THE September 2009

DOCKETVol.16, No.9 The Official Publication of the Lake County Bar Association

Inside this issue... In the Director’s Chair: LCBA on the Move 2 by Christopher Boadt, Executive Director The President’s Page: Building the Foundation 3 by Scott B. Gibson A publication of the The Chief Judge’s Page 5 by Chief Judge James K. Booras Cobra Provisions in the American Recovery and Reinvestment Act of 2009: A Little Bit of Good News 7 for the Unemployed by Margaret A. Marcouiller

An Interview with Judge Jay Ukena 7 North County Street 9 by Shyama S. Parikh Waukegan, Illinois 60085 Phone: (847) 244-3143 Bar Association to Establish a Foreclosure Help Desk in Park City Fax: (847) 244-8259 11 Courthouse: Significant Increase in Foreclosures Creates Need www.lakebar.org [email protected] Layoffs and downsizing: Economic Necessity or Protest 13 for Discrimination? 2009-2010 Officers & Directors by Keith L. Hunt and Sarah E. Levee Scott B. Gibson, President Elizabeth M. Rochford, First Vice-President Employment Descrimination Perry S. Smith, Jr., Second Vice-President 16 by David R. Ganfield and Jennifer J. Howe Kevin M. Kane, Treasurer Marjorie I. Sher, Secretary Bryan R. Winter, Immediate Past President 23 The Grapevine Hon. Valerie B. Ceckowski Hon. Fred L. Foreman Meeting Minutes Joann M. Fratianni 25 July 16, 2009 by Marjorie Sher, Secretary Thomas M. Gurewitz Steven P.McCollum Michael J. Ori LCBA Bulletin Board & Calendar 28 Editorial Board Michael S. Strauss, Co-editor Rebecca J. Whitcombe, Co-editor Ann Buche Conroy Advertisers Hon. Mitchell Hoffman Back Attorney’s Title Guaranty Fund, Inc. 4 Marytown Daniel L. Jasica Hon. Raymond J. McKoski David L. Gates & Associates McDonald Hopkins LLC 15 Front Stephen J. Rice 8 Deposition Reporters 8 Neil H. Good Neal A. Simon 25 ISBA Mutual 12 ProfessionalNationalTitleNetwork,Inc. James K. Simonian Hon. Daniel B. Shanes Joseph Modica & Associates, Ltd. SuitedtoYou 20 20 Hon. Stephen Walter (ret.) 18 L & L Reporting Services, Inc. 6 Wells Fargo Advisors Staff Lakeside Investigations Vahl Reporting Service 10 15 Christopher T. Boadt, Executive Director Melissa E. Brown, Executive Assistant 2 The Docket September 2009

In the Director’s Chair by Christopher T. Boadt Advertising Rates

One Six Twelve LCBA on the move Issue Issues Issues Eighth Page $65 $60 $55 During the August 20, 2009 meeting of the LCBA Board, a Quarter Page $115 $105 $95 plan to lease new office space was approved. The Board consid- Half Page $170 $155 $140 ered the following items: Full Page $290 $265 $240 • Building a Foundation: Establishing a facility which is Inside Front Cover ...... $600 per Issue thought of as the “home” of the Lake County legal com- Inside Back Cover ...... $600 per Issue munity. Back Cover ...... $750 per Issue • Lease: Engaging in a lease of 3 years without significantly increasing our monthly expenses. Bar Bulletin Board • Location: Desire to be near the courthouse which would Upto5Lines ...... $25 provide easy accessibility for members and the public. 6to10Lines ...... $35 11to15Lines ...... $40 • Visibility: A location that provides strong street visibility. 16to20Lines ...... $45 • Parking: Ample free parking for members attending meet- ings or seminars. To place an ad or for information on adver- tising rates, call (847) 244-3143. Submis- • ADA Compliance: A facility which allows all LCBA mem- sion deadline: first day of month preceding bers and Lake County citizens easy access to our facilities. the month of publication. All submissions must be made in electronic format (high res- • Classroom: A location which would allow us to host up to olution PDF or JPG format at a resolution of 40 people for a classroom meeting. Classroom could also 300 pixels per inch or more.) See www.lake- be converted into a Board/Conference room. bar.org/html/docketRates.asp. • Member Resource: A place that would have a com- puter/printer available for members to check e-mail, access The Docket is the official publication of the the internet or hold depositions when the room is available. Lake County Bar Association, 7 N. County Street, Waukegan, Illinois 60085 (847) • Expandability: The potential to expand staff and services 244-3143, and is published monthly. Sub- with minimal adjustments to the facility during the lease scriptions for non-members are $45.00 per period. year. Effective October 1, 2009 the LCBA office will be located at Reproduction in whole or part without per- 300-A N. County St (the corner of Grand and County). Once mission is prohibited. The opinions and po- we are settled we will host an open house and invite all mem- sitions stated in signed material are those bers to visit the home of their association. of the authors and not necessarily those of the Association or its members. How to write for The Docket All submitted manuscripts are considered by the Editorial Board. All letters to the edi- tor and articles are subject to editing. Pub- The Editorial Board of The Docket is always looking for fresh and relevant articles to feature lications of advertisements is not to be every month. Feature articles should be a minimum of 1,500 words and a maximum of considered as an endorsement of any prod- 3,500. The deadline for submissions is the first day of the month preceding publication. Arti- uct or service advertised unless otherwise cles should be submitted electronically in Word or WordPerfect. The Editorial Board reserves stated. the right to edit articles as they see fit to meet the needs of the publication. Please send sub- missions to [email protected] or call (847) 244-3143 with questions. September 2009 The Docket 3

The President’s Page by Scott B. Gibson Building the Foundation

any Lake County Bar Association dation. Mark has given an extraordinary Board’s actions and goal in securing new Attorney Members (until re- amount of time, energy, and his consider- offices and eventually purchasing or con- Mcently, myself included!) are un- able talent in poring through old records, structing a dedicated Lake County Bar As- aware of even the existence of the Lake correspondence, bank accounts, and judi- sociation building. County Bar Foundation, let alone that cial notices; and he has reported periodi- every attorney member of our Association cally to the Board over the last year Another great thanks goes out to former is also a member of our Foundation. As dis- regarding the Foundation’s activities. President Rick Lesser, Mark Peavey, and cussed at the June Officers’ Installation their subcommittee, which has worked Dinner, one of the major goals of the cur- The Foundation is pleased to inform our diligently for a number of months to re- rent Bar Association Board, which cur- Members that the Wayne Flanigan Schol- view the current Bylaws, perform exten- rently also doubles as the Foundation arship Fund has finally been transferred to sive legal and tax research, confer with Board, is to reinvigorate the Bar Founda- the University of Illinois Law School in the other Foundations and experts along with tion which now and for our future will un- name of Wayne Flanigan to provide finan- corporate consultants and the Secretary of dertake the extremely State to completely rewrite important responsibilities of the Foundation’s Bylaws and promoting and administer- Articles of Incorporation. ing the charitable, educa- We need to update the By- tional, and office/building We all owe a great debt of gratitude laws for the current times, needs of our Bar Association. protect the tax-free status of to Mark Peavey, the Chair of the Foundation. the Foundation and its abil- In brief, the Lake County Bar ity to accept tax-deductible Foundation was originally or- contributions, and to ensure ganized and Articles of Incor- that the Foundation’s bylaw poration were filed with the and Articles of Incorpora- Secretary of State in 1960. For all intents cial assistance to needy law students from tion are in legal compliance with the goals and purposes, the Bylaws and Articles of Lake County.That chapter of the Founda- of the Foundation and our Association. Incorporation have not been amended in tion’s activities is now completely closed. 49 years. For decades, the Bar Foundation At the present time, the only activities of The Board is pleased to announce that basically laid dormant with no money in its the Foundation continue to be the admin- after extensive review and contemplation bank account, no employees or volunteers, istration, collection, and payment of by the Board, including the current and and for many years did not have a specific “Drug Court funds” as ordered periodically past Treasurers, we unanimously ap- chairman or conduct any type of activities by Lake County Judges. proved the new amended Bylaws and con- or business. In the last decade, the Founda- current Articles of Incorporation at the tion began some specific functions which So why is the Foundation so impor- July Board Meeting. Pursuant to our rules, have been limited to the collection and ad- tant now? As most of you have read and the proposed new amended Foundation ministration of the Wayne Flanigan Schol- heard, due to the extraordinary efforts of Bylaws must be approved by a majority arship Fund and the Lake County Courts Members Phil Bock and Brian Wanca, we vote of our Members. They also must be Judicial Drug Fund. have received to date approximately made available to the Members for review $150,000 in Cy Pres funds and are eligi- and comment - see the proposed new We all owe a great debt of gratitude to ble for continued Cy Pres funds as they Foundation Bylaws on our website or con- Mark Peavey,the Chair of the Foundation, may become available. It must be tact the Bar Association office. who reports to the Bar Association/Foun- “serendipity” because the recent receipt of dation Board regarding the past, current, these funds could not have come at a bet- and potential future actions of the Foun- ter time in relation to the Association Continued on page 4 4 The Docket September 2009

Continued from page 3 • The new Foundation Board will have with the eventual goal of raising the its own President, Officers, and Mem- funds necessary for the purchase or The final step in this very important jour- bers. All Members of the Association construction of a permanent Bar As- ney is to hold a vote to approve the Foun- will remain members of the Founda- sociation building. dation Bylaws as amended which is tion. The Foundation Board will have strongly supported by your Associa- at least one Bar Association Board • The Foundation will hold its own tion/Foundation Board: Member as a Foundation Board Mem- fundraising activities including a ber as a liaison. Foundation gala, dinners, golf outing, What are the big changes in the Foun- etc. dation Bylaws and the relationship • The Foundation will keep its own fi- between the Foundation and Associa- nancial records, accept payments and • The Foundation President and its Ex- tion? As an overview,the new Foundation donations independent of the Associ- ecutive Director will periodically re- and its relationship with the Association ation, and will administer its own fi- port the activities and actions of the will be changed and improved, as follows: nancial needs and activities. Foundation in The Docket on a periodic basis. • Not only for more efficient adminis- • Initially, the Foundation will share a tration, fundraising power, and for small portion of the time of the Asso- September begins the start of our heightened identity but also because ciation’s Executive Director,and will be three fall and three spring monthly the tax and corporate experts require responsible for a pro-rata share of the luncheons/speaker meetings, and it is it, the Foundation Board will be sepa- Executive Director’s remuneration. crucial that as many Members as pos- sible are present on September 22, rated from the Association Board as • The Foundation will become the ad- 2009. I urge all Members to read the pro- an independent body. ministrator of the Bar Association’s posed Bylaws and bring forth any com- charitable and educational activities. • The stated purpose of the Foundation ments to me, Rick Lesser, Mark Peavey, or remains to support the charitable and • The Foundation will begin fundraising Executive Director Chris Boadt. It is imper- educational Bar functions, and to fi- and will be the actual lessor/owner of ative that we are able to present the new nance and administrate the of- new housing/offices for the Bar Asso- Bylaws at the September meeting so that fices/building of the Bar Association. ciation which will most likely entail an your Association and Foundation can It will act closely with the Bar Associ- initial move to an existing rental so spring forward immediately thereafter to ation Board but will be truly its own that we can more effectively serve our better serve all of us. I look forward to see- legal and functioning entity. Association and Foundation Members ing you there.

(paid advertisment) September 2009 The Docket 5

The Chief Judge’s Page by Chief Judge James K. Booras

n a futuristic movie from the 1970’s thing, step next door to someone else’s of- physical file to look up documents, orders called 2001: A Space Odyssey,the world fice to ask a question.This contributes to so- and court papers – everything can be avail- I(actually,the universe) is taken over by cial interaction that is otherwise lost to the able electronically. An obvious benefit to a villain unlike the typical villains. This vil- internet. Some people may leave their desks this is that multiple parties in different loca- lain is a computer that was programmed by and discover that talking to someone else tions can have contemporaneous access to humans, yet it goes wild and is uncontrol- isn’t painful. court documents, and none of them re- lable by humans and simply takes over. quires any physical presence in the Clerk’s Likewise, we have discovered email as a new Office. As an additional benefit, viewing, Some of us who have enough computer ed- form of impersonal communication. This copying and certifications could be ob- ucation to be considered dangerous are not morning it was down. Again, it gave people tained from anywhere, at your convenience so afraid of computers — or are we? I am the opportunity to talk to each other,have a for you. always mindful that even if I have saved a personal exchange or pick up the phone. On document, it may still vanish even though a normal day, the phone rarely rings, but Second, e-filing further improves the secu- I’d lose it much faster if I put it in printed the email messages keep up coming like rity of court files. All files, papers and docu- form on my desk. I would not remember in crazy. ments can be electronically “locked down” which pile. I assure you that there is no to show if and when any alterations have search button for what is on my desk. Hopefully things will normalize, but infor- been made, by whom they were made, and mation must be disseminated in the least when the alterations occurred. No more for- Assuming that we are not afraid of com- painful way. Computers and the internet geries or altered court documents. More- puters, even though some of us remember appear to be the answer. We must begin to over, the strength of electronic security the sayings “garbage in, garbage out,” or accept it, even though it may be painful for means that access to the system is secure, “to err is human, but to really foul things some of us. Otherwise technology may by- and every movement in the system can be up it takes a computer,” I think we can all pass Lake County. We appear to be turning logged for any issues that may arise between agree that computers are useful machines into a world where everything will be done parties on filing disputes or in court matters. until they break down. For example, at this electronically. moment I need to go on line to get the Finally,one of the most significant effects of Supreme Court’s electronic policy, only to According to Keith Brin, Chief Deputy of e-filing is on resource use. The logistics in- find out, to my amazement, that AT&T is the Circuit Clerk’s Office, and newly ap- volved with thousands of case files is stag- down state wide and there is no internet. pointed Chairman of theTechnology Com- gering, and the office supplies, filing space, This great Al Gore invention that is sup- mittee of the Lake County Bar Association, and volumes of paper required are im- posed to be open and functioning at all “Electronic Filing (e-filing) is a hot topic mense. Further, the manpower involved times and have the world connected at across the country.” Generically,e-filing al- with moving court files to and from court every moment has everyone disconnected. ludes to electronic means to file papers or rooms throughout the court system every- And there is no back up! manipulate court documents, usually tak- day is massive. But aside from the potential ing the place of a physical visit to perform resource savings from the court side, the re- This gives credence to some cynics’ argu- the same activity. But why should the 19th source savings for the legal practitioner is ments that “what do you do if the comput- Judicial Circuit look at e-filing if the current also potentially amazing. Just think about ers are down?” Where are the documents? system works just fine? For many reasons, your own practice: the paper, ink and man- Some folks store things on line. What hap- including improved accessibility, security power used to print and copy multiple copies pens when the line is gone? These are ques- and resource use. of every document and exhibit; the travel tions to ponder as we move forward with time spent going to and from the courthouse First, e-filing eliminates the need to be in the computerizing everything. Most of us are to actually file, look up files, make record in- same physical space as the court file to have dependent on computers and at this junc- quiries, and obtain copies of court docu- access to court documents. With electronic tion we cannot turn back. ments; the time spent calling to get dates for accessibility for judges, all court documents court mattersand inquiring aboutfees,costs Wecannot do without computers or the in- are immediately available – no more and other procedures; the accounting issues ternet. We are not otherwise well con- searching through massive paper files for with cutting checks for individual matters; nected. However, there is something orders, briefs and other documents.This ac- delivering bulk filings and coordinating positive about the internet being down. I cessibility also extends to out-of-court view- noticed that people, unable to Google some- ing. E-filing eliminates the need for the Continued on page 6 6 The Docket September 2009

Continued from page 5 It’s time for the legal community to get in- This would be a uniform system of e-filing volvedintheconversationfore-filing.Allthe of cases and documents in all trial courts. those matters on your various calendars. technologies in e-filing have been in use in Like faxing, confirmation would be trans- But this is just the tip of the iceberg. E-filing one form or another for years. And it’s not mitted by the receiving end, through an allows for documents to be stored paperless specialized or restricted; law firms and the electronic filing stamp, I would presume. after electronically filing without scanning public routinely use e-mail, file sharing, cal- One can imagine how many hours would in the documents and without having extra endaringandscanningtechnologies,sowhy be gained by this process. Even though ba- paper-filed copies printed, unused, unneces- shouldn’t our court system use them? Sally sically all documents are generated elec- sary and potentially wasted. The monetary Coffelt,Clerkof theCircuitCourt,haspushed tronically now, they still have to be printed savings in paper, ink, time, and file space e-filingforyearsbuthasbeenmetwithstern and hand delivered or sometimes mailed, to alone are enough to endorse the system if it opposition from the Administrative Office of the clerk’s office or to court. After complet- wasn’t already so appealing for the efficien- the Illinois Courts (AOIC). It’s time to back ing the filing process, generating receipts, cies it could provide. hereffortstomovethisprojectforwardsothe assigning case numbers, making file jack- 19th Judicial Circuit legal community can ets and placing the documents properly, Of coursethiscannothappenovernight,and realize the benefits e-filing has to offer.” then they are properly placed in a location any e-filing system must allow for continu- that is part of the clerk’s case management ity of legal work with or without the elec- Initially the Illinois Supreme Court began a where they would be easily found and ac- tronic portion of the system. Further, any pilot program for e-filing in civil cases. We, cessed, and eventually they are finally e-filing system must allow for those who do the Nineteenth Judicial Circuit, Circuit brought to court manually. not wish to use e-filing so that no court- ac- Clerk and the State’s Attorney, applied for cess issues arise. However, for those individ- permission to participate in a pilot program Just imagine all of that to be circumvented uals nothing will change: the Clerk of the for e-filing in criminal cases. That applica- with the touch of a button. A lawyer files Court’sOfficewillremainopenwithfriendly tion is under consideration by the Admin- the documents electronically from his or clerks to take payments, file court docu- istrative Office of the Illinois Courts. her office, pays the fees electronically, and ments, answer questions and pull files. If gets confirmation and case number gener- something is filed in paper form then the Interesting enough, about a year ago the ated automatically. Efficiency would enor- clerks will add it to the e-filing system, but Illinois Supreme Court “announced a wide- mously improve and since there would be alsoretainthepapercopyjustasisdonenow. ranging plan to build a technological infra- less people involved there would be less of a If a document is requested from the elec- structure that would link electronically all chance of errors. tronic system it will be “paper on demand,” the courts in the state’s 23 judicial circuits anditwillbeproducedlookingexactlyasif it and 102 counties,” according to the All of that provided that the internet had been filed in printed form originally. Supreme Court’s press release last year. works…. September 2009 The Docket 7 COBRA Provisions in the American Recovery and Reinvestment Act of 2009: A Little Bit of Good News for the Unemployed he anger, anxiety and depression coverage, an individual must have been The stimulus package enacted as the associated with losing a job can enrolled in a health plan maintained by a American Recovery and Reinvestment Ttake a toll on your health. The loss private sector employer with 20 or more Act of 2009 (ARRA)4 provides for pre- of health in- employees, an employee organization, or mium reductions and additional election surance com- a state or local government. The eligible opportunities for health benefits under pounds the applicant must have been enrolled in the COBRA. Assistance eligible individuals problem. Now, employer’s health plan when he worked, pay 35% of their COBRA premiums and as unemploy- and the plan must continue to be in effect the remaining 65% is reimbursed to the ment in Illi- for active employees. An individual re- employer or other coverage provider nois tops ceiving health insurance benefits under a through a tax credit. The premium reduc- 10%1, we all covered employer’s health tion applies to health care have clients, plan on the last day of coverage beginning friends or rela- his em- on or after tives among p l o y - Febru- By the millions m e n t ary 17, who have lost should 2 0 0 9 , Margaret A. their jobs receive a no- and lasts up Marcouiller through no tice of eligibility to to 9 months for fault of their elect COBRA coverage. those eligible for COBRA own. A little bit of good news we can due to an involuntary termi- share with them comes in the form of the If elected, COBRA coverage nation of employment between COBRA provisions in the American Re- will begin on the date that September 1, 2008 and De- covery and Reinvestment Act of 2009. health care coverage would cember 31, 2009. otherwise have been lost as a re- Since 1986, the Consolidated Omnibus sult of a qualifying event, and An assistance eligible individual Budget Reconciliation Act (COBRA)2 has COBRA coverage generally lasts is generally one (a) who is a entitled certain former employees, re- a maximum of 18 months for qualified beneficiary as a result of tirees, spouses, former spouses and de- qualifying events due to employ- an involuntary termination dur- pendent children to temporary ment termination or reduction of ing the period from September 1, continuation of health insurance cover- hours of work3 COBRA participants 2008, through December 31, 2009; age at group rates. Continuation coverage generally receive the same level of (b) who is eligible for COBRA con- is available when original coverage is lost health care coverage that they had tinuation coverage at any time during due to a qualifying event, such as termi- on their last day of active employ- that period, and (c) who elects the cov- nation of employment for reasons other ment. erage. The determination of whether a than gross misconduct. COBRA coverage termination is involuntary is based on all is usually more expensive than health in- COBRA has long provided a substantial the surrounding facts and circumstances. surance for active employees because the benefit for those who can pay the premi- For example, if a termination is desig- employer customarily pays a portion of ums, but as the recession gripped our nated as a resignation or retirement, but the premium for active employees, while economy last year, COBRA coverage the employee had knowledge that he COBRA participants generally pay the full quickly became out of reach for the ever- would be terminated if he did not resign premium themselves. Still, COBRA cover- increasing number of unemployed indi- or retire, then the resignation or retire- age usually costs a great deal less than in- viduals who needed health care. ment is deemed involuntary for COBRA dividual health insurance coverage. and ARRA purposes. An involuntary re- Premium Reductions and Additional To be eligible for COBRA continuation Election Opportunities Continued on page 8

1 Illinois Department of Employment Security,Local Area Unemployment Statistics data for June of 2009 puts the seasonally adjusted unemployment rate for Illi- nois at 10.3%. 2 29 U.S.C. § 1161 et seq. 3 A qualified beneficiary who becomes disabled within the first 60 days of COBRA continuation coverage, and obtains a ruling from the Social Security Adminis- tration to that effect, may qualify for an additional 11 months of COBRA coverage at an increased rate. 4 Public Law 111-5, 123 Stat 115, effective as of February 17, 2009. 8 The Docket September 2009

Continued from page 7 Individuals whose qualifying event oc- erage that is also offered to active employ- curred between September 1, 2008 and ees and that does not have higher premi- duction in hours to zero (for example February 16, 2009, who did not elect ums than the individual had at the time of through lay-off or furlough) that results COBRA coverage when it was first offered, the qualifying event. in a loss of health coverage is also an in- or who elected COBRA coverage and then voluntary termination under COBRA and dropped it (for example because they were Limitations ARRA. unable to continue paying the premium) An individual who is eligible for other should already have received a notice in- group health coverage (through a new The benefit to assistance eligible individu- forming them of their extended election employer’s plan or a spouse’s plan for ex- als is substantial.5 Assuming a $1,500.00 opportunity.6 An individual who believes ample) or Medicare is not eligible for the COBRA premium, the 65% subsidy will he should have received notice of the ex- premium reduction. Additionally, the save the participant $975.00 each tended election period but did not should COBRA subsidy phases out for individuals month, and $8,775.00 in total if the par- contact his plan administrator or the U.S. whose modified gross income exceeds ticipant remains eligible for the maximum Department of Labor at the telephone $125,000, or $250,000 for those filing nine-month entitlement. In a period of number listed below. joint returns. Taxpayers with modified ad- unemployment, this could mean the dif- justed gross income exceeding $145,000 ference between keeping health insurance The premium reduction will be available coverage and losing it. Additionally, the in 2010 to those who qualify as assistance or $290,000 for those filing joint returns, premium reduction is available for eligible individuals on or before December do not qualify for premium reductions. 31, 2009. For example, an assistance eli- COBRA continuation coverage of any Additional Information group health insurance including vision- gible individual who is first entitled to the Guidance and other information about only and dental-only plans. premium reduction on December 1, 2009 may receive the premium reduction until COBRA and ARRA is available from the The ARRA Time Frame August 31, 2010, assuming he does not U.S. Department of Labor web site at Both the qualifying event (involuntary lose eligibility for COBRA continuation www.dol.gov/COBRA. You can also call termination) and eligibility for COBRA coverage before that date.7 1.866.444.3272 to speak with an Em- continuation coverage (date coverage ployee Benefits Security Administration would otherwise have been lost) must Additional Elections Benefits Advisor. Additional information occur during the period from September COBRA coverage is customarily the same is also available at www.irs.gov. 1, 2008 through December 31, 2009 to coverage that the individual had at the qualify for ARRA benefits. time of the qualifying event. Under Meg Marcouiller is employed in the Lake ARRA, however, an em- County State’s Attorney’s Office. She is a for- ployer may offer assistance mer member of the LCBA Board of Directors, eligible individuals the op- and she currently serves as Co-chair of the tion of choosing other cov- LCBA Local Government Committee.

5 However, electing the premium reduction disqualifies the applicant for the Health Cov- erage Tax Credit, which could be more valuable than the premium reduction for certain workers who lost their jobs as a result of increased imports. Additional information re- garding this benefit for trade-affected workers is available on the web page for the Inter- nal Revenue Service at www.irs.gov.

6 Model Notices for employers are available at www.dol.gov/ebsa/COBRA.

7 COBRA continuation coverage will end if (1) premiums are not paid on a timely basis, (2) the employer ceases to maintain any group health plan, (3) coverage is obtained after COBRA election with another employer group health plan that does not contain any ex- clusion or limitation with respect to the beneficiary’s pre-existing condition, or (4) the beneficiary becomes entitled to Medicare benefits after the COBRA election.

Visit the LCBA Website: lakebar.org September 2009 The Docket 9

An Interview with Judge Jay Ukena by Shyama S. Parikh

he Honorable Jay Ukena has resided in Lake County since the late 1960’s. His father was an ordained Pres- Tbyterian minister so the family moved quite a bit in his youth, residing in Michigan, Nebraska, Indiana and Okla- homa before coming to Illinois. Judge Ukena attended Lake Forest College and graduated with a Major in Government with Minors in Economics and Psychology. After graduating from college, the Judge did not go directly to law school. He taught for the Chicago Public School system, was a case worker for the Cook County Department of Pub- lic Aid, worked 3 years on the railroad, and married his wife, Karen (who was a clerk for the Chief Judge at the time) before attending law school at John Marshall. Judge and Mrs. Ukena Judge Ukena now have two (2) children, Matt (28) and Mark (26). by the numbers In 1978, while in law school, Judge Ukena was a law clerk at Sullivan, Smith & Hauser. Upon his graduation in 1979, he worked part time with them and part time as an Assistant 2 Public Prosecutor with Bill Morris. Judge Ukena opened his # of years Judge Ukena was the own practice in 1981 and continued to work as an Assistant Assistant Coach of the boys Varsity Public Prosecutor in Waukegan until 1985. He had a gen- soccer team at Warren High School eral practice over the years with an emphasis in family law, Social Security Disability,traffic, criminal defense and repre- senting governmental agencies. 12 But Judge Ukena brings more to the bench than his work ex- perience. Specifically,in 1978 he was elected the Democratic Number of Circuit Judges that Precinct Committeeman; in 1980 he became the Vice Chair- run the courthouse man of Waukegan Democrats; in 1981 he became the Vice Chairman of the County party. From 1982-1994, he was the Special Attorney General; in 1989, he became the 95% Waukegan Township Attorney; in 1990 he became the Lake Zurich Village Prosecutor; and in 2004, he became the Gen- Judge Ukena belives that 95% of eral Counsel for the North Shore Sanitary District. He found cases can be resolved prior to trial the work with the North Shore Sanitary District the most complex. In addition, Judge Ukena was active in his children’s lives: from 1988 to 2006, he coached soccer, and from 1999 to 2001, he was the Assistant Coach of the boys Varsity soc- 103 cer team at Warren High School. The courtroom that Judge Ukena Continued on page 10 presides over 10 The Docket September 2009

Continued from page 11 to finish his cases and/or withdraw from encouraged him to become a doctor, a them. Judge Ukena was in a very unique lawyer or a minister so he could help oth- When questioned about when he first situation in that the last Judge to go from ers and do public service. thought about the judiciary he stated that being an Attorney to Circuit Judge was the as he practiced over the years, he thought Honorable Fred Foreman years ago. In courtroom C-103, Judge Ukena at- he may want to be a Judge with the right ex- tempts to deal with uncontested cases first perience, but did not know if it was going to After his two-week training, Judge Ukena before moving on to contested matters. be possible because of his political affilia- spent about two weeks shadowing other He will try to work out cases with litigants tion. Finally,in May 2000, he became more Judges. He then spent approximately two and lawyers as much as possible because serious about wanting to become a Judge weeks in Branch Court in Park City,Court- he believes they can be resolved 95% of and put in his name for Associate Judge. Be- room A. In January 2009, Judge Ukena the time, so he doesn’t mind doing a pre- tween 2004 and 2005, Judge Ukena de- also attended the seminar for new judges trial conference or talking informally at cided that he would run for Circuit Judge if in Chicago, Illinois for one week with Judge the bench, if requested, before proceeding the opportunity presented itself. Betar.After that, he presided in Courtroom to a hearing or trial. 105(A) for two weeks before taking over He describes his campaign as a “grass Courtroom 103, where he currently sits, When asked about what he likes to see or roots” campaign and tells of how he went beginning in February, 2009. does not like to see, he was very clear that door to door, collected names outside of civility is very important to him. He be- Jewel and was very proud of his commit- When asked how he finds Family Law, he comes very irritated when an attorney ac- tee for all of their hard work and effort. smiles and responds “just like I thought.” cuses another attorney of acting Judge Ukena was at his home, with his His biggest challenge as a Judge thus far has improperly or makes an inflammatory family, his committee and their families been simply developing his own demeanor statement about a party because this be- when he found out he had won the elec- and “becoming a Judge.” Judge Ukena feels havior only makes a case more difficult to tion and was going to be sworn in as a Cir- it is very important for a Judge to have a lot settle. In addition, it is harder on the judi- cuit Judge. He rememberd a quote from of experience as an attorney because not cial system when cases don’t settle because the movie “The Candidate” that describes only do they have to make decisions based of unnecessary and inappropriate behavior. his feeling upon hearing the results – on the facts and the law,but he believes they “Now What?” have a duty to explain their decisions to the Judge Ukena states that he has many other parties. In addition, he feels that since traf- responsibilities as a Circuit Judge in addi- Between winning the election on Novem- fic and family are usually the only experi- tion to presiding over cases, such as run- ber 4, 2008 and being sworn in on De- ence most parties will have with the judicial ning the Courthouse with eleven (11) cember 1, 2008, Judge Ukena attempted system, it is important that attorneys be- other Circuit Judges. Some of the chal- have civilly in the courtroom lenges facing the court system include the and with each other. courthouse expansion and making the Court system more accessible to the public. In order to be successful in his court room, Judge I was curious to find out how his family is Ukena states you need to dealing with him becoming a Circuit have good facts. In addi- Court Judge and was told that his wife tion, he remembers Leo Karen still doesn’t believe it! He also tells Sullivan teaching him two me that his brother Pete is proud of him, things: 1) Prepare, Prepare, and rightfully so! Prepare and 2) Laugh your opponent into settlement. Judge Ukena’s goal in the future is to be the Another big influence in best Judge he can be. I’m sure that the en- his life was his father, Rev- tire LCBA joins me in wishing him the best erend Calvin H. Ukena who of luck in reaching that goal.

Do you have a speaker idea or suggestion for our business meetings? We would love to hear from you! Just send a note to: Chris Boadt ([email protected]) September 2009 The Docket 11 FOR IMMEDIATE RELEASE

Bar Association to Establish a Foreclosure Help Desk in Park City Courthouse Significant Increase in Foreclosures Creates Need

Lake County has not been immune from the effects of educate attorneys on the common issues involved in the the national housing crisis, as evidenced by the enor- process. The starting date for the help desk is tentatively mous increase in foreclosure cases filed in the Nine- scheduled for September 1, 2009. teenth Judicial Circuit over the past several years. The court reports that its foreclosure caseload has increased LCBA President Scott Gibson notes that “This project fos- almost 97% since 2004, rising from 1,704 cases in that ters the LCBA’s goal of educating the public about legal year to 3,357 in 2008.1 And this trend may not soon issues affecting local communities, and it does so at a cease: the U.S. Department of Housing and Urban De- time of critical importance to many Lake County citi- velopment reports in its first quarter regional report for zens.” The idea of creating the help desk came out of the 2009 that the number of foreclosed properties in Illinois LCBA’s Civil Trial & Appeals Committee, which is led by was up by 68 percent from Q1 2008 to Q1 2009. Richard Kessler, and particularly from three of the com- mittee’s members, Circuit Judge Margaret Mullen, Asso- To assist local citizens who struggle with foreclosure, the ciate Judge Mitchell Hoffman and Chuck Smith. Judge Lake County Bar Association (LCBA) plans to staff a Hoffman presides over contested foreclosure cases as “help desk” at the courthouse in Park City to assist un- represented parties in mortgage foreclosure cases. The part of the chancery court call in the Waukegan court- foreclosure help desk will be staffed by local attorneys house. Uncontested foreclosure cases are heard in the and others knowledgeable about the foreclosure process. Park City courthouse, where the help desk will be lo- The help desk staff will provide general information to cated. foreclosure defendants, but will not provide legal advice. The Lake County Bar Association is headquartered in In Illinois as in most other states, foreclosure is governed Waukegan, Illinois and has a membership of 882 by a complex statutory framework that seeks to balance lawyers. Among other goals, the Association’s members the interests of property owners and their creditors. For seek to foster respect for the administration of law, to in- attorneys seeking to volunteer their time at the help desk crease attorneys’ and the public’s knowledge of law but who do not themselves have a foreclosure law prac- through continuing legal education, and to uphold the tice, attorneys David Leibowitz, Doug Stiles, and Judge honor and dignity of the legal profession. For more in- Mitchell Hoffman have conducted training sessions to formation, visit www.lakebar.org. FOR IMMEDIATE RELEASE

September 2009 The Docket 13 Layoffs and downsizing: Economic Necessity or Protest for Discrimination?

he Rising Unemployment Statistics. The Department of Labor re- ports that, in June 2009, 20,376 Illinoisans lost their jobs due to mass Tlayoffs and 467,000 employees became unemployed nationally.1 The National unemployment rate has reached 9.5 percent,2 and the Illinois un- employment rate is even worse at 10.3 percent.3 By Does an employer have the right to layoff any em- ployee the employer chooses? May they layoff workers Keith L. in a protected class such as women, minorities, those over the age of 40 or those with disabilities? Can an employer Hunt layoff an employee on Family Leave, or who is off work and due to a work-related injury with a pending Workers’ Sarah E. Compensation claim? At-Will Employment Levee Illinois follows the at-will employment doctrine. Generally speaking, an employee can be termi- nated for a good reason, a bad reason, or no reason at all, provided the rea- son is not discriminatory, unlawful or in violation of a well-established public policy.4 While collective bargaining agreements and employment contracts may modify this rule, absent such circumstances, employ- ers are traditionally given wide latitude in making em- ployment decisions. Indeed, courts have noted that a judge “does not sit as a super-personnel depart- ments” to examine the wisdom of employers’ deci- sions.5 An employer who chooses to reduce its work- force may run afoul of discrimination with- out even knowing it is doing so. For example, an “economic downturn” causes an em- ployee to be terminated; he is told that the company would consider rehiring him in the future. However, shortly after being laid off the employee discovers that the company replaced him with a younger employee at a substantially lower salary. Was the layoff a pretext for discrimi- nation?6 In a layoff situation, how will an employee know if their employer used the layoff as a pretext for discrimination? What rights do employees have? And how can employees prove that they were laid off in a discriminatory manner? Continued on page 14 1 Department of Labor, Bureau Statistics, http://www.bls.gov 2 Id. 3 Id. 4 Palmateer v. International Harvester Co., 85 Ill.2d 124, 128, 421 N.E.2d 876 (1981) citing Pleasure Driveway and Park District v. Jones, 51 Ill. App. 3d 182, 190 (3rd Dist. 1977). 5 Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986). 6 Rhodes v. Guiberson Oil Tools Division, 927 F.2d 876, 1991 US App. LEXIS 5286 (5th Cir. 1991). 14 The Docket September 2009

Continued from page 13 workforce.9 Similarly, under the Older 40 was sufficient to give rise to a disparate Worker’s Benefit Protection Act (OWBPA), impact claim.14 The reliance on statistical Reductions-In-Force an employer must provide information analysis is often essential to proving a dis- A reduction in force (RIF) is one way for about the ages of both terminated and re- parate impact claim, however it is not re- an employer to reduce its workforce size. tained employees to any employee from quired.15 While employers frequently Selective termination or individual layoffs whom the employer is seeking a release of attempt to justify the impact on older are another. However, a RIF is not an op- their age claims.10 This information can workers claiming that they tend to earn portunity for an employer to discriminate provide valuable evidence to prove a dis- more money,courts have consistently held against a particular employee or group of criminatory termination. that where salary or profitability are a employees. Companies often use RIFs as a “proxy” for age, the termination is unlaw- convenient opportunity to get rid of cer- The disparate impact theory is also avail- ful.16 Replacing an older worker with a tain employees, thus making a RIF fertile able to plaintiffs who challenge a layoff se- younger one for the purpose of “econo- ground for discrimination and disparate lection decision under either Title VII or mizing on salary costs” is discriminatory.17 impact claims. Still, as the director of the the Age Discrimination and Employment EEOCs New York office noted, Act (ADEA).11 An employer may be liable While age claims are perhaps the most even where the selection process is “fa- common following RIFs, Title VII provides In these troubled times, employ- cially neutral”—without discriminatory fertile ground for layoff claims as well. In a ers still need to be aware that motive—where the process results in disparate treatment claim, liability de- when they conduct a reduction in treating a protected group of employees pends on whether the protected trait actu- force, they have a duty to prohibit more harshly than another.12 Analyzing ally motivated the employer’s decision.18 age discrimination.7 the laid off employee list may lead to the Disparate treatment claims can only suc- discovery of a disproportionate number of ceed if the employee’s protected trait actu- The Worker Adjustment and Re-Training a protected group (i.e. sex, age, race, na- ally played a role in the decision and had a Notification Act (WARN) protects work- tional origin, sexual orientation) being af- “determinative influence” on the out- ers by requiring that employers provide fected by the layoff, thus establishing a come.19 In RIF situations, disparate treat- 60 days written notice in advance of cer- disparate impact claim. ment claims can be hard to establish tain covered mass layoffs and plant clos- because an affected employee is not usu- ings.8 The WARN act applies to employers If a company designs and implements a ally aware of why they were chosen to be who employ 100 or more employees who workforce reduction process that results in laid off. But, like other discrimination have worked for a period of at least 6 of eliminating older employees more than claims, the proofs typically focus on com- the past 12 months, 20 or more hours per younger employees—regardless of in- parison with other employees who were week. Employers must give notice under tent— that process may be the basis of un- similarly situated. the WARN act if the lay-off or plant clos- lawful discrimination.13 In Meacham v. ing will shut down an entire plant or dis- Knolls Atomic Power Laboratory, the Plain- In Florsheim Shoe Company v. Illinois Fair place 1/3 (33%) of the employer’s tiffs reliance on statistical analysis to show Employment Practices Commission, the em- that 30 of 31 laid off employees were over ployer laid off eight employees, including the only two pregnant females, allegedly due to economic reasons.20 The company justified laying off the pregnant employ- ees instead of less tenured, non-pregnant THANK YOU! employees because it believed the preg- nant employees would be leaving the com- The following attorneys have accepted pany after their maternity leave ended and that it would be unfair to lay off em- Pro Bono cases through Prairie State Legal Services ployees who did not intend to leave. The during the month of September. Appellate Court affirmed the FEPC’s find- ing that pregnancy was a motivating fac- Names here tor in the layoff. Similarly, in Rhodes v. Guiberson Oil Tools Division, Plaintiff was a 56-year-old male making $65,000 per year. On his separa- tion form, the employer indicated that the Plaintiff was being discharged as part of a RIF but that the employer would con- sider rehiring the Plaintiff. The Plaintiff subsequently discovered that he had been replaced by a 42-year-old making To volunteer, please contact Susan Perlman $36,000 per year. The Fifth Circuit court at [email protected] or 847-662-6925. of Appeals held that the Plaintiff could make out a claim to the ADEA. In September 2009 The Docket 15

Matthews v. Commonwealth Edison, the from doing the work even with a must provide a departing employee with Plaintiff sued its employer under the reasonable accommodation.21 at least 45 days to carefully analyze the Americans with Disabilities Act claiming data and a period of at least 7-days fol- that the employer’s RIF resulted in the ter- Similarly,in Vaughn v. Texaco, the Plaintiff, lowing the employee’s acceptance of the mination of disabled workers. Upholding a black female attorney sued a Texaco for release agreement terms within which the the grant of summary judgment, the Sev- race and sex discrimination after she was employee may revoke his/her acceptance enth Circuit cautioned employers stating: terminated. Texaco defended, claiming if he/she so desires.23 that it undertook a study to identify po- A RIF is not an open sesame to tential cost saving measures and that it Employers must carefully scrutinize pro- discrimination against a disabled terminated two of its lowest performers in posed layoffs to avoid the risks and pitfalls person. Even if the employer has the Plaintiff’s department. The court of potential discriminatory claims. Em- a compelling reason wholly unre- found that race was “a motivating factor” ployees, on the other hand, must seek in- lated to the disabilities of any of its in the employer’s decision.22 formation and be proactive. They should employees to reduce the size of its ask why they were chosen and obtain work force, this does not entitle it Conclusion valuable evidence such as performance to use the occasion as a conven- Employers are not required to provide em- evaluations, and data to prove any dis- ient opportunity to get rid of its ployees a specific reason behind layoff de- crimination that may be present.24 Most disabled workers….This point is cisions. However, if a covered employer importantly, severed employees should most easily seen by thinking of a offers an “exit incentive” in exchange for a not sign a release giving up their rights be- RIF as a kind of hiring: the em- release agreement from a group of laid off fore reviewing their particular circum- ployer has decided to reduce its employees, the employer is legally re- stances with counsel to determine the work force from, say, 100 to 80 quired to provide the employee both (a) a propriety of the employers process and employees; this means it has 80 list of those affected by job classification whether they have a potential claim. slots to fill and in filling them must and the ages of the individuals who are choose among 100 “applicants.” similarly affected, and (b) a separate list of Keith L. Hunt and Sarah E. Levee are with The law forbids the employer to employees by job classification and the Hunt & Associates, P.C. in Chicago and con- disqualify the disabled applicants ages of the individuals who are not af- centrate their practice in Labor & Employ- on the basis of their disability un- fected and thus not offered the exit incen- ment law where they represent both less the disability prevents them tive/release agreement. Employers also employees and employers.

7 The U.S. Equal Employment Opportunity Commission, Press Release 3-24-09, Kodak Subsidiary to Pay $272,000 for Age Bias., available at www.EEUC.gov/pres/3-24-09 8 29 USC § 2101 et sec. 9 There are other requirements under the WARN Act that relate to the sale of the business and other circumstances in which a RIF will take place. The WARN Act also provides certain exemptions for temporary closings, strikes, lockouts, and natural disasters. 10 29 USC § 623 (f)(2)(2008). 11 Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395, 2008 U.S. LEXIS 5029 (2008). 12 International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 97 S. Ct. 1843 (1977). 13 Meacham, 128 S. Ct. 2395, 2008 U.S. LEXIS 5029 (2008). 14 Id. 15 See EEOC v. Qualex, Civil Action No. 3:08: CV-823 (2009)(Inequitable RIF in violation of the ADEA, average age of those who lost their jobs due to the RIF was over 50, which far exceeded the average age of employees retained following the RIF. 16 Visser v. Packer Engineering, 924 F. 2d 655, 658 (7th Cir. 1991); Metz v.Transit Mix, 828 F. 2d 1202 (7th Cir. 1987); Saudien v. Winston Network, 888 F. 2d 1151, 1157-58 (7th Cir. 1989). 17 Visser v. Packer Engineering, 924 F. 2d 655, 658 (7th Cir. 1991). 18 Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2009 U.S. LEXIS 4535 (2009). 19 Id. 20 Florsheim Shoe Company v. Illinois Fair Employment Practices Commission, 99 Ill. App. 3d 868, 425 N.E. 2d 1219 (1st Dist 1981). 21 Matthews, 128 F. 3d 1195. 22 Vaughn v. Texaco, 918 F. 2d 517 (5th Cir. 1990). 23 Older Workers Benefit Protection Act. 29 USC§ 623(f)(2008). 24 Florsheim Shoe Company, 99 Ill. App. 3d 868, 425 N.E. 2d 1219 (1st Dist 1981); Rhodes, 927 F.2d 876, 1991 U.S. App. LEXIS 5286 (5th Cir. 1991); Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395, 2008 U.S. LEXIS 5029 (2008) 16 The Docket September 2009 Employment

he procedures for filing a charge of ning speaking a foreign language in the 12-month period for certain specified fam- employment discrimination with workplace (775 ILCS 5/2-102(A-5)); in- ily and medical reasons. Tthe Illinois Department of Human quiring or using arrest information or an Rights and the Equal Employment Oppor- expunged criminal history record (775 II. The Charge of Discrimination tunity Commission, the governing ILCS 5/2-103); sexual harassment carried and IDHR Investigation statutes, and out by a supervisor (775 ILCS 5/2-102 The Illinois Human Rights Act generally the recent (D)); unequal wages in places of employ- reaches all private employers located or op- availability of ment with four or more employees, as op- erating in Illinois that employ 15 or more filing directly posed to 15 under the Act, providing for people (full or part-time employees) during in state courts the potential to double any back pay at least 20 weeks of a year. The Illinois pursuant to award (Equal Pay Act of 2003, 820 ILCS Human Rights Commission (“IHRC”) ap- the Illinois 112/1); exclusion of individuals from a plies the traditional common law tests to de- H u m a n program or activity by a state, county, or cide who is an employee. Independent Rights Act local government on the basis of race, contractors are not such an employee (775 ILCS 5/1 color, or national origin (Illinois Civil under the Act. In certain circumstances, et seq. (here- Rights Act of 2003, 740 ILCS 23/1); dis- private individuals can be charged with em- By inafter the crimination against employees who have ployment discrimination, such as in the David R. “Act”)) are the been victims of domestic or sexual vio- realm of sexual harassment against a spe- Ganfield subjects of lence and/or exercised their rights under cific supervisor, co-worker, or other person this article. the Victims’ Economic Security and Safety committing or permitting the wrongful Act (820 ILCS 180/1); and failure to pro- conduct. The Act also applies to non-fed- I. Statutes vide a room, other than a toilet stall, eral government agencies, including all Enforced which is in close proximity to a nursing state and public bodies in Illinois, regardless The Illinois mother’s work area so that she can ex- of the number of its employees. Moreover, Department press her milk in privacy (Nursing Moth- not just individuals, but also corporations, of Human ers in the Workplace Act, 820 ILCS labor organizations, and other associations, Rights (IDHR) 260/15), as well as reasonable unpaid and even the State of Illinois are entitled to has overall re- break time (820 ILCS 260/10). file charges if they can allege that they are sponsibility “injured” by an unlawful act. for adminis- By contrast, the EEOC has at its disposal By tration and various statutes that it can enforce: Title Actions by individual complainants are enforcement VII of the Civil Rights Act of 1964, 42 handled by the IDHR, which then under- Jennifer J. of the Act, in- U.S.C. 2000e, et seq., prohibiting discrim- takes an investigation of the charge. This Howe cluding han- ination on the basis of race, color, religion, procedure is confidential and very infor- dling initial sex (including pregnancy), or national mal. If there is a finding of “substantial charges of unlawful discrimination, sub- origin; Age Discrimination in Employ- evidence” and the parties are unable to sequent investigation and resolution of ment Act of 1967 (ADEA), 29 U.S.C. 621, reconcile the dispute, then the com- charges. The Act prohibits discrimination et seq., prohibiting age discrimination plainant has the option of pursuing the in employment, real estate transactions, against persons 40 or more years old; matter further with the IDHR or filing a financial credit, access to public accom- Equal Pay Act of 1963 (EPA), 29 U.S.C. direct action in state court where either modations, and the sexual harassment of 206, et seq., prohibiting sex discrimination party may demand a jury trial. Similarly, students in institutions of higher educa- in wages unless the job in question is sub- if the charge is dismissed for lack of sub- tion. Prohibited conduct, known as “un- ject to a seniority or merit system, or a sys- stantial evidence, then the complainant lawful discrimination,” is defined as tem which measures earnings by quantity may ask the IHRC1 to review the decision discrimination on the bases of “race, or quality of production; Americans with or file the action directly in state court. color, religion, national origin, ancestry, Disabilities Act of 1990 (ADA), 42 U.S.C. age, sex, marital status, handicap, military 12101, et seq., prohibiting discrimination A charge under the act must be filed status, sexual orientation, or unfavorable on the basis of a person’s disability; and within 180 days after the occurrence of discharge from military status.” (755 the Family and Medical Leave Act of 1993 an alleged violation. However, if the em- ILCS 5/1-103(Q)). (FMLA), 29 U.S.C. Sec. 2601, et seq., pro- ployer somehow misleads the charging hibiting discrimination against eligible party and this conduct results in the The following specific conduct in the em- employees entitled to take up to 12 work- charge being filed late, then the employer ployment arena is also prohibited: ban- weeks of unpaid, job-protected leave in a may be estopped from asserting the 180- September 2009 The Docket 17 Discrimination day deadline.2 The 180-day period begins on the day after a civil rights violation has been committed, i.e., the day of the viola- tion is not counted. In the event the last day falls on a Saturday, Sunday, or legal state holiday,then the charging party has until the next state business day to file.3 Charges may be filed with the IDHR in person (offices in Chicago, Springfield, and Marion), by mail, or by telephone. If elect- ing to file a charge in person, one must be present in the IDHR’s office during normal business hours. For the Chicago office, there are no in-person interviews con- ducted on Fridays. The IDHR then serves each charge on the accused party within ten days of the charges being filed.

In most employment cases, the IDHR uses a form similar to that of the EEOC. Under a work-sharing agreement between the IDHR and the EEOC, the IDHR may accept charges alleging violations of federal laws subject to the EEOC’s jurisdiction. This is known as “dual filing.” This only comes into play when the complainant alleges vi- olations of both state and federal law.The complaining party must merely check a box if dual filing is desired. The charge will then be forwarded to the federal govern- ment. This fulfills the obligation to file any such charge with the EEOC. If the charge is filed within the mandated 180-day pe- riod, then the IDHR must notify the com- plainant that he/she has the right to have will typically be investigated first by the ified response within 60 days. The re- the charge processed at the state, as well IDHR, a complainant may still elect to sponse must be served on the other side as the federal, level. The complainant then have his/her case tried in federal court. and contain a proof of service. Once the has 35 days to respond in writing. If there Pursuant to Section 706(f) (1) of Title VII, response has been filed, the complainant is no response by the complainant, or an a so-called “right to sue” letter may be re- then has 30 days to file any reply, which election not to proceed at the state level, quested from the EEOC after the charge also must be served upon the other side. then the case is closed. If the complainant has been pending for 180 days, even serves written notification to proceed at though the EEOC has not taken any action The IDHR will send the respondent a both levels, then the IDHR holds its inves- pertaining to the charge. The complaining questionnaire pertaining to the charge to tigation in abeyance, pending the results party may then sue in federal court within assist the investigator in determining of the EEOC investigation. 90 days of recieving the right to sue letter. whether there is discrimination. The par- Although a charge filed with the IDHR The act requires respondents to file a ver- Continued on page 18

1 The IDHR and IDRC are separate and independent entities, each with its own set of regulations and rules, which are located in Title 56 of the Illinois Adminis- trative Code. The Department’s rules may be downloaded from its web site at www.state.il.us/dhr/Rule_Reg/Rules-p1.htm and the Commission’s www.state.il.us/ihrc/Act&Rules_03.htm 2 See Pickering v. Human Rights Commission, 146 Ill. App. 3d 340, 496 N.E. 2d 746 (2d Dist. 1986). 3 56 Ill. Admin. Code Sec. 2520.20. 18 The Docket September 2009

Continued from page 17 tains “a written statement sufficiently pre- usually results in an immediate referral cise to identify the parties, and to describe back to the EEOC under the work-sharing ties may also file position statements 60 generally the action or practices com- agreement with the IDHR when the IDHR days after recieving notice of the charge. plained of.”5 Title VII protections apply to has waived its right to exclusive process- These documenta are kept confidential illegal aliens as well as United States citi- ing.8 during the pendency of the charge. zens employed in foreign countries by American-owned or controlled compa- For Title VII and ADA charges, a charge Mediation is offered without charge to the nies. must be filed within 180 days after the al- parties. If mediation is not successful, leged unlawful employment practice oc- then the case will proceed with the IDHR. A complainant must establish that an em- curred, unless earlier proceedings have ployment relationship existed at the time been instituted with a state or local agency. The primary method of processing the alleged violation occurred. The Sev- Then the charges must be filed within 300 charges with the IDHR involves the use of enth Circuit has adopted a five-factor test days after the unlawful practice occurred an informal fact-finding conference that that emphasizes the “right to control” as or within 30 days after receiving notice the parties are required to attend, at the most important factor in determining that the state or local agency has termi- which the basic facts are discussed and if a complainant is an employee or inde- nated the proceedings under the State or the possibility of settle- local law,whichever is earlier.9 ment is explored. Parties Section 706(c) of Title VII pro- may bring witnesses, and vides that no charge may be counsel may attend, but A complainant must establish that an filed with the EEOC until 60 cross-examination is not days has elapsed from the fil- usually permitted. State- employment relationship exisited at the time ing of charges with a 706 ments by parties and wit- agency “unless such proceed- nesses are not under oath. the alleged violation occurred. ings have been earlier termi- No verbatim record of the nated.”10 Thus, in order to conference proceedings is ensure that a charge qualifies permitted, nor is one main- for the extended 300-day fed- tained. The investigator will likely make pendent contractor.6 eral filing period, it must be filed with or re- an attempt to settle the case at this time; ferred by the EEOC to the 706 agency but if the matter does not settle, then the As far as the respondent is concerned, within 240 days of the alleged unlawful complainant is requested to affirm the al- Title VII defines an employer as one with employment practice. The Supreme Court legations in the charge. Likewise, a wit- 15 or more employees for each working has held, however, that a state agency’s de- ness for the respondent is requested to day in each of 20 or more calendar weeks cision to waive the 60-day deferral period admit or deny each allegation. The com- in the current or preceding calendar year. under a work-sharing agreement with the plainant is then afforded the opportunity The Age Discrimination in Employment EEOC “terminates” the 706 agency’s pro- to give his/her version of the story.The re- Act definition is limited to those with 20 ceedings such that the EEOC may immedi- spondent’s witness will then counter the or more employees, and the Equal Pay Act ately deem the charge filed and begin complainant’s version. Attorneys for the covers employers with two or more em- processing it.11 parties may suggest potential questions or ployees, but does not apply to certain ex- explore further issues. empt businesses such as camps, For ADEA charges in Illinois, the charge agricultural enterprises, small newspa- must be filed with the EEOC within 300 EEOC pers, and automobile/ truck dealerships. days after the discriminatory act or within Under Title VII, a charge may be filed by Title VII, the ADA, and the ADEA gener- 30 days after the charging party receives or on behalf of a person claiming to be ally apply to state and local government notice that the state agency is terminating “aggrieved” (one who has suffered direct agencies and political subdivisions7, with proceedings, whichever occurs first. A harm from the alleged discriminatory the EEOC processing such charges and the charging party cannot file a civil suit until practice).4 A charge is adequate if it con- Justice Department suing 60 days after state and EEOC charges have such entities. been filed.

Under the work-sharing Under the Equal Pay Act, a claim must be agreement described above, filed no more than two years after the date a charge filed with the of the violation (three years for willful vi- IDHR will be cross-filed olations).12 A plaintiff may first proceed with the EEOC but will be directly to state or federal court or file the investigated by the IDHR. claim of discrimination and rely upon the However, when the com- EEOC to investigate the case. plainant files his/her charge directly with the The issue of when discrimination “oc- EEOC first and checks the curs” has been the subject of much case box on the EEOC form for law and legislation. For the most part, deferral to the IDHR, this courts have held that the time for filing a September 2009 The Docket 19 charge with the EEOC starts running from “evidence which a reasonable mind ac- charging party unless signed by that the date the aggrieved party first had no- cepts as sufficient to support a particular party. There is also the option for volun- tice of the act giving rise to the charge, not conclusion and which consists of more tary mediation, which typically occurs the date the consequences were first dis- than a mere scintilla but may be some- prior to an investigation of a charge. The covered.13 Delaware State College has gen- where less than a preponderance.”15 parties may similarly voluntarily opt out erally been read by courts for the of a mediation proceeding at any point be- proposition that the filing period starts If there is a finding of no substantial evi- fore resolution and for any reason. running only after a plaintiff should have dence of a violation, then the charge will discovered the impending injury.14 be dismissed subject to further review be- At the conclusion of the EEOC’s proceed- fore the chief legal counsel of the IDHR. If ings, or upon request from the charging Similar to IDHR procedures, the EEOC there is a substantial evidence finding a vi- party more than 180 days after the charge conducts an investigation of the com- olation, then an IDHR attorney may be has been filed, a “right to sue” letter will be plainant’s charge. The EEOC divides its designated to attempt conciliation. If con- sent to the charging party.No right to sue charges into three categories: (1) those in- ciliation fails, then a formal complaint letter is required in ADEA or EPAcases, but volving discrimination and falling within must be filed with the IHRC. it is mandatory forTitle VII and ADA cases national or local enforcement plan priori- as a prerequisite to filing a lawsuit. An ac- If the parties agree to settlement, they ties; (2) those having some merit but re- tion based on a charge filed with the EEOC must decide if they want approval by the quiring further investigation; and (3) must be filed with the court 90 days after IHRC. Approved settlements are tanta- receipt of the right to sue letter. those appropriate for immediate resolu- mount to consent decrees subject to en- tion. As with the IDHR, the EEOC utilizes forcement by the IHRC. If the parties Although federal courts and administra- written requests for information, ques- request signing a private settlement agree- tive agencies are historically viewed as the tionnaires, and interrogatories to assist ment, then a motion to withdraw the exclusive forums for employment discrim- with its investigation. The EEOC may also charge will be presented to the IDHR and ination disputes in Illinois, this is no utilize its subpoena power to compel pro- will be enforceable in the same manner as longer the case because the forums avail- duction of documents and/or the testi- any other private agreement. able for litigants have recently expanded mony of witnesses. to state courts as well. On August 17, As for the EEOC, it need not be based on a 2007, IL H.B. 1509 was enacted amend- Determinations and Findings preponderance of evidence; rather, the ing the Illinois Human Rights Act. Fol- At the conclusion of the investigation standard is whether “there is reasonable lowing the investigation of a charge of conducted by the IDHR and EEOC, respec- cause to believe that the charge is true.”16 discrimination, a claimant now has the tively, an IDHR finding and EEOC letter of option for direct access to state courts to At the EEOC, conciliation is a prerequisite determination or decision is rendered. litigate the claim. to an EEOC enforcement action, although For the IDHR’s part, the investigator pre- it is not a prerequisite for filing suit under Specifically, for all charges filed with the pares a written report summarizing the Title VII/ADA. The conciliation process IDHR after January 1, 2008, the com- facts disclosed as well as the standards for begins when the EEOC sends a proposed plaining party (typically an employee) now final determinations by the director. The conciliation agreement to the respondent has the option to file a civil action in state report contains both findings of fact and and usually includes a suggested remedy circuit court rather than filing a complaint conclusions, as well as reasons for deter- to eliminate the alleged unlawful practice. with the Illinois Human Rights Commis- minations on all material issues. Section If the respondent is willing to conciliate, sion, which was formerly the only option 7A-102(D)(2) of the Act prescribes that then the EEOC typically provides for in- available to litigate claims under the Act. the director’s determination shall be based person negotiations with the respondent. Because litigating matters before the Com- on whether there is “substantial evi- The EEOC cannot, however, enter into a dence” of a violation, which is defined as conciliation agreement that binds the Continued on page 20

4 42 U.S.C. 2000e-5(b). 5 29 C.F.R. 1601.12(b). 6 See Spirides v. Reinhardt, 613 F. 2d 826 (D.C. Cir. 1979) 7 The Eleventh Amendment bars individual suits against states under the ADEA. Kimel v. Florida Board of Regents, 528 U.S. 6 (2000). In certain circumstances, however, Congress may abrogate states’ Eleventh Amendment immunity. 8 State and local agencies that have jurisdiction and enforcement authority are designated by EEOC regulations as “FEP agencies” (also known as “706” or “de- ferral” agencies). 29 C.F.R. 1601.70. When the EEOC receives Title VII charges within the jurisdiction of the IDHR, then these are required to be deferred to the IDHR for an initial 60-day period unless the IDHR earlier terminates its proceedings or waives its right to exclusive processing during the 60-day period. 9 42 U.S.C. 2000e-5(e)(1). 10 42 U.S.C. 2000e-5(c). 11 EEOC v. Commercial Office Products Co., 486 U.S. 107, (1988). 12 29 U.S.C. 255(a). 13 Delaware State College v. Ricks, 449 U.S. 250, (1980); see also, Soignier v. American Board of Plastic Surgery, 92 F.3d 547, 551 (7th Cir. 1996)(federal common law rule postpones running of statute of limitations from the date of unlawful discrimination to the date the litigant discovers original discriminatory act). 14 Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990). 15 IHRA, 7A-102(D)(2). 16 42 U.S.C. 2000e-5(b). 20 The Docket September 2009

Continued from page 19 tent that these types of disputes should be a judgment awarding back pay, reinstate- brought to the state circuit courts for res- ment and actual damages and reasonable mission was often inefficient and lengthy, olution. Thus, as of January 1, 2009 (i.e. attorneys’ fees and costs.25 However, the most employees historically opted to have 365 days after the statutory period for in- federal laws also allow for an award of their claims filed in federal courts under vestigation of charges filed after 1/1/08 punitive damages where an employee can the federal civil rights statutes. When the expires), claimants under the Act could prove intentional discrimination.26 The amendments were enacted in 2007, many bring their action in state court within the Act does not. attorneys practicing plaintiffs’ employ- applicable 90 day period. ment law praised the new law because Similarly, the differences between proce- state courts are viewed as being more Now that the Commission is no longer the dure in the state and federal courts should likely than federal courts to deny an em- exclusive forum for claims brought under also be considered. As noted earlier, po- ployer’s motion for summary judgment the Act, practitioners are going to have to tential employment discrimination plain- and let the dispute go to a jury.17 Attorneys consider more carefully the differences be- tiffs have hesitated in the past filing their representing employers, however, feared tween the Act and applicable federal civil claims in federal courts because of their that these disputes, which comprise the rights laws, as well as the differences be- historical propensity for granting sum- fourth or fifth largest subject matter of tween state court and federal court proce- mary judgments in the employer’s favor. complaints filed in federal court, would dures before they determine in which On the other hand, state courts require soon begin to flood the state courts, which forum and under what laws to pursue a fact pleading, while federal courts require were already over-burdened.18 However, claim. First, the Act’s coverage is some- only notice pleading.27 There are also sig- because charges filed with the Department what greater than the corresponding fed- nificant differences in discovery proce- must first undergo an investigation by the eral civil rights statutes, as it includes dures which may affect the litigation Department, the amendments effects upon more protected classes. Similar to federal strategy.Finally,in light of the dual cover- state courts will likely only begin to be ob- laws, the Act prohibits discrimination on age of the Act and the federal civil rights served in the upcoming months. the basis of race, color, religion, sex, na- laws, litigants will have to be wary of the tional origin, disability and age. However, potential effects of their choice of forum, Under the amended Act, after a charge is the Act further prohibits discrimination in including res judicata, collateral estoppel, filed with the Department, the Department employment on the basis of ancestry, and waiver. Because the impact of the Act must complete an investigation of the marital status, arrest record, military sta- is still in its infancy, none of these issues charge within 365 days, or later if the par- tus, sexual orientation and unfavorable have been determined and thus should ties agree.19 After 365 days expire, and discharge from military.22 Second, the Act raise questions in the mind of both em- even if an investigation is not complete, covers more employers than federal laws. ployers and employees when a complaint the complaining party automatically has Generally, both the Act and federal civil is filed in either forum. 90 days to file a civil action in the state cir- rights laws cover employers with 15 or cuit court where the action arose (likely more employees.23 However, under the Not only is there now an option to litigate where the complainant was employed) or Act, employers with only one employee employment discrimination claims under a complaint with the Commission.20 Simi- are still subject to claims based on sexual the Act in state courts, the Illinois larly, if the Department timely completes harassment or discrimination on the basis Supreme Court recently expanded state its investigation and finds either “no sub- of one’s disability.24 Third, there are dif- court jurisdiction to include federal dis- stantial evidence” or “substantial evi- ferences in the types of remedies available crimination claims. On January 23, 2009, dence” to support the charge, the charging to claims filed party still has 90 days to file a civil action under to the in the state court.21 Although the charg- Act verses ing party can still opt in some cases to liti- federal laws. gate his claim before the Commission, the Both types of time frame for doing so is generally much laws allow a shorter, evidencing a clear legislative in- court to enter September 2009 The Docket 21 the Illinois Supreme Court decided Blount claims that fall outside the Act, including state and federal statutes. Only time will v. Stroud, 232 Ill. 2d 302 (2009) and held claims under 1981. The Supreme Court’s tell the effects that these changes will have that circuit courts have subject matter ju- holding in Blount rejected a long line of upon the caseload of the courts and the risdiction over claims filed under the Civil appellate court decisions, each of which law practices of the attorneys outside of Rights Act of 1866 (42 U.S.C 1981). In had held that in Illinois, the “Act is the ex- Cook County.From a sheer number stand- Blount, an African-American plaintiff clusive source of a remedy for employ- point, the total number of discrimination filed a complaint in Cook County circuit ment-discrimination claims.”30 Thus, as charges filed against Lake County respon- court alleging that she had been termi- established by Blount, plaintiffs can now dents in 2008 was only 168, a number nated in retaliation for having supported a bring claims in state court under certain significantly less than the 2312 charges fellow white employee’s claim of racial federal laws as well as common law claims filed against Cook County respondents discrimination and for refusing to commit even if they could be viewed as linked, but during that same time.31 Nonetheless, perjury in support of the employer’s de- not dependent, upon an employment dis- each of these charges is a potential new fense. In her complaint, the plaintiff al- crimination claim under the Act. lawsuit in Lake County since each of these leged a common law retaliatory discharge claimants has the option to file a com- claim based upon Illinois public policy Blount similarly opens the doors for plain- plaint, regardless of the results of the in- against perjury as well as a claim for re- tiffs to proceed to state court with dis- vestigation. Moreover, as a result of Blount, taliation in violation of the federal Civil crimination claims based upon other cases based on certain federal discrimina- Rights Act of 1866 (42 USC 1981). The states’ statutes. In James Ferreri v Hewitt tion laws and foreign state’s discrimina- plaintiff did not file a charge of discrimi- Associates, LLC, 391 Ill. App. 3d 211 (2nd tion laws such as that filed by Ferrari, are nation with either state or federal admin- Dist. 2009), the Court reversed the trial now properly brought in state court. istrative agencies but proceeded directly to court’s decision to dismiss a claim for dis- state court. The employer maintained that crimination based upon a Missouri civil David R. Ganfield is an experienced trial at- the plaintiff’s claims were not properly be- rights statute. In Ferreri, the plaintiff filed torney in Lake County in private practice for fore the circuit court because the Illinois a two-count complaint in Lake County al- 25 years, representing individuals and corpo- Human Rights Act that provided her an leging that the employer/defendant had rations in personal injury and commercial exclusive remedy. The case proceeded to violated the Missouri Human Rights Act matters. He is a member of the Lake County trial and the plaintiff prevailed receiving by firing the plaintiff because of his age Bar Association, Illinois State Bar Associa- a judgment for several million dollars. The and gender. The employer filed a motion tion, American Bar Association, and Illinois employer appealed, and the appellate to dismiss, which was granted based on Defense Trial Counsel. He can be reached at court reversed, holding that “the Act de- the perceived public policy of Illinois, as (866) 945-3654; [email protected]. prives Illinois circuit courts of subject expressed in Section 8-111 of the Act, not matter jurisdiction over all civil rights to open its courts to suits based on foreign Jennifer Howe joined Lesser, Lutrey & McG- claims, regardless of whether they are civil rights statutes. The appellate court lynn, LLP in 2002. She is currently serving brought under state or federal law.”28 reversed, citing Blount, as well as the as the Chair of the LCBA’s Employment Law amendments to the Act, as evidence that Committee, as well as an appointed member The Illinois Supreme Court reversed the Illinois’ public policy was not so limiting of the Judicial Selection and Retention Com- appellate court and narrowly interpreted and that it actually supported the filing of mittee since 2008. She began her practice in the exclusive effect of 775 ILCS 5/8- employment discrimination claims before the area of employment law and litigation in 29 111(C), holding that while this provi- the state circuit courts. 1992 in Michigan with the firm Dykema, sion does provide the exclusive remedy for PLLC. She currently concentrates her prac- claims under the Act, the Act does not ab- Clearly,in two short years, the law has sig- tice in the areas of employment law as well rogate the state court’s jurisdiction to hear nificantly changed to dramatically in- as guardianship, trust and probate litigation. claims common law, such as retaliatory crease the jurisdiction of state courts to Ms. Howe is licensed in Michigan and Illinois discharge, or otherwise restrict the state hear discrimination claims, both arising and can be reached at (847) 295-8800; courts’ jurisdiction to hear civil rights under the Act as well as under foreign [email protected].

17 State court juries will hear job bias claims Chicago Daily Law Bulletin (12/18/2007) 18 Id. 19 775 ILCS 7A-102(C)(4). 20 775 ILCS 7A-102(G)(2). 21 775 ILCS 7A-102(D)(3) and (4). 22 755 ILCS 5/1-103Q. 23 775 ILCS 5/2-101(B)(1)(a); 42 USC 2000e (b). 24 775 ILCS 5/2-101(B)(1)(b) 25 775 ILCS 5/8A-104; 42 USC 2000e-5(g) (1). 26 42 USC 1981a. 27 735 ILCS 5/2-603; FRCP 8(a)(2). 28 376 Ill. App. 3d at 949 29 Section 5/8-111(C) of the Act states: “Except as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” 30 See, for example, Cooper v Illinois State University, 331 Ill.App. 3d 1094, 1100 (4th Dist. 2002). 31 Illinois Department of Human Rights Annual Report 2008. www.state.il.us/dhr/Publications X The Docket September 2009 September 2009 The Docket 23 GrapevineThe August

Achievements and other Notables: Top: Team manager After 17 years as an Assistant Lake County Public Defender, Scott A. Mark Van Donse- Wineberg has entered private practice with an office in Waukegan. He in- laar shows off the tends to continue representing individuals in traffic and criminal and juvenile ballclub’s uniform. court proceedings. Middle: Gretchen Congratulations to Patricia Cornell, who married Michael Kerton on July Neddenriep about to 17 in a ceremony held at Trump Tower in Chicago. give the outfielders some ball-chasing The firm Fraser,Youra and Parikh, LLC, (Shyama Parikh, Kate Fraser, and practice. Andrew Youra) have relocated to 208 N. West St. in Waukegan. The firm’s phone and fax numbers remain the same, as does its website: www.frasery- Bottom: Brian ouraandparikh.com. Smith just before adding a new crater A recap of some LCBA members recently appearing in the news: to the moon. As reported in the Daily Herald,“Justice Mary Seminara Schostok of Lib- ertyville has announced her candidacy to retain her seat on the 2nd District Appellate Court in Elgin.” http://www.dailyherald.com/story/?id=299806

Barbara Swanson is quoted about the importance of powers of attorney in the Lake County Journal article Assisted suicide debate beginning in Lake County. http://www.lakecountyjournals.com/articles/2009/06/10/34926947/index.xml

Waukegan Corporation Counsel Newton Finn is quoted in the Lake County News-Sun article Waukegan eyes new approach to lawsuits, which discusses possible changes to the city’s litigation strategy. http://www.suburbanchicagonews.com/newssun/news/1625913,5_1_WA17_ WAUKEGAN_S1-090617.article

The Daily Herald and several other newspapers noted the passing of Gerald Snyder, Jr., in an article on July 9. Mr. Snyder died June 16. (Relatedly, please see Justice Schostok’s article memorializing Mr. Snyder in the August issue of The Docket). http://www.dailyherald.com/story/?id=305812 The LCBA is once again proudly represented on the softball diamonds of Waukegan (although an opponent, likely confused by our “LCBA”-branded shirts, commented recently “I think that was the Lake County Baptist Associ- ation!”). Mark Van Donselaar organized the ballclub and manages a fun lov- ing group of professionals who swing bats and occasionally round the bases. Sarcasm aside, the club did win its first game of the season at the end of June (pictures below), and, with practice, more wins should be forthcoming. (Un- fortunately, there are no practices scheduled—it’s hard to put sarcasm aside when lawyers play softball!) The club plays Sunday afternoons—cheerleaders and additional players are always welcome! 24 The Docket September 2009 GrapevineThe September

Achievements and other notables: Harold Winer of the Law Offices of Winer and Winer was interviewed Au- gust 8 for a cable television show regarding his experiences as an infantry- man and military policeman in World War II. Anybody who knows a World War II veteran should contact the show’s producer, Jerry Boguse, to sched- ule an interview. Mr. Boguse can be reached at (847) 869-2510. A DVD or VHS copy of the interview is provided free to the veteran.

Two members of the bench recently had law review articles published: Raymond J. McKoski, Charitable Fund-Raising by Judges: The Give and Take of the 2007 ABA Model Code of Judicial Conduct, in the Michigan State Law Review (2008 Mich. St. L. Rev. 769), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1392004.

Daniel B. Shanes, Confronting Testimonial Hearsay: Understanding the New Confrontation Clause, 40 Loy. U. Chi. L.J. 879 (2009).

Lindsay Varcoe recently joined Gibson and Associates. Lindsay previously practiced for a year and half with a major medical malpractice defense firm. She is a new member of LCBA and its civil trial and young lawyer commit- tees. Lindsay will be representing plaintiffs in personal injury and medical malpractice cases. Top: Hal Winer and Pfc. Bradley A recap of some LCBA members recently appearing in the news: Bottom: Pfc. Winer and Pfc. Rowe. Judge James K. Booras “has been elected for a second year as chief judge of the 19th Judicial Circuit,” as reported in the Herald Tribune from July 30. http://www.dailyherald.com/story/?id=310211

Carol Dorge was featured in a July 23 article in the Lake Forester titled Lake Bluff woman becomes a partner in wind turbines venture. http://tinyurl.com/lpt4ew

Dan Sugrue is running for the 59th House seat in the Illinois General As- sembly, as reported in the August 15 Daily Herald. http://www.dailyherald.com/story/?id=313929 The foreclosure help desk that the LCBA is organizing for the Park City courthouse was featured in the Lake County News-Sun on August 7, and in the Chicago Tribune’s new Triblocal insert in its Thursday print edition on August 13. The articles mention the contributions of Judges Mitchell Hoff- man and Margaret Mullen, as well as attorneys David Leibowitz, Doug Stiles, Chuck Smith, and Richard Kessler in setting up the program. News-Sun: http://tinyurl.com/nwojp2; Triblocal: http://tinyurl.com/mlsks6

Attorneys on the move: Marjorie Sher has relocated her office as of August 1 to 415 W.Washing- ton St., Suite 103, in Waukegan. Marjorie continues to concentrate her practice in Family Law. September 2009 The Docket 25

July 16, 2009 Executive Board Meeting

Prior Minutes motion was seconded, carried MEMBERS PRESENT A motion was duly made, sec- and it was resolved that this in- Scott Gibson onded, carried and it was re- dividual’s application for a hard- President solved that the minutes from the ship waiver of dues was denied Minutes June 24, 2009 Board Meeting for the year 2009-2010. Elizabeth Rochford First Vice-President By were approved. The Board reviewed the LCBA Perry Smith Marjorie New Members bylaws to refresh and inform all Second Vice-President Sher, After discussion and upon mo- Board members of the require- Kevin Kane Secretary tion duly made, seconded and ments for application and reten- Treasurer carried, it was resolved that the tion of membership for the Lake Marjorie Sher Lake County Bar Association County Bar Association. Secretary would admit the following new Bryan Winter members and associate mem- Treasurer’s Report Immediate Past President bers to the Association. The The treasurer, Kevin Kane, pre- Hon. Fred Foreman board, on behalf of the Bar, wel- pared a draft of the end of the Hon. Joanne Fratianni comes the following new mem- 2008-2009 fiscal year report bers: which is being reviewed by the Thomas Guerwitz LCBA accountants. The Board Steve McCollum Attorney Members: discussed the new format for the Michael Ori James Hickey budget. Terrence Kiwala Mark Peavey Lake County Bar Foundation Upon review of the June’s ex- Chairman Associate Members: penses and income, the LCBA Susan Perlman expenses exceeded income by Chris Boadt Executive Director Sara Stolberg $15,918.65. During this last month, there were large ex- Associate Student Members: sored by the Bar Association for penses for the internet website Lauri Goldstein the members. In the future, update as well as the Lake there may be discussion about Additionally,there was a motion County Golf Outing (where tick- the viability of having a portion that one application for mem- ets may have been purchased in of the ticket be a contribution to bership not be approved. This May, 2009 and would not ap- the LCBF so that the member- motion was seconded, carried pear on the June, 2009 income ship can benefit by making a tax and with the Judges and one and expense list). In regard to free contribution to the LCBF. other member abstaining, it was the Golf Outing, after receiving resolved that this individual’s all the funds from sponsors, it is The Lake County Bar Associa- application to become an Asso- anticipated that the Golf Outing tion holds $71,360.13 and the ciate Member of the Lake will show a positive cash flow of Lake County Bar Foundation County Bar Association was not approximately $2,000.00. has $192,900.76 in each re- approved. spective bank account. The installation dinner showed Hardship Application a loss of $3,705.25. The cost of The Board discussed the trea- The Board had previously ap- the ticket which was $80.00 per surer’s report. A Motion was proved an application form for a person was deliberately low in duly made, seconded, carried temporary hardship waiver of order to allow the members to and it was resolved that the trea- dues which application is to be attend this event. Yet, unfortu- surer’s report was approved. considered by the Board on a nately the cost of the ticket did The Board discussed placing the case-by-case basis. One pro- not sustain the price of the din- funds from the Lake County Bar ner and entertainment. It posed member had requested a Foundation into a Certificate of should be noted that the instal- temporary hardship waiver of Deposit as the Lake County Bar the dues for the year 2009- lation dinner may not be an Foundation is currently earning 2010. Upon review of that ap- event that breaks even every a very low interest rate in its plication a motion was duly year or earns money,as it is a so- made to deny the request. That cial event which is, in part, spon- Continued on page 27

September 2009 The Docket 27

Continued from page 25 resolved that Donald J. Morrison would vious versions were on several forms. A serve on the Judicial Retention and Selec- motion was duly made, seconded, carried bank account. Upon inquiry, Chris was tion Committee until December 31, 2009. and it was resolved that Chris would cause able to obtain a higher rate in our Money the applications to be printed and dissem- Market Account, thus alleviating the need Lake County Bar Foundation ByLaws inated to interested individuals. to tie the money into a Certificate of De- Rick Lesser and Bryan Winter prepared posit. proposed amendments to the Lake County Executive Director’s Report Bar Foundation Bylaws. A motion was A) A subcommittee was created to deal Lake County Bar Association duly made, seconded, carried and it was with the “Organizational Policies” of Facilities Committee resolved that the current draft of amend- the Lake County Bar Association. Rick Lesser has agreed to Chair the Lake ments would be further modified to pro- Kevin Kane will chair the committee, County Bar Association Facilities Com- vide that an education committee would to be joined by Liz Rochford and mittee to investigate obtaining new space be added to the bylaws. A motion was duly Joanne Fratianni. They Committee for the Lake County Bar Foundation and made, seconded, carried and it was re- will meet, review the draft policies Lake County Bar Association. A motion solved that the Board of Directors ap- and report to the Board their was duly made, seconded, carried and it proved the draft of the ByLaws, and the thoughts at the August, 2009 Board of directors meeting. was resolved that Rick Lesser would chair draft amendments with the one change, this committee. and the same will be presented to the Lake B) The Employee Handbook Committee, County Bar Association Members for a which consists of Bryan Winter, Scott Judicial Retention and Selection vote to approve the same at the Septem- Gibson, Liz Rochford, Marjorie Sher Committee ber, 2009 lunch meeting. and Chris Boadt will meet and discuss Denis McKeown has served a diligent term the draft of the employee handbook. on the Judicial Retention and Selection Membership Benefits The Committee will report back at the Committee, and the Board thanks him for Chris presented to the Board a draft of the August, 2009 meeting. his service to the Bar. The President pro- Membership Information and Application posed filing the vacant seat left by Denis Form This new application contains all There being no additional business, a mo- with Donald J. Morrison. A motion was the Separate classes of membership and is tion was made, seconded, carried and the duly made, seconded, carried and it was contained on just one form, whereas pre- meeting was adjourned. 28 The Docket September 2009 In the LCBA Bulletin Months Ahead... September 2009 Board DATE EVENT & LOCATION TIME Thurs, Sept 3 Real Estate Committe Meeting 5:00 p.m. InLaws, Gurnee DOWTOWN WAUKEGAN Mon, Sept 7 LCBA OFFICE CLOSED Across from Courthouse, 275-1800 Tues, Sept 8 Associate Member Committee Meeting 5:30 p.m. square feet. Janitorial provided. Well InLaws, Gurnee maintained. Space available. 33 N. Wed, Sept 16 Family Law Committee Meeting 12:00 p.m. County & 325 Washington. Please Lake County Courthouse - C105 call Ron Pollack at (847) 482-0952. Thurs, Sept 17 Board of Directors Meeting 12:00 p.m. DOWTOWN WAUKEGAN LCBA Office 200 ML King Ave. Single office. Thurs, Sept 17 Civil Trial Committee Meeting 5:00 p.m. Shared conference room and lunch McCormick’s, Lake Bluff room. Space available for secretary. Tues, Sept 22 Business Lunch Meeting: VLP Awards 12:00 p.m. Basement storage.Virtual Tour: Waukegan City Hall www.tjproperties.com.(847) 680- Thurs, Sept 24 & Criminal Law Seminar 4740. Fri, Sept 25 Milwaukee, WI LAW OFFICES OF ANTONE, Wed, Sept 30 Docket Editorial Meeting 12:00 p.m. CASAGRANDE & ADWERS P.C. LCBA Office AV-rated immigration law firm with offices in Michigan and Illinois. Firm October 2009 Principal is an Adjunct Professor of DATE EVENT & LOCATION TIME Immigration Law at Michigan State Wed, Oct 7 Real Estate Committe Meeting 5:00 p.m. University Law School. Call (877) InLaws, Gurnee 406-6020 or visit us online at: Thurs, Oct 15 Civil Trial Committee Meeting 5:00 p.m. www.antoneimmigration.com McCormick’s, Lake Bluff ZION Thurs, Oct 15 Board of Directors Meeting 12:00 p.m. 1,500 square foot office plus semi fin- LCBA Office ished basement corner location on Sat, Oct 17 Associate Member Committee Meeting 8:00 a.m. Sheridan Road with off street park- Wildberries, Libertyville ing. $1,450/month. (847) 445-7260 Wed, Oct 21 Family Law Committee Meeting 12:00 p.m. Lake County Courthouse - C105 OFFICE SPACE FOR RENT Wed, Oct 21 Criminal Law Committee Meeting 12:00 p.m. 132 N. West Street. Contact Paul at LCBA Office (847) 244-1399. Please call (847) 244-3143 to confirm dates, Seeking part-time office assistant for time and location of event before you attend. afternoons. Conact Paul at (847) If you are a Committee Chair and wish to change a meeting date 244-1399. or time, please contact the LCBA Office at (847) 244-3143.

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Pro Bono Awards Tuesday, September 22 • Waukegan City Hall Featured Guests: Justice Mary Schostock & Justice Ann Jorgensen Presentation of: Volunteer Lawyer Awards; Grant from Young Lawyers Committee to A Safe Place Consideration of: Lake County Bar Foundation bylaw revisions October Meeting TBD 2009 Details being finalized Fall Business Lunch Series Professionalism Rule Changes Tuesday, November 3 • Greenbelt Cultural Center Effective January 1, 2010, the new rules of proessional conduct will take effect. This session is coordinated by the LCBA Profes- sionalism and Law Office Management Committee and will fea- ture James J. Grogan, Deputy Administrator and Chief Counsel Attorney Registration and Disciplinary Commission. This session qualifies for 1 CLE hour.

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