Recently enacted Public Act 96-555 increased the fees to petition Illinois government for registered lobbyists and their clients to a $1,000 per year. The fees had been $150 for Sec. 501(c)(3) corporations and $350 for everybody else. This applies to any person or group that falls under the definitions of the Lobbyist Registration Act. Part of the revenue currently generated goes to enforcement of the Act and part goes to the General Revenue Fund. The dedicated part of the enforcement fund now has a $400,000 balance.
There is an effort underway to persuade the General Assembly to reduce these fees back to $150 and $350 this week in veto session using Senate Bill 2109 as a vehicle.
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Yesterday in Washington the House of Representatives sent the Senate HR 3763 that repeals the Red Flag Rule for small businesses in which lawyers and others would be treated as creditors for identity theft. Under a rule effective August 1, 2009, the Federal Trade Commission requires lawyers, including solo practitioners, to have in place written protocols to detect and address the "red flags" of identity theft. Bar associations, including the ABA and ISBA, are registering objections. Helen Gunnarsson's August 2009 piece in the Illinois Bar Journal goes into more detail on the Red Flag Rule.
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Last week in veto session the Senate repealed a part of a the budget bill enacted into law in June. The budget bill, Public Act 96-45, changed tax policy effective for tax years ending Dec. 31, 2009 by limiting partnerships’ deduction to “guaranteed payments” instead of “reasonable compensation” for the Personal Property Replacement Tax. That change generally limits the deduction to income partners because equity partners’ income is based on their share of the distributable income of the partnership. Last week the Senate passed 57-0-0 a repeal of this part of PA 96-45 in House Bill 2239. The House will consider the bill the week of Oct. 26th.
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There is an effort underway during October's veto session in Springfield to repeal part of a recently enacted budget bill (Public Act 96-45). Currently, the Federal Government and most states do not tax income of partnerships, “S” corporations, and limited liability companies (LLCs) that elect to be treated as partnerships. Instead, the income is taxed after it flows through to individual partners or shareholders. Illinois has followed this practice for regular income tax purposes but does tax these entities with the PPRT. (Personal-Property Replacement-Income Tax.) This tax was meant to be a replacement for the property tax revenue lost by municipalities when the tax on personal property was repealed in the 1980s. The municipalities receive the revenue generated by the PPRT. Illinois has allowed “S” and “C” corporations to deduct compensation paid to owners, but partnerships were not allowed to do so. To treat partnerships in the same way as S and C corporations, Illinois has allowed partnerships to deduct a portion of their distributable income that represented reasonable compensation. In calculating the tax base for the PPRT, partnerships that generate their income through the personal services of its partners and employees (like law firms) are allowed a deduction for the profits of the partnership distributed to the partners (both equity and stipend) so that their PPRT tax base is essentially zero. This deduction was meant to parallel the compensation deduction allowed to C and S corporations in arriving at the PPRT tax base. Public Act 96-45 changes this tax policy effective for tax years ending Dec. 31, 2009 for the PPRT.
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Public Act 96-555 increases the fee for any entity or lobbyist that wishes to lobby in Springfield from $350 to $1,000. Not-for-profits that are Sec. 501(c)(3) corporations were increased from $150 to $1,000. Quite a hit for State Farm, the Red Cross and the United Way, ISBA, or anyone else before being allowed to petition our own government.
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Governor Quinn signed the QTIP trust legislation into law yesterday to take effect immediately. It may be found at the General Assembly website under Senate Bill 2115 or Public Act 96-789. by clicking here. Public Act 96-789 creates QTIP trust legislation for an Illinois surviving spouse if the other spouse dies in 2009.
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The Legislative Research Unit has done an excellent job of summarizing most of the bills that have been sent to the Governor. It may be found at LRU's website at this link. Click on "First Reading," and then click on the August 2009 issue, vol. 23, No.1.
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Generally, immediate effective dates are a nightmare for those who must enforce, administer, or implement a new law. Three recent public acts with immediate effective dates amend the Residential Real Property Disclosure Act, the Health Care Surrogate Act, and the Voluntary Acknowledgment of Paternity Form. This is a short summary of all three. Residential Real Property Disclosure Act. Public Act 96-232 (Smith, D-Canton; Sullivan, D-Rushville) requires the seller to disclose whether the property has been used for the manufacture of methamphetamine. Effective Aug. 11, 2009. Health Care Surrogate Act. Public Act 96-492 (Wilhelmi, D-Joliet; Ryg, D-Vernon Hills) does two things. (1) Requires that a health-care facility permanently maintain any advance directive of a patient or authorized person. (2) Authorizes a surrogate to make decisions for the patient until removed by the patient who regains decisional capacity, a guardian of the person is appointed, or the patient dies. Effective Aug. 14, 2009. Voluntary Acknowledgment of Paternity Form. Public Act 96-333 (Martinez, D-Chicago; Mell, D-Chicago) does three things. (1) The voluntary acknowledgment of paternity form prepared by Health and Family Services must be the same form in child-support collection or under the Vital Records Act. This form must inform the mother and putative father that they have the right to request DNA tests for paternity, and if they sign this form that they waive this right. This part of the form must be in boldface capitals and letters not less than 0.25 inches tall.
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Public Act 96-615 (Schoenberg, D-Evanston; Hoffman, D-Collinsville) creates the Public Interest Assistance Act to reimburse public-interest attorneys for debt incurred for attending undergraduate and law school. “Public-assistance attorneys” includes assistant state's attorneys, assistant public defenders, assistant attorney generals, assistant public guardians, and legal-aid providers. Loan repayment may be up to $6,000 per year to a maximum of $30,000 for the attorney's career. These bills simply create the program, and the General Assembly must appropriate funds to implement later. Effective January 1, 2010. Click here to read the full legislation.
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Public Act 96-583 was signed into law on Tuesday, August 18. It does four things affecting the award of attorney's fees in family law cases: (1) limits the presumption in favor of summary hearings to prejudgment cases, (2) tolls the deadline for filing a final petition for fees in some instances and permits a stipulated deferral of one year for such a filing, (3) eliminates the requirement that the attorney must file billing statements in court if he or she is seeking a consent judgment, (4) and expands the applicability for fee awards for hearings that are prompted by improper purposes. Effective January 1, 2010.
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Governor Quinn has signed 543 new public acts into law. He will have another 200 to sign in the next 30 days. You may want to go to the General Assembly's homepage at www.ilga.gov and click on "public acts." It lists them in chronological order in the order he signs them.
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I had the wrong effective date for a new public act in today's E-Clips. PA 96-111 takes effect on Oct. 29, 2009. I had it down incorrectly as April 1, 2010. It does the following: Mortgage foreclosure. (1) Requires new owners of mortgaged real estate—a holder or purchaser, receiver, or mortgagee-in-possession—to give notice to known occupants of “dwelling units” of changes in ownership after a judicial sale. For mortgagees-in-possession it allows the occupant to retain possession of the rented property for whichever is shorter: (a) 120 days after the notice of the hearing on a properly served supplemental petition; or (b) the duration of the lease. If the duration of the lease is less than 30 days from the date of the order, the order must allow the occupant to stay for 30 days from the date of the order. (2) Requires a receiver to accept all rental payments from an occupant and any payments from a third party or any rental-assistance program. (3) Prohibits a receiver from increasing the rent without leave of court. The court must find by a preponderance of the evidence that the increase is necessary to operate and conserve the real estate. No hearing or notice is necessary for approval for an increase in a specific unit if the occupant agrees to the increase. Makes other changes.
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Public Act 96-108 took effect July 30, 2009. It amends judgeships in the following circuits: 12th, 13th, 16th, 17th, 19th, and 22nd. It also creates some new judgeships. Click here for more information.
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If you represent a veteran or have family members who are veterans, the Governor signed about 22 bills affecting them over the weekend. They may be found at this link, Public Acts 96-79 through 96-101.
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The rumor mill is spinning that effective July 1, 2009, Medicare Set-Aside (MSA) trusts are required for liability litigation as is already required in worker’s compensation. (Reimbursement by a plaintiff for previously paid benefits to Medicare is unchanged by the new law.) Although federal research is not my strong suit, I can’t find any support for this proposition. My best guess is that this rumor started because of the new § 111 reporting requirements included in the Medicare, Medicaid & SCHIP Act of 2007. (Public Law 111-173). Section 111 provisions are reporting requirements and do not mention any need for MSAs in liability cases. This new law simply requires those paying for judgments to report to Medicare payments of settlements, awards, judgments, or other payments. An argument is being posited that the previous law still in effect already requires MSAs in personal-injury cases for future medical expenses. (Medicare Secondary Payer Act). I cannot find any clear authority supporting that proposition.
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In part because of the steadfast efforts of Sen. Richard J. Durbin, $10 million was included in the Senate CJS Appropriations bill for the John R. Justice Prosecutor and Defender Incentive Act. This loan forgiveness program requires balance in awards between prosecutors and public defenders and equitable distribution across the states.
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Last week the Supreme Court of Illinois issued new Illinois Rules of Professional Conduct to take effect Jan. 1, 2010. New Rule 3.9 has created quite a buzz among the lawyer-lobbyists as to what it means. It may have broader applicability than those of us who lobby in Springfield to include appearances before other governmental bodies. The Rule states that “A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.” The incorporation of Rule 3.5 creates the buzz. Rule 3.5 prohibits ex parte communication with an official during the proceeding. Can this be construed to prohibit all lobbying by a lawyer-lobbyist unless it is part of a scheduled public hearing? In other words, is all I can do to lobby is testify in committee? No position papers to elected members of the General Assembly? No one-on-one individual lobbying? I can’t imagine that was the intent. Rule 3.5’s title is “Impartiality and Decorum of the Tribunal.” Key word is “tribunal.” It is defined in Rule 1.0(m) as follows: “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.
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ISBA leaders have sent a letter to Gov. Quinn and four legislative leaders in a bid to prevent cuts of up to 50% for legal aid in the current State budget. Read the letter from ISBA President Jack Carey and ISBA President-elect John G. O'Brien.