Bears QB of the future. At the ISBA seats (all from Cook County). At the is the way most of the ISBA leadership we are preparing for our Board of Gover- time of this writing, Anna Krowlikow- first got involved with ISBA. It’s an nor’s meeting next week where the Board ska of Northbrook, Steven Komie of outstanding opportunity to interact with will finalize proposals to be presented to Chicago and John Nisivaco of Chicago attorneys who do the same type of work the ISBA Assembly on Saturday, Decem- have announced their candidacy for the you do or who share the same concerns ber 9th at the Mid-Year meeting at the ISBA Third Vice President race. All have on how our profession will look going Palmer House. been very active in ISBA leadership. into the future and a great opportunity to network. For more information and a Proposals may be on topics such as com- Also, this is the time of year where the nominating form go to the ISBA web site mercial lead generation services, Bench/ incoming President-elect starts to put and click on “Member Groups” and then Bar relations, Board of Governor seats together membership for the numer- on “Committees”. Check it out! for under-represented segments of ISBA ous section councils and committees membership, ISBA election rule chang- that make up the back bone of ISBA. Being involved in ISBA is a great es among other topics. These items are The President-elect this year is DCBA opportunity to give yourself exposure to generally brought to the Board by the Past President Jim McCluskey. Jim is attorneys from across our state. It also various committees and section councils, tasked with filling out the rosters for all melds nicely with participation in local first discussed by the Scope and Correla- these councils and committees for the bar association activities. Please give tion Committee (to which I am honored upcoming 2018/2019 year, which can be it some thought and do not hesitate to to have been elected by my fellow Gover- a daunting assignment. nominate yourself for a section council nors), then passed on to the full Board to or committee (or two) of your choice. complete their development and then on To be considered for a position, you do to the Assembly for a final vote. As past not need anyone to nominate you. You president of DCBA Don Ramsell was are allowed to nominate yourself. In fact, About the Author fond of saying in the DCBA Board meet- self-nominations are highly encouraged. Kent is the Eighteenth Judicial Circuit’s ings – “That’s how the sausage is made”. If you would like to be at the cutting representative on the ISBA Board of Governors. edge of what’s going on in a particular He is the principal of Kent A. Gaertner P.C. and This is also the time of year where cam- area of law or an area covered by one of “Of Counsel” to Springer Brown, LLC. where paigning starts for those seeking officer the ISBA’s many committees, then this he concentrates his practice in bankruptcy positions in local bar associations as well is your opportunity. Younger attorneys and workouts. He was president of the DCBA in as the ISBA. This year (as in every year) are definitely welcome to apply. The 2009/2010.

48 DCBA Brief December 2017 News & Events

Legal Aid Update

Veteran’s Initiative Program Update – Volunteers Needed By Cecilia Najera

Legal Aid has always relied upon the came to us in December of 2016, as a through the application process and let kindness of many. One of the things referral from Judge Robert Rohm’s them know that we would like to serve that has always amazed me is that there courtroom. It was a foreclosure issue them just as they have served us. The are so many volunteers dedicated to ad- regarding a veteran’s reverse mortgage. goal of the Initiative as a whole is to be vocating for those less fortunate. These Our office was lucky enough to get in sensitive to some of the special circum- volunteers give individuals a voice within touch with Steven Bashaw who agreed stances a veteran may have throughout a system that may seem foreign to their to take on the matter pro bono. Two of the application and legal process. clients. In November of 2016, the DCBA his own children are currently serving. announced that it would begin the Vet- The case is still ongoing, but the veteran Right now, we are still looking for attor- eran’s Initiative Program (“Initiative”). in this matter has been able to stay in neys with military benefits knowledge Because the DCBA has a longstanding his home and has been given a fighting who are willing to volunteer. We would tradition of service, many of its members chance at keeping his home from being like to build a bank of attorneys that wanted to give back to those that have foreclosed upon. The third case was would be willing to help our veterans served our country. Legal Aid has been assigned to Tim Whelan. Tim helped a with domestic relations cases, Veterans’ screening for the Initiative and matching veteran obtain supervision for his traffic benefits, dependent benefits, and mili- Veterans in need of legal assistance with offense. Although this seems like a small tary standing issues. If you are interested a pro bono or modest means attorney. number of cases that have received help, in helping with this program, please call it is just the beginning. We hope that once me at 630-653-6212. To date, and in less than a year, the the word is out that the DCBA and Legal Initiative has conducted 8 intakes, Aid provides legal assistance to veterans, processed 4 applications and assigned 3 the Initiative will grow. We even hope to cases to volunteer attorneys within the set up some clinics with Hines VA Hos- About the Author About the Author DCBA. One case was assigned to Tony pital in the near future. We have found A Wheaton native, Cecilia “Cee-Cee” Najera is a Abear. Tony helped defend a veteran in that half of our veterans that completed graduate of the University of Iowa and received an Order of Protection proceeding. He an intake, did not submit an application. her J.D. from Southern Illinois University. She was able to have the Order of Protection Therefore, our office is going to make served as the DCBA New Lawyer Director from dismissed for his client and is now repre- more effort in paying attention to and 2004 to 2009 and is currently the Director of senting him in his divorce case. The first following up with veterans that call for DuPage Bar Legal Aid Service. veteran’s case that Legal Aid screened legal assistance. We hope to help them

DCBA Brief December 2017 49 News & Events

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DCBA Brief December 2017 51 News & Events

Where to Be In December

Come Join Your Friends at the DuPage Bar Foundation’s Holiday Breakfast Set for December 14th

Mark your calendar for Thursday, December 14, when the By Jolianne Walters DuPage Bar Foundation hosts its annual holiday breakfast. This fun and festive event will take place in the Attorney Popular DCBA Annual Holiday Party to Resource Center from 8:30 a.m. to 10:30 a.m. There will be Happen at Elements at Water Street a full breakfast spread of hot foods and pastries. In addition, there will be a live raffle of gift cards and other items donated To usher in the most wonderful time of the year, on Wednes- byDBF board members. The DBF will also present checks to day, December 6, 2017, from 5:30 p.m. to 9 p.m., the DuPage the organizations to which it provided grants this year. County Bar Association will be hosting its annual – and always spirited – Holiday Party at Elements at Water Street, located While there is no official charge to attend, the breakfast is one of at 123 Water St., Naperville. Attendees choosing to park in the the DBF’s fundraisers for its scholarships and other programs, plentiful spaces available in the garage can access the venue by so donations are very much appreciated. The DBF encourages walking through the Hotel Indigo lobby and bridge. donations of $100 from individuals, $250 from firms of 2 to 9 attorneys, and $500 from firms of ten attorneys or more. These Not only will this be a drink and be merry kind of party, mem- are suggested donations only; a donation of any amount is bers are encouraged to embrace the season’s giving spirit by welcome. A list of donors will be posted on the wall of the ARC bringing a new, unwrapped toy to help Lawyers Lending a and those who donate before the event will be recognized on a Hand brighten the holidays for someone in need. Each DCBA slide show that will be shown at the breakfast. member who brings a toy for the Toy Drive will have their good deed generously rewarded with a free drink ticket at the event. The DBF raised over $13,000 at last year’s breakfast, thanks Come hungry for heavy appetizers and thirsty for the event’s to the generosity of those who made direct donations and pur- cash bar. chased raffle tickets. This year, the Foundation hopes to meet or perhaps even exceed last year’s total. Don’t miss this highly anticipated party! Early bird pricing is $50/$30. Prices increase December 1. Get your tickets online Established in 1997, the DuPage Bar Foundation is the now at the dcba.org website. charitable 501(c)(3) arm of the DuPage County Bar Association.

52 DCBA Brief December 2017 Hon.Hon. F. Keith Richard Brown, J.(Ret.) Billik, Jr., (Ret.)

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