Illinois Law Update
Prepared by students of the University of Illinois College of Law
CASESILLINOIS APPELLATE COURTSBreach of fiduciary duty is an equitable action for which no constitutional right to a jury trial exists Bank One, NA v Borse, 812 NE2d 1021, 2004 WL 1576400 (2d D 2004) On July 8, 2004, the Illinois Appellate Court, Second District, affirmed the decision of the Circuit Court of DuPage County to strike a defendant-beneficiary's demand for a jury trial. Following a bench trial, the trial court entered judgment in favor of the plaintiff on the defendant's counterclaim alleging breach of fiduciary duty. Although the defendant raised four primary contentions on appeal, the published portion of the opinion, pursuant to Supreme Court Rule 23, only addressed the jury demand issue. In affirming the trial court's order striking the defendant's jury demand, the court focused on the supreme court's previous construction of a particular constitutional provision. Section 13 of article I of the Illinois Constitution provides, "The right of trial by jury as heretofore enjoyed shall remain inviolate." Ill Const of 1970 Art I, § 13. This provision, according to the Illinois Supreme Court, guarantees the right of trial by jury as it existed at common law. Martin v Heinold Commodities, Inc, 163 Ill 2d 33, 72-73, 643 NE2d 734, 753 (1994). The Illinois Constitution, therefore, only provides the right to a jury trial in those cases where such right existed at common law at the time the constitution was originally adopted. Id. As instructed by Martin, the Bank One court then conducted an examination of English common law to determine whether the right to a jury trial existed in this case. Id, 812 NE2d at 1026, *11. At common law, equitable claims were creations of the courts of chancery and were tried without the right to a jury. Id, relying on Martin at 78, 643 NE2d at 755-56. Thus, because Illinois courts have recognized that an action seeking damages for breach of fiduciary duty is an equitable claim, the court held that the defendant did not have a constitutional right to a jury trial.
Riggs v Woman to Woman, Obstetrics & Gynecology, PC, 812 NE2d 1027, 2004 WL 1576402 (2d D 2004) On July 8, 2004, the Illinois Second District Appellate Court answered two questions, certified for interlocutory appeal by the Circuit Court of McHenry County, in the negative. The plaintiff physician brought this action against her former employer, a professional corporation, seeking a declaratory judgment that her employment agreement was void ab initio because her employer had failed to register with the Illinois Department of Professional Regulation pursuant to the Professional Service Corporation Act (the Act). The defendant counterclaimed, seeking enforcement of the plaintiff's covenant. Concluding that the Act was intended to be regulatory for the protection of public health and safety and that the defendant untruthfully represented itself as being licensed as a professional corporation under the Act, the trial court held that the agreement was void ab initio. The trial court therefore granted the plaintiff's motion for summary judgment and dismissed the defendant's counterclaim. However, finding that there was substantial ground for difference of opinion regarding its legal conclusion, and that an immediate appeal could materially advance the ultimate termination of the litigation, the trial court certified the following questions for review: "(1) Whether the Act's licensing requirements for medical corporations [are] intended to protect the public's health, safety, or welfare. (2) Whether [the] defendant's failure to comply with the Act's certificate of registration requirement rendered the employment agreement void ab initio." Riggs, 812 NE2d at 1027. To address the first question regarding the Act's intentions, the court looked at the language of relevant sections for evidence of the legislature's intent. Focusing specifically on a section of the Act that discusses its intent, 805 ILCS 10/2, and then looking at the Act as a whole, the court found nothing to support the trial court's finding that the Act was enacted for the protection of the public. On the contrary, the court found it to be clear that the function of the Act is primarily permissive, allowing professionals, who would otherwise not be entitled to enjoy the benefits of incorporating, to establish corporate entities for their professional practices. The court therefore held that the Act's licensing requirements for medical corporations were not intended to protect the public's health, safety, or welfare, and accordingly, answered the first question in the negative. In concluding that the defendant's failure to comply with the Act's registration requirement did not render the employment agreement void ab initio, the court was guided by the general rule in Ransburg v Haase, 224 Ill App 3d 681, 684–85, 586 NE2d 1295 (3d D 1992), stating that "courts will not enforce a contract involving a party who does not have a license called for by legislation that expressly prohibits the carrying on of the particular activity without a license where the legislation was enacted for the protection of the public, not as a revenue measure." Riggs, 812 NE2d at 1033, *5, quoting Ramsburg at 684-85, 586 NE2d at 1297. Because the Act was not enacted for the protection of the public and because the plaintiff enjoyed certain corporate benefits when she was employed by the defendant, the court concluded that excusing the plaintiff from her contractual obligations due to the defendant's failure to register would be disproportionate to the wrong committed by the defendant. Therefore, the court held that absent any prejudice, the former employer's failure to register did not render the physician's employment agreement void ab initio and accordingly, answered the second question in the negative.
NC Illinois Trust Co v Madigan, 812 NE2d 1038, 2004 WL 1616223 (4th D 2004) On July 12, 2004, the Illinois Fourth District Appellate Court affirmed that part of the Circuit Court of McLean County's judgment that refused to award attorney's fees incurred by a trustee on appeal. In this case, the trustee of a charitable trust filed a petition to reform the trust to avoid excise taxes. The beneficiaries filed a counter-petition to terminate the trust and to distribute the assets. After the circuit court terminated the trust, the trustee appealed, and the appellate court affirmed. Subsequently, the trustee filed a petition for attorney's fees. Glaser v Chicago Title & Trust Co, 401 Ill 387, 393, 82 NE2d 446, 449 (1948), established the rule that parties, who are unsatisfied with the judgment of a will construction, bring an appeal at their own risk and cost. Relying on this holding, the court found that the circuit court properly refused to allow the trustee to deduct from the trust its attorney's fees for prosecuting the appeal. "The construction placed upon a will by the lower court may not be satisfactory to some of the parties and they may be able to have it changed on appeal, but should they feel disposed to litigate beyond the court of original jurisdiction, this they must do at their own risk and costs." NC Illinois Trust, 812 NE2d at 1041, *2, relying on Glaser at 393, 82 NE2d at 448-49. While conceding that the Glaser case dealt solely with a will construction, the court insisted that the rule also applied to certain situations involving trusts and therefore governed this case.
R & G, Inc v Midwest Region Foundation for Fair Contracting, Inc, 812 NE2d 1044, 2004 WL 1616225 (4th D 2004) On July 12, 2004, the Illinois Fourth District Appellate Court dismissed the plaintiff's appeal. In response to the Circuit Court of Sangamon County's grant of the defendant's motion to dismiss the plaintiff's amended complaint, the plaintiff filed a "motion for clarification" and later filed a notice of appeal. The defendant moved to dismiss the appeal, arguing that the appellate court lacked jurisdiction because the motion for clarification did not constitute a post-judgment motion, and therefore, the plaintiff's notice of appeal was not timely filed within 30 days of the entry of the trial court's judgment. Supreme Court Rule 303(a)(1), which governs appeals from final judgments in civil cases, provides that if a party timely files a post-trial motion directed against the judgment, the notice of appeal may be filed within 30 days of the entry of the order disposing of that post-judgment motion, rather than within 30 days of the court's initial entry of judgment. Section 2-1203 of the Code of Civil Procedure, which governs post-judgment motions in non-jury cases, provides that "any party may, within 30 days after the entry of the judgment or within any further time the court may allow within 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief." 735 ILCS 5/2-1203. The Illinois Supreme Court has held that "other relief" must be similar to the other forms of relief specified in that section. R & G, Inc, 812 NE2d at 1046, *3, relying on Marsh v Evangelical Covenant Church, 138 Ill 2d 458, 461, 563 NE2d 459, 461 (1990). The plaintiff relied on Knapp v City of Decatur, 160 Ill App 3d 498, 503, 513 NE2d 534, 536 (4th D 1987), to support its position that the motion to clarify constituted a post-judgment motion. In Knapp, this court concluded that a "motion for findings" constituted a motion for "other relief" similar to a motion to modify judgment and therefore, qualified as a post-judgment motion under section 2-1203 of the Code. Id. However, after further reflection, the court in this case concluded that the Knapp "motion for findings" did not in fact seek "other relief" similar to a modification of the judgment, effectively overruling Knapp. After examining the content of the plaintiff's motion to clarify, the court concluded that it was not directed against the judgment, pursuant to Supreme Court Rule 303(a), and did not constitute a post-judgment motion under section 2-1203 of the Code. 735 ILCS 5/2-1203. The plaintiff's notice of appeal was therefore not timely filed within 30 days of the entry of the trial court's judgment as required by Supreme Court Rule 303(a), and the appeal had to be dismissed. LEGISLATIONMassage therapists required to submit fingerprints to State Police - P.A. 093-0908 (Dated 08-11-04; Effective 08-11-04) Effective immediately, each applicant for a massage therapist license will have his or her fingerprints electronically submitted to the Department of State Police. The fingerprint submission will comply with the form and manner for requesting and furnishing criminal history record information. The fingerprints will be checked against the Department of State Police's and the Federal Bureau of Investigation's criminal history record databases. The Department of State Police will charge applicants a fee for conducting the criminal history records check. In addition, the Department may require a separate fingerprinting fee. The Department may also adopt any rules necessary to implement the law. This statute will be codified at 225 ILCS 57/15(b).
Criminal street gang recruitment on school grounds or on public property adjacent to school grounds is a Class 1 felony. A person commits this offense when, while on school grounds or public property adjacent to school grounds, he or she either threatens the use of physical force to coerce, solicit, recruit, or induce another person to join or remain a member of a criminal street gang, or conspires to do so. School grounds refer to the building or buildings or real property comprising a public or private elementary or secondary school, community college, college, or university. School grounds include a school yard, school playing field, and a school playground. This law takes effect on January 1, 2005. This statute will be codified at 720 ILCS 5/12-6.4.
A mother now has a private right of action if she is denied the right to breastfeed by the owner or manager of a public or private location, other than a private residence or place of worship. The action may be brought to enjoin future denials of the right to breastfeed. If the woman prevails in her suit, she shall be awarded reasonable attorney's fees and reasonable expenses of litigation. Under the Right to Breastfeed Act, a mother may breastfeed her baby in any location where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother's breast is uncovered during or incidental to the breastfeeding. A mother considering breastfeeding in a place of worship shall comport her behavior with the norms appropriate for that place of worship. This Act takes effect immediately. This statute will be codified at 740 ILCS 137.
Effective January 1, 2005, the Department of State Police will begin entering into the Illinois Citizens and Law Enforcement Analysis and Reporting System (I-CLEAR) names and addresses of arsonists. This information will be immediately accessible to law enforcement agencies and peace officers of Illinois, of any other state, or of the federal government. This statute will be codified at 730 ILCS 148.
Fire sprinkler systems are required in the dormitories of all post-secondary educational institutions by 2013. Post-secondary educational institutions include Illinois public and private colleges or universities offering degrees and instruction above the high school level. The law does not apply to public or private colleges or universities that do not provide on-campus housing for students in dormitories or equivalent facilities that are owned, operated, or maintained by the public or private college or university. Under the law, sprinkler systems are required in current structures, as well as in newly constructed dormitories. The law also does not apply to public or private junior or community colleges, nor to institutions offering degrees or instruction using correspondence as the primary mode of student instruction. The Fire Sprinkler Dormitory Revolving Loan Program (the Fund) will provide low-interest loans for the installation of sprinkler systems in dormitories. The Fund will consist of moneys transferred into or appropriated to the Fund, as well as all repayments of loans made under the law. The law takes effect January 1, 2005, and the statute will be codified at 720 ILCS 47.
The Residential Tenants' Right to Repair Act will become effective January 1, 2005. The law provides that if a repair is required under a residential lease agreement, law, administrative rule, or local ordinance or regulation, and the reasonable cost of repair does not exceed the lesser of $500 or one-half of the monthly rent, the tenant may make the repair and be reimbursed. The tenant must first notify the landlord in writing of the need for the repair. If the landlord fails to make the repair within 14 days after being notified by the tenant of the problem, the tenant may have the repair made in compliance with the appropriate law, administrative rule, or local ordinance or regulation. After submitting to the landlord a paid bill from an appropriate tradesman or supplier, the tenant may deduct from his or her rent the amount of the bill. In case of an emergency, the tenant does not have to wait 14 days for the landlord to make the repair. Emergencies include conditions that will cause irreparable harm to the apartment or any fixture attached to the apartment if not immediately repaired. Under the Act, emergencies also include any condition that poses an immediate threat to the health or safety of any occupant of the dwelling or any common area. A tenant may not repair at the landlord's expense if the condition was caused by the deliberate or negligent act or omission of the tenant, a member of the tenant's family, or another person on the premises with the tenant's consent. The Act does not apply to owner-occupied rental property containing six or fewer dwelling units. The Act also does not apply to any dwelling unit that is subject to the Mobile Home Landlord and Tenant Rights Act. The tenant is responsible for any damages to the premises caused by a tradesman or supplier hired by the tenant. The repairs must be made in a workmanlike manner in compliance with the appropriate law. The tradesman or supplier that is hired must hold the appropriate valid license or certificate required by state or municipal law to make the repair, and the tradesman or supplier must be adequately insured to cover any bodily harm or property damage that is caused by the negligence or substandard performance of the tradesman or supplier. This statute will be codified at 765 ILCS 742. ADMINISTRATIVE AGENCIESFood Stamps Assistance Program allows for exclusion of child support payments in determining eligibility Department of Human Services The Department of Human Services recently adopted amendments to 89 Ill Adm Code 121. Effective on July 6, 2004, the purpose of the amendments is to incorporate changes into the definition of gross income for purposes of food stamp eligibility in accordance with the changes made to federal Farm Bill HR 2646 – the Food Stamp Reauthorization Act of 2002. Section 121.61 concerns Gross Monthly Income Eligibility Standards and was amended to allow legally obligated child support payments made by a household member to be deducted from gross income in order to determine eligibility for food stamps.
Illinois Commerce Commission The Illinois Commerce Commission recently adopted amendments to 83 Ill Adm Code 410.180 and 460.410, effective August 1, 2004. The purpose of the amendments is to clarify requirements for testing electric meters so that adequate measures may be taken to replace defective electric meters when sample tests show that the meters need to be replaced. The amendments to sections 410 and 460 are identical except that section 410.180 covers "Standards of Service for Electrical Utilities and Alternative Retail Electric Suppliers," whereas section 460.410 covers "Certification Requirements and Standards of Service for Meter Service Providers." The first amendment defines sample testing by dividing the meters into homogenous groups. These groups are comprised of meters which are of the same type and serve the same purpose. A sample of each homogenous group is to be taken each calendar year. The second amendment sets the acceptable level of performance for meters tested and requires that their percent registration, prior to any adjustment, be not less than 98 percent or more than 102 percent. A final amendment provides for two possible corrective actions when the sample meters tested are found to be unacceptable. First, the subgroup of problem meters may be removed so that subsequent testing of the remaining meters shows the performance level to be acceptable. The other possible corrective action is the complete removal from service of all meters associated with the problem group. The amendments further provide that any such corrective action shall be completed by the end of the second calendar year following the calendar year in which the tested meters were found to be unacceptable.
Secretary of State The Secretary of State recently adopted amendments to 92 Ill Adm Code 1030. Effective July 13, 2004, the purpose of the amendments is to provide the Secretary of State with the authority to issue a Charter Bus Driver Endorsement to a person with a Commercial Driver's License (CDL) to transport students Grade 12 and below to and from school-related functions. Section 1030.81, entitled "Endorsements," was amended to add the new Charter Bus Driver Endorsement and to provide that an applicant for such an endorsement must score 80 percent or above on an exam regarding the transportation of students Grade 12 and below to and from school-related functions. 92 Ill Adm Code 1030.82 was added to provide a more complete description of the Charter Bus Driver Endorsement and to describe the requirements for such an endorsement. Subsection B outlines the requirements for endorsement, stating that an applicant must: (1) be 21 years of age or older, (2) possess a CDL, (3) submit to and pass a criminal background check, (4) pass a written test on charter bus operation and safety, (5) demonstrate the ability to exercise reasonable care in the operation of a charter bus, (6) be physically able to operate a charter bus, (7) affirm under penalty of perjury that he or she made no false statements on the application, and (8) have not been convicted of specified traffic and other criminal offenses. Subsection C deals with the application process for the Charter Bus Driver Endorsement. Subsections D-G establish the administrative procedures for the denial, cancellation, or suspension of a CDL holder with the Charter Bus Driver Endorsement.
Department of Agriculture The Illinois Department of Agriculture recently adopted amendments to 8 Ill Adm Code 290. These changes took effect on July 23, 2004. The purpose of the amendments is to adopt rules for the participation of foals resulting from embryo transplants in the Illinois Standardbred Breeders Fund Program. The Illinois Standardbred Breeders Fund Program funds purses for horse races in which only Illinois conceived and foaled standardbred horses are eligible to race. The amendments to section 290.85 specify the qualification requirements for foals produced by embryo transfer procedures. The changes state that foals conceived in such a manner are eligible to participate in the horse races if all of the enumerated conditions are met. Some of the factors that must be met include the following: (1) that the donor mare was at least three years old at the time of conception, (2) that conception occurred within the State, and (3) that the foal was sired by a certified Illinois stallion. Section 290.85 also provides that only the first living foal of a donor mare produced by embryo transplant within a calendar year will be eligible to participate in the Illinois Standardbred Breeders Fund Program each year. In addition, subsection c expressly prohibits any foal produced by cloning to participate in the Illinois Standardbred Breeders Fund Program.
Department of Public Aid The Illinois Department of Public Aid recently adopted amendments to 89 Ill Adm Code 120.540 and 140.486. Effective on August 1, 2004, the general purpose of the amendments is to incorporate rules regarding the Illinois Healthy Women Program. The Program provides service to a target population of women between the ages of 19 and 44 who are no longer eligible for coverage under the Department's Medical Assistance Program. The amendments to section 120.540 establish eligibility rules for the Illinois Healthy Women Program, and the amendments to section 140.486 specify the benefits and family planning services that will be provided to eligible participants. The medical services available to eligible participants in the program are limited to reproductive health and family planning services and include: physicals for family planning purposes, pap smears, birth control drugs, sterilization services, testing for sexually transmitted infections, testing for HIV, generic prenatal vitamins, and mammograms. |