Practice News

Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases Bowman v. Ottney and Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board and the criminal cases People v. Hughes, People v. Burns and In re Michael D.

Note: The authors of the summaries and the staff of Illinois Lawyer Now wish to honor the memory of Hon. Jean Prendergast Rooney, who passed away on December 8, 2015, and was a valuable original member of this team before becoming Circuit Judge. She is greatly missed.

CIVIL

Bowman v. Ottney

By Michael T. Reagan, Law Offices of Michael T. Reagan

When a judge has made a ruling on a substantial issue in a case, followed by a voluntary dismissal without prejudice pursuant to 735 ILCS 5/2-1009, a party may not move for substitution of judge when the subsequently refiled case is assigned to the judge who presided in the first case. In Bowman v. Ottney, the judge ruled on substantial issues, such as the scope of discovery. Thereafter, plaintiff voluntarily dismissed her complaint and timely refiled her action. The refiled case was assigned to the original judge, and plaintiff immediately moved for substitution of judge pursuant to 735 ILCS 5/2-1001. Defendant objected, asserting that plaintiff had “tested the waters” during the first case. The circuit court denied the substitution of judge but certified the issue under SCR 308.

By Jim Covington, Director of Legislative Affairs

It has been quiet in Springfield regarding the revenue side of the budget equation. But, at some point, a discussion about a service tax may reappear as part of an effort to address Illinois’ budget needs and solve the related deficit.

Gov. Rauner’s 2014 campaign advocated for a service tax that included a tax on legal services. This part of his plan accounted for one-quarter of the $577 million that was estimated to be generated by this tax. This is to address the estimated $8.5 billion in unpaid bills at the end of the calendar year.

So, the idea of taxing our clients isn’t going away, and we wanted to remind you of this issue. We’re linking to a recent joint study by the Taxpayers Federation of Illinois and the Center for Tax and Budget Accountability and an article in State Tax Notes. The joint study recommends against imposing a service tax on professional services (page 9) but does recommend an expansion of Illinois’ sales tax base. The article, entitled “Taxing Services is No Panacea” by Brian Hamer, former Illinois Director of Revenue, is a concise four-page discussion of the service tax issue.

Chief Justice Rita B. Garman of the Supreme Court of Illinois has begun an application process for an At-Large Circuit Court vacancy in the Eighth Judicial Circuit.

The vacancy is created by the resignation of Judge William O. Mays, Jr., effective January 15, 2016. Judge Mays has been an At-Large Circuit Judge in the Eighth Judicial Circuit since 2006.

Under the Illinois Constitution, judicial vacancies are filled by Supreme Court appointment. The application process will lead to the final Court approval. Applicants will undergo an evaluation and screening process.

Notice of the vacancy has been posted in the courthouses throughout the Circuit. The application form and instructions may be obtained by visiting the Illinois Supreme Court's website at www.illinoiscourts.gov and following the instructions in the "Latest News" scroller announcing the Eighth Judicial Circuit vacancy.

Changes to the Rules of Professional Conduct adopted this fall by the Illinois Supreme Court reflect the growing importance of technology and how attorneys use it in their practices.

The changes address outsourcing attorney work, technology and attorney competence, lead generation services, communications with potential clients, and disclosure of information to prevent conflicts of interest, among other issues. The court also adopted rules allowing lawyers to advise clients about using, growing, and selling medical cannabis even though it is a federally controlled substance (see LawPulse, December 2014 Illinois Bar Journal) and requiring prosecutors to reveal post-conviction exculpatory evidence (see LawPulse, September 2015 Journal). The majority of the changes are effective January 1. They are posted on the supreme court website.

For example, comment 8 to Rule 1.1, which addresses attorney competence, now says that attorneys must remain abreast of "changes in…relevant technology," including their risks and benefits. Charles J. Northrup, ISBA general counsel, believes that staying up to date on the technology used in your practice is the "minimum threshold." But given that the rule speaks in terms of "relevant technology," it might extend further. Find out more in the December Illinois Bar Journal.