2016 Spring Legislative Roundup

The General Assembly decriminalized the possession of small amounts of cannabis, rewrote the Limited Liability Company Act, and made changes to condominium law in a surprisingly busy spring legislative session.

Despite the budget impasse that ended dramatically in a much-reported stopgap funding plan, the Illinois General Assembly passed and Governor Rauner signed a large number of bills this session. 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.

For more legislative info, visit the General Assembly's website at www.ilga.gov.

Criminal law and juvenile justice

Access to a lawyer. PA 99-0882 (Van Pelt, D-Chicago; Currie, D-Chicago) does three things. (1) Raises the age from 13 to 15 in which a lawyer is required to represent a minor during custodial interrogation in a homicide or sex-offense case; (2) expands current custodial interrogation videotape requirements to apply to all felonies and misdemeanor sex-offense cases for minors under the age of 18; and (3) sets out the specific wording for Miranda warnings for all minors under the age of 18.

Effective January 1, 2017.

Expungement. PA 99-0835 (Barbara Wheeler, R-Crystal Lake; Raoul, D-Chicago) allows a person to petition for expungement at any time for an offense occurring before their 18th birthday if no petition for delinquency was filed, the minor was charged with an offense but the petition was dismissed without a finding of delinquency, the minor was found not delinquent, the minor was placed on juvenile court supervision, or the minor was adjudicated for an offense that if committed by an adult would be a Class B or C misdemeanor or petty offense.

Effective January 1, 2017.

Juvenile probation. PA 99-0879 (Nekritz, D-Buffalo Grove; Raoul, D-Chicago) prohibits a minor from being incarcerated for a Class 3 or Class 4 felony violation of the Illinois Controlled Substances Act with some exceptions for repeated violations. Creates a rebuttable presumption that it is in the best interest of the minor and public safety to terminate probation after a minimum period has been served.

Effective January 1, 2017.

Omnibus Juvenile justice changes. PA 99-0628 (Raoul, D-Chicago; Nekritz, D-Buffalo Grove) makes numerous changes to juvenile justice law and post conviction procedures ("aftercare release"). Among other changes, it prohibits minors from being admitted to the Department of Juvenile Justice unless they are found guilty of a felony or first-degree murder. It exempts from felony incarceration the following crimes: criminal trespass to a residence, criminal damage or defacement to property, disorderly conduct, or obstructing justice.

Effective January 1, 2017.

Cell site simulator device. PA 99-0622 (Biss, D-Skokie; Williams, D-Chicago) creates the Citizen Privacy Protection Act to regulate the use of "stingrays" that simulate a cell site tower to trick cell phones into using them. This bill prevents law enforcement from using stingrays unless they get a court order based on probable cause and provides that they may only be used to locate or track the location of a communication device.

Effective January 1, 2017.

Cannabis civil penalties. PA 99-0697 (Steans, D-Chicago; Cassidy, D-Chicago) makes several changes to the Code of Criminal Procedure. It replaces criminal penalties for possession of small amounts of cannabis (less than 10 grams) with a civil fine of $100-$200. It also replaces the current "zero-tolerance" prohibition of driving with any trace of cannabis in the driver's bodily fluids with a per se standard of five nanograms/milliliter of whole blood or 10 nanograms/milliliter in any other bodily substance. (For more, see the LawPulse item "Another try for pot decriminalization" in the May 2016 Journal.)

Effective July 29, 2016.

Guilty pleas. PA 99- 0871 (Cabello, R-Loves Park; Link, D-Gurnee) amends the plea statute of the Code of Criminal Procedure to require the court to admonish the defendant of certain possible consequences for a conviction or plea of guilty.

Effective January 1, 2017.

Property crimes. PA 99-0631 (Stadelman, D-Rockford; Wallace, D-Rockford) increases the threshold amount for damage to property that is used to enhance a misdemeanor to a felony or to enhance it to a higher class of felony. Currently, it must exceed $300; this bill requires that it must exceed $500.

Effective January 1, 2017.

Toxicology results. PA 99-0801 (Scott Bennett, D-Champaign; McAsey, D-Plainfield) creates the Sexual Assault Incident Procedure Act and allows the Illinois State Police to establish administrative rules to standardize minimum requirements for the disclosure of toxicology results and related documents.

Effective January 1, 2017.

Family law

IMDMA cleanup. PA 99-0763 (Kelly Burke, D-Oak Lawn; Mulroe, D-Chicago) is a cleanup of last year's rewrite of the IMDMA. It does contain some clarifying changes that may be considered as substantive, such as the following. (1) Clarifies for post-educational expenses that the guide is "in-state" tuition at the University of Illinois at Urbana-Champaign. (2) Clarifies that the 25-mile standard on relocation is based on an "internet mapping service." (3) Clarifies the two-year ban from amending a judgment applies only to "parental decision-making responsibilities" and doesn't apply to "parenting-time" provisions. (4) Clarifies that a respondent who doesn't file an appearance is not required to file a parenting plan unless specifically ordered to do so by the court. (5) It also includes a new Article 7 of the Parentage Act of 2015 affecting artificial reproduction that replaces the current Article that is considered to be outdated.

Effective January 1, 2017.

Income shares and child support. PA 99-0764 (Kelly Burke, D-Oak Lawn; Hastings, D-Matteson) moves Illinois into the majority of other states that have an "income shares" model for adjudicating child support.

Effective July 1, 2017

IDVA electronic filing pilot program. PA 99-0718 (McAuliffe, R-Chicago; Morrison, D-Deerfield) authorizes the Illinois Supreme Court to adopt rules to establish a pilot program for the electronic filing of petitions for temporary orders of protection and the issuance of those orders by audio-visual means.

Effective January 1, 2017.

Parentage Act of 2015. PA 99-0769 (Burke, D-Oak Lawn; Mulroe, D-Chicago) makes a number of technical corrections to the recent Parentage Act. For example, it requires personal information of children and parents to comply with federal law but also requires that this information be non-public.

Effective January 1, 2017.

Adoption Act. PA 99-0832 (Williams, D-Chicago; Hutchinson, D-Chicago Heights) adds to the required disclosure to adoptive parents more information on the circumstance of the adoption.

Effective January 1, 2017.

Short-term guardian. PA 99-0599 (Bellock, R-Westmont; Althoff, R-McHenry) allows a parent or guardian who is serving in the armed forces and on active duty to appoint a short-term guardian for more than 365 days. This appointment may not exceed the period of active duty service plus 30 days.

Effective January 1, 2017.

Commercial

Limited Liability Company Act. PA 99-0637 (Nekritz, D-Buffalo Grove; Harmon, D-Oak Park) is a huge rewrite of the LLC Act that among other things authorizes the use of oral operating agreements and expands the scope of operating agreements forms. (For more, see Matthew Hector's LawPulse summary in the July 2016 Journal).

Effective July 1, 2017.

Personal Information Protection Act. PA 99-503 (Williams, D-Chicago; Biss, D-Skokie) makes the following changes to the existing Act.

(1) Expands the definition of protected "personal information" to include

(a) a person's first name or first initial and the last name that are encrypted or redacted but the unlocking keys have been breached to allow one of several "data elements" to be unlawfully acquired; and

(b) user name or email address and password or security question information that permits a person's online accounts to be breached.

(2) Expands "data elements" to include medical information, health insurance information, and unique biometric data.

3) Requires a data collector that owns or licenses, maintains, or stores records that contain personal information of Illinois residents to implement and maintain reasonable security measures to protect those records from unauthorized access or use.

4) Compliance with the federal HIPAA complies with this Act as long as the covered entity provides notice of a breach to the Illinois Attorney General within five days after notifying the Secretary of Health and Human Services.

Effective January 1, 2017.

Supplementary proceedings. PA 99-0744 (Silverstein, D-Chicago; Lang, D-Skokie) makes the following changes to supplementary proceedings: (1) Clarifies that a petition to revive a judgment must be served and an order entered for a judgment to be revived. (2) Requires the amount of the bond to be posted after an entry of an order of prejudgment attachment against the property of a debtor who may conceal property or flee the state. (3) Makes taxable as court costs all charges relating to the electronic filing of cases and pleadings. (4) Under current law, a court must vacate a judgment and dismiss the action when a release or full satisfaction for judgment is filed by the prevailing party. The bill provides that a judge may do so. (5) Eliminates the sheriff's levy sale of corporate stock as superseded by the Uniform Commercial Code or a citation to discover assets statute.

Effective January 1, 2017.

Real estate

Land Trust Beneficiary Rights Act. PA 99-0609 (Williams, D-Chicago; Hastings, D-Matteson) provides that the rights of a beneficial owner may not be impaired in any way by the change of trustees if the identity of the trustee of a land trust has been changed by virtue of sale, assignment, appointment, or otherwise, but the beneficial owner or owners of the land trust remain unchanged.

Effective January 1, 2017.

Mobile Home and Landlord and Tenant Rights Act. PA 99-0731 (Moeller, D-Elgin; Bush, D-Grayslake) requires the park owner to give the tenant written notice specifying the reason for any fine that may be imposed on the tenant if the tenant breaches any provision of the lease or park rules. "Fine" does not include any fees that are imposed on a tenant for services or products provided by the park owner to the tenant.

If a fine is imposed on a tenant, the following applies for 45 days after written notice of the fine is delivered to the tenant: (1) non-payment of a fine is not grounds for refusal to accept a rent payment; and (2) the fine may not be deducted from a rent payment. Acceptance of a rent payment may not be construed as a waiver of an unpaid fine.

Effective January 1, 2017.

Mechanics Lien Act. PA 99-0852 (Althoff, R-McHenry; Nekritz, D-Buffalo Grove) extends the sunset for current law until December 31, 2020. It requires work to be done or materials furnished to obtain a lien within three years for residential property and five years for any other kind of property.

Effective August 19, 2016.

Condominium and Common Interest Community Ombudsperson Act. PA 99-0776 (Nekritz, D-Buffalo Grove; Althoff, R-McHenry) makes a number of changes to this Act. (1) Clarifies that neither the ombudsperson nor the Department has the authority to consider matters that may constitute unlawful discrimination under local, state, or federal law. (2) Makes numerous technical changes including deleting the registration requirement by an entity. (3) Pushes back the repeal of the entire Act by one year to July 1, 2022.

Effective August 12, 2016.

Common Interest Community Association Act and the Condominium Property Act. 99 PA-0569 (Mulroe, D-Chicago; Martwick, D-Chicago) provides that any assignment of a developer's interest in the property is not effective until the successor obtains the assignment in writing and records it.

Effective January 1, 2017.

Condominium Property Act. PA 99-0849 (Mulroe, D-Chicago; Martwick, D-Chicago) allows a board of managers to assign the right of the association to future income from common expenses or other sources and to mortgage or pledge substantially all of the remaining assets of the association by a majority vote of the entire board.

Effective January 1, 2017.

Common Interest Community Association Act and the Condominium Property Act. PA 99-0612 (Cassidy, D-Chicago; Mulroe, D-Chicago) redefines "acceptable technological means" to mean any generally available technology that, by rule of the association, is deemed to provide reasonable security, reliability, identification, and verifiability. Allows this technology to be used to conduct association business such as a notice required to be sent or received; signature, vote, consent, or approval required to be obtained; and the performance of obligations or exercise of rights. It does not apply to any notices required under the Forcible Entry and Detainer Article or in connection with foreclosure proceedings in enforcement of any lien rights under the Acts.

Effective January 1, 2017.

Common Interest Community Association Act. PA 99-0627 (Haine, D-Alton; Beiser, D-Alton) allows an association to correct an error, omission, or inconsistency in the community instruments of the association by an amendment adopted by vote of two-thirds of the board of directors without a membership vote.

Effective January 1, 2017.

Common Interest Community Association Act and the Condominium Property Act. PA 0612 (Haine, D-Alton; Martwick, D-Chicago) allows a board to close any portion of a noticed meeting or meet separately from a noticed meeting to do the following: (1) "Discuss" instead of "consider" appointment, employment, engagement, or dismissal of an employee, independent contractor, agent, or other provider of goods and services. (2) Interview a potential employee, independent contractor, agent, or other provider of goods and services. (3) Consult with the association's legal counsel. For more, see this month's LawPulse (p. 15).

Effective January 1, 2017.

Illinois Human Rights Act. PA 99-0548 (Hernandez, D-Cicero; Martinez, D-Chicago) increases the amount of civil penalties for civil rights violations in real estate transactions.

Effective January 1, 2017.

Lead Poisoning Prevention Act. PA 99-0790 (Trotter, D-Chicago; Gabel, D-Evanston) amends this Act to do the following: (1) Expands a regulated owner's obligation to give a mitigation notice to a lessee who is renewing an existing lease agreement unless the owner gets a certification of compliance.

(2) Requires an owner who receives a mitigation notice to mitigate the lead hazard and obtain a certificate of compliance before entering into a new lease. This obligation is passed on to a new owner who has purchased a facility from an owner who has received a mitigation notice. (3) Provides that before entering into a lease agreement or sales contract, owners of facilities regulated under the Act and built before 1978 shall give prospective lessees or purchasers information on the potential health hazards posed by lead in such facilities that is consistent with specified federal regulations.

Effective January 1, 2017.

Trusts and estates

Revised Uniform Fiduciary Access to Digital Assets Act (2015). PA 99-0775 (Welch, D-Westchester; Connelly, R-Lisle) provides procedures and requirements for the access and control by guardians, executors, agents, and other fiduciaries of the digital assets of persons who are deceased, under a legal disability, or subject to the terms of a trust.

Effective August 12, 2016.

Mendelson. In Mendelson, 2016 IL App (2d) 150084, the Illinois Appellate Court held that when a trust instrument lists a house as part of the trust, the house belongs to the trust even if the deed was not formally transferred there. PA 99-0743 (Silverstein, D-Chicago; Lang, D-Chicago) reverses the holding of Mendelson. It provides that the transfer of real property to a trust requires a transfer of legal title to the trustee evidenced by a written instrument of conveyance and acceptance by the trustee. It also provides that for any interest in real property to become trust property in a trust of which any transferor is a trustee, the instrument of conveyance shall additionally be recorded in the appropriate real property records. (For more, see "Overturning Mendelson: Bill would forbid conveying real estate to trust without deed," a LawPulse item in the May 2016 Journal).

Effective January 1, 2017.

Personal guardian. PA 99-0821 (Fine, D-Glenview; Silverstein, D-Chicago) amends the personal guardian statute in the Probate Code. It requires the guardian to use reasonable efforts to notify the ward's known adult children, who have requested notification and provided contact information, of the ward's admission to a hospital or hospice program, the arrangements for the disposition of the ward's remains, or the ward's death.

If a guardian unreasonably prevents an adult child of the ward from visiting the ward, the court, upon a verified petition by an adult child, may order the guardian to permit visitation between the ward and the adult child if the court finds that the visitation is in the ward's best interests. In making its determination, the court shall consider the standards set forth in current law.

Effective January 1, 2017.

Unclaimed U.S. savings bonds. PA 99-556 (Lang, D-Skokie; Link, D-Gurnee) presumes that a United States savings bond is abandoned when the bond has remained unclaimed and unredeemed for five years after its date of final extended maturity. Establishes a procedure by which the Illinois Treasurer may obtain a judicial determination that the bond has escheated to the state.

Effective January 1, 2017.

Unclaimed Life Insurance Benefits Act. PA 99-0893 (Martwick, D-Chicago; Haine, D-Alton) requires insurers to periodically use the federal Death Master File to determine if a policyholder has died but the death benefits have not been made. If a match is found but the beneficiaries do not file a claim within 120 days, the insurer is required to make a good-faith effort to locate them. This Act will apply to all policies, annuity contracts, and retained asset accounts in force on after January 1, 2017.

Effective January 1, 2017.

Local government

FOIA. PA 99-0586 (Bryant, R-Mt. Vernon; Radogno, R-Lemont) provides that a requester that files an action seeking to enforce a binding opinion will have a rebuttable presumption that the public body willfully and intentionally failed to comply with this Act if the attorney general issues a binding opinion under § 9.5 and the public body does not file for administrative review nor comply with it within 35 days after the binding opinion is served on the public body. This presumption may be rebutted by the public body showing that it is making a good-faith effort to comply with the binding opinion, but compliance was not possible within the 35-day time frame. This section applies to binding opinions of the attorney general requested or issued on or after January 1, 2017.

It also allows the court to impose an additional penalty of up to $1,000 for each day the violation continues if the public body fails to comply with the court's order after 30 days. Changes apply to actions filed on or after January 1, 2017.

Effective January 1, 2017.

Counties Code. PA 99-0774 (Tom Bennett, R-Pontiac; Barickman, R-Bloomington) amends the Counties Code to clarify that "all questions" or "ordinances" also includes any resolutions and motions that arise during meetings. It also allows a county at any properly noticed public meeting to take a single or omnibus vote by unanimous consent on any two or more questions, ordinances, resolutions, or motions. The bill states that this is declarative of existing law. It also requires public defenders in counties under one million in population to prepare and file monthly or quarterly written reports as determined by the county board.

Effective August 12, 2016.

Local Government Travel Expense Control Act. PA 99-0604 (McSweeney, R-Cary; Tom Cullerton, D-Villa Park) requires that school districts, community colleges, and non-home rule units of local government regulate travel, meal, and lodging expenses of officers and employees and members of their governing boards. It prohibits reimbursing entertainment expenses.

It requires that the governing board or corporate authority must approve by a roll call vote at an open meeting any expenses of a member of the governing board and expenses of officers and employees over the maximum amount. The submitted documents are public records under FOIA.

Effective January 1, 2017.

General Practice

E-business fee. PA 99-0859 (Harmon, D-Oak Park; Cassidy, D-Chicago) requires circuit court clerks to collect a $9 "e-business" fee against all civil litigants. It exempts motions for change of venue and appeals from administrative agencies. After January 1, 2022, the law-library filing fee of $21 is reduced to $20 and the children's waiting room fee of $10 is reduced to $8. After January 1, 2022 the ceiling that all counties may charge for a civil filing fee is reduced by $6.

Effective August 19, 2016.

Snow and ice removal. PA 99-0889 (Nybo, R-Lombard; Ed Sullivan, R-Mundelein) creates the Snow Removal Service Liability Act. It voids as a matter of public policy any indemnity agreements between a "service provider" of snow removal and a "service receiver" that attempt to immunize either party for tort liability or requires a legal defense of the other party. It does not apply to contracts with public bodies or utilities or to insurance policies, surety bonds, or workers' compensation.

Effective August 25, 2016.

Wrongful Death Act. PA 99-0587 (Bryant, R-Mt. Vernon; Radogno, R-Lemont) extends the statute of limitations under this Act to five years if the death is caused by violent, intentional conduct or within one year after the final disposition of a charge against the defendant of murder, manslaughter, or reckless homicide.

Effective January 1, 2017.

Jim Covington is the ISBA Director of Legislative Affairs.

jcovington@isba.org