Legislative Update, 11-8-05
Illinois State Bar Association

Business law
Business Corporation Act I. PA 94-394, effective August 1, 2005, creates a new section governing waiver by a shareholder of certain rights and narrows the shareholder remedies in section 12.56 to when requested by the petitioner.

Business Corporation Act II. PA 94-605, effective January 1, 2006, is the Secretary of State's annual tweaking of the Business Corporation Act of 1983, the General Not For Profit Corporation Act of 1986, and the Limited Liability Company Act.

Business Corporation Act III. PA 94-655, effective January 1, 2006, provides that a shareholder entitled to vote at a meeting of the shareholders may attend the meeting if (1) space permits, (2) subject to the corporation's by-laws and rules governing the conduct of the meeting and (3) the power of the chairman to regulate the orderly conduct of the meeting.

Limited Liability Company Act. PA 94-607, effective August 16, 2005, amends the LLC Act to authorize series LLCs. It provides that an operating agreement may establish designated series of members, managers or limited liability company interests having separate rights, powers or duties with respect to specified property or obligations of the limited liability company or profits and losses associated with specified property or obligations, and to the extent provided in the operating agreement, any such series may have a separate business purpose or investment objective.
It also establishes the procedures for management, dissolution, and operation of a series. Provides the fee for filing articles of organization, annual reports, and certificates of designation for a series of a limited liability company.

Civil practice
Six person juries. PA 94-206, effective January 1, 2006, amends the Code of Civil Procedure to authorize a six-person jury if the claim for damages is $50,000 or less. Current law authorizes a jury of six if the claim does not exceed $15,000. Either party still retains the option of demanding a jury of 12.

Health care lien. PA 94-403, effective date of January 1, 2006 and applies to causes of action accruing on or after this date, amends the Health Care Services Lien Act to include licensed long-term care facilities in the definition of health care provider.

Bankruptcy exemptions. PA 94-293, effective January 1, 2006, doubles the homestead and personal property exemptions for debtors in bankruptcy and in the enforcement of judgments.

Computer security. PA 94-36, effective January 1, 2006, creates the Personal Information Protection Act. It amends the Consumer Fraud and Deceptive Practices Act to make it a violation of that Act to violate the Personal Information Protection Act. It requires "data collectors" to notify their clients or patients of any "breach of the security of the system data" that may reveal personal information.
"Data Collector" may include, but is not limited to, government agencies, public and private universities, privately and publicly held corporations, financial institutions, retail operators, and any other entity that, for any purpose, handles, collects, disseminates, or otherwise deals with "nonpublic personal information."
"Personal information" means an individual's name or in combination with sensitive information such as any one or more of the following data elements, when either the name or social security number, driver's license number or credit/debit card information. This Act takes effect Jan. 1, 2006.
The Personal Information Protection Act will appear at 815 ILCS 530/.

Change of name publication. PA 94-147, effective January 1, 2006, amends the notice of publication statute for a change of name petition. Notice must be inserted for three consecutive weeks after filing of the petition, with the first publication to be at least six weeks before the return day upon which the petition is to be heard (instead of filed).

Medical malpractice caps. PA 94-677, effective August 25, 2005, is the medical malpractice bill for health care providers. Among other things, it (1) caps non-economic damages for all plaintiffs injured to $500,000 against a physician and $1 million against a hospital, (2) requires the court to allow payment of future medical expenses and costs of life care in a medical malpractice action under certain circumstances by purchasing an annuity, and (3) requires the affiant who signs an affidavit of merit under section 2-622 to have the same qualifications as an expert witness under section 8-2501(a)-(d) and to disclose his or her name and other information. It also prohibits additional 90-day extensions unless there has been a withdrawal of the plaintiff's counsel.
Although PA 94-677 became law on Aug. 25, 2005, the parts described above apply to all causes of action accruing on or after that date.

Medical records. PA 94-155, effective January 1, 2006 amends the examination of records statute in the Code of Civil Procedure to expand those who can request medical records from a "health care facility" or "facility" under §8-2001 of the Code of Civil Procedure to include "any person, entity, or organization presenting a valid authorization for the release of records signed by the patient or the patient's legally authorized representative." It also permits those listed to examine the records as well.
Current law under §8-2001 permits "the patient, his or her physician, or authorized attorney" to request or examine these records. As Gregory C. Ray notes in the most recent IDC Quarterly, this new Act does not make the same change to §8-2003, which applies to the records of "health care practitioners" that includes physicians and similar individual practitioners. (Gregory C. Ray, IDC Quarterly, (2005), Volume 15, Number 3, page 48)

Criminal trespass to land. Public Act 94-512, effective Jan. 1, 2006, amends the Code of Criminal Procedure to authorize civil damages, court costs, and attorney fees for criminal damage by a vehicle to land used for agricultural purposes, prairie land, mine spoil nature preserves and registered areas. It creates a set of actual damages to be awarded to be no less than $50 in most cases. If the driver is under the age of 16, the vehicle's owner and the parent or legal guardian of the minor are jointly and severally liable.

Substitution of judge. Public Act 94-531, effective Jan. 1, 2006, amends the Code of Civil Procedure for petitions asking for a substitution of judge for cause. It provides that "the judge named in the petition need not testify but may submit an affidavit if the judges wishes. If the petition is allowed, the case shall be assigned to a judge not named in the petition. If this petition is denied, the chase shall be assigned back to the judge named in the petition."

Filing fees. Public Acts 94-595 and 596, effective Jan. 1, 2006, amend the Clerks of Courts Act to raise the maximum court automation fee and document storage fees from $5 to $15 against all civil litigants and convicted criminal defendants.

Outdoors land use. Public Act 94-625, effective Aug. 18, 2005, amends the Recreational Use of Land and Water Areas Act. It defines "recreational or conservation purpose" as entry onto the land of another to conduct hunting or recreational shooting or a combination thereof or any activity solely related to the hunting or recreational shooting.

Criminal law
Informant's privilege. PA 94-174, effective January 1, 2006, amends the Code of Civil Procedure to create an informant's privilege on behalf of Crime-Stoppers reporters.

DUI enhancement. PA 94-329, effective January 1, 2006, amends the DUI statute to upgrade the offense of a first-time offender to a Class 4 felony from a Class A misdemeanor if the driver did not have a valid driver's license or the vehicle was not covered by a liability insurance policy. The bill also authorizes seizure and forfeiture of the vehicle.

Limitation of supervision. PA 94-330, effective January 1, 2006, prohibits a trial court from awarding supervision for an infraction of the Vehicle Code if the defendant was awarded supervision on two previous occasions for Vehicle Code violations within one year from the date of arrest.

Cost control for death-penalty defense. PA 94-664, effective January 1, 2006, amends the Capital Crimes Litigation Act to require appointed defense counsel to submit a proposed estimated budget for approval. The proposed budget will be reviewed by the court ex parte. It also requires itemized billing of time and expenses by defense counsel.

Hearsay. PA 94-53, effective June 17, 2005, amends §115-10.2 of the Code of Criminal Procedure on the admissibility of prior statements if the witness refuses to testify despite a court order to do so. It requires that the statements be made under oath and subject to cross-examination by the adverse party in a prior trial, hearing, or other proceeding.

Meth bill. Senate Bill 273 was sent to the Governor during veto session. It creates the Methamphetamine Precursor Control Act, effective Jan. 15, 2006. The Governor is expected to sign this bill into law.
Please note:
For a complete summary of bills that have been enacted affecting criminal law and traffic practice, visit the ISBA web site to view the summary by Stephen W. Baker, criminal justice counsel of the Cook County Public Defender's Office at this link:
< http://www.isba.org/sections/Criminal/9-05.pdf>

Family law
Income withholding. PA 94-43, effective January 1, 2006, amends the Income Withholding for Support Act to require that only the obligor's social security number appear on the notice of withholding.

Family law counseling. PA 94-640, effective January 1, 2006, amends the IMDMA to permit the court to order individual counseling for the child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties when it finds one or more of the following: (1) Both/all parties agree to the order; (2) the court finds that the child's physical health is endangered or his or her emotional development is impaired, including, but not limited to, a finding of visitation abuse as defined by section 607.1; (3) the court finds that one or both of the parties have violated the joint parenting agreement governing conduct affecting or in the presence of the child.
If the court finds that one or more of the parties has violated an order of the court with regards to custody, visitation, or joint parenting, the court must assess the costs of counseling against the violating party or parties. Otherwise, the court may apportion the costs between the parties as appropriate. All counseling sessions are confidential.
Public Act 94-640 also conforms section 506(a) to the recent Illinois Supreme Court decision in In re Marriage of Bates, which forbids cross-examine of a child representative in custody litigation. In addition, the bill defines the duties of a guardian ad litem, child representative, and attorney for a child.

Custody and sex offenders. PA 94-643, effective January 1, 2006, amends the IMDMA to add another criterion to the section 602 best-interest standard, namely whether one of the parents is a sex offender. It requires a parent who intends to marry or reside with a sex offender to provide reasonable notice to the other parent before doing so. It also considers the marriage or cohabitation a change of circumstance for purposes of a motion to modify a custody judgment.

Child support and currency exchanges. PA 94-87, effective June 30, 2005, authorizes obligors to pay child support at a currency exchange if they supply the exchange with sufficient information to enable it to transmit the support payment to the State Disbursement Unit. Child Support Payment Act will appear at 750 ILCS 27/.

IDPA child support services. PA 94-88, effective January 1, 2006, authorizes IDPA to receive notice of all proceedings as if it were a party if the agency sends a notice of its involvement (providing support enforcement services) to the parties and files a copy with the court.

Adoption reform. PA 94-586, effective August 15, 2005, makes the following major changes to adoption services and licensing: It (1) defines "adoption services" in the Child Care Act of 1969; (2) requires licensed child welfare agencies that provide adoption services to convert to a section 501(c)(3) entity within two years of the bill becoming law (DCFS is given authority to grant a one-year extension); (3) requires licensed child welfare agencies to provide a written disclosure to prospective clients of its adoption services, fees, policies, and practices (excessive fees for these services are prohibited); (4) creates a complaint registry to assist in the monitoring of licensed child welfare agencies that provide adoption services; (5) defines "reasonable living expenses" in the Adoption Act as those expenses related to activities of daily living and meeting basic needs, including but not limited to lodging, food, and clothing for the biological parents during the biological mother's pregnancy for no more than 120 days before the biological mother's expected date of delivery and for no more than 60 days after the birth of the child.

Interest on maintenance. PA 94-89, effective January 1, 2006, requires that the obligor of maintenance must pay simple interest on unpaid maintenance, including any unallocated maintenance and child support obligation. Interest is computed as set forth in §505 of the IMDMA, which then refers to §12-109 of the Code of Civil Procedure (9%).

IMDMA anti-domestic-violence changes. PA 94-377, effective July 29, 2005, amends the IMDMA to do three things: (1) Prohibit a court from ordering joint mediation if there is a danger to the health or safety of a partner; (2) amend the section 602 best interest standards to include the occurrence of ongoing or repeated abuse whether directed against the child or another person; (3) authorize the chief circuit judge or designated presiding judge to approve three hours of training for persons appointed by the courts in custody cases, such as guardian ad litems, evaluators, and investigators. The training must include a component on the dynamics of domestic violence and its effect on parents and children.

Interest on child support. PA 94-90, effective January 1, 2006, amends all child support statutes to provide a complicated formula to calculate on a monthly basis simple interest on child support arrearages to comply with federal law.

Adoption consent. PA 94-530, effective January 1, 2006, makes it clear that a potential father who is served only for notice purposes has no further role if the court determines that his consent to the adoption is not required. Also, the consent of a father who admits to conceiving a child by committing criminal sexual assault is not required.

QUILDRO. PA 94-657, effective July 1, 2006 makes several changes to the Pension Code to make improvements in the QUILDRO statute.

Juvenile justice
Juvenile transfers. PA 94-574, effective Aug. 12, 2005, creates individualized review for transfers of juveniles to adult criminal court. This Act does the following: (1) Expands "automatic transfer" of juveniles who are accused of aggravated battery with a firearm if the minor personally discharged the firearm. (2) Creates criteria for judges to consider in presumptive, discretionary, and extended jurisdiction juvenile cases to assist in making transfer decisions more consistent, just, and fair.

Prohibits waiver of counsel by of juveniles. PA 94-345, effective July 26, 2005, prohibits a person less than 17 years of age from waiving the right to the assistance of counsel in his or her defense in any judicial proceeding. This Section does not apply to offenses punishable by fine only or violations of the Illinois Vehicle Code except for violations of Sections 11-401, 11-402, 11-501, and 11-503.

New juvenile division of DOC. Senate Bill 92, which was sent to the Governor during veto session, will separate Illinois' juvenile and adult corrections systems.

Legal services
Equal justice funding. PA 94-15, effective July 1, 2005, increases the appropriation for the Illinois Equal Justice Foundation from $472,900 to $2 million in the FY 06 budget to fund civil legal services for indigents and the working poor. FY06 appropriations effective July 1, 2005. FY 05 supplemental appropriations effective June 10, 2005.

Unauthorized practice of law. PA 94-659, effective January 1, 2006, amends the Attorney Act to prohibit an unlicensed person from advertising or holding himself or herself out to be a provider of legal services. This same prohibition is already in the Corporate Practice of Law Prohibition Act, and this legislation makes the two Acts uniform.

Local government
Tort Immunity. PA 94-424, effective Aug. 2, 2005, amends the Local Government and Governmental Employees Tort Immunity Act. It changes the definition of "local public entity" to include trustees of schools of townships and the treasurers of schools of townships.

Open Meetings Act. PA 94-28, effective Jan. 1, 2006, amends the Open Meetings Act. Requires public bodies that have a website that is maintained by full-time staff to post the following on their websites: (1) agenda of regular meetings; (2) notice of all meetings; and (3) minutes of a regular meeting within seven days of the approval of the minutes. The minutes must remain posted for at least 60 days after the initial posting. The requirement for the posting of minutes begins July 1, 2006.

Probate
Illinois Power of Attorney Act. PA 94-500, effective August 8, 2005, requires an agent for an incapacitated principal to provide all receipts, disbursements, and significant actions taken under the agency if requested by the Office of the Inspector General of the Department of Human Services during a financial exploitation investigation.

Small estate affidavit. PA 94-57, effective June 17, 2005, clarifies that last year's increase for small estate affidavits from $50,000 to $100,000 applies to documents executed after Aug. 6, 2004, regardless of when the decedent died.

Guardian eligibility. PA 94-579, effective August 12, 2005, amends the Probate Act of 1975 to make it consistent with the Adoption Act in the eligibility for guardians of the estates of minors and disabled adults. Under current law there is a blanket prohibition against any person convicted of a felony from serving as a guardian of the estate or person of a minor or disabled adult.
The amendment authorizes a court to review the nature of the offense, the date of the offense, and the proposed guardian or minor's rehabilitation. It then authorizes the court to appoint a person with a felony conviction if the court determines it to be in the best interests of the disabled adult or minor. There continues to be a blanket prohibition of prospective guardians whose felony convictions involved harm or threat to a child, disabled person, or elderly person, including sex offenses.

Real estate

Rental payments. PA 94-2, effective May 31, 2005, requires that the lessor of residential real property accept rent payments at its business office during regularly scheduled office hours in certain situations. It applies to housing that contains 100 or more residential units in a single building or a complex of buildings that maintains a business office on the premise of the building or complex.
It also prohibits a lessor from imposing any penalty, fee, or charge for making timely rent payments in this manner, but the lessor may refuse to accept such payments if offered in cash.

Mechanics Lien Act. PA 94-627, effective January 1, 2006, is an effort to make this Act more user friendly with streamlined procedures. In particular, it amends section 11 of the Act to make it clear how to file a complaint to foreclose a lien and what parties are necessary to do so.

Predatory lending. PA 94-280, effective January 1, 2006, amends the Residential Real Property Disclosure Act to create a predatory lending database. The pilot project area will apply to Cook County areas that have high rates of foreclosure on residential home mortgages caused by predatory lending practices. The Department of Financial and Professional Regulation will designate these areas.
The bill requires loan brokers and originators to report detailed information about loans in these areas before transactions and title insurance companies to file similar information afterwards.

The Home Repair and Remodeling Act. PA 94-490, effective January 1, 2006, requires a contractor who prepares or presents a written offer for home repair and remodeling to advise the consumer before the contract or agreement is accepted and executed of the presence of any contractual provision that requires him or her to (1) submit all contract or agreement disputes to binding arbitration in place of a hearing in court before a judge or jury and (2) waive his or her right to a trial by jury. The consumer must then be given the option of accepting or rejecting both the binding arbitration clause and the jury trial waiver clause. The contractor has the right to reject the proposed contract or agreement if the consumer rejects either the binding arbitration clause or the jury trial waiver clause, or both.
The failure to advise a consumer of these provisions will void each clause that has not been accepted or rejected and signed by the consumer.

Real estate filing fees. PA 94-118, effective July 5, 2005, authorizes a $10 filing fee on all real estate documents, with $9 going to the affordable housing fund and $1 to the county's general revenue fund. The money will subsidize landlords to charge affordable rent for low-income tenants. Rental Housing Support Program Act will appear at 310 ILCS 105/.

Condo fees. PA 94-384, effective January 1, 2006, amends the Condominium Property Act to prohibit a board of managers from including any fees pertaining to the collection of a unit owner's financial obligation to the association, including fees charged by a manager or managing agent, to be added to and deemed a part of an owner's respective share of the common expenses. The prohibition does not apply when (1) the managing agent fees relate to the costs to collect common expenses for the association, (2) the fees are set forth in a contract between the managing agent and the association, and (3) the authority to add the management fees to an owner's respective share of the common expenses is specifically stated in the declaration or bylaws of the association. Attorney's fees are also exempted from the prohibition.
PA 94-384 also authorizes the board of managers for properties containing more than eight units to accept service of a notice of a claim under the Mechanics Lien Act for improvements entered into by the board or any contract entered into before the recording of the condominium declaration.

Human Rights Act. PA 94-78, effective Jan. 1, 2006, amends the Illinois Human Rights Act governing real estate transactions. It makes it a civil rights violation to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of any right protected under Article 3 of this Act.

Notice of tax payments. PA 94-50, effective Jan. 1, 2006, amends the Mortgage Escrow Account Act to require mortgage lenders to give borrowers written notice within 45 days if the lender pays the borrower's property taxes from an escrow account.