Once the surrogate is chosen, he or she has the authority to make decisions without resort to the courts. If no surrogate is found, then a guardian must be appointed to make decisions for the patient. (755 ILCS 40/20 (West 2000)). If more than one surrogate is in the highest ranking category for the patient, then the majority opinion as to treatment controls, with those dissenting having the option of going to court to have themselves appointed guardian. (755 ILCS 40/25 (West 2000)). If the surrogate is to make an end-of-life decision, then the doctors must also certify that the patient has one of three qualifying conditions: (1) The patient has a terminal condition without a reasonable prospect for recovery, death is imminent and application of life-sustaining treatment will only prolong the dying process; (2) The patient is in a permanent vegetative state and life-sustaining treatment, in light of the patient's medical condition, will provide only minimal medical benefit; or (3) The patient has an incurable or irreversible condition that ultimately will cause his or her death despite life-sustaining treatment. The patient's condition imposes severe pain or is otherwise an inhumane burden. The treatment must provide only minimal benefit given the patient's medical condition. (755 ILCS 40/10 (West 2000)).
The surrogate is required to make his or her decision based on substituted judgment. That is to say, the surrogate should try to make the decision that the patient would make if the patient were capable of making the decision. The surrogate, in addition to other information, should consider the patient's personal, philosophical, religious and moral beliefs and ethical values relative to the purpose of life, sickness, medical procedures, suffering and death. The surrogate shall, where possible, determine how the patient would weigh the burdens and benefits of initiating or continuing the treatment against the burdens and benefits of the treatment. If the surrogate is not able to determine what the patient would have done, then he or she is to make the decision based on what is in the best interest of the patient. In determining what is in the patient's best interest, the surrogate should weigh the burdens on and benefits to the patient of initiating or continuing the treatment against the burdens and benefits of the treatment and should take into account any other information, including the views of family and friends that the surrogate believes the patient would have considered if able to act for himself or herself. (755 ILCS 40/20 (West 2000)).
The surrogate may not make decisions regarding the property of the ward or deal with decisions that may need to be made for the long-term care of the incapacitated person. In the absence of a power of attorney, decisions regarding the disposition of property may require the appointment of a guardian.
For more information on these documents, you may wish to visit the Web site of the Illinois Guardianship and Advocacy Commission at: <http://gac.state.il.us/>.
Someone you should know: Jan Paul Miller
By Aaron Freeman, Peoria*
After graduating from Harvard Law School, Jan Paul Miller worked in private law firms in New York and Boston for partners who had previously worked as Assistant United States Attorneys. Those partners gave the new attorney some valuable advice that he would never forget: being an Assistant United States Attorney is the greatest job you can have. Perhaps it is no surprise that Miller loves his new role as the United States Attorney for the Central District of Illinois, a post he was appointed to by President George W. Bush on May 10, 2002.
Raised in the D.C. suburb of Rockville, Maryland, Miller knew from an early age that he either wanted to play quarterback for the Washington Redskins (his family has held season tickets since 1964 and he is an avid fan), perform as an actor, or become an attorney. Most of his free time during junior high and high school was spent working with the drama departments. He enjoyed acting so much that following his sophomore year at the University of North Carolina, he transferred to Boston University to study theater. During his second semester at Boston University, Miller took a business law course that cemented his desire to be an attorney. "Acting was fun," Miller explained, but "I felt the need for more traditional academics." He transferred back to North Carolina the same year Michael Jordan led the Tar Heels to the NCAA Championship.
After taking the LSAT, Miller applied to a half-dozen law schools. His Harvard acceptance letter was sent to his parents' house and they called to ask if they should open it. Miller had been quite ill and the medicine was finally kicking, in allowing him to rest for the first time in several days. His parents opened the letter with him on the telephone, and they began screaming with excitement. Miller replied, "Great, I'll talk to you tomorrow," and hung up the phone so he could go back to sleep.
During his second and third years at Harvard, he joined the drama club. According to Miller, "performing and the law fit together very well." Following his second year of law school, Miller clerked for a private law firm in New York that later hired him as a new associate. However, Miller was not finished with drama. While studying for the New York bar exam, a friend from law school rented a theater in Boston and asked Miller to direct one of the plays, an offer he could not refuse. "It kept me sane while I was studying for the bar exam all day," he explained.
Miller also recalled the excitement of being sworn-in as an attorney in New York in 1986, only to sadly learn following the ceremony that the shuttle Challenger had blown up just minutes before.
Miller met his wife a few months after accepting the job in New York. As luck would have it, she had just accepted a job offer in Boston. They decided to get married in May of 1986, and he moved back to Boston. Love proved to be somewhat inconvenient for Miller, however, as Massachusetts did not honor the New York bar and he was forced to take his second bar exam in as many years. "It was a royal pain in the neck," he recalled.
It was during his time in Boston that Miller was first exposed to the work of an Assistant United States Attorney (AUSA). His law firm was representing a woman in a white-collar case, and they arranged to obtain discovery. It was during that meeting with the AUSA that he determined the job was something he needed to look into. "The Assistant U.S. Attorney position embodies why I wanted to attend law school in the first place. An opportunity to serve the public, doing the cases that need to be done, everything about it struck the right note for me."
Miller and his wife decided to move to Maryland and he applied to the United States Attorney's office. In order to become a member of the Maryland Bar, he had to take the Multistate Bar Exam for the third time. "I knew the Rule in Shelley's Case like none other," he recalled. Although the U.S. Attorney's Office in Maryland was under a hiring freeze in 1988, he still interviewed for a position. After the hiring freeze was lifted, he reapplied and was hired on April 3, 1989, a date he says he will never forget. As a new AUSA, Miller specialized in forfeiture cases, working on civil forfeiture cases and any criminal cases that included a forfeiture component. Miller went on to become Chief of the Narcotics Section. In 1995, Miller transferred to the U.S. Attorney's Office's new Southern Division, where he started concentrating on white-collar crime. Subsequently, Miller was appointed to a variety of positions within the Southern Division office, including Senior Litigation Counsel, Appellate Chief, and Deputy Criminal Chief. While in Maryland, Miller investigated and prosecuted cases ranging from bank fraud to public corruption, from tax evasion to narcotics.
Another date Miller remembers very well is January 22, 2002, the day the Attorney General appointed him to serve as the United States Attorney for the Central District of Illinois. The process began in the spring of 2001, when Miller learned that Senator Peter Fitzgerald of Illinois was recruiting candidates to be the next U.S. Attorney for the Central District of Illinois. "Senator Fitzgerald's office contacted a variety of U.S. Attorney's offices around the country and encouraged qualified candidates to apply for the position," Miller explained. "I decided this was an opportunity I could not pass up."
Because he is not directly involved in politics, Miller embraced the opportunity to be considered for a U.S. Attorney's position in a non-political way. He interviewed with the Senator's Chief of Staff in Washington, but several months passed after the interview without further contact. The Senator's Chief of Staff finally called and asked Miller if he could meet with the Senator in Illinois. At the conclusion of the meeting, Senator Fitzgerald informed Miller that he wanted to recommend him to the President. "It was a very humbling moment, but an incredible honor." President Bush officially appointed him to the position on May 10, 2002.
Miller was impressed by the thoughtfulness the Senator showed him throughout the process. "When he told me he wanted to recommend me to the President, he said, 'I don't want your answer now, I want you to talk with your wife and family and make sure this move is right for your family,'" Miller explained. "That was the nicest thing the Senator could have done for me and my family. I was very impressed by that."
The transition to central Illinois has not been difficult; Miller finds it a wonderful place to live and raise a family. "The community has been very welcoming and there is no traffic, which is a nice change for me and my family." He feels his family has made the transition better than he hoped. "My son, who is 13, has adapted beautifully and my daughter, who is two, is happy wherever she is." Although he does not have much time for hobbies outside of work and family, Miller is an avid gourmet cook who loves Hawaiian Vintage Chocolate "because it is the chocolate Emeril uses on his program." He remains a loyal Redskins fan, although he misses some of the games since not all are broadcast here in Illinois. Miller also has his private pilot's license and hopes to return to this hobby at the airport in Springfield.
When asked about the U.S. Attorney's office in the Central District, Miller stated, "I am impressed with the caliber of people working here." He is very pleased with Project Safe Neighborhoods, a federal/state network against gun violence. Additionally, he has focused his office on public corruption cases, "an area this district should be more active in, and we are moving in that direction." As for his overall goals for the office, Miller "want[s] to ensure that the U.S. Attorney's office here is the best law office in the district, which produces the best legal work in the district and, when compared to similar districts around the country, our work and people are recognized as top flight." When asked how he likes his new post thus far, Miller stated, "I think all of those former Assistant U.S. Attorneys I used to work for were correct. This is the best job someone can have."
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*Aaron Freeman is a law student at the University of Dayton School of Law. He is a law clerk for the United States Attorney's office for the Central District of Illinois.
By Chuck Gunnarson, Springfield
The National Archives and Records Administration has placed its United States Government Manual online at <http://www.gpoaccess.gov/gmanual/index.html>. This site contains extensive information on the various branches of the federal government and their agencies. Also included is information on various boards, commissions, committees and international organizations in which the United States participates.
Want to be e-mailed with the latest leave to appeal announcements and other information concerning the Illinois Supreme Court? Go to <http://www.prairienet.org/law/> to sign up for a free e-mail service that will send you messages concerning not only leave to appeal announcements but information on the Supreme Court Rules, the Supreme Court docket and anticipated opinion filings on pending matters.
For a Web site covering how to obtain information from government entities on local, state, national and international issues, visit <www.missouri.edu/~foiwww>. This site is maintained by the University of Missouri School of Journalism's Freedom of Information Center. Although geared toward the press and individuals, it tracks lawsuits, legislation and policy issues involving freedom of information issues in a variety of forums. It also has suggestions on how information can be obtained from governmental bodies through the various laws addressing public access to information.
Have a question a librarian can answer but you are not at the library and it's 3:00 a.m.? Go to <www.MyWeb Librarian.com> and ask an actual librarian for assistance 24-hours-a-day while you are online. The site was developed and is funded by the Illinois State Library and its member library systems. Questions can be submitted to the site's subparts: general reference, college student and faculty, school student or health and medical.
If you are interested in viewing a portion of the municipal code for a particular municipality online, try <www.municode.com/index.asp?nav=2&id=1>. This site contains information on municipal codes from 45 of the 50 states. In the Illinois portion of the site, there are approximately 40 municipalities listed.
Identification theft is a growing problem. At <www.consumer.gov/idtheft>, the Federal Trade Commission has information on the following topics: What to do if you are a victim of identity theft; filing complaints; links to state and federal laws on identity theft; and cases and recent scams used to steal identity information.
Assistant Attorney General Ed Carter, Supervisor of Financial Crimes Prosecutions for the Illinois Attorney General's office, recently published the article "Limits of Judicial Power: Does the Constitution Bar the Application of Some Ethics Rules to Executive Branch Attorneys?" in the Winter 2003 issue (Vol. 27, No. 2) of the Southern Illinois University Law Journal. In his article, Carter argues that certain rules of professional conduct may violate the Illinois and Federal Constitutions when applied to prosecutors and other attorneys who serve in the executive branch of government. The article may be found online at: <http://www.law.siu.edu/lawjour/issues.htm>.
The 93rd Illinois General Assembly adjourned on May 31, 2003, and will return for the fall veto session in mid-November. The following is a summary of the status of several pieces of legislation that passed both Houses of the General Assembly that may be of general interest to government lawyers.
HB 469--Amends the State Lawsuit Immunity Act. Provides that a worker, former worker, or prospective worker of the State who is aggrieved by any conduct or action of the State that would constitute a violation of the federal Age Discrimination in Employment Act, and certain related acts, may bring a civil action against the State; related provisions. Passed both Houses on May 16, 2003. Sent to the Governor on June 13, 2003.
HB 539 (Public Act 93-0043)--Amends the Freedom of Information Act. Provides that the exemption conditioned upon the reasonable expectation of public loss or private gain does not extend to requests made by the news media when the requested information is not otherwise exempt and the only purpose of the request is to access and disseminate information regarding the public's health, safety, welfare and legal rights. Passed both Houses on May 9, 2003. Sent to the Governor on June 6, 2003. Approved by the Governor on June 30, 2003. Effective July 1, 2003.
SB 690--Amends the Freedom of Information Act. Permits a court to award costs, as well as fees, to a prevailing party who sought disclosure. If, however, a court finds that the fundamental purpose of the request was to further the commercial interests of the requestor, a court may award reasonable attorney fees and costs if the court finds that the record or records in question were of clearly significant interest to the general public and that the public body lacked any reasonable basis in law for withholding the record. Passed both Houses on May 29, 2003. Sent to the Governor on June 27, 2003.
SB 1530--Amends the Procurement Code. Creates a five-year ban against bids from and contracts with businesses with personnel convicted of felonies under the Sarbanes-Oxley Act or Securities Law. Specifies that managerial agents are the agents whose convictions are considered for purposes of the prohibition. Requires that bids and contracts certify that the business is not barred by the ban and permits a State agency to void a contract if the certification is false. Passed both Houses on May 30, 2003. Sent to the Governor on June 27, 2003.
SB 1872--Creates the Whistleblower Act. Provides that an employer may not: make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency if the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation; retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of a State or federal law, rule, or regulation; or retaliate against an employee for refusing to participate in an activity that would result in a violation of a State or federal law, rule, or regulation. Passed both Houses on May 22, 2003. Sent to the Governor on June 20, 2003.
For other articles summarizing pieces of legislation considered in the spring by the 93rd General Assembly, see "Legislative Update" ISBA Standing Committee on Government Lawyers newsletter, February 2003, Vol. 4, No. 4 (<http://www.isba.org/sections/governmentlawyers/2-03b.htm#gen12>) and "Legislative Update" ISBA Standing Committee on Government Lawyers newsletter, May 2003, Vol. 4, No. 5 (<http://www.isba.org/sections/governmentlawyers/5-03b.htm#gen10>).
State's attorney's efforts recognized
Will County State's Attorney Jeff Tomczak will receive the Illinois State Crime Commission's State's Attorney of the Year Award. Elected as the 27th state's attorney for Will County in December 2000, Tomczak has stepped up prosecution of DUIs--to a 187 percent increase in convictions in his first year alone.
Tomczak created a Consumer Fraud Unit within his office to assist senior citizens as well as to collect child support. While expanding his office by opening branch offices, he has also provided after-hours service to domestic violence victims.
The Committee on Government Lawyers salutes Jeff Tomczak for this outstanding recognition.
Executive order provisions superseded
In an effort to supersede an executive order signed by Governor Rod R. Blagojevich, the General Assembly on May 31, 2003, passed Senate Bill 1901, to amend the Executive Reorganization Implementation Act (15 ILCS 15). The bill was passed to set aside Executive Order Number 10 (2003) that was signed by Governor Blagojevich on March 31, 2003. Through the executive order, Governor Blagojevich proposed to consolidate and transfer internal auditing, legal services and facilities management of all agencies under the jurisdiction of the Governor to the Department of Central Management Services. Legal functions specific to each particular agency and adjudicatory staff were to remain with an agency. However, pursuant to the executive order, common legal functions related to personnel, procurement, bond financing and many other issues would be consolidated. The executive order was to become effective on the 61st day after its delivery to the General Assembly. In response to the executive order, the General Assembly passed Senate Bill 1901. Regarding the consolidation of legal services, the bill limits the consolidation to "legal technical advisor functions related to procurement and personnel issues across agencies." All other legal functions are to remain at the agencies. Any legal personnel, records or property transferred from an agency to the Department of Central Management Services under the auspices of the Executive Order 10, but contrary to Senate Bill 1901, were to be immediately transferred back to the original agency from the Department of Central Management Services. To the extent that the language in the bill conflicted with a provision in the executive order, the bill included a provision that the language in the executive order was superseded. The bill was sent to the Governor for signature on June 27, 2003. A copy of Senate Bill 1901 can be found on the General Assembly's Web site at <www.ilga.gov>. A copy of executive Order Number 10 (2003) can be found on the State's Web site at <http://www.illinois.gov/gov/execorder.cfm?eorder=10>. For more information about Executive Order Number 10, see "News you can use" ISBA Standing Committee on Government Lawyers newsletter, May 2003, Vol. 4 No. 5.
General Assembly passes ethics legislation, Governor vetoes ethics bill
Backed by many legislators, the General Assembly on May 31, 2003, passed a bipartisan ethics bill geared toward restoring the public's trust in Illinois government. House Bill 3412 created the State Officials and Employees Ethics Act and prohibited State officers and employees of the executive and legislative branches of State government and the Office of the Auditor General from engaging in political activities during State time. The bill also required the implementation and maintenance of personnel policies for those officers and employees. The bill further mandated annual ethics training for all State employees, prohibited certain practices by State officers, candidates for offices and those employees with respect to campaign contributions, fundraising, public service announcements, and post-State service employment, and created protections for whistle-blowers. The bill was sent to the Governor for signature on June 27, 2003.
On June 12, 2003, Governor Rod R. Blagojevich amendatorily vetoed the bill before it was sent to him by the General Assembly. While the Governor gave credit to the General Assembly for passing ethics legislation, he indicated that additional changes were needed to strengthen the ethics reform package. The Governor's amendatory veto makes several significant changes to the legislation, including: (1) establishing an executive inspector general to oversee the entire executive branch to investigate reports of ethical misconduct; (2) creating an executive ethics commission to review information gathered by the executive inspector general; (3) setting up a toll-free hotline to report wrongdoing to the executive inspector general or to request guidance in understanding the State's ethics laws; (4) shifting responsibility for ethics training from ethics officers, as written in the original bill, to the executive inspector general; (5) tightening the Illinois Gift Ban Act by removing 11 exceptions, including those for golf and tennis; (6) completely banning public service announcements that feature the image, voice, or name of constitutional officers or members of the General Assembly; and (7) prohibiting any State employee who actively participated in making decisions that impact a specific company or employer from accepting a job with that entity within one year of leaving employment with the State. The restriction concerning post-State employment in the original bill only applied to employees who were the lead negotiators in contracts worth $25,000 or more. A copy of House Bill 3412 can be found on the General Assembly's Web site at <http://www.ilga.gov>