2023 Legislative Roundup

The Illinois Bar Journal’s annual review of new public acts of interest to members of the Illinois State Bar Association.

Each August, the Illinois Bar Journal features summaries of legislation passed by the Illinois General Assembly during the most recent spring session and that may be of interest to ISBA members. Following each update is a link to the new public act’s or bill’s full text. The governor must take action by the “drop date” stated in each summary. For more information visit the General Assembly’s website.

The public acts below are organized by area of law.

Civil litigation

Wrongful death actions and punitive damages. House Bill 219 (Hoffman, D-Belleville; Harmon, D-Oak Park) amends the Wrongful Death Act to allow punitive damages under the Act. It exempts actions against the state or an employee of the state in his or her official capacity, in actions against a unit of local government or an employee of a unit of local government in his or her official capacity, and in actions for healing art malpractice or legal malpractice. Drop date, Aug. 15, 2023; effective immediately.

Collections. House Bill 3314 (Guzzardi, D-Chicago; Halpin, D-Rock Island) creates the Consumer Contract Reciprocal Attorney’s Fees Act. If a consumer contract allows for the recovery of attorney fees in an action brought by a “commercial party,” the court may award reasonable attorney fees to the defendant if he or she prevails in the action. This bill applies to any action filed on or after Jan. 1, 2024. Exemptions include if the commercial party doesn’t request attorney fees in its complaint or each party to the consumer contract was represented by counsel in the negotiation of the consumer contract. Drop date, Aug. 14, 2023; effective Jan. 1, 2024.

Court documents. Public Act 103-66 (Syed, D-Palatine; Villivalam, D-Chicago) creates the Court Record and Document Accessibility Act to harmonize the statutes with Illinois Supreme Court Rule 8. It clarifies definitions and standardizes access to court records if there are restrictions on their distribution. Drop date, Aug. 8, 2023; effective Jan. 1, 2024.

Constitutional litigation. Public Act 103-5 (Hoffman, D-Belleville; Harmon, D-Oak Park) amends the Code of Civil Procedure to require litigation against the state to be filed in Sangamon or Cook County if based on an alleged violation of the Illinois or the U.S. constitutions. Effective June 6, 2023.

Civil discovery. Senate Bill 1748 (Halpin, D-Rock Island; Williams, D-Chicago) amends the Code of Civil Procedure to do two things: 1) if a defendant seeks a physical or mental examination of the plaintiff during discovery, it allows the plaintiff to have an additional person to be present and video record the examination; and 2) amends the statute giving a preference for a trial setting by lowering the age of a party from 70 to 67 and includes the surviving spouse or next of kin in a wrongful death action. It requires the case to commence within one year of the motion granting the preference unless the court finds that the moving party does not have a substantial interest in the case as a whole. If any new party is added to a lawsuit after the trial setting, any party may move the court to reschedule the trial to commence up to one year after the date a new defendant appeared and answered the complaint or up to one year after the date a plaintiff was added to the lawsuit.

The court shall (now, may) grant a motion for preference in setting for trial if a party or, in the case of a wrongful death action, the surviving spouse or next of kin, shows substantial physical or financial hardship or alternatively shows good cause that the interests of justice will be served by granting a preference in setting for trial within one year of the hearing on the motion. Allows any party to move for a trial continuance of up to six months for good cause shown. Drop date, Aug. 15, 2023; effective immediately.

Lyft and Uber. House Bill 2231 (Gong-Gershowitz, D-Glenview; Martwick, D-Chicago) amends the Transportation Network Providers Act to delete statutory language that provides that transportation network providers are not common carriers, contract carriers, or motor carriers on or after Jan. 1, 2024. Drop date, Aug. 14, 2023; effective immediately.

Doxing. House Bill 2954 (Gong-Gershowitz, D-Glenview; Morrison, D-Deerfield) creates the Civil Liability for Doxing Act. It creates a civil cause of action if an individual intentionally publishes another person’s personally identifiable information without the consent of the person whose information is published. “Personally identifiable information” means any information that can be used to distinguish or trace a person’s identity, such as the name, prior legal name, alias, mother’s maiden name, and date or place of birth in combination with any other information that is linked or linkable to a person such as medical information, Social Security Number, or any other sensitive or private information. The list is quite extensive. Drop date, Aug. 7, 2023; effective Jan. 1, 2024.

Human Rights Act. House Bill 3135 (Williams, D-Chicago; Fine, D-Glenview) amends the Illinois Human Rights Act to make a number of changes, some of which are as follows: 1) provides that after filing a complaint under the Employment Article, Financial Credit Article, Public Accommodations Article, Elementary, Secondary, and Higher Education Article, or Additional Civil Rights Violations Article, the Department of Human Rights may petition and shall be permitted to intervene as a party in the proceeding; 2) requires, in various situations, to notify the department that a complaint has been filed by serving a copy of the complaint on the chief legal counsel of the department within 21 days from the date that the complaint is filed in circuit court (the 21-day period for service on the chief legal counsel is not to be construed as jurisdictional); 3) deletes current language providing that when a petition for temporary relief is based upon a civil rights violation, the relief or restraining order shall not exceed five days; and 4) allows the department to intervene in cases of general public interest that are pending before the Human Rights Commission and the attorney general to appear on behalf of the department in court. Drop date, Aug. 15, 2023; effective Jan. 1, 2024.

Deepfakes. House Bill 2123 (Gong-Gershowitz, D-Glenview; Edly-Allen, D-Grayslake) creates a new cause of action against any person who creates or distributes a digitally altered sexual image (deepfake) of an individual without their consent. It amends the Civil Remedies for Nonconsensual Dissemination of Private Sexual Images Act. Drop date, Aug. 14, 2023; effective Jan. 1, 2024.

Insuring dogs. Public Act 103-11 (Mayfield, D-Waukegan; Holmes, D-Aurora) amends the Insurance Code to prohibit insurers from canceling or charging more for homeowner’s or renter’s insurance solely because the insured has a dog of a specific breed or mixture. But if there has been a determination that the dog is dangerous or vicious under the Animal Control Act, the insurer may do so. Effective June 9, 2023.

Automatic contracts. Public Act 103-70 (Glowiak-Hilton, D-Oakbrook Terrace; Hanson, D-Batavia) amends the Automatic Contract Renewal Act to make it more definitive and clearer on what is required under the “automatic renewal offer terms.” Exempts parties regulated by the Department of Insurance and providers subject to the Public Utilities Act. Effective Jan. 1, 2024.

Family law

Guardian ad litem. Public Act 103-126 (Costa-Howard, D-Lombard; Halpin, D-Rock Island) amends the guardian ad litem (GAL) statute in the Illinois Marriage and Dissolution of Marriage Act to clarify and resolve issues with the duties of GALs. These changes are as follows: 1) Requiring a written report or recommendations not less than 30 days before a final hearing or trial unless the court directs otherwise. It also allows the judge to direct that the GAL propose an allocation order in addition to the written report or recommendations. This is to prevent having a “surprise” GAL recommendation at trial with no writing provided in advance. 2) It also states that the report or recommendations are to be admitted into evidence without the need for any foundation. 3) Allows the GAL, at the discretion of the court, to: a) be present for all proceedings, including in camera examinations of the child; b) issue subpoenas for records as part of his or her investigation; and c) file pleadings relating to procedural matters. Effective Jan. 1, 2024.

Illinois Marriage and Dissolution of Marriage Act cleanup. Public Act 103-21 (Cassidy, D-Chicago; Simmons, D-Chicago) repeals three ancient sections in the Illinois Marriage and Dissolution of Marriage Act because they contravene state and federal law, were enacted on a racially motivated basis, are never enforced, and serve no valid public purpose.

Section 217 prohibits a marriage in Illinois if it is obtained here by residents of another state who do not intend to remain in Illinois, and the marriage would be void in their home state. Section 218 requires the Illinois official issuing the license to find that the parties are not prohibited from “inter-marrying” in the other state where they reside. Section 219 makes it a petty offense for the Illinois official to issue a marriage license to the parties if he or she knowingly issues a license to parties who are prohibited from marrying.

These provisions have a distasteful history. Four states and Illinois (1915) enacted them after a report from the Uniform Law Commission in 1905. A fair interpretation of this report is that the primary motivation behind these statutes was to prohibit interracial marriages that Illinois, and most other states, did not expressly prohibit. And section 218 expressly, and singularly, uses the term “intermarrying.”

The concern is that if and when they return to the other state, their Illinois marriage may be declared void because it would be invalid ab initio under Illinois law because of sections 217-219. Those most endangered are couples traveling to Illinois to get married, return home, live their lives, and, upon the death of one spouse, the surviving spouse is informed by a home-state probate judge that he or she is not the survivor, was not the spouse, and thus inherits nothing because under Illinois law their marriage was void ab initio. Effective Jan. 1, 2024.

Bullying. Public Act 103-47 (Croke, D-Chicago; Feigenholtz, D-Chicago) amends the School Code provisions to include in the definition of bullying targeting based on physical appearance, socioeconomic status, academic status, pregnancy, parenting status, and homelessness. Requires that a school district’s bullying-prevention policy must include procedures for informing parents or guardians of all students involved in the alleged incident of bullying within 24 hours after the school’s administration is made aware of the incident. Requires that all individual instances of bullying, as well as all threats, suggestions, or instances of self-harm be reported to the parents or legal guardians of those involved under the guidelines provided. Effective June 9, 2023.

Real estate

Real estate disclosure. House Bill 2098 (Tarver, D-Chicago; Sims, D-Chicago) provides that a “seller” does not include a beneficiary who has: 1) never occupied the residential real property; and 2) never had management responsibility for the residential real property. Drop date, Aug. 15, 2023; effective immediately.

Illinois Radon Awareness Act. House Bill 2217 (Williams, D-Chicago; Ellman, D-Naperville) amends the Illinois Radon Awareness Act. It provides that the lessor shall provide the prospective tenant or tenant of a dwelling unit with the Illinois Emergency Management Agency’s “Radon Guide for Tenants” pamphlet, copies of any records or reports pertaining to radon concentrations within the dwelling unit that indicate a radon hazard to the tenant, and the new statutory Disclosure of Information on Radon Hazards to Tenants form. These must be provided at the time of a prospective tenant’s application to lease a dwelling unit, before a lease is entered into, or at any time during the leasing period upon request. Provides that at the commencement of the agreed leasing period, a tenant shall have 90 days to conduct his or her own radon test of the dwelling unit. Requires a tenant who decides to have radon mitigation performed to have the express consent of the lessor before doing so. Makes other changes. Drop date, Aug. 15, 2023; effective, Jan. 1, 2024.

Human Rights Act. Public Act 103-232 (Gillespie, D-Arlington Heights; Gong-Gershowitz, D-Glenview) amends Article 3 of the Human Rights Act affecting real estate transactions to include use of a person’s immigration status to trigger the Act unless the inquiry or use complies with state or federal law. It also prohibits a third-party loan modification service provider from using the source of income to discriminate under the Act. Effective Jan. 1, 2024.

Real estate foreclosure. Public Act 103-61 (Murphy, D-Des Plaines; Collins, D-Chicago) deletes section 15-1503(b) that requires, among other things, a copy of the notice of foreclosure to be sent by first class mail to the municipality or county within the boundary of which the residential real estate is located. Provides that the court may seal a file, upon motion of a mortgagor, of any foreclosure action filed during the “COVID-19 emergency and economic recovery period.” (From March 9, 2020, to Dec. 31, 2021.) This section applies to any foreclosure action affecting: 1) residential real estate as defined in section 15-1219; and 2) real estate improved with a dwelling structure containing dwelling units for six or fewer families living independently of each other in which the mortgagor is a “natural person landlord” renting the dwelling units, even if the mortgagor does not occupy any of the dwelling units as the mortgagor’s personal residence. This section doesn’t apply to mortgages enacted by the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Housing Administration, or the Department of Veterans Affairs. If a residential eviction action filed during the COVID-19 emergency and economic recovery period is still pending after June 9, 2023, the court shall order the sealing of the court file. Effective date of June 9, 2023, but this section is repealed on June 1, 2025.

Termination of utility service. Public Act 103-19 (Delgado, D-Chicago; Hunter, D-Chicago) prohibits a gas or electric utility from terminating service of a residence for nonpayment of bills if the National Weather Service issues a heat advisory. It also amends current law to reduce from 95 degrees Fahrenheit or above to 90 degrees or above when a utility is prevented from termination of service for 24 hours after such a forecast or on any day preceding a holiday or weekend following such a forecast. Effective Jan. 1, 2024.

Estate planning

Power of attorney. Public Act 103-55 (Fine, D-Glenview; Gong-Gershowitz, D-Glenview) makes two changes to the remedy section of the Illinois Power of Attorney Act in which an interested person seeks judicial construction of a power of attorney or a review of the agent’s conduct, which are as follows: 1) clarifies that notice of a petition by an interested person must also include the principal; and 2) clarifies that the court has authority under this section to determine if an agent is restricting or not allowing an interested person to have reasonable visitation with the principal. Effective Jan. 1, 2024.

Executors in probate. House Bill 1268 (Collins, D-Chicago; Johnson, D-Waukegan) allows a person who has been convicted of a felony to act as an executor if: 1) the testator names that person as an executor and expressly acknowledges in the will that the testator is aware that the person has been convicted of a felony before the execution of the will or codicil; 2) the person is not prohibited by law from receiving a share of the testator’s estate; 3) the person was not previously convicted of financial exploitation of an elderly person or a person with a disability, financial identity theft, or a similar crime in another state or in federal court; and 4) the person is not incarcerated in a state or federal prison. Drop date, Aug. 15, 2023; effective Jan. 1, 2024.

Nontestamentary estate planning document. House Bill 2269 (Croke, D-Chicago; Ellman, D-Naperville) creates a new article in the Probate Code authorizing the use of electronic nontestamentary estate planning documents. “Nontestamentary estate planning document” means a record relating to estate planning that is readable as text at the time of signing and is not a will or contained in a will. It applies to records that create, exercise, modify, release, or revoke estate planning documents with the exception of deeds to real estate and car titles. Drop date, Aug. 14, 2023; effective Jan. 1, 2024.

Guardianship. Public Act 103-64 (Edly-Allen, D-Grayslake; Moeller, D-Elgin) requires that the guardianship training program offered by the Office of State Guardian include content regarding Alzheimer’s disease and dementia. Also requires a public guardian to complete a one-hour course on Alzheimer’s disease and dementia within six months of appointment and annually thereafter. Effective Jan. 1, 2024.

Criminal and juvenile justice

Juvenile Court Act. Public Act 103-191(Jiménez, D-Chicago; Simmons, D-Chicago) amends the Juvenile Court Act to give criminal court judges and juvenile court judges more discretion in sentencing if the minor was a survivor of sexual assault, sex trafficking, or domestic violence. Effective Jan. 1, 2024.

Victim testimony. Public Act 103-64 (Niemerg, R-Teutopolis; Rose, R-Champaign) amends the Code of Criminal Procedure to make a rebuttable presumption that the testimony of a victim who is a child under 13 years of age may occur outside the courtroom by means of closed-circuit television. This presumption may be overcome if the defendant can prove by clear and convincing evidence that the child victim will not suffer severe emotional distress. Before the court permits the testimony of victims under this section (children and persons with intellectual or developmental disabilities) by means of a closed-circuit television, the court must make a finding that doing so does not prejudice the defendant. Effective Jan. 1, 2024.

Custodial interrogation. House Bill 3253 (Tarver, D-Chicago; Ventura, D-Joliet) amends the Juvenile Court Act of 1987 and the Code of Criminal Procedure of 1963 to expand the definition of “protected person” in provisions prohibiting certain deceptive tactics during custodial interrogation to include persons with severe or profound intellectual or developmental disabilities. Drop date, Aug. 15, 2023; effective Jan. 1, 2024.

Gender-based violence. Senate Bill 2260 (Peters, D-Chicago; Cassidy, D-Chicago) amends section 2-1401 in the Code of Civil Procedure regarding seeking relief from judgments. Provides that a movant may present a meritorious claim if the allegations establish by a preponderance of the evidence that there was substantial evidence of domestic violence or “gender-based violence” against the movant that was not presented at the movant’s sentencing hearing. Current law requires that no evidence of domestic violence against the movant be presented at the movant’s sentencing hearing. Deletes the requirement that the movant was unaware of the mitigating nature of the evidence of domestic violence and that the movant could not have learned of its significance sooner through diligence. Drop date, Aug. 15, 2023; effective Jan. 1, 2024.

Pretextual traffic stops. Public Act 103-32 (Ford, D-Chicago; Belt, D-East St. Louis) amends the Illinois Vehicle Code to provide that no motor vehicle may be stopped or searched by a law enforcement officer solely because of a suspected violation of driving a motor vehicle with an object placed or suspended between the driver and the front windshield that materially obstructs the driver’s view. Effective Jan. 1, 2024.

Juvenile Court Act. Public Act 103-124 (Windhorst, R-Harrisburg; Fowler, R-Harrisburg) amends the Juvenile Court Act of 1987 to make it simpler and business-like to admit hospital or public or private agency records in an adjudicatory hearing concerning an abused, neglected, or dependent minor. Adds that a certification by an agent of the hospital or agency (now, just the head or responsible employee of the hospital or agency) having knowledge of the creation and maintenance of the matters stated in the records is prima facie evidence of the facts contained in such certification. Deletes language requiring that a certification by someone other than the head of the hospital or agency shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital or agency and by such other employee. Effective Jan. 1, 2024.

Administrative and local government

Freedom of Information Act. Public Act 103-69 (Cunningham, D-Chicago; Didech, D-Buffalo Grove) amends the Freedom of Information Act to provide that records or documents obtained by the public access counselor from a public body for the purpose of addressing a request for review may not be disclosed to the public. This includes disclosing to the requester. Effective Jan. 1, 2024.

Administrative Code hearings. Public Act 103-260 (DeWitte, R-West Dundee; Ugaste, R-St. Charles) makes the Administration Adjudication Division applicable to all municipalities (rather than only home-rule municipalities) if a nonhome-rule municipality adopts it. Effective Jan. 1, 2024.

Administrative review. Public Act 103-67 (Morrison, D-Deerfield; Morgan, D-Highwood) amends the Administrative Review Article of the Code of Civil Procedure. It makes changes to actions to review a decision of an administrative agency with final decision-making authority over designated historic properties or areas or a decision of an administrative agency with final decision-making authority over exterior design review of buildings or structures. For these actions, “parties of record” means only the administrative agency and applicants before the administrative agency. Provides that each person who appeared before and submitted oral testimony or a written statement to the administrative agency to the appealed decision has a right to intervene as a defendant in the action upon application made to the court within 30 days of the mailing of the notice. Effective Jan. 1, 2024.