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ISBA Statehouse Review for the week of May 14, 2015

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. This week he covers IMDMA Rewrite (Senate Bill 57), The Parentage Act (House Bill 1531), Mortgage Foreclosure (Senate Bill 735), Decriminalization of cannabis (House Bill 218), Mechanics Lien Act (House Bill 2635), Disabled adults (Senate Bill 90), Guilty pleas (House Bill 2569), New criminal law procedures (House Bill 1121), Health Care Power of Attorney (Senate Bill 159) and Lifetime revocation issue (House Bill 1446). More information on each bill is available below the video.

IMDMA Rewrite. Senate Bill 57 (Mulroe, D-Chicago; Kelly Burke, D-Evergreen Park) is a rewrite of the Illinois Marriage and Dissolution of Marriage Act. It has passed the Senate and House Judiciary Committee and is awaiting a vote by the full House.

The Parentage Act. House Bill 1531 (Kelly Burke, D-Evergreen Park; Mulroe, D-Chicago) is a rewrite of the Illinois Parentage Act modeled after the uniform act from the Uniform Law Commission. It has passed the House and the Senate Judiciary Committee and is awaiting a vote by the full Senate.  

Mortgage Foreclosure. Senate Bill 735 (Mulroe, D-Chicago; Lang, D-Skokie) provides that a court is not required to appoint a special representative for a deceased mortgagor to defend the action if there is a (1) beneficiary under a transfer on death instrument; (2) person or entity that was conveyed title to the property by the deceased mortgagor prior to death; (3) person or entity that was conveyed title to the property under the administration of the deceased’s estate; or (4) trust that was conveyed title to the property. Passed both chambers.  

Decriminalization of cannabis. House Bill 218 (Cassidy, D-Chicago; Noland, D-Elgin) imposes a fine of no more than $125 for possession of 15 grams or less of cannabis. (2) Makes Manufacturing Butane Hash Oil (BHO) a Class 2 felony. (3) Establishes a per se standard for Cannabis-DUI of 15 nano/decil of blood or 25 nano/decil of saliva in system. (4) Allows for alternative ways to test for cannabis DUI using “any bodily substance” (including saliva) for testing—this is an expansion from current law of breath, blood, and urine. (5) Keeps juvenile ordinance and civil violation dispositions confidential to reflect the intent of the Juvenile Court Act and limit collateral damage to minors. (6) Provides for part of the fine to defray costs to go to the circuit clerk, local law enforcement, and local state’s attorneys and to the appellate prosecutor for training and local drug treatment. It has passed the House and Senate Criminal Law Committee and is awaiting a vote in the full Senate.  

Mechanics Lien Act. House Bill 2635 (Sandack, R-Downers Grove; Harmon, D-Oak Park) allows a lien claimant to proceed directly against a bond substituted for the property. Illinois joins the other 49 states to do this with House Bill 2635. Under House Bill 2635, the claimant may proceed directly against the bond that is substituted for the property. The “prevailing party” in an action brought under this new subsection shall be awarded its attorney fees. The “prevailing party” is defined as a lien claimant that recovers at least 75% of the amount of its lien claim, or the principal of the bond if the lien claimant recovers less than 25% of the amount of its lien claim. The attorney’s fees for a lien claimant that is a prevailing party is limited to the amount remaining on the bond after the payment of the claim and interest, and the attorney’s fees awarded to a bond principal shall be limited to 50% of the amount of the lien claim. For purposes of determining the prevailing party, the amount of the lien claim shall be reduced by any payments received by the lien claimant from any source before the entry of judgment or otherwise upon petition by the lien claimant, but only for good cause shown. If any party makes a payment to the lien claimant within 5 months of the filing of a complaint under     this Section, the principal on the bond may petition the court for a reduction of the bond equal to the amount of the payment made. It has passed the House and Senate Judiciary Committee and is awaiting a full vote in the Senate.  

Disabled adults. Senate Bill 90 (Silverstein, D-Chicago; Breen, R-Lombard) creates a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled in two situations: (1) A plenary guardian has been appointed or (2) a limited guardian has been appointed and the court has found that the testator lacks testamentary capacity. The rebuttable presumption is overcome by clear and convincing evidence that the testator had the capacity to execute the will or codicil at the time the will or codicil was executed, and that the rebuttable presumption does not apply if the will or codicil was executed in compliance with a court order. The court may enter an order authorizing the ward to execute a will or codicil if a verified petition by the plenary or limited guardian of the estate or the request of the ward is accompanied by a current physician’s report that states the ward possesses testamentary capacity. Provides that the court shall authorize the guardian to retain independent counsel for the ward with whom the ward may execute or modify a will or codicil. This subsection applies only to wills or codicils executed or modified after the effective date of this act. It has passed the Senate and now in the House Judiciary Committee.  

Guilty pleas. House Bill 2569 (Cabello, R-Machesney Park; Link, D-Waukegan) prohibits a guilty plea from being taken unless the court explains the following to the defendant: (1) the maximum and minimum penalty provided by law for the offense which may be imposed by the court (rather than the consequences of the plea and the maximum penalty provided by law for the offense which may be imposed by the court); (2) any possible increased sentence by reason of the fact of a prior conviction or future conviction and any possibility of the imposition of consecutive sentences; (3) any registration requirement that accompanies the plea and the restrictions associated with the registration; and (4) the consequences of the plea on a defendant’s ability to: (a) retain or obtain housing in the public or private market; (b) acquire loans for educational or other purposes; (c) enroll in certain degree programs; (d) retain or obtain employment; (e) retain or obtain an occupational or driver's license; (f) possess a firearm; and (g) retain or obtain custody of a child. Passed the House and is now awaiting a vote in the full Senate.  

New criminal law procedures. House Bill 1121 (Lang, D-Skokie; J. Cullerton, D-Chicago) implements the crime victim constitutional amendment adopted in the last general election. Changes the definition of “crime victim” to include a natural person determined by the prosecutor or the court to have suffered (1) direct physical or psychological harm as the result of a criminal act, or personal injury as a result of a violation of a DUI violation or of a similar provision of a local ordinance, or of involuntary manslaughter or reckless homicide; (2) in the case of a crime victim who is under 18 years of age or an adult victim who is incompetent or incapacitated, both parents, legal guardians, foster parents, or a single adult representative; (3) in the case of an adult deceased victim, two representatives who may be the spouse, parent, child or sibling of the victim, or the representative of the victim’s estate; and (4) an immediate family member of a injured victim chosen by the victim.

Reorganizes and modifies listing of rights of crime victims and establishes additional procedures for enforcing the victim’s rights. Provides that the Act does not grant any person a cause of action in equity or law for compensation for damages or attorney’s fees nor create a ground for relief requested by the defendant in a criminal case.  Provides that presentence reports shall be open for inspection to the victim of a crime as set forth in the Act. It has passed the House and is now awaiting a vote in the full Senate.  

Health Care Power of Attorney. Senate Bill 159 (Haine, D-Alton; Williams, D-Chicago) provides the following: (1) A psychologist may not witness the signing of a health care agency and removes that prohibition for mental health providers generally. (2) Adds an option on the short-form PoA for a principal to select whether the agent can have access to the principal’s medical records and information. (3) Adds language directing the health care provider to consult the health care agent. (4) Permits an agent to pursue applications for government benefits made during a principal’s lifetime when no administrator or executor is acting on behalf of the principal’s estate. (5) Relocates provisions concerning successor agents to a different location in the form. (6) Adds an option allowing the principal to nominate the agent as the guardian of the principal’s person should one become necessary. (7) Provides that a physician may determine that the principal is unable to make health care decisions for him or herself only if the principal lacks decisional capacity as that term is defined in the Health Care Surrogate Act. It has passed the Senate and is now awaiting a vote in the full House.

Lifetime revocation issue. House Bill 1446 (Nekritz, D-Buffalo Grove; Mulroe, D-Chicago) amends the current Illinois law that now prohibits a person from ever legally driving again after four DUI convictions. House Bill 1446 retains this prohibition, but it permits the person to ask the Secretary of State for a RDP (restricted driving permit) after a five-year period. If granted, the driver would be required to permanently use a BAIID device to drive for certain limited purposes and designated times, such as to work or for child-care responsibilities. But the person will never be eligible for full reinstatement of driving privileges in Illinois. Passed the House and Senate Criminal Law Committee and is awaiting a vote in the full Senate.

Posted on May 14, 2015 by Chris Bonjean
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