2014 Spring Session Roundup

Illinois legislators revised the statutory health care power of attorney, created guidelines for calculating maintenance, made changes to the Illinois Transfer on Death Instrument Act, and more in the latest legislative session.

The Illinois General Assembly has sent the following bills to Governor Quinn. This report, which summarizes legislation of particular interest to ISBA members, is organized by topic so you can quickly check what has happened in your practice areas.

Please note that the governor must sign, veto, or amendatorily veto a bill within 60 days of his receipt of it. The "drop date" is the 60-day deadline for each bill and is the date by which the governor must take action.

If you're interested in what action he has taken on a specific bill or want to view the full text, visit the General Assembly's excellent website at http://www.ilga.gov.

Business law

Pregnancy and discrimination. House Bill 8 (Flowers, D-Chicago; Hutchinson, D-Chicago Heights) amends the Illinois Human Rights Act to prohibit unlawful discrimination by an employer based on pregnancy and require reasonable accommodation to a job applicant or employee for issues related to pregnancy or childbirth.

Drop date August 24, 2014; effective January 1, 2015.

Dissolution of business entities. Senate Bill 1098 (Harmon, D-Oak Park; Currie, D-Chicago) amends several acts governing business organizations regarding director and officer liability during periods of dissolution. Provides that reinstatement of the organization reinstates the corporate liability shield for directors, officers, employees, and agents of the organization for actions taken during the period of dissolution. Clarifies that directors are not liable for actions that are necessary and appropriate to wind up and liquidate a corporation's business and affairs.

Drop date August 25, 2014; effective January 1, 2015.

Criminal justice/juvenile justice

Expungement of juvenile records. Public Act 98-637 (Raoul, D-Chicago; Turner, D-Chicago) requires the Illinois State Police to automatically expunge a person's law enforcement records for incidents occurring before the person's eighteenth birthday for most offenses in which no petition for delinquency was filed, the person attained the age of 18 years during the last calendar year, and since the minor's arrest at least six months have elapsed without an additional arrest, filing of a delinquency petition, or filing of charge that was not initiated by an arrest.

Effective January 1, 2015.

Victims' rights. HJRCA 1 (Lang, D-Skokie; Steans, D-Chicago) amends the victims' rights section of the Illinois Constitution for submission to the voters in the general election this November. HJRCA 1 expands notice to victims of court proceedings and gives them standing to assert the rights enumerated in Section 8.1 of the Illinois Constitution.

Procedures in lineup identifications. House Bill 802 (Drury, D-Highwood; Raoul, D-Chicago) sets out procedures and guidelines for how law enforcement conducts lineups for identification of perpetrators of crimes.

Drop date August 24, 2014; effective January 1, 2015.

Search warrants sought electronically. House Bill 4594 (Zalewski, D-Chicago; Righter, R-Mattoon) authorizes a judge to issue a search warrant based upon sworn testimony communicated by electronic means that has a simultaneous video and audio transmission between the requestor and a judge. Establishes procedures concerning the application, issuance, contents, and execution of these warrants. Requires the chief judge of the circuit court or presiding judge in the issuing jurisdiction to create a local rule for the filing or other retention of documents or recordings produced in the process of issuing search warrants.

Drop date August 18, 2014; effective January 1, 2015.

Unfitness issues in criminal cases. Senate Bill 2801 (Haine, D-Alton; Sims, D-Chicago) provides that a person conducting a fitness examination must make his or her notes, other evaluations reviewed or relied upon by the testifying witness, and any videotaped interviews available to another examiner of the defendant upon written request. Requires a forensic interview to be videotaped unless impractical. Allows an examiner to use these materials as part of a diagnosis or explanation and prohibits disclosure of the examination's contents except as otherwise provided by law.

Senate Bill 2801 also removes the ability of the court to order placement in a non-secure setting within the Department of Human Services if a defendant is found unfit to stand trial or acquitted by reason of insanity. For an unfit defendant charged with a misdemeanor, it changes the period of time in which the defendant, with treatment, may be expected to attain fitness for purposes of fitness determinations from one year to no longer than the length of sentence if convicted of the most serious offense. If an unfit defendant refuses psychotropic medication, it allows the medication to be administered over the defendant's objections as provided in the Mental Health and Developmental Disabilities Code.

Drop date, August 25, 2014; effective immediately except that discovery section is effective January 1, 2015.

Traffic offenses and appearance. Senate Bill 2583 (Noland, D-Elgin; D'Amico, D-Chicago) changes the procedures for all traffic violations that are petty offenses to include repeal of the requirement that bond be posted. If a person fails to appear for a court date, the court may continue the case for a minimum of 30 days and notify the person at their address of record with the secretary of state.

If the person doesn't appear or satisfy the court that their appearance, through no fault of their own, was impossible, the court shall order the person's license suspended. The secretary of state may not lift this "failure to appear" suspension nor may any other permit be issued to the person until the SOS is notified by the court that the person has appeared and resolved the violation.

Drop date August 8, 2014; effective January 1, 2015.

Family law

Maintenance guidelines. Senate Bill 3231 (Silverstein, D-Chicago; Sandack, R-Downers Grove) creates permissive guidelines for maintenance cases if the parties' combined gross income is $250,000 or less. The court must first determine that maintenance is appropriate before turning to the guidelines. It is calculated by taking 30 percent of the payor's gross income minus 20 percent of the payee's gross income. But it may not result in the payee receiving a total that is in excess of 40 percent of the combined gross income of the parties after maintenance is added to the gross income of the payee.

The duration is calculated by multiplying the length of the marriage by whichever of the following factors applies: 0-5 years (.20); 5-10 years (.40); 10-15 years (.60); or 15-20 years (.80). For a marriage of 20 or more years, the court, in its discretion, shall order either permanent maintenance or maintenance for a period equal to the length of the marriage.

Drop date August 16, 2014; effective January 1, 2015.

Health care

Independent examination in mental health proceedings. Senate Bill 3532 (Murphy, R-Palatine; Sandack, R-Downers Grove) fleshes out how a respondent gets an independent medical examination in a proceeding seeking involuntary admission, a proceeding seeking to administer psychotropic medication or electroconvulsive therapy, or a proceeding seeking discharge of the respondent. Requires the court to determine the fees of the expert, which are to be paid by the respondent's county of residence. If the respondent is not a resident of Illinois, the fees are to be paid by the county in which the proceeding is pending.

Drop date August 9, 2014; effective January 1, 2015.

Local government

Administrative review and attorney's fees. Senate Bill 2829 (Link, D-Waukegan; Zalewski, D-Chicago) allows a court to award attorney's fees to the prevailing party in certain administrative-review actions. It applies only to the decision of a code-hearing officer that imposes a fine or penalty against the owner of a single-family or multi-family residential dwelling for a violation relating to the condition or use of residential property. It is limited to municipalities with a population of 500,000 or less.

The court may award the plaintiff all reasonable costs, including court costs and attorney's fees, if the court finds that: (1) the hearing officer's decision was arbitrary and capricious; or (2) the defendant failed to file a record under Section 3-108 of the Code of Civil Procedure that is sufficient to allow the court to determine whether the hearing officer's decision was arbitrary and capricious. The court may award the municipality the same damages if the court finds that the plaintiff's action seeking administrative review is not reasonably well grounded in fact, warranted by existing law, or accompanied by a reasonable argument for the extension, modification, or reversal of existing law.

Drop date August 25, 2014; effective January 1, 2015.

FOIA. House Bill 3796 (Currie, D-Chicago; Hastings, D-Matteson) creates specific rules for disclosure and deadlines for a "voluminous request." A voluminous request includes: (1) more than five individual requests for more than five different categories of records or a combination of individual requests that total requests for more than five different categories of records in a period of 20 business days; or (2) requires the compilation of more than 500 letter or legal-sized pages of public records unless a single-requested record exceeds 500 pages.

If a requester makes a voluminous request, the public body may charge specified fees for electronic data. A public body is not required to copy and make available for public inspection a public record that is published on its website with some exceptions.

This was vetoed by Governor Quinn. His veto could be overridden in the fall session.

Probate

Presumptively void transfers. Senate Bill 1048 (Harmon, D-Oak Park; E. Chris Welch, D-Westchester) creates a civil action in the Probate Act if a "presumptively void transfer" is challenged that applies to "caregivers." If a "transfer instrument" transfers property, on or after the transferor's death, in excess of $20,000 to a caregiver and is challenged, it creates a rebuttable presumption that the transfer is void. A caregiver is defined as anyone who has assumed responsibility for all or a portion of the care of another person who needs assistance with daily living activities. A caregiver doesn't include a "family member" of the person receiving assistance.

The presumption can be overcome if: (1) the transferee's share under the transfer instrument is not greater than the share of the transferee was entitled to under the transferor's testamentary plan in effect before the transferee became a caregiver; or (2) the transfer was not the product of fraud, duress, or undue influence as proved by clear and convincing evidence. If the caregiver attempts and fails to overcome the presumption, the caregiver must bear the cost of the proceedings, including reasonable attorney's fees.

The statute of limitation for challenging a presumptively void transfer is two years unless the Probate Act requires a shorter period. Senate Bill 1048 applies only to transfer instruments executed after January 1, 2015.

Drop date August 25, 2014; effective January 1, 2015.

Transfer on death instrument. Senate Bill 2656 (Barickman, R-Bloomington; Sims, D-Chicago) makes several changes to the Illinois Transfer on Death Instrument Act. (1) Makes the recording of a notice of death affidavit a permissive action that can be taken by the beneficiary to confirm title to the residential real estate but is not a mandatory requirement to perfect title. (2) Allows a bona fide purchaser for value and without notice before the recordation of a lis pendens for an action to set aside or contest the transfer on death instrument ("TODI") to take free and clear of any such action or contest. (3) Clarifies that acceptance of the TODI by the beneficiary during the owner's lifetime is not a requirement. (4) Eliminates the right of an agent acting under a durable power of attorney from creating or revoking a TODI. But it doesn't affect the agent's right or power to sell, transfer, or encumber the residential real estate if so authorized under the POA. (5) Clarifies that only substantial compliance with the execution formalities is required.

Drop date August 4, 2014; effective January 1, 2015.

Small estate affidavit. Senate Bill 2985 (Bivins, R-Dixon; Demmer, R-Dixon) expands the small estate affidavit ("SEA")statute to include much more detailed information about the known debts of the decedent. Requires the affiant to sign under a notary public to aid in the enforcement of the civil and criminal penalties for misusing a SEA. Syncs up the SEA and the Safety Deposit Act. It applies to estates in which the decedent's date of death is on or after January 1, 2015.

Drop date August 4, 2014; effective January 1, 2015.

Trusts and Trustees Act. Senate Bill 2984 (Dillard, R-Westmont; McAsey, D-Romeoville) amends the virtual representation section of this Act. It expands the use of settlement agreements in resolving disputes, ambiguities, and operational difficulties in trust administration. These settlements require unanimous written agreement by the trustee and all current and presumptive remainder beneficiaries.

Drop date August 16, 2014; effective January 1, 2015.

Power of attorney for health care. Senate Bill 3228 (Haine, D-Alton; Williams, D-Chicago) is a major rewrite of the power of attorney for health care law that does the following: (1) Replaces the current notice with a new notice styled more in the FAQ format and replaces the current form with a new form. No specific format is required for the statutory health care power of attorney other than the notice must precede the form. Retains current law that authorizes principals to use other forms instead of using the new statutory one as long as they comply with Illinois law. (2) Clarifies that a witness must be at least 18 years old and that some employees who are not owners of a health care facility may serve as a witness, specifically listing chaplains or social workers, and nurses. (3) The savings clause provides that Senate Bill 3228 doesn't invalidate existing powers of attorney for health care.

Drop date August 25, 2014; effective January 1, 2015.

Real estate

Condominium Property Act. House Bill 4783 (E. Chris Welch, D-Westchester; Steans, D-Chicago) makes the following declarations unenforceable if they affect the common elements or more than one unit and require any of the following before the board can take legal action on behalf of the association: (1) consent of a percentage of unit owners; (2) arbitration; (3) mediation before an action may be filed in court; or (4) a restriction or delay in the board's ability to bring an action affecting the common elements or more than one unit. An otherwise unenforceable provision may be enforced after the election of the first-unit owner board of managers if it is approved by a unit-owner percentage vote of not less than 75 percent of the total in the aggregate of the undivided ownership of the common elements.

Drop date August 25, 2014; effective January 1, 2015.

The Residential Real Property Disclosure Act. Public Act 98-0754 (Bertino-Tarrant, D-Plainfield; Walsh, D-Joliet) amends the Residential Real Property Disclosure Act to add material defects in the window or doors to the list of disclosures required under the Act.

Effective January 1, 2015.

Common Interest Community Association Act. Senate Bill 3057 (Haine, D-Alton; Kosel, R-Mokena) allows an association to waive the current statutory requirement in its community instruments that a leasing unit owner must deliver a copy of a lease to the association.

Drop Date August 4, 2014; effective January 1, 2015.

Condominium Property Act. Senate Bill 2664 (Hastings, D-Matteson; Yingling, D-Hainesville) caps the amount innocent purchasers of distressed condominium units may be liable for to no more than the unit's unpaid regular monthly assessments for the nine-month period immediately preceding the judicial foreclosure. The association's attorney's fees and costs may also be included in this cap, but the purchasers may not be charged more than nine months' of regular monthly assessments. Senate Bill 2664 also requires the Board of managers to produce for the seller and the prospective purchasers information about the condominium unit within 14 days. If the association is self-managed, it allows 21 days.

Drop date, August 18, 2014; effective immediately.

Strict foreclosure of an omitted subordinate interest. Senate Bill 2730 (Mulroe, D-Chicago; Nekritz, D-Buffalo Grove) creates a procedure for the holder of title from a judicial sale to foreclose and clear title on an "omitted subordinate interest." An OSI is a junior lienholder that was not made a party defendant in the previous foreclosure action and whose OSI was not terminated by the judgment of foreclosure when the property was sold by judicial sale. If the junior lienholder wishes to redeem, it must do so within 30 days after entry of the order redeeming title.

The redemption sum will include the bid at the prior foreclosure sale, any costs and fees incurred after the sale for the payment of taxes, preservation of the property, or any other actions by the holder of the certificate of sale required to protect its interest in the property. The redemption amount will not include any costs or fees incurred by the holder of title in the strict foreclosure case filed under this new section.

Drop date August 25, 2014; effective immediately.

Tort/civil practice

Workers' Compensation Act. Public Act 98-633 (Raoul, D-Chicago; Bradley, D-Marion) provides that there is no right to recover damages for injury or death, other than the compensation provided under the Act, from a service organization that is wholly owned by the employer or the employer's insurer or broker and that provides safety service, advice, or recommendations. Current law immunizes a service organization from common law liability if it is retained by the employer or the employer's insurer or broker to provide safety service, advice, or recommendations.

Effective June 5, 2014.

Statutes of limitation. House Bill 5512 (Nekritz, D-Buffalo Grove; Mulroe, D-Chicago) stays the limitation periods for personal actions until a person's legal disability is removed if a person is not under a legal disability at the time the cause of action accrues but becomes legally disabled before the limitation period expires. These changes don't invalidate any applicable statute of repose provisions and affect only actions commenced or pending on or after January 1, 2015.

Drop date August 25, 2014; effective January 1, 2015.

Uniform Electronic Legal Material Act. Senate Bill 1941 (Mulroe, D-Chicago; McAuliffe, R-Chicago) creates the Uniform Legal Material Act to regulate the authentication, publication, and availability of Illinois' legal sources in electronic format.

Drop date August 25, 2014; effective January 1, 2015.

Service of process. Senate Bill 3286 (Jacobs, D-Moline; Verschoore, D-Rock Island) amends the Code of Civil Procedure to require an employee of a "gated residential community" to grant entry into the community to an authorized process server who is attempting to serve process on a defendant or witness who resides within or is known to be within the community. This access would include common areas and common elements. The term "gated residential community" includes condominium associations, housing cooperatives, or private communities.

Drop date August 17, 2014; January 1, 2015.

UM/UIM insurance. House Bill 5575 (Zalewski, D-Chicago; Mulroe, D-Chicago) amends the Insurance Code to increase the levels of binding arbitration from $50,000 to $75,000 for death or bodily injury to one person and from $100,000 to $150,000 effective for death or bodily injury to two or more persons. It affects all policies issued or renewed after January 1, 2015.

Drop date August 18, 2014; January 1, 2015.