sharon r. mulyk
TRANSCRIPT
DCBA PR ESIDENT
Sharon R. Mulyk
Volume 25 Issue 1October 2012
COURT SURETYBONDS BONDS
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FIDELITYBONDS
MISCELLANEOUSBONDS
“LOOK FOR ME OUTSIDE 2009”
Terrence J. Benshoof Editor-in-Chief
John J. Pcolinski, Jr. Associate Editor
Ted A. Donner Assistant Editor
Sean McCumber Editor, Profiles
Mark J. Carroll Editor, Student Articles
Anthony Abear Erica L. Bertini Mark J. Carroll
Brent Christensen Jonathan P. Crannell
Ted A. Donner Joseph F. Emmerth, IV
Glenn R. Gaffney Raleigh D. Kalbfleisch Shawn S. Kasserman
Deborah Klein Kathleen M. May
James F. McCluskey Sean McCumber
Timothy B. Newitt Melissa M. Piwowar Arthur W. Rummler
James L. Ryan David N. Schaffer Michael R. Sitrick Daniel Walker, Jr. Eric R. Waltmire
Editorial Board
Jacki Hamler DCBA Liaison/Advertising
Mary Anne McManus Desktop Publisher
Volume 25, Issue 1october 2012
www.dcbabrief.orgTable of ConTenTs
From the editor 3 by Terrence J. Benshoof
President’s message 5 by Sharon R. Mulyk
ArtIcles 19
News & eVeNts 7
Cover photograph by Jeffrey Ross. Additional photography from the DCBA Installation Dinner (pgs. 8-9, 16-17, 46-50) also by Jeffrey Ross.
International Foreign Judgments in Divorce and custody cases: A clash of legal cultures 22
by Michael A. BenedettoThe Debate over Judicial takings marks the
Next step in environmental Policy 26 by Stephanie Mann
when Does “No” mean “No” in DuI “ chemical test refusals 32
by Brent Christensenretiree benefits Protection under § 1114:
The Need for security in a time of economic uncertainty 36
by Ibrahim AliIllinois law update 44 edited by Michael Sitrick
FeAtures 47
Profile: DcbA’s New President sharon r. mulyk 48
DcbA uPDAte: Have I mentioned That I love my Job?!” 51 by Leslie Monahan
IsbA uPDAte: New leadership; court system crisis 52 by James F. McCluskey
legAl AID uPDAte: New lAF board 53 by Brenda Carroll
wHere to be: mulyk and company take manhattan 56 by John Pcolinski, Jr.
1O c t O b e r 2 0 1 2
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From tHe eDItor
ringing up silver; going For goldBy TeRRenCe J. Benshoof
Terrence J. Benshoof practices from Glen Ellyn. He graduated from the University of Illinois at Chicago in 1968, with a B.A. with Honors and Distinction in Political Science. He earned his J.D. from De Paul University College of Law in 1971, where he was an Associate Editor of the De Paul Law Review. He also earned an LLM (Taxation) from De Paul in 1980, and has practiced exten-sively in property tax litigation and other Federal, State and Local, and Multi-State tax matters.
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com
In keeping with the summer olympics occurring as the first issue of the Brief is being readied,
I note that we are marking the start-off of Volume 25- the silver anniversary of our stand-out publication. An awesome responsibility: taking a legal journal developed by fellow members of the Association, enhanced over the years by dedicated editors and board members, and brought to new heights of style and quality by my predecessors, most recently Ted Donner and Eric Waltmire. An awesome responsibility, indeed!
Having attained the silver, what can we next look to? obviously; the gold! like the olympic athlete, we as an Association, and the editors and editorial boards to follow, will “practice,” enhance, and improve as we strive for the next milestone, in the distant future: the 50th Volume; the gold.
The coming year will continue to provide our readers with scholarly articles on a wide-variety of legal topics, as well as news and features concerning our members. Fortunately, the law is dynamic and ever-changing, providing a continuity of new information about the practice of law and those who provide the benefits of the American legal system to the people.
As we begin the new volume of the Brief, we welcome three new members
of the editorial board. Mike Sitrick, who was a contributor as the compiler of the Illinois law update, continues that legal news review as a board member. Katie Mazzocco May was an article author in the June, 2012 issue, and now joins the board, bringing us a look at the court Interns program that took place over the summer months. And Brent Christensen has also joined us this year, giving the initial issue a lead-off article on the current trend in DuI checkpoints.
This month’s Articles editor, Mark Carroll, has assembled a grouping of timely topics. In addition to brent christensen’s article, mark has provided an overview of the intricacies of the meshing of family law and international law in Mike Benedetto’s examination of divorce and custody. And since our initial issue coincides with the start of the fall sessions in law schools, mark has also provided the twenty-fifth volume with two excellent articles from students at Northern Illinois university college of law. Stephanie Mann reviews the supreme court’s decision in an environmental law case on the question of judicial taking. Ibrahim Ali gives our readers a thorough overview of the case law and statutes involving the protection of healthcare benefits for retired workers when the former employer goes bankrupt.
This month will, of course, feature
our newly-installed President, Sharon Mulyk. In the Features section, Sean McCumber provides insight into sharon’s career, and her work within the DcbA and other legal organizations relevant to DuPage practice. Jim McCluskey will bring us the latest from the IsbA, and Brenda Carroll will inform us as to the status of legal Aid. Leslie Monahan will introduce us to the newest staff member to join us, Marija Malacina.
I am humbled by the task before me as the editor in chief to take the Brief into the start of its next quarter-century. The editorial board will provide the high quality legal content that the readers have come to expect. And we ask you, the readers and practitioners who live the law every day, to contribute your thoughts, comments, and your own articles to this publication. □
3O c t O b e r 2 0 1 2
PresIDeNt’s messAge
ensuring the Future; The Inaugural AddressBy shaRon R. Mulyk
President’s Message ConTinued on PaGe 6 »
Sharon is a partner with the law offices of Mulyk, Laho & Mack, LLC, in Glen Ellyn, where her practice is concentrated in family law and collection litigation. Sharon is a graduate of Illinois State University and she received her Juris Doctor from The John Marshall Law School. Sharon has been an active member of the DuPage County Bar Association where she has served, by appointment, as the DCBA Associate General Counsel, Chairman of the Family Law Committee, Chairman for the Membership Committee, Judiciary Committee, Planning Committee, Rules Revision Committee, Pro-Se Litigant Committee, CLE Committee and has volunteered her time to act as a Judicial Intervention Leader. Sharon is also an Adjunct Professor at the College of DuPage in the Paralegal Studies Program. Sharon, having also served as the President of the DuPage Chapter of the Justinian Society of Lawyers and as President of the DuPage Association of Women Lawyers, is the first lawyer to serve as President of all three DuPage Associations. In her free time, Sharon enjoys spending time with her Husband, Jim and their four children; Vanessa, Emily, Cameron and Camryn.
F ollowing a tradition of many of the past presidents of the DCBA,
our incoming President, Sharon R. Mulyk, submits to our readers the text of her installation speech, present-ed on May 31, 2012, at the Morton Arboretum.
when I sat down to decide what I would say to you all tonight, I tossed around many different ideas and “themes”, looked up a few quotes, thought about what inspired me and what I thought would inspire you and then this piece of paper came across my desk and there it was staring me in the face… the DcbA’s mission statement.
“our organization is designed to enhance and benefit our membership and community, while upholding the highest degree of civility and profes-sionalism.”
by our very own mission state-ment, we are declaring that ethics, civility and professionalism are the cornerstones of our profession and bar association. Throughout my years of practice, I have met and observed many lawyers in this county who are intelligent, selfless, driven to public service and passionate about their roles as a lawyers. They embody the mission of the DcbA. I am con-stantly amazed by the breadth of this Association and the depth of com-mitment of those who serve it. our Association has a rich history with a sense of tradition and camaraderie
that has served us well and inspired us as attorneys. to the extent we can hold on to that history and those traditions, we will do so. However, we are also looking forward. From December 2010 through June 2011 a group of very talented people with diverse backgrounds came together with noticeable harmony and cre-ated an ambitious three year strategic plan. I was honored to serve as the chair of that committee. I can tell you that this three year strategic Plan is designed to mobilize our members toward common valued goals, which will continue to improve the DcbA over time, while still maintaining the highest degree of civility and profes-sionalism.
You heard colleen talk about the accomplishments reached in year one; year two is now upon us and there is no slowing down.
There are 4 goals set forth in the DcbA’s strategic plan:
GOAL #1 – Strengthen the DCBA’s member retention and re-cruitment efforts.
This year we will establish a member benefit Program to reward member loyalty and participation. members will be able to earn points to apply toward seminars, social events or even dues.
we will also reach out to more law schools to develop stronger relation-ships with the placement offices and raise the DcbA’s visibility among lo-cal law students.
GOAL #2 – Offer valuable ben-efits that are essential for any lawyer practicing in DuPage County
we will continue to work with the wonderful committee chairs to ensure that our committees are delivering
5O c t O b e r 2 0 1 2
Sharon R. Mulyk President
Patrick B. Hurley President-Elect
Lynn C. Cavallo Second Vice President
James J. Laraia Third Vice President
Colleen McLaughlin Past President
Bradley N. Pollock General Counsel
Gregory P. Adamo Assoc. Gen’ l Counsel
John A. Pleviak Secretary/Treasurer
Arthur W. Rummler Assistant Treasurer
Leslie Monahan Executive Director
Angela M. Aliota Gerald A. Cassioppi Kimberly A. Davis
Patrick L. Edgerton Michelle L. Moore Terence C. Mullen
John J. Pcolinski, Jr. J. Matthew Pfeiffer Elizabeth A. Pope Chantelle Porter
Timothy P. Whelan Directors
James F. McCluskey ISBA Liaison
A. John Pankau Legislative Liaison
The DcbA brief is a publication of the DuPage county bar Association126 south county Farm road
wheaton Illinois 60187(630) 653-7779
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OUNTY BAR ASSOCIATION
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» President’s Message ConTInueD fRom PAge 5
relevant and valuable benefits and are keeping our members engaged.
In addition, we intend on keep-ing cle programming accessible and cutting edge, by researching the implementation of additional distant learning options, such as podcasts and webinars.
GOAL #3 – Effectively commu-nicate about the DCBA’s commu-nity service programs
by focusing on this goal, the aim is to increase visibility of our existing programs, such as lrs and modest means, in the community and among our members.
Increased use of media outlets such as the DcbA website, Facebook and twitter accounts will be key in com-municating about the DcbA’s events and community service programs.
with that said, be sure to “like” the DcbA on Facebook and “follow” the DcbA on twitter because lots of valuable information and updates will be communicated through these so-cial media outlets.
GOAL #4 – Ensure the DCBA’s short-term and long-term health.
I am very excited to announce that this June, the DcbA will pay off the mortgage on the bar center located at 126 s. county Farm road. The monies saved will place the DcbA in a better position to build the recom-mended reserves needed to support an organization of our size, as well as open up investment opportunities that were not previously available to us.
rest assured, we will make and keep this organization financially strong so we can continue to provide the membership benefits and commu-nity services to which we are commit-ted, well into the future.
Additionally, our real estate/Finance subcommittee is continuing
to work on the proposed remodel of the bar center, which will include a complete overhaul of the entire bar center in order to make the work space for the staff and legal Aid more efficient and to make our guests feel welcomed and our members proud.
I told you it was an ambitious plan, but I have no doubt that with your support, and with the support of the excellent staff at the bar center, led by Leslie Monihan, the officers and board of Directors we will be able implement the year two goals and I am confident that in a year from now, I will be standing before you, just as colleen did tonight, acknowledging all the DcbA accomplished in year two.
The law is a noble profession. I am proud to be a lawyer. I am proud to be a member of the DcbA and to be a part of the tradition of integrity, leadership, competency and civility that has prevailed in this county. I am proud that the members of this Association can come together and provide a voice of reason by building consensus on what is good for both the public and the profession. I be-lieve the DcbA can maintain its rich history and traditions, while being in-novative to insure that the Association will still be in existence and will still be strong for generations to come.
I appreciate the honor and privi-lege you have bestowed upon me, and I look forward to the coming year. I was once told that if you surround yourself with good people, you will have a good life. As I look around this room, no, as You look around this room, know that we are surrounded by good people, which assures me that the DcbA will have a good, no, a greAt year! And boy do we have a great year in store for you…
Thank you and let the fun begin! □
6 D c b a b r i e f
ne ws & e ven Ts
Annual golf outing Highlights A Helicopter “ball Drop” to raise Funds For legal Aid 14 PLUS:
2012-13 commIttee cHAIrs 10 FourtH ANNuAl wHIte soX/cle eVeNt 11
summer INterNsHIP ProgrAm 12lrs totAls For JulY, 2012 13
DcbA welcomes New members 16IN brIeF 18
DcbA celebrates the start of 2012-13 Year with Installation Dinner at morton Arboretum 8
Marija Malacina Signs Onas CLE Administrator 12
Photos (clockwise from top left): Cocktail hour at the installation dinner; Chief judge elsner with judge Tim Mcjoynt; isBa second vice President Richard felice with isBa President john Theis; kevin Millon and judge dorothy french; Colleen Mclaughlin and sharon Mu-lyk; Brenda Carroll; sharon Mulyk and jay laraia; judge william Bauer with kelly Cronin and lisa knauf; Gerald Cassioppi, Patrick edgerton, Matthew Pfeiffer, Chantelle Porter and kim davis being sworn in by judge Tom else.
DcbA celebrates the start of 2012-13 Year with Installation Dinner at morton Arboretum
Colleen McLaughlin seemed in particularly high spirits as she completed her term as President
of the DcbA at this year’s Installation Dinner. “It was an incredible year,” she said afterward, “lots of hard work but, at the same time, a lot of fun. I was lucky to have a great staff, executive committee and board to back me up this last year. but, ultimately, the buck stops with the president so, as much as I enjoyed this last year, I was also happy to pass that buck to sharon. Now I can spend more time with my first professional love, the actual practice of law.”
mclaughlin started the evening of may 31, 2012 as DcbA President, responsible for ensuring that everyone was there and ready to make whatever speeches were on the agenda, to present and accept awards, and to otherwise play their part in the Association’s annual passing of the guard. by the end of the evening, she’d had a few laughs, had enjoyed a few tender moments, and was trying to 8 D c b a b r i e f
find out whether anyone had managed to get a picture of the heron which had suddenly swooped in behind her during her last few minutes at the podium.
The installation dinner was held this year at morton Arboretum, allowing attendees to enjoy an idyllic background of lush scenery during the speeches and dinner (while also providing the aforesaid heron its opportunity). roughly 200 people were there to celebrate mclaughlin’s term as President and to welcome the new officers and Directors who will steward the DcbA during 2012-13.
DuPage county bar Foundation board member, Ted Donner took the podium just before dinner to talk about what had been a very successful year for the bar Association’s charitable arm, and to thank outgoing DcbF President Steve Ruffalo and the Honorablde Judge Edward Duncan (retired) (who spear-headed the bauer scholarship program) for their efforts. outgoing DcbF board member, Elizabeth Pope, presented scholarships to a number of law students, including Geoff Grumstrup (who received the first Ambassador scholarship), and Kelly Cronin, Lisa M. Knauf and Jessica Rhodes (the Helen c. Kinney scholarship recipients). The Honorable Judge William Bauer then joined the festivities to present the first of the scholarships named in his honor to Timothy Chapman and Kyle Shires. As dinner came to an end, mclaughlin returned to the podium to announce a number of awards and honors. Christine Reed was awarded the National safety council Award for excellence in teaching teen drivers through the Attitude and Defensive Driving Program. The DcbA
board of Directors awarded Distinguished service Awards to Eric Waltmire, for his work on the DcbA brief, and to Joe DelGiudice, Kevin H. Millon, Angel M. Traub and Troy D. Traub for their work with Judges Nite. Brenda Carroll was awarded this year’s ralph A. gabric Award for her tireless efforts with he legal Aid program all these many years. carroll was certainly a popular choice for this award. even the mention of her name, earlier in the evening, prompted spontaneous applause from the audience.
The Honorable Judge Tom Else was on hand this year to swear in the new Directors and officers. “I was honored to be invited to officiate at the swearing in of the officers and directors this year,”
ConTinued on PaGe 16
9O c t O b e r 2 0 1 2
Alternative Dispute Resolution Kimberly A. Davis
Mark S. Bishop
Animal LawEmiranda Carcani
Erika N. Walsh
Appellate Law & Practice Margaret M. O’Connell
Robert G. Black
Bankruptcy Law & Practice Berton J Maley
Arthur W. Rummler
Budget CommitteeSharon R. MulykPatrick B. Hurley
Business Law & Practice Steven Behnken
Kenneth J. Vanko
Children’s Advocacy Dorothy M. MintzElizabeth Chacko
Civil Law & Practice Mark S. Bishop
Charles t. Jacques
Continuing Legal Education Michelle E. Dahlquist
Robert W. Funk
Criminal Law & Practice Kelly Q. Bennett
Paul DeLuca
DiversityCarmel R. Huseman
Michael Drabant
Editorial Board Terry Benshoof
John J. Pcolinski, Jr.
DcbA committee chairs and Vice-chairs selected for 2012-13
We would like to take this opportunity to congratulate and offer our best wishesto the Committee Chairs and Vice Chairs for this coming year:
Elder LawJennifer A. Johnson
Zachary J. Hesselbaum
Entertainment Michael Biederstadt
Angela M. Aliota
Estate Planning & ProbateJeffrey T. ConradAudrey J. Skiera
Family Law & Practice Deborah A. Carder
Angel M. Traub
Healthcare LawWendy L. Rubas
Vince Headington
Immigration LawEdyta Salata
Ana M. Mencini
Intellectual PropertyKevin M. Gard
Eric R. Waltmire
Judges’ Nite Angel M. Traub
Judiciary Colleen McLaughlin
Labor & Employment Law Jon D. Hoag
Brian K. LaFratta
Law Practice Management J. Matthew Pfeiffer
Michael J. Calabrese
Law Day Michael DrabantJames J. Harkness
Lawyer Referral Service James J. Laraia
Local Government Aaron Reinke
James H. Knippen
Media Bradford L. Bennett
Susan O’Neill Alvarado
Membership Wendy M. MusielakClariisa R.E. Myers
New Lawyers Lindsay Stella
Kiley M. Whitty
Paralegal CommitteeJanet Fuson
Mary Kay Lieberman
Past Presidents Steven M. Ruffalo
Colleen McLaughlin
Planning Lynn C. CavalloJames L. Laraia
Professional Responsibility Sean McCumber
Jay M. Reese
Real Estate Law & Practice Richard F. Bales
Michelle T. Chase Lora Fausett
School LawJosette Allen
Suzanne M. Bonds
Tax Law & Practice William J. Strons
Lawrence J. Gregory
Website CommitteePatrick B. Hurley
10 D c b a b r i e f
Fourth Annual cle/white sox game A resounding success
By jaMes f. MCCluskey
on August 3, 2012, 60 DcbA members arrived at cellular Field to cheer
on the chicago white sox. The sox’s principal cheerleader, DcbA President Sharon Mulyk, led the team to victory over the los Angeles Angels in the tenth inning.
In addition to enjoying a great night of food and refreshments, for the fourth year since mulyk first introduced the idea, attendees were treated to complimentary cle on the way to the game. while the group traveled to “the cell,” the Honorable Thomas A. Else presented a seminar on orders
of protection and domestic violence, and on criminal prosecutions.
the Photos (clockwise from top left): Group shot outside Cellular field; steve arma-mentos and angie aliota; jim and sha-ron Mulyk (with angie aliota).
ballpark, as usual, provided the group with excellent entertainment. It was elvis Night. There were many remarkable elvis impersonators (and even some “flying elvi” as Jennifer Marshalek explained on Facebook) but many thought Judge else would have been a shoe-in for top impersonator. unfortunately, President mulyk could not convince him to shave his beard. □
marija malacina Joins DcbA asNew cle Administrator
on August 6, 2012, Marija Malacina became the new continuing
education Administrator for the DcbA. The responsibilities of that part-time position had been previously fulfilled by Liz Whitney who left earlier in the summer to assume a full time position elsewhere. Prior to joining the DcbA, marija was responsible for coordinating the continuing education of five different trade associations through her employment with smithbucklin, an association management firm located in chicago. “we will
miss liz and her contributions,” said DcbA executive Director, leslie monahan, “but we’re also very excited about the experience marija brings to the DcbA.
I’m confident our members will be impressed with her and the high quality of continuing legal education programs we have and will continue to offer.”
“I’m looking forward to the opportunity to work face to face with our volunteers as my previous position provided very little of that type of interaction, said malacina. “I feel this type of framework creates a strong community within DcbA among its members and staff and I am excited about the opportunity to contribute to the organization’s growth.” □
law students Participate in summer Internship ProgramBy kaThleen M. May
this last summer, the eighteenth Judicial circuit offered eight law students
a unique opportunity, to gain a unique perspective on the court system through participation in a new court internship program. students from The John marshall law school, university of Notre Dame law school, Northern Illinois university college of law, and st. louis university school of law spent five weeks focusing on several different divisions within the court system. They observed trials, sat in on pretrial conferences and prepared for hearings. They engaged in discussions with the judges they were assigned to and were encouraged to ask questions. chief Judge John T. Elsner said
that many of the students, with a judge’s guidance, even drafted orders resolving the issues they observed.
The interns were introduced to the DuPage county bar Association, the DuPage county state’s Attorney and the DuPage county Public Defender which allowed them to gain an inside view of different practice areas and see how they interplay within the judicial system. The students were offered an ability to closely observe the court system and practicing attorneys in a variety of practice areas. The program strives to ultimately produce attorneys with superior advocacy skills which will, in turn, improve the justice system as a whole.
Jamie Nelson, a Northern Illinois university law student said of
her experience, “It was a hands on experience in which the judges involved went above and beyond to explain why they ruled the way they did. talking to the judges and lawyers on a daily basis was really eye opening. The internship will no doubt make me a better attorney in the future.” other students participating in the program included Daniel H. Kalina (also from Northern), Idara Essien, Antonio Favela, Andrew David Roberson and James D. Stockley (from John marshall), Thomas J. Giardina (university of Notre Dame) and Stephen Lillis (st. louis university). when asked if there were plans to continue the internship program next summer, chief Judge elsner enthusiastically said, “Absolutely!” □
12 D c b a b r i e f
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lrs Posts totals for July, 2012
the lawyer referral and mediation service provides referrals to participating
attorneys and serves the community by putting people in contact with a local attorney. For more information
or to join lrs, contact the DcbA bar center at (630) 653-7779 or visit www.dcba.org. Please refer prospective clients to (630) 653-9109 where the DcbA maintains someone to answer the phones from 9:00
a.m. to 4:30 p.m. monday through Friday (excluding holidays). The lawyer referral & mediation service received a total of 837 referrals (434 by telephone and 403 by Internet) for the month of July, 2012:
Administrative 2Appeals 3bankruptcy 15business law 11civil rights 0collection 26consumer Protection 4contract law 1criminal 116
elder law 5employment law 30estate law 17Family 101government benefits 8Health care law 0Immigration 4Insurance 5Intellectual Property 1
mediation 1mental Health 0military law 0Personal Injury 22real estate 59school law 2social security 2tax law 1worker’s comp 1
13O c t O b e r 2 0 1 2
DCBA Annual Golf Outing Highlights
Helicopter “Ball Drop” To Raise Funds For Legal Aid
DcbA members braved record temperatures for the annual golf outing on June
28, 2012 at willow crest golf club at the oak brook Hills marriott resort. This year’s event featured the first ever helicopter ball drop. members purchased numbered balls
for the chance to “split the pot” with legal Aid. The helicopter, sponsored by
mulyk, laho & mack, llc, dropped the
D c b A ’ s b u c k e t
o f
balls onto a green. Lili Cinta’s ball came closest to the pin, winning her and legal Aid a cool $1,120. Former DcbA President Kent Gaertner says the golf outing is his “favorite event of the year. It’s a great day to just get away from the office, relax and have a good time with friends. It’s pretty laid back. The DcbA outing is basically a really long round of golf. some players are really good, some are just beginning. There are very few really good golfers in our association. The rest of us are just
Pictured are (this page): Kent gaertner, gerry Cassioppi and Terry mullen; matt Pfeiffer, Jay Laraia, Pat hurley and Jim mulyk; (adjoining page): Judge Bill fer-guson, Judge Pat Leston, Judge Bob gibson and Judge John Demling; Rebecca Laho, sharon mulyk and
maria Tolva mack; (below) Jim mcCluskey and others
watch as the heli-copter starts up for the golf ball drop.
14 D c b a b r i e f
‘ham and egg-ers’”1
The most memorable part of the day for most players was the unbelievable heat. “It was hotter than blazes. It’s always a tough day for the bar staff, this year exceptionally so.” gaertner says. The DcbA bar staff including, interns Emma Pcolinski and Kyle Shires tried their best to keep everyone cool and comfortable throughout the day. “most people played 14 good holes and parred the last 4 holes in the bar,” said gaertner.
golfers were treated to a lunch sponsored by schiller, Ducanto & Fleck. online Video concepts sponsored the beverage cart for some very thirsty participants. golfers wishing for some rain to cool things
1 The golf dictionary at PgAprofessional.com explained for us that a “ham and egg” occurs “when players on a team (usually a two-man team) compliment each other during a match -- usually thought of in terms of ‘better ball’ situations (e.g., when one team member plays poorly on a given hole the other plays well, taking up the slack)”.
off, would have been prepared with the snazzy golf umbrellas sponsored by ADr systems.
The President’s Hole is an annual tradition that gives players the opportunity to pay for the chance to compete for the longest shot with the president and raise funds for the DcbA bar Foundation.“each President does it a little differently, depending on their golfing abilities,” said gaertner. “when I was President, I took a new shot with every new group that came to the hole. Tom Else did it differently, he couldn’t hit water if he fell out of a boat.” This year Jim Mulyk kindly stepped in for his wife and apparently not-so-avid-golfer DcbA president Sharon Mulyk.
many thanks to our Hole sponsors, richad Ferrari/edward Jones Investments, Attorneys’ title guaranty Fund, Inc., Pattie murray real living real estate, Acosta & skawski, P.c., Kathryn l. Harry & Associates, P.c., Jorgio’s cigars, online Video concepts, sikich, winfield community bank, Digiovine Hnilo Jordan & Johnson ltd., DuPage county bar Foundation, Kent A. gaertner, P.c., and citywide title corporation.
A tip of the hat as well to raffle sponsor, reinhart Financial group, which provided cubs tickets to winners. □
15O c t O b e r 2 0 1 2
of doing an outstanding job for the DcbA and I know she will make an outstanding president.” Judge else first called Gerald Cassioppi, Kimberly Davis, Patrick Edgerton, J. Mathew Pfeiffer and Chantelle Porter to the podium, where they were sworn in as new Directors. Bradley Pollock was
the DcbA would like to welcome the following new members and invite
them to contact the bar center now to join a committee or two, register for one of the Association’s upcoming events and maybe even write an article or two for the DcbA brief. we look forward to seeing you soon: Christi L. Alexander, John F. Baker, Alyssa Block, Cristina Borjor, Ralph W. Briscoe, Moses B. Briseno, Herbert R. Buetow, Ashley
Bump, Suzenne M. Cahalan, Jose Campos, Meghan Collins, Nicole A. Cudiamat, Matthew R. Davison, Lynn D. Dowd, Brittany Y. Earl, Anthony Falbo, Milan M. Filipovich, Mary O. Gall, Collin C. Hopper, Joseph Jueng, David W. Lewarchik, Punit K. Marwaha, Corwyn Moore, Mary Lin Nicholson, Cheryl A. Robinson, John P. Siemsen, Jeff Wang and Mark R. Whiteside.
we also want to welcome Anthony Becknek and Matthew J. Hafeli of Hervas, condon & bersani, Mark
Berardi of gardiner Koch weisberg & wrona, Harry C. Bradley of momkus mccluskey, llc, Untrunnis J. Brandon of cook county Public Defender, Joseph Callahan of Allstate Insurance, Lawrence Disparti of Disparti law group, P.A., Beverly Ann Ecton Strasser of martoccio & martoccio, Jacobi M. Fields of Appelman & Associates, llc, Joseph M. Fusz of Therman law offices, Vincent J. Geisler of collins and radja, P.c., Matthew Grob of esp, Kreuzer, cores & mclaughlin,
Judge else said. “sharon has a history
ConTinued fRoM PaGe 9
InstallationDinner
DcbA welcomes New members to the Association
then sworn in as general counsel and Gregory Adamo as Associate general counsel. Patrick Hurley was sworn in as President elect, Lynn Cavallo as second Vice President, and James Laraia as Third Vice President before Judge else, finally, turned to Sharon Mulyk. Himself a former DcbA
16 D c b a b r i e f
the oath. “I was shocked that Judge else did that,” mulyk said. “I was taken aback. His allowing me to come up there and participate like that, it was a fantastic opportunity and an honor for me to be there by her side at such an important time. It allowed me to be a part of something my wife
Photos (ltoR) Pat hurley; Todd lafayette of the national safety Council with Chris Reed; jim McCluskey and sarah Poeppel; leslie Monahan with Rick and Tammy erickson; eric waltmire and Colleen Mclaughlin; Terry Benshoof; part of the crowd during the cocktail hour prior to dinner.
Debbie A. Harper of Anderson law offices, William H. House of Fish law group, Christopher S. Iaria and Michael J. Anselmo of Freedman Anselmo lindberg, llc, Brian W. Irvin of Konicek & Dillon, P.c, Ryan D. Johnson and Christopher A. Harris of Johnson & Harris, llc, Edmund D. Laube of the office of the DuPage county Public Defender, Andrew R. McCann of robertson law group, Thomas D. McGrath of o’connor & Associates, Steven D. Mroczkowski of sosin & Arnold, ltd, Renata Musial of Ams Performance, Sheila O’Sullivan of o’sullivan & o’sullivan, Trevor J. Orsinger of Fermi research Alliance, llc, Mario C. Palermo of woodruff Johnson & Palermo, Simrit C. Patel of Kimberly m. brumirski, P.c., Michael P. Pawl,
Lee Roupas, Thomas J. Minser, Bridget M. Carlson, James P. French and Demetri Demopoulos of the office of the DuPage county state’s Attorney, Christopher C. Poisson of Park & longstreet, P.c., Elizabeth A. Price of The barhaugh law Firm, Pc, Molly A. Recar of Prairie state legal services, Benjamin J. Rooney of Keay & costello, P.c., William Shapiro of The minton Firm, Heidi Karr Sleper of Kurtz law offices, ltd., Mary E. Suprock of botti marinaccio, ltd., and Laura A. Weizeorick and G. Robb Cooper of ottosen britz Kelly cooper gilbert.
student members: Kate Albiniak, Diana Y. Blashchuk, Magda Chodan, Kelly M. Cronin, Grace K. Delaney, Lucas D. Downing, Cara Eckert, Melissa Ehret, Jenna M. Ermilio,
Idara N. Essien, Mahveen Fatima, Heena Jeelani, Lindsay Jurgensen, Alina Khamitova, Jessica Lance, Ryan E. Larson, Kelly L. Martin, Patricia C. Myers, Lauren Piasecki, Vaida Plesa, Mary O. Plunkett, Marinette Popoca, Lucas J. Walker, David L. Wilcox and Sophia M. Yung. legal community members: Elizabeth K. Barber of barber Innovations, llc, Themio Lies of Dept of Veteran’s Affairs, Susan W. Okinski of mulyk, laho & mack, llc, and Sueann Palmer of Krueger & miller. Affiliate members: Larry Bodine of lawyers.com, David A. Farrell of community Investment center, Joe G. Gosselin of g & o mediation, and Steven M. Yahnke of suburban P.I., Inc. □
President, Judge else said he knew well that serving in that office required the support of the President’s spouse, often taking as much a toll on him or her as it did the person serving. so, Judge else invited sharon’s husband, Jim Mulyk, to join her at the dais, asking him to join her while she took
is very passionate about and that is really important to her.”
“what she’s accomplished is amazing,” mulyk concluded. “That’s the bottom line. so to get to be there with her and be able to show my support while she was sworn in, that was great.” □
17O c t O b e r 2 0 1 2
Schostok, of the Illinois Appellate court for the second District, with their annual Anthony M. Peccarelli Award. After dinner, stay for music and dancing that is sure to make the Halloween celebration complete. For more information, contact Lynn Mirabella or Maria Tolva Mack, and to place an ad in the annual ad book, contact James Laraia or Sean McCumber.
Farewell, Agnes Kirby. Finally, we have the unfortunate task of reporting that Agnes Kirby, a mainstay at the DuPage county Judicial center for over thirty years, passed away in July of this year. some five years ago, in June, 2007, we featured Agnes on the cover of the DcbA brief. she was retiring then, after 33 years with the courthouse. In celebration of
her retirement, prior to publication, we invited members of the DcbA to write in and pass on their well wishes. The response was so overwhelming that we not only had to add extra pages to that issue of the magazine, we eventually had to carry some of the
letters on a website page. we know that Agnes’ passing on July 29, 2012 was a sad day for hundreds of her colleagues, friends and family. she meant a lot to the DcbA and the people in this community. she will be sorely missed. □
the DCBA is celebrating the Fall Season this year with a Pig and Mortgage Roast at
Danada House. The culmination of many years of hard work and fiscal responsibility will be the subject of great celebration on November 1, 2012 at Danada House. twenty five years after the construction of the bar center, the mortgage was paid off in June of 2012. “A lot of people worked very hard over the years to enable us to reach this milestone and I think it only fitting that we celebrate their efforts by burning the mortgage at our fall outing,” said DcbA President Sharon Mulyk. “This is a great opportunity for us to celebrate that success.”
The evening will include an open bar starting at 5:30pm featuring products from two brothers brewing, a classy pig roast from uncle bub’s catering, hayrides and a warming fire from 6:00 to 8:00pm. members are encouraged to bring their families to this event so all can join in the celebration. For more information, contact the DcbA at (630) 653-7779 or visit www.dcba.org.
Judge Else to Serve as President of Illinois Judges Foundation. In June, 2012, Judge Tom Else was nominated and voted on by the
membership of the Illinois Judges Foundation to serve as President elect for this coming year and President in 2013-14. working with current IJF President, cook county
Judge Laura Liu, Judge else hit the ground running, putting together a fundraiser for IJF at The second city’s etc Theater in chicago in just over a month’s time. The event came within a few dozen seats of selling out and raised more for the IJF than had been
raised in many years prior. Justinians Charity Ball. on
october 26, 2012, the DuPage Justinian society of lawyers will host its 22nd Annual cancer charity ball. trying out a fresh idea, the theme, being so close to Halloween, is “scare Away cancer.” Festivities will occur at Alta Villa banquets in Addison, Illinois, with cocktails at 6:30 p.m. and dinner at 7:30 p.m. tickets are expected to cost $100. This is a “black tie optional” event, and costumes are strongly encouraged. There will be raffle prizes, and everyone in costume will receive a ticket for the raffle. The Justinians will honor Justice Mary
INbrIeF
DcbA’s Pig & mortgage roast Is set for November, Judge else Is ready to Helm the IJF, The Justinians want to scare Away cancer,
and sadly, we say Farewell to An old and Dear Friend...
18 D c b a b r i e f
aR TiCles
International Foreign Judgments in Divorce and custody cases: A clash of legal cultures 22by Michael A. Benedetto
The Debate over Judicial takings marks the Next step in environmental Policy 26by Stephanie Mann
when Does “No” mean “No” in DuI chemical test refusals 32by Brent Christensen
retiree benefits Protection under § 1114: The Need for security in a time of economic uncertainty 36by Ibrahim Ali
Illinois law update 44edited by Michael Sitrick
O c t O b e r 2 0 1 2 19
Joining the ATG family is one of the best things I’ve done in my career. ATG has always been way ahead of the curve for real estate lawyers. The tools and services available through ATG have improved my lawyering skills and made my law office more efficient, which ultimately reduces costs to clients. The high-quality CLE programs and procedural training are without peer in the industry. Who still comes to your office to offer in-person, customized training? ATG does. Aurora A. Austriaco Austriaco & Associates, Ltd. Chicago ATG Member Since 1999
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arTiCles from lawyers & ParalegalsThe articles published in this mag-azine are generally contributed by lawyers and paralegals who are members of the dCBa. if you are interested in submitting an article to be considered for publication in the dCBa Brief, please contact the magazine’s editor, Terry Benshoof, at [email protected]. our pub-lication guidelines for author sub-missions appear at dcbabrief.org/submissions.html. Practicing at-torneys whose articles are selected for publication in the dCBa Brief are qualified to receive Cle credit under the applicable illinois rules.
sTudenT arTiClesThe dCBa Brief has a long stand-ing commitment to providing a forum for law students in the Chi-cago metropolitan area. if you are a law student who attends one of these schools or otherwise has an interest in the practice of law in duPage County, you can join the dCBa for no charge and are then eligible to contribute articles to be considered for publication. if you have interest in submitting a student article, please contact our student articles editor, Mark Car-roll at [email protected].
In the legal mix; examining current Problems
From tHIs moNtH’s ArtIcles eDItor
By MaRk j. CaRRoll
Mark J. Carroll, is a solo practitioner at the law firm of Carroll Law Offices, P.C., with a practice concentration in civil litigation, plaintiff’s personal injury, probate, real estate and criminal misdemeanors and traffic. He earned his J.D. at NIU College of Law in 2001, and received his undergraduate degree at Hillsdale College.
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oto
© R
eP3.
com
I would like to thank all of the authors who contributed to this month’s issue of the brief. This
edition contains articles from a mix of different practices and provides timely and practical advice in those areas.
our first article by Michael Benedetto analyzes the problems that arise in divorce and custody bat-tles when they involve international foreign judgments. mr. benedetto provides an in-depth look at various federal and state court cases which have faced this issue in the context of divorce and in custody cases. The article is good practitioner’s reference for anyone involved in domestic rela-tions matters.
The next article by Stephanie Mann addresses the specific issue of “judicial takings” and whether a prop-erty owner is entitled to just com-pensation when a taking is made by the judicial branch, rather than the executive or legislative branches. ms. mann highlights the case law that has developed in this area, specifically as it relates to environmental policy. The topic of this article will most likely re-main a debated political issue in the future as it relates to global climate change and the shifting of our shore-lines.
Third is a very interesting article by Brent Christensen which discusses the disturbing new practice which is employed by police and prosecutors in Illinois, and specifically in DuPage county in the area of DuI law, of
“No refusal weekends” where, upon the refusal of a driver to submit to a chemical test during a DuI stop, war-rants are immediately issued by an “on-call” judge for a medical profes-sional to draw blood from the driver against his will. The article concludes that this practice should very greatly concern anyone interested in civil liberties and the intrusive overreach-ing of the state into our daily lives. “soylent green is people.”
Finally, Ibrahim Ali addresses the issue of protection of retiree benefits when an employer files for bankrupt-cy protection. specifically, mr. Ali fo-cuses on §1114 of the retiree benefits bankruptcy Protection Act (rbbPA), and the potential loss of retiree ben-efits, including medical insurance, when the employer files bankruptcy. Again, this is a timely issue as more and more American companies file for bankruptcy protection in this flailing economy and as more and more baby boomers enter retirement age.
Thanks again to all the contribu-tors. I hope you find this edition in-formative and interesting. □
21O c t O b e r 2 0 1 2
International Foreign Judgments in Divorce and custody cases:
A clash of legal culturesBy MiChael a. BenedeT To
Every lawsuit affects some people. In this case there are three persons who are primarily affected. The father of a six-year-old girl has not seen his daughter for over two years. The child’s mother is incarcerated in New Jersey for failing
to take steps to return the child from Spain. Most seriously affected, the young child of the couple, is in Spain without either her mother or her father.1
1Divorce in General. As the above quote indicates, domestic relations attorneys need pay serious attention to the effect and consequence of not only the laws of this country but, in an age of international commerce and travel, that of other countries as well. under the “full faith and credit” provision of Article IV of the united states constitution, as well as many of the various “uniform” statutes governing aspects of divorce, support and custody, the effect of actions taken by “foreign states”2 of this country (domestic decrees) not only must be recognized by the various other states, but have the advantage of being interpreted within the system of American culture and jurisprudence.
such an advantage is not the case when an international foreign law or court order is at issue. In those situations, American courts are not obliged to follow Article IV but, even when an international convention or treaty is in place, must defer to the judicial-made doctrine of international
1 Innes v. Carrascosa, 391 n.j. super 453, 918 a. 2d 686, 691 (n.j. super a.d. 2007).
2 legal referencing typically denotes all decrees and judgments of each of the united states as “foreign” decrees. however decrees of non-american courts are properly referenced as “international” decrees.
“comity.” This doctrine was articulated over a hundred years ago by the united states supreme court in Hilton v. Guyot3 and subsequently adopted in a 1949 divorce case by the Illinois supreme court in Clubb v. Clubb.4 In Clubb, the court refused to sustain an action by an englishwoman for contempt for alleged nonpayment of an english court’s alimony order, explaining:
“comity, in a legal sense, is neither a matter of absolute obligation on the one hand... nor of mere courtesy and good will on the other, but it is a recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws….”5
since that time, the principle of “comity” has taken on many different interpretations by united states courts involving domestic relations cases. some of those cases involve the validity of divorces obtained in other countries while others involve interpretation of custody and Hague convention
3 159 u.s. 113, 16 s. Ct. 139 (1895).4 402 ill. 390, 84 n.e.2d 366 (1949).5 Clubb v. Clubb, 402 ill. 390, 399-400, 84 n.e.2d 366 (1949).
22 D c b a b r i e f
Michael A. Benedetto is a 1972 graduate of Loyola University Chicago School of Law. He served as Assistant Attorney General in the Illinois Attorney General’s Office (1972-81) and was Chief of that office’s Consumer Fraud and Protection Division for three years. He has been in pri-vate practice since 1981 currently concentrated in family law. He was a founding member of Advocates for Shared Custody, a former mem-ber of the Executive Committee of the Chicago Bar Association’s Matrimonial Law Committee, was appointed to the Illinois Supreme Court ADR Committee and Domestic Relations Task Force and is a certified child representative.
rulings by non-American courts. As will be demonstrated in the cases below, our courts have been required to interpret the principles of comity not only from a judicial perspective but a cultural one as well.
In the case of In Re Ramadan,6 a 2006 case from New Hampshire, the parties were from and had married in lebanon in 1986, and had eventually settled in the state for over three years with their three children prior to the action. In october, 2003, the wife filed for divorce in the state court alleging irreconcilable differences. The husband responded that he had obtained a divorce under Islamic law (typically referred to as a talaq) by declaring “I divorce you” three times in the presence of the wife the day before she filed. He further alleged he had subsequently traveled to lebanon where a religious magistrate had issued a decree to that effect.
rather than entering a quagmire concerning the validity of the Islamic divorce, the high court rejected the husband’s argument in part on the basis of lack of jurisdiction over the parties in the lebanese action. It ruled that New Hampshire was the true domiciliary of the parties and their children at the commencement of the wife’s action, and quoted state law to the effect that “a divorce obtained in another jurisdiction shall be of no force or effect in this state...if both parties were domiciled in this state at the time the proceeding for the divorce was commenced.”7 Furthermore, even if there was no such state statute, recognizing an ex parte divorce from a nation where neither party was domiciled would “frustrate and make vain all state laws regulating and limiting divorce.”8
As to recognizing the talaq pursuant to the principles of international comity, it declared comity to be a “discretionary doctrine that will not have to be applied if it violates a strong public policy of the forum state or if it leaves the court in a position where it is unable to render complete justice.”9 As it noted in Ramadan and others similarly decided, it would present a “considerable hardship in seeking relief in lebanon, when all of the issues presented could be determined in New Hampshire.”10
Though Ramadan could be construed as a strictly venue
6 153 n.h. 226, 891 a.2d 1186 (n.h. 2006).7 In re Ramadan, 153 n.h. 226, 891 a.2d 1186, 1190 (n.h. 2006).
apparently, illinois has no such comparable law.8 In re Ramadan, 153 n.h. 226, 891 a.2d 1186, 1191 (n.h. 2006).9 In re Ramadan,153 n.h. 226, 891 a.2d 1186, 1190 (n.h. 2006).10 In re Ramadan,153 n.h. 226, 891 a.2d 1186, 1191 (n.h. 2006).
case, in Aleem v. Aleem,11 a 2008 case from maryland, the court was faced with a more difficult challenge. In Aleem, the parties had married in Pakistan, eventually emigrated to the united states and had two children born here. The husband had worked for twenty years at the world bank, and remained a Pakistani national, while the wife had obtained permanent resident status. After the wife filed for divorce, the husband went to the Pakistani embassy in washington, D.c.,
and, just as in Ramadan, performed a talaq by declaring “I divorce you” three times and memorializing it in a document.12 since it was questionable as to whether the parties were truly domiciled in the state, being here on diplomatic visas, the court was required to directly address the question of whether such a divorcing process, even though completely acceptable in Pakistan, could be recognized by a united states court pursuant to the principles of comity.
It was first noted that according to the principles of talaq, only the husband has a unilateral right to such a divorce, though he can share that right in the parties’ marriage “contract.” such an independent right would be “contrary to the public policy”13 of maryland and the equal protection clause of its constitution.14 Needless to say, a process needing only a pronouncement of divorce
without prior notice and which deprived the other spouse of property and other equitable remedies in exchange for return of dower (51,000 rupees or, approximately $2500, versus a marital estate valued at over $2 million), constituted a “lack and deprivation of due process”15 and against the state’s public policy.
but what if the parties had entered into a marriage “contract”16 in their original homeland which gave both parties the right to end their marriage talaq style in this country and without notice? This would obviously present problems beyond those enunciated in Aleem for several
11 404 Md. 404, 947 a.2d 489 (Md. 2008). 12 according to Muslim family law, only “notice” of the talaq to
the other party is required with no specification of its form or nature. See Pakistan Muslim laws ordinance, section 7, Par. (1) (1961), Muslim family laws with Commentary (Mahmood). nadeem law Book house, lahore, Pakistan.
13 Aleem v. Aleem, 404 Md. 404, 947 a.2d 489, 500 (Md. 2008).14 Maryland had enacted the equal Rights amendment which
the court further used in its analysis.15 Aleem v. Aleem, 404 Md. 404, 947 a.2d 489, 501 (Md. 2008).16 The translated “marriage certificate/contract” is scanned into
the opinion. Aleem v. Aleem, 404 Md. 404, 947 a.2d 489, 492-93 (Md. 2008).
23O c t O b e r 2 0 1 2
reasons. First the court would have to interpret the so-called contract by laws of the foreign land.17 Is the “contract” a true pre-marital agreement? some hint as to how a court would rule is stated, for example, in the Aleem case. The court took pains to note that the marriage had been “arranged” by the family, that the agreement had been presented to the wife the day of her marriage, that her legal adviser or “vakil” was her uncle, a non-lawyer, and that she was 18 years old and a high school graduate while the groom was 29 and a doctoral candidate at oxford in england. such facts would certainly scuttle most pre-nuptial agreements in this country if American jurisprudence standards were used.
It is acknowledged that various courts can take opposing positions on these issues of interpretation of international marital contracts. In In Re Marriage of Shaban,18 a lower california appeals court refused to recognize or enforce such a contract that was entered into in egypt in 1974 under “Islamic law”. Applying the rules of contract interpretation, the court distinguished pre-marital contracts from other contracts in that the “temptation for selective memory is usually greater in domestic relations cases that it is in real estate deals”19 and therefore parol evidence as to its interpretation would not be allowed. Furthermore the court noted at least four schools of interpretation of Islamic law, all of which would have to be considered in light of egyptian culture in the early 1970s!
such problems did not deter the court in Odatalla v. Odatalla20 where it encountered a marriage contract entered into in New Jersey by an Islamic couple now in the process of divorce. According to the contract, the husband was required to pay the wife $10,000 (called a mahr agreement) in the event of a divorce which he now contended was a religious process and not subject to enforcement by the courts as an infringement on separation of church and state. However the court refused to accept his argument since it believed interpretation should be guided by “neutral principles of law” and not religious policies or theories21 noting that previous courts had made similar determinations in cases involving other religious agreements including a Jewish Ketubah22 and that the mahr was “nothing more and nothing less than a simple contract between two consenting adults.”23
Comity and Custody. In comity cases involving custody, whether under the uniform child custody Jurisdiction Act
17 illinois courts have such powers. See Keck v. Keck, 56 ill. 2d 508, 309 n.e.2d 217 (1974).
18 86 Cal.app.4th 398, 105 Cal. Rptr. 2d 863 (Cal.app. 4th dist. 2001).
19 In Re Marriage of Shaban, 86 Cal.app.4th 398, 105 Cal. Rptr. 2d 863, 868 (Cal.app. 4th dist. 2001).
20 355 n.j. super 305, 810 a.2d 93 (n.j. super 2002).21 Odatalla v. Odatalla, 355 n.j. super 305, 810 a.2d 93, 96-97 (n.j.
super 2002).22 Odatalla v. Odatalla, 355 n.j. super 305, 810 a.2d 93, 97 (n.j.
super 2002).23 Odatalla v. Odatalla, 355 n.j. super 305, 810 a.2d 93, 98 (n.j.
super 2002).
(“uccJA”) of the several states or the Hague convention, legal decisions become quite a bit more complex since parties often move themselves and their children around and the court is more protective of the children’s needs. A good example of that is found in Ali v. Ali,24 involving an American citizen mother and a father from gaza, where the couple had married in 1983 in a muslim ceremony and where their son was born. Due to the outbreak of the gulf war, the parties relocated to the east coast of the united states in 1991 and began a “trial” separation in two different locations there. They thereafter “reunited” in gaza with the mother again returning to the united states, leaving their son with the father in gaza who promptly filed for and received an ex parte divorce from her and custody of the child, now age seven, from a shari’a court.
In the subsequent divorce action filed by the mother in New Jersey, the court refused to recognize the gazan divorce due to an obvious lack of notice and due process, but did not stop there. In assessing the “best interests” of the minor child, the court totally discounted the father’s claim that under muslim law a father is “automatically” and “irrebutably” entitled to custody when a boy is seven. since such a claim was diametrically opposed to state law and “repugnant” to all united states case law involving “best interests” comity was, needless to say, not extended.25
In another action where the father had not seen his two sons in over one year, Maqsudi v. Maqsudi,26 the court refused to recognize a divorce decree from uzbekistan where the father’s due process rights had been violated in the extreme. The father, an Afghanistan émigré, now a naturalized American citizen, had married the daughter of the then-president of uzbekistan, in a religious ceremony, later repeated in a civil ceremony in New York city. Their sons were born in the united states, where the family lived, except while residing in Afghanistan for two years while the father assisted in his family’s business.
After returning here, the marriage began to dissolve. The mother fled to uzbekistan with the children. As the father attempted to locate his children, he learned that his relatives were taken from their homes late at night for questioning, the family business was seized by the government, 24 family members had been deported, and two more imprisoned for alleged currency and tax violations. with no notice to her husband, the wife obtained a divorce, and custody, in her homeland. meanwhile, the father filed in New Jersey, serving the mother in her country. In a 14-day trial on jurisdictional issues, the wife, who did not appear, utilized expert testimony on the validity of the uzbekistan divorce.
24 279 n.j. super 154, 652 a.2d 253 (n.j. super, 1994), rejected on other grounds by Ivaldi v. Ivaldi, 288 n.j. super 575, 672 a.2d 1226 (n.j. super 1996).
25 Ali v. Ali, 279 n.j. super 154, 652 a.2d 253, 260 (n.j. super, 1994)26 363 n.j. super 53, 830 a.2d 929 (n.j. super. 2002).
24 D c b a b r i e f
After analyzing the family’s residence changes between the two countries, the court concluded that the father had no actual notice of the uzbek proceedings, and that it had “home state” jurisdiction over the children since the uccJA applied to jurisdictional issues between the various states and between countries as well. The court did not opine as to the likelihood of the father actually regaining custody of his children, considering the rather hostile mother’s “clout” in her homeland, a non-signatory to the Hague convention. That issue was left to diplomatic channels.27
However, even when another country is a signatory to the Hague convention, the process remains problematic, as noted in the quotation from Innes v. Carrascosa28 above. In Innes, the husband was an American citizen who had married a spanish citizen in 1999 in spain. The parties then resided in the united states, where their daughter was born the next year. In early 2004 the mother went back to spain and, through their attorneys, entered into an agreement allowing the father parenting time with the minor child, while prohibiting either party from removing the child from the united states without written consent. Thereafter, both parties filed divorce actions; the father filing in New Jersey, and the mother filing a “civil annulment” action in spain. shortly thereafter, the mother returned to the united states, grabbed the child and returned immediately to spain with her. returning to defend the New Jersey action, she left the child with her grandparents. Not surprisingly, the New Jersey court ordered the child returned and the original parenting agreement to be enforced.
Due to the continuing reluctance of the mother, the father filed an action in spain under the Hague convention29, the International child Abduction remedies Act30 and the New Jersey court orders. several spanish courts then reviewed the case and determined that the child had not been “abducted,” since the father had not established legal custody of the child prior to her removal to spain. The divorce action then proceeded in New Jersey, where the court found it had jurisdiction over the parties and all issues, awarding custody to the father, finding the mother, based on her actions, as “unfit.” she was then arrested by the local prosecutor for custody interference and subsequently incarcerated. on appeal, the New Jersey appellate court reviewed the action of the spanish courts relative to the Hague convention. It first found that the spanish court had misinterpreted the convention, basing its jurisdiction solely on the child’s “habitual residence” or domicile, not the issue of the child’s abduction. because the child’s domicile was clearly established, and the mother’s
27 Maqsudi v. Maqsudi, 363 n.j. super 53, 830 a.2d 929 (n.j. super. 2002).
28 391 n.j. super 453, 918 a. 2d 686, 691 (n.j. super a.d. 2007).29 Hague International Child Abduction Convention, 51 fed. Reg.
10,498 (1986).30 42 u.s.C. 11601-11611 (1988).
actions had been contemptuous, the New Jersey court refused to “afford comity to the courts of spain in the matter” holding those decisions to be “prejudicial” to the rights of an American citizen, “repugnant” to this country’s public policy and a “wide departure”31 from it as well.32
likewise, in Asvesta v. Petroutsas,33 a federal court refused to uphold an “egregious”34 decision of a court in greece under the Hague convention. Here the father, a dual American- greek citizen, and the mother, a greek citizen, were married in this country. when the marriage soured after the birth of their child, the parents, in turn, removed the infant to greece, and back, while filing Hague convention suits here and abroad. Not surprisingly, a court in greece, where the mother eventually moved, and an American court, where the father resided, respectively reached opposite conclusions as to custody of the child. while giving accord to the united states supreme court’s seminal ruling in Hilton v. Guyot that the merits of a foreign judgment should not be tried de novo,35 the reviewing court nonetheless found precedent in Innes and other related cases for doing just that. realizing that a re-examination of the greek court’s decisions could “undermine the mutual trust necessary for the convention’s continued success,”36 the court, admittedly “reluctant”37 to do so, nevertheless refused to extend comity to said decisions since it felt the greek court had “misinterpreted” the Hague convention, contravened the convention’s “fundamental premises or objectives,” and failed to meet a “minimum standard of reasonableness.”38
Conclusion. There are clearly differing points of view among the American courts on interpretations of marriage contracts and divorces undertaken under foreign practices and by non-American courts. where it suits their purposes, forum-shopping parties will invoke those jurisdictions which favor their cause regardless of the effects on their spouses or their children. Though countries have attempted to resolve international jurisdictional disputes by international conventions, courts still have the ability to interpret facts independently of each other and to override their nondomestic foreign counterparts. The resulting confusion is not in the “best interests” of children or their parents and will only increase in direct proportion to the mobility of each country’s population. □
31 Innes v. Carrascosa, 391 n.j. super 453, 918 a. 2d 686, 691, 709 (n.j. super a.d. 2007).
32 as a result, the mother continued to be incarcerated and subject to $500 daily sanctions as of the date of
the opinion. 33 580 f.3d 1000 (9th Cir. 2009)34 Asvesta v. Petroutsas,580 f.3d 1000, 1021 (9th Cir. 2009).35 Asvesta v. Petroutsas,580 f.3d 1000, 1011 (9th Cir. 2009).36 Asvesta v. Petroutsas,580 f.3d 1000, 1014 (9th Cir. 2009).37 Asvesta v. Petroutsas,580 f.3d 1000, 1021 (9th Cir. 2009).38 Id.
25O c t O b e r 2 0 1 2
The Debate over Judicial takings marks the Next step in
environmental PolicyBy sTePhanie Mann
w hen the Supreme Court decided the case of Stop the Beach Renourish-ment v. Florida Department of Environmental Protection on June 17, 2010, it gave new life to a little known doctrine: judicial takings.1
while the issue of judicial takings has been sporadically addressed throughout the years by the courts, the issue has never been resolved.2 In fact, there is still great debate over whether the doctrine actually even exists, and, if it does, its true definition.3 The ramifications of adopting the doctrine of judicial takings are great, especially in the realm of environmental law. In order to enable the states to take affirmative action without incurring prohibitive costs, to protect their shores as they face increasing erosion and other environmental damage, the supreme court should not adopt the judicial takings doctrine. 123In reviewing the development of the judicial takings doctrine, it is important to first find a working definition of what constitutes a judicial taking. It is imperative to note that the judicial takings doctrine is a separate doctrine from either legislative or administrative takings found in
1 See, stop the Beach Renourishment v. fla. dep’t of envt’l Prot., 130 s. Ct. 2592 (2010).
2 See, e.g., Stop the Beach Renourishment, 130 s. Ct. 2592.3 Id.
the Fifth and Fourteenth Amendments.4 because the is-
4 Barton h. Thompson, jr., note, Judicial Takings, 76 Va. L. ReV. 1449, 1450 (1990). The most readily recognized takings claims are those in which the courts are regulating the actions of both the legislative and executive branches in order to determine if either branch has impermissibly deprived an individual of their property rights without just compensation. Id. This differs from the judicial takings doctrine in that the supreme Court is attempting to determine whether a judicial decision that negatively affects property rights qualifies as a judicial taking. Id.
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Stephanie Mann re-ceived her Bachelor of Arts in Politics from Earlham College in Richmond, Indiana in 2009. She is cur-rently receiving her juris doctor degree from Northern Illinois University College of Law and expects to graduate in 2012. Stephanie is currently clerking for the 17th Judicial Circuit and at the Cosentino Law Firm, LLC, in DeKalb.
sue of judicial takings has never fully been discussed or accepted by the courts, there is no set definition that is recognized by the legal community.5 As a result, there is a wide range of definitions that scholars and courts have adopted when discussing the doctrine of judicial takings. For the purposes of this article, a judicial taking is defined as “whether federal constitutional questions arise when state courts change their defini-tions of property by determining that ‘property,’ once recognized under state law, no longer exists.”6 Due to the fact that courts have failed to decisively rule on the issue of judicial takings, or even to rec-ognize the validity of this doctrine, it cannot be defined as a constitu-tional claim, as some scholars have sought, but can only be defined as a potential constitutional claim.7
while the doctrine of judicial takings has been addressed in mul-tiple court cases, the first time that it has been mentioned by name was in Stop the Beach.8 However, it has become generally rec-ognized that the first time the principle of judicial takings was raised was in the 1897 case of Chicago, Burlington & Quincy Railroad Co. v. City of Chicago.9 The court speci-fied that the state was required under the constitution to pay just compensation for any private property that the state takes, whether it be the legislative, executive, or ju-dicial branch, for public use.10 In ensuing cases, the court occasionally touched on the topic of judicial takings, but it was not until 2010 that it truly addressed the issue.
on June 17, 2010, the court passed down an 8-0 de-cision in the case of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.11 In 2003, the Florida legislature passed the beach and shore Protec-tion Act, which provided for the protection of the coastline by adding seventy-five feet of dry sand to the beaches and
5 See, e.g., j. nicholas Bunch, note, Takings, Judicial Takings, and Patent Law, 83 Tex. L. ReV. 1747 (2005); Roderick e. walston, The Constitution and Property: Due Process, Regulatory Takings, and Judicial Takings, 2001 UTah L. ReV. 379 (2001); w. david sarratt, note, Judicial Takings and the Course Pursued, 90 Va. L. ReV. 1487 (2004).
6 walston, supra note 5, at 424. 7 See id. 8 See Chicago, Burlington & Quincy R.R. Co. v. City of Chicago,
166 u.s. 226 (1897); Muhlker v. n.y. & harlem R.R. Co., 197 u.s. 544 (1905); Brinkerhoff-faris Trust & savings Co. v. hill, 281 u.s. 673 (1930); hughes v. washington, 389 u.s. 290 (1967).
9 See Chicago, Burlington & Quincy R.R., 166 u.s. 226.10 See id. 11 See Stop the Beach Renourishment., 130 s. Ct. 2592.
tide lines.12 This new beachfront property was owned by the state as their established erosion control line, thereby depriving beachfront property owners of their riparian rights.13
This act was challenged by a not-for-profit corporation, stop the beach renourishment, Inc., which is comprised of members of beachfront property owners.14 The Florida
District court of Appeals for the First District held that the Act amounted to an unconstitutional taking because it deprived the beachfront owners of their littoral rights.15 It was held that the Act does not provide those beachfront owners with adequate just compen-sation for depriving them of their property.16 The Florida supreme court reversed the lower court’s ruling, and the united states su-preme court granted certiorari.
stop the beach renourish-ment, Inc., challenged the Florida supreme court’s decision, argu-
ing that the decision itself consists of an unconstitutional taking in violation of the Fifth and Fourteenth Amend-ments.17 while the supreme court unanimously found that the Florida supreme court’s decision did not consti-tute a judicial taking, the court was deeply divided about whether such a thing as a judicial taking existed at all.18
because the issue of judicial takings is fairly new and wholly undeveloped, multiple arguments have been used by both the courts as well as legal scholars to validate this doctrine. while each of the arguments has been addressed by individual justices and scholars, none have been readily accepted by the legal community as a whole. each of the plurality arguments will be discussed in relation to their main arguments.
The first argument in relation to the judicial takings doctrine is federalism. when dealing with the issue of judi-
12 Id. at 2594.13 Id. The supreme Court has adopted a definition of “riparian”
rights for this case, “whereby ‘riparian’ means abutting a river or stream and ‘littoral’ means abutting an ocean, sea, or lake.” Stop the Beach Renourishment, 130 s. Ct. at 2598.
14 Id. at 2600.15 Id. littoral owners have certain “special rights” with regard to
riparian rights. “These include the right to access to the water, the right to use the water for certain purposes, the right to an unobstructed view of the water, and the right to receive accretions, and relictions to the littoral property.” Stop the Beach Renourishment, 130 s. Ct. at 2598.
16 Id. at 2613. 17 Id. 18 alexis sly, The Debate on Judicial Takings: I Scream, You Scream,
We all Scream for Property Rights, 33 no.7 ZPlR 1, 7 (2010).
27O c t O b e r 2 0 1 2
when dealing with the issue of judicial takings, it is naturally grounded primarily in property law, and historically, the issue of property law has been regulated almost
exclusively by state law.
cial takings, it is naturally grounded primarily in property law, and historically, the issue of property law has been reg-ulated almost exclusively by state law. while mostly guided by state law, it has been acknowledged that federal courts “must have the power to decide what property rights exist under state law[,]”19 as the takings clause is found in the united states constitution and not in any state constitu-tion or statute. Despite some regulation by the federal courts, precedent suggests that, should the doctrine of ju-dicial takings be adopted, it should be governed by state law. However, the general discussion surrounding the issue of judicial tak-ings has been premised on the notion that gov-ernance would be regulated by the Federal gov-ernment and the Federal courts.20
In the case of Hughes v. Wash-ington, Justice black, writing for the major-ity, distinguished property law, which is governed by the states, from riparian land rights.21 black held that because the waters of the ocean touch both the states as well as the boundaries of international waters, it should therefore be governed by federal law.22 The rationale that black used to support this position is that this relationship of the ocean “is too close to the vital interest of the Nation in its own boundaries to allow it to be governed by any law but the ‘supreme law of the land.’”23 The opinion in Hughes stated that those rights guaranteed by a federal grant must therefore be governed by federal law as opposed to state law. while this case never recognized the doctrine of judi-cial takings, it seems to suggest that, should it be adopted, it must be governed by federal law as opposed to state law which governs the overwhelming majority of property law.
The question of federalism in relation to the judicial tak-ings doctrine was further complicated in the Stop the Beach concurring opinion penned by Justice breyer and joined by Justice ginsburg.24 while ultimately writing that the doctrine of judicial takings does not need to be addressed to decide the case, breyer does address the arguments made by the majority.25 He quoted the plurality, which reached
19 Stop the Beach Renourishment, 130 s. Ct. at n. 9.20 See Hughes, 389 u.s. 290.21 Id. at 293.22 Id.23 Id. 24 See Stop the Beach Renourishment, 130 s. Ct. at 2618-19.25 Id. at 2618.
the decision “that all those affected by a state-court prop-erty law decision can raise a takings claim in federal court, but for the losing party in the initial state-court proceed-ing, who can only raise her claim (possibly for the first time) in a petition for a writ of certiorari here.”26
breyer criticized the court for the potential flood of federal takings claims that could come before federal courts without first considering those legal principles which could prevent the courts from ruling on such matters. Property law questions are a matter of state law in which federal courts are not equipped to adjudicate. breyer argues that,
because of the ex-pected complex-ity of these cases and because they are based solely on state law, fed-eral judges do not possess the requi-site knowledge and experience to adequately decide these mat-ters.27 However, should federal
judges be allowed to deliver judgment on such complex cases, they would play a significant role in altering prop-erty law, which is a matter of state interest and therefore governed by the individual states.28
As the judicial takings doctrine begins to be more thor-oughly addressed by the courts and legal scholars, one of the many arguments that are being raised is the question of federalism and the discrepancy between the historical no-tion that property law should be firmly grounded in state law because federal courts lack the requisite knowledge of state law, and the notion that federal courts have always played an important role in the development of property law precedent.29 If the doctrine of judicial takings were to be adopted, the eventual effect of that decision would be to essentially federalize state law as it pertains to property rights.30
The second, and primary, argument in relation to this doctrine is the separation of powers. when dealing with the judicial takings doctrine, perhaps the most debated is-sue is the separation of powers. The takings clause can be found in the Fifth Amendment of the united states con-stitution, which states that “nor shall private property be
26 Id. at 2618 (citing Stop the Beach, 130 s. Ct. at 2609-10).27 Id.28 Id. 29 See Stop the Beach Renourishment, 130 s. Ct. 2592; see Hughes,
389 u.s. at 290.30 Bunch, supra note 5, at 1771-72.
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taken for public use, without just compensation.” while it never specifies which branch of the government is bound by this provision, traditionally, it has only been applied against the legislative and executive branches through the practice of eminent domain.31 However, originalist jus-tices, such as Justice scalia, look to the exact text of the Amendment and find that the wording of the amendment is solely concerned with the governmental act as opposed to the governmental actor.32 It is this underlying inquiry that has fueled great debate by the courts and legal scholars alike.
In the inaugural case that sparked debate over the judi-cial takings doctrine, Chicago, Burlington & Quincy Rail-road Co. v. Chicago, the court seemed to adopt the view that the Framers intended the takings clause to be applied to the judicial branch, in addition to the legislative and ex-ecutive branches.33 emphasizing that the right to property is one of the most important rights that a citizen can pos-sess, the court stated that “in a free government, almost all other rights would become worthless if the govern-ment possessed an uncontrollable power over the private fortune [personal property] of every citizen.”34 In the eyes of the majority, the notion of due process is completely undermined if private property owners are not justly com-pensated for the government taking their property for the purpose of public use.35 while not specifically addressing the doctrine of judicial takings, the court stated that any decision from a state court, even if it was based on an act of legislature, would be unconstitutional if the owner of the private property was not justly rewarded.36
The issue of separation of powers in relation to the Due Process clause has become most prominent under the modern court due to the influence of Justices scalia and Thomas. writing for the plurality opinion in Stop the Beach Renourishment, Justice scalia emphasized his belief that the takings clause applies equally to the judicial branch as it does the legislative branch.37 scalia highlighted the fact that neither the actual text of the constitution, nor the original intent of the Framers, discriminates against the ju-dicial branch.38 scalia wrote that the constitution’s failure to distinguish between the branches suggests that a taking through the judiciary is feasible, and that the court’s anal-ysis of that taking would have to be the same as the analysis that it would perform on a legislative taking.39 while never specifying the doctrine of judicial takings by name, this
31 See Stop the Beach Renourishment, 130 s. Ct. at 2601. 32 Id.33 See Chicago, Burlington & Quincy R.R., 166 u.s. at 226.34 Id. at 236. 35 See id. at 236-41.36 Chicago, Burlington & Quincy R.R.., 166 u.s. at 241. 37 Id.38 130 S.Ct., at 2602. 39 Id.
analysis seems to support that the plurality is willing to adopt the doctrine of judicial takings.
However, despite this earlier statement that any judi-cial decision that deprives a private property owner of his property must insure that the property owner receives just compensation, based on a separation of powers analysis, scalia later belittles the entire doctrine of judicial takings.40 He states that he must “grapple with the artificial question of what would constitute a judicial taking if there was such a thing as a judicial taking.”41 scalia then goes further and describes the doctrine of judicial taking as being equivalent to the time-honored question: “how much wood would a woodchuck chuck if a woodchuck could chuck wood.”42 while seeming to accept the basic tenets of the judicial takings doctrine, the plurality is fervently opposed to adopting it by name.
Justice Kennedy, in his concurrence, analyzed this sepa-ration of powers argument through a public policy per-spective.43 He observed that the right to confiscate private property for public use is a vast governmental power, and one that provides broad power.44 In the eyes of Justice Ken-nedy, as well as many scholars, the fundamental differences between the three branches of government—with the leg-islative and executive branches held publicly accountable through the election process, and the authority of the ju-dicial branch to review the actions of the other branches—ensure that due process is present.45 However, under the doctrine of judicial takings, the Due Process clause would be violated, as any attempt by the judiciary to regulate or amend property rights prevents adequate review. “The Due Process clause, in both its substantive and procedural as-pects, is a central limitation upon the exercise of judicial power. And this court has long recognized that proper-ty regulations can be invalidated under the Due Process clause.”46 based on this analysis, Kennedy finds that the doctrine of judicial takings would completely undermine the separation of powers and the fundamental function of our system of government.47
It is only recently that the supreme court has begun to take an active role in environmental policy. The court has come to recognize that there are a number of issues that have already caused significant harm to the environment, including rising sea levels and the erosion of the coasts.48
40 See, Stop the Beach Renourishment, 130 s. Ct. at 2603. 41 Id. 42 Id.43 Id. at 1613.44 Id. 45 See, Stop the Beach Renourishment, 130 s. Ct. at 2613. 46 Id.47 Id.48 Massachusetts; Climate Change Science. all environmental
impacts are “the global retreat of mountain glaciers, reduction in snow-cover extent, and the earlier spring melting of ice on rivers and lakes.”
29O c t O b e r 2 0 1 2
In fact, the court went so far as to recognize that while coastal erosion was already an issue of pressing concern, the situation will only worsen over the next century.49
by failing to adopt the judicial takings doctrine, the court has furthered its willingness to play a role in envi-ronmental policy. Despite the fact that this doctrine has only been sporadically and vaguely addressed by the court for a period of over one hundred years, and was not of-ficially referred to by name by the courts until 2010 in Stop the Beach Renourishment, it has the potential to play a great role in the realm of environmental policy. Yet the case of Stop the Beach Renourishment seems to have lent credibility to the notion proposed by some legal scholars that the judicial takings doctrine can play a significant role in the ability of state and local governments’ ability to take actions in order to sustain coastal waters.50
At first blush, the link between the fight for environ-mental policy and the judicial takings doctrine might seem
49 Id. at 523.50 See Supreme Court Rejects Beachfront Property Owners’
“Takings” Claim, WaRming LaW (june 17, 2010, 5:40 PM), http://theusconstitution.org/blog.warming/?p=894.
tenuous at best, but the similarities between the two can be found under the surface. This link between the two became especially clear when the supreme court granted certiorari to Stop the Beach Renourishment. It is because this specific case involved the issue of coastal erosion that the potential impact of the judicial takings doctrine on the environment became readily apparent.
coastal land has long been an area in which businesses and individuals have sought to purchase property and erect beautiful commercial and residential buildings.51 It is es-timated that about “…40 % of the world’s populations live along coasts or within 100 kilometers (62 miles) of a coast.”52 The presence of man along the coasts, coupled with such environmental issues as increased emissions of pollutants, greenhouse gases, and climate change, means that coastal land is facing the serious threat of erosion as the sea level continues to rise and pollutants remain pres-
51 See david k. Bederman, The Curious Resurrection of Custom: Beach Access and Judicial Takings, 96 CoLUm. L. ReV. 1375, 1376 (1996).
52 G. Tyler Miller, jr. LiVing in The enViRonmenT: PRinCiPLes, ConneCTions, and soLUTions 155 (Brooks/Cole, 13th ed. 2004).
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ent in the ocean.53 The supreme court itself has recog-nized that “the harms associated with climate change are serious and well recognized. Indeed, the Nrc report it-self . . . identifies a number of environmental changes that have already inflicted significant harms, including . . . the accelerated rate of rise of sea levels during the 20th cen-tury relative to the past few thousand years.”54 In order to combat the harmful effects of coastal erosion, all levels of government need to take affirmative action to protect and preserve our shores.
In an effort to protect, preserve, and restore the already damaged coasts of the united states, it is crucial that the three levels of government have the ability to take imme-diate and affirmative measures.55 In order to take these preventive measures, states must have the ability to cre-ate such structures as groins, seawalls, drainage systems, and the continued importing of sand; the state must have the unobstructed ability to act as soon as it becomes nec-essary.56 while all of these measures are only temporary remedies which have been created in order to stall the danger that this nation faces under coastal erosion, it gives scientists and geologists additional time to discover more permanent solutions.57 without such measures, the Fed-eral emergency management Agency predicts that “about 25% of homes and structures within 150 meters (500 feet) of the u.s. coastline will be damaged or fall into the sea
53 Id. at 155 and 450. over the last one hundred years, the world has experienced an increased sea level rise of four to eight inches. Id. at 450. it is widely believed that this increase in sea level can cause dramatic shifts in the world’s ecosystem. some of the projected damages are: 1) could cause the eastern shoreline of the united states to retreat about .8 mile inland, 2) flood low-lying plains, 3) contaminate freshwater subsidiaries, and 4) possibly submerge some islands in the Pacific ocean. Id. at 461. while some scientists doubt the catastrophic nature of a rising sea level, they do not dispute that a rising sea level will have a significant impact on the actions of those nations whose borders are surrounded by the ocean. Id. in fact, those same skeptical scientists suggest that in order to prevent such devastation, countries will have to take affirmative action such as the building of dikes and levees. Id.
54 Christopher R. Reeves, esq. Climate Change Litigation: When and Where Will the Next Storm Hit, The geoRgia enViRonmenTaL deskbook (May 2008), http://gaenvlaw.wordpress.com/documents/emerging-issues-climate-change-litigation/ (citing Massachusetts, 549, u.s. 297). See also national Research Council: Climate Change science: an analysis of some key Questions (2001).
55 See generally Miller, supra note 52, at 461. 56 Id. at 648. a groin is a structure that starts on the beach and
extends into the ocean. These structures help to trap the sand that is caught in the current. a seawall can be used as a temporary structure in order to protect property behind the seawall. a drainage system takes the water that soaks into the sand on the coast, collects it through a series of drainage pipes, and expels this water away from the coast.
57 Miller, supra note 52, at 647.
as a result of beach erosion between 2000 and 2060.”58 coastal erosion is a serious issue that must be addressed by the courts.
should the judicial takings doctrine be adopted by the courts, it would seriously impede the ability of the local, state, and federal governments to take the actions necessary to prevent such environmental problems such as coastal erosion.59 If the supreme court had held in favor of the private property owners in Stop the Beach Renourishment, the state of Florida would lose its access to the shores of walton county and its subsequent ability to preserve and restore those same beaches.60 The responsibility to main-tain the beaches would then fall on the private owners, in which the lack of financial resources and willingness to act could prevent any such affirmative measures from taking place. A lack of initiative could lead to a further diminu-tion in the property value of coastal property.61 Therefore, if the judicial takings doctrine were to be adopted, it would deprive all levels of government of the ability to enact and take effective steps in preserving this nation’s coasts and the environment in general.62
There are many questions that remain unanswered re-garding the judicial takings doctrine. one of the most im-portant of these unresolved issues is the development of a widely-accepted definition of the doctrine. A universal definition will help to provide clarity to the legal commu-nity as the issue of judicial takings resurfaces in the after-math of Stop the Beach Renourishment. The full impact of recognizing the judicial takings doctrine remains unclear, due to the fact that there is an insufficient amount of de-bate by legal scholars and the courts. However, the ability of the doctrine to negatively impact environmental policy is apparent. with the decisions in Stop the Beach Renour-ishment, the supreme court has provided state and local governments with greater power to regulate environmental concerns. Additionally, by failing to adopt the judicial tak-ings doctrine, the court has further enabled state govern-ments to take immediate and affirmative action to preserve this nation’s coastal lands. However, perhaps the most im-portant thing that this case has done is to simply recognize that coastal erosion is a serious and immediate danger that needs to be addressed in order to preserve our shores and the nation as a whole. □
58 Id. 59 See Supreme Court Rejects Beachfront Property Owners’
“Takings” Claim, WaRming LaW (june 17, 2010, 5:40 PM), http://theusconstitution.org/blog.warming/?p=894.
60 Id. 61 See id. 62 Supreme Court Rejects Beachfront Property Owners’ “Takings”
Claim, supra note 183, at 2.
31O c t O b e r 2 0 1 2
when Does “No” mean “No” in DuI chemical test refusals
By BRenT ChRisTensen
It happens to every practitioner of DuI defense law at social functions. Following the usual chit-chat about weather and the state of one or more of chicago’s professional sports franchises, non-lawyers and lawyers from
other concentrations alike ask the question, “to blow or not to blow” in the context of a DuI arrest. The correct, yet invariably unsatisfying answer, “It depends,” generally results in a quick turn back to woes of the chicago cubs and other imminently more solvable puzzles. However, the recent advent of so-called “No refusal weekends” in DuI enforcement, as well as a Third District case involving a warrantless and forcible DuI blood draw, invite a more detailed analysis of refusal of chemical testing in DuI arrests.
In Illinois, along with every other state, the concept of “implied consent” allows the government to suspend, more or less summarily, the license of a driver whom law enforcement reasonably believes to be operating a motor vehicle on public roads while under the influence of alcohol or other intoxicants. In Illinois, refusal of any requested chemical test – breath, urine, and/or blood – by a driver reasonably suspected of DuI, will result in a license suspension of one or three years, depending on the existence and timing of any prior DuI statutory summary suspensions. The threat of such a civil sanction for refusal of chemical testing most typically results in arrestees submitting to testing – giving the prosecution what is typically compelling evidence of guilt in the context of the criminal aspect of a DuI charge.
but what of the relatively rare arrestee who steadfastly refuses chemical testing? shortly before labor Day weekend in 2011, the DuPage county state’s Attorney’s office in conjunction with the DuPage county sheriff’s Department, announced a DuI enforcement scheme dubbed “No refusal weekend” where, upon probable cause, the police request a search warrant from an on-call judge for a blood test which is then expeditiously carried out by a licensed phlebotomist, who is on hand, typically at a DuI check point (roadblock).
In Schmerber v. California1, the united states supreme court held that the taking of a blood sample without the defendant’s consent, or a search warrant, was a “reasonable”
1 384 u.s. 757, 86 s.Ct. 1826, 16 l.ed.2d 908 (1966).
32 D c b a b r i e f
Brent Christensen was recently ap-pointed to the DCBA Editorial Board. He is a 1993 graduate of The John Marshall Law School and veteran of the U.S. Navy Seabees. He is a solo practitioner focused on DUI Defense.
search under the fourth amendment where there was probable cause to believe the defendant was intoxicated, and the delay caused by obtaining a search warrant might have resulted in loss of evidence of the defendant’s intoxication, given the natural dissipation of the alcohol in the defendant’s blood2. In examining the reasonableness of the blood test procedure itself, the court observed that blood “tests are commonplace in these days of periodic physical examinations, and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.”3 The court further noted that the manner in which the procedure was conducted was reasonable, as the defendant’s blood was taken “in a hospital environment according to accepted medical practices.”4
The Illinois supreme court largely adopted the reasoning in Schmerber in the case of People v. Todd5, Todd was a consolidated appeal from three DuI convictions in which the defendants sought interpretation of a provision of the Illinois Vehicle code, arguing that the statute prohibited the evidentiary use of blood samples obtained without a DuI arrestee’s consent6.
However, the Illinois supreme court distinguished Todd from Schmerber on the ground that the Illinois Vehicle code at that time afforded a protection to DuI defendants greater than that required by Schmerber, stating Schmerber made it “clear that a compulsory blood test does not violate any constitutional rights of an individual merely because he objected to such tests.”7 In Todd, the Illinois supreme court held that Illinois’ DuI statute did require consent to chemical testing for test results to be admissible as evidence.8 The Todd court focused its attention on the statutory language of section 11–501 the Vehicle code, which, at the time provided:
“evidence based upon a chemical analysis of blood, urine, breath or other bodily substance shall not be admitted unless such substance was procured and such analysis made with the consent of the person as provided
2 see Schmerber, 384 u.s. at 768–72, 86 s.Ct. at 1834–36, 16 l.ed.2d at 918–20.
3 Schmerber, 384 u.s. at 771, 86 s.Ct. at 1836, 16 l.ed.2d at 920.4 Schmerber, 384 u.s. at 771, 86 s.Ct. at 1836, 16 l.ed.2d at 920.5 59 ill.2d 534, 322 n.e.2d 447 (1975).6 Todd, 59 ill.2d at 536, 322 n.e.2d 447 (citing ill.Rev.stat.1969, ch.
95 1/2, par. 144, and ill.Rev.stat.1971, ch. 95 1/2, par. 11–501).7 Todd, 59 ill.2d at 544, 322 n.e.2d 447. 8 Todd, 59 ill.2d at 544, 322 n.e.2d 447.
by this chapter, whose bodily substance was so analyzed.” (emphasis added.)9
This “right” to refuse chemical testing, discussed in Todd, was, in turn, repealed by Public Act 84–272, effective January 1, 1986. The current version of this provision can be found in section 11-501.2(c)(1) of the Vehicle code which provides::
“If a person under arrest refuses to submit to a chemical test * * *, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol, or other drugs, or combination of both was driving or in actual physical control of a motor vehicle.”10
but this amendment, along with a line of appellate cases discussing it, went only to the admissibility
of the refusal in a criminal prosecution. In the context of a “no refusal weekend,” the immediate issue is not admissibility in the incipient future proceeding, but rather whether, in light of a search warrant, refusal to submit to blood testing could result in a garden-variety DuI arrestee being tied down in order for agents of the state to procure blood evidence ab initio.
In People v. Jones11, the Illinois supreme court passed on the lack of a “right” to refuse chemical testing in light of the 1986 changes to the vehicle code. In that case, Defendant Jones was arrested for DuI and hospital personnel administered blood and urine tests at the request of the arresting officer, but without defendant’s consent. Jones moved to suppress the results of the blood and urine tests on the ground the tests were nonconsensual. circuit Judge geoge bakalis granted the defendant’s motion and ordered suppression of the test results. The state appealed, and the appellate court affirmed the suppression order. The supreme court reversed the Appellate court, holding that section 11–501.2 of the Illinois Vehicle code12 did not grant a statutory right to refuse chemical testing to a DuI arrestee in a situation not involving the death or personal injury of another. but the supreme court took some pains to clarify its position on the notion that that blood could be forcibly drawn:
“For purposes of clarification, our holding in this case does not give law enforcement officers unbridled authority
9 ill.Rev.stat.1975, ch. 95 1/2, par. 11–501(c)(3).10 ill.Rev.stat.1981, ch. 95 1/2, par. 11–501.2(c).11 214 ill.2d 187, 824 n.e.2d 239, 291 ill.dec. 663 (2005).12 625 ilCs 5/11–501.2.
33O c t O b e r 2 0 1 2
to order and conduct chemical tests. we do not suggest that a DuI arrestee’s lack of a right to refuse chemical testing under section 11–501.2(c)(2) permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples. The Vehicle code already eliminates any advantage a DuI arrestee might hope to gain from refusing chemical testing. under section 11–501.2(c)(1), if a DuI arrestee refuses to submit to chemical testing, evidence of the refusal is admissible in the arrestee’s DuI prosecution.”
The issue of whether the Police can use force to obtain a blood test in a DuI arrest was directly addressed recently in the case of People v. Farris.13 In that case, the Appellate court confronted a situation where the arresting police officer sought consent from a DuI arrestee for a blood draw in a hospital emergency department following a motor vehicle crash. The defendant refused consent. The arresting officer then instructed a nurse to take a sample of the arrestee’s blood. two police officers stood by while a doctor, a nurse, and another emergency department staff member held the defendant down and forcibly drew blood. one person was on either side of the defendant, each holding a wrist and shoulder, while another person held the arrestee’s legs as the nurse drew blood from one of the defendant’s arms inside of the elbow.
The result of this forcible blood draw was suppressed in the trial court and the state appealed. relying heavily on the reasoning (and dicta) in Jones, the Appellate court affirmed the trial court’s finding that the arresting officer lacked statutory authority to use force to obtain a blood sample. left unanswered, however, is the question potentially posed by a “no refusal weekend” regime. what about a forcible blood draw in the context of a search warrant?
The forcible blood draw in Farris was without warrant. As indicated earlier in this article, the typical “no refusal weekend” scheme centers on the police obtaining a warrant from an on-call judge for a blood draw. If a judge issued a requested warrant specifically providing that force could be used to obtain a blood sample, it is difficult to see how the rulings in Jones or Farris would protect a non-consenting DuI arrestee from a forcible blood draw ordered by a warrant. under the u.s. supreme court’s reasoning in Schmerber it would appear that such an intrusion would not violate the 4th Amendment proscription against unreasonable search.
As a practical matter, it is difficult to imagine a “no refusal weekend” scenario where a judge would sign a warrant specifically authorizing a forcible blood draw for an arrestee without a significant DuI history, and with no aggravating factors such as an accompanying motor vehicle accident with injuries. more likely, the issue of a forcible blood draw pursuant to a warrant would arise under more severe circumstances. In either event, Illinois case law is still unclear on this most unsettling prospect of a “no refusal weekend.” until that question is addressed head-on, the practitioner is well advised to stick to “It depends . . .” as the answer to the broad question of whether or not to submit to chemical testing following a DuI arrest. □
13 968 n.e.2d 191, 360 Ill.Dec. 112 (3rd Dist. 2012).
34 D c b a b r i e f
retiree benefits Protection under § 1114: The Need for security in a
time of economic uncertaintyBy iBRahiM ali
employees in the current labor force have measurable protection from unions, labor rules, and federal regulations that exist under the Age Discrimination in employment Act (ADeA) and other labor-specific
laws.1 However, retirees — who no longer participate directly in the labor market — are not given nearly the same level of protection.2 retirees do not have the same leverage available to current labor market participants, and, therefore, receive less protection from both labor unions and statutes.3 retirees are particularly venerable during chapter 11 bankruptcy proceedings of their former employers, where their retirement benefits, on which they depend,4 are most at risk.5
123The u.s. census bureau projects that by 2030, nearly
1 The age discrimination in employment act, 29 u.s.C. §§ 621-634 (2000).
2 See daniel keating, Harsh Realities and Silver Linings for Retirees, 15 am. bankR. insT. L. ReV. 437, 437-38 (2007). while even current employees are at risk during a company’s bankruptcy, retirees of such companies and their promised medical benefits are in an even more precarious situation. Id. at 437. Retirees lack the leverage that current employers possess since their contributions to these companies were made in the past. Id. further, retirees are normally not given any representation in creating new labor contracts, which directly affects resources available to fulfill retiree medical benefit plan funding. Id. at 437-38.
3 Id. at 437.
twenty percent of the united states4population5will be
4 See U.s. goV’T aCCoUnTabiLiTy off., Gao-07-1101, emPLoyeR sPonsoRed benefiTs: many faCToRs affeCT The TReaTmenT of Pension and heaLTh benefiTs in ChaPTeR 11 bankRUPTCy 1, 33 (2007), available at http://www.gao.gov/new.items/d071101.pdf.
5 See susan j. stabile, Protecting Retiree Medical Benefits in Bankruptcy: The Scope of Section 1114 of the Bankruptcy Code, 14 CaRdozo L. ReV. 1911, 1953-54 (1993). Bankruptcy proceedings impose a different set of factors into an employer’s decision making process that normally does not exist in the course of normal operating conditions. Id. one such factor is the greater influence that a creditor may possess over retirees, which places a greater risk on the ability of retirees to adequately protect their rights and interests in preserving their retiree benefit plans into the future. Id.
36 D c b a b r i e f
Ibrahim Ali at-tended DePaul University, College of Commerce, and received his B.S. in Economics and a B.S. in Accountancy, in 2008. He graduat-ed from Northern Illinois University, College of Law with a J.D., in 2012.
of retirement age, with their numbers exceeding seventy-two million.6 These baby boomers will require sustained income to cover living expenditures, including medical coverage.7 Notably, nearly one-third of all medicare-eligible individuals are covered by a retirement benefit plan.8
It has been known since at least 1986 that retiree medical benefits are tenuously protected at best.9 In 1986, ltV steel corporation (“ltV steel”), one of the nation’s largest steel manufacturers at the time, filed for chapter 11 bankruptcy.10 ltV steel determined that it would no longer pay retiree medical benefits in order to facilitate its reorganization.11 As a result of the catastrophic consequences that ltV steel’s decision had on retirees, congress created the retiree benefits bankruptcy Protection Act (rbbPA).12
The rbbPA directly addresses the issues first given recognition as a result of In re Chateaugay Corporation, namely the risk to retiree benefits when the former
6 eCon. & sTaT. admin., U.s. CensUs bUReaU, naTionaL PoPULaTion PRojeCTions: PRojeCTions of The PoPULaTion by seLeCTed age gRoUPs and sex foR The UniTed sTaTes: 2010 To 2050 (2008), available at http://www.census.gov/population/www/projections/summarytables.html.
7 sarah Max, Retirement: It’s Going to Cost You, Cnn/money (Mar. 28, 2005, 11:56 aM esT), http://money.cnn.com/2004/03/11/retirement/risingcosts/index.htm
8 Patricia neuman, The henry j. kaiser family foundation, The State of Retiree Health Benefits: Historical Trends and Future Uncertainties 3 (2004), available at http://news.ehealthinsurance.com/pr/ehi/document/The-state-of-Retiree-health-Benefits-historical-Trends-and-future-uncertainties.pdf.
9 s. ReP. no. 100-119 (1987), as reprinted in 1988 u.s.C.C.a.n. 683, 683-84.
10 In re Chateaugay Corp., 153 B.R. 632, 634 (Bankr. s.d.n.y. 1993). 11 In re Chateaugay Corp., 64 B.R. 990, 992-94 (Bankr. s.d.n.y.
1986). Prior to filing for bankruptcy in 1986, lTv steel was the second largest steel manufacturing company in the united states, but foreign competition caused the company to file for bankruptcy with estimated liabilities exceeding $4.5 billion. Id. at 992. The court initially permitted lTv steel to discharge the medical benefits paid to retirees, which was estimated to be nearly $120 million per year. Id. at 993. lTv steel would remain in bankruptcy for nearly seven years; however, the discomfort created by its initial reorganization plans, at least in part, pushed Congress to finally pass the RBBPa in 1998. See stabile, supra note 5, at 1926-27.
12 The Retiree Benefits Bankruptcy Protection act of 1988, 11 u.s.C. § 1114 (2006).
employer enters bankruptcy.13 specifically, a major question was whether a company that has applied for bankruptcy protection under chapter 11 may unilaterally modify or terminate retiree medical benefits.
In addressing the role of § 1114 in protecting retiree medical benefits, the courts have been quick to turn to the legislative history of the rbbPA.14 The legislative history
defines its purpose as “to provide additional protections for the insurance benefits of retirees, their spouses and dependents, of debtors under the bankruptcy code.”15 It also specifically addresses the 1986 bankruptcy of ltV steel, and continues by recognizing the special treatment afforded to this creditor class by the rbbPA, but justifies that such special treatment is “appropriate because of the hardship imposed on elderly recipients when such [medical] benefits are suddenly curtailed.”16
In the legislative history that accompanied the senate version of this bill, the legislators clearly identified the protection of retirees and their medical benefits plans as the primary purpose in providing for the rbbPA.17
courts normally only look to the legislative history of a statute when it is required to explain the intent of otherwise ambiguous statutory language, and the plain language of the statute can be interpreted in a number of ways.18 section 1114(e) codifies the methods under which a debtor in possession, or trustee appointed by the court, may ultimately modify an established retiree medical benefit plan already in existence.19 As a default requirement of the rbbPA, a company in bankruptcy “shall timely pay and shall not modify any retiree benefits.”20
13 In re Chateaugay Corp., 111 B.R. 399, 402 (Bankr. s.d.n.y. 1990). lTv steel filed for Chapter 11 bankruptcy on july 17, 1986. Id. in doing so, it also informed over 70,000 retirees that they would no longer receive their medical benefits as a result of the reorganization proceedings that would require the company to achieve court authorization to maintain such benefits. Id.
14 See, e.g., In re Chateaugay, 111 B.R. at 404; In re doskocil Co., inc., 130 B.R. 870, 875 (Bankr. d. kan. 1991).
15 s. ReP. no. 100-119 (1987), as reprinted in 1988 u.s.C.C.a.n. 683, 683. See also In re arclin u.s. holding, inc., 416 B.R. 117, 119-20 (Bankr. d. del., 2009).
16 See s. ReP. no. 100-119 (1987), as reprinted in 1988 u.s.C.C.a.n. 683, 684.
17 Id. 683-84. it should be noted that the protection of retirees is still limited and really only provides additional procedural due process requirements on a company in bankruptcy prior to modification or termination of such benefits. See id. at 685.
18 See Garcia v. united states, 469 u.s. 70, 75 (1984). 19 11 u.s.C. § 1114(e) (2006). 20 Id.
37O c t O b e r 2 0 1 2
The only exceptions to the ban on such modifications are found in §§ 1114(e)(1)(A) and 1114(e)(1)(b).21 The first exception requires authorization by the bankruptcy court.22 The second exception requires an explicit agreement from the authorized representative of the recipients of the benefits to the modification or termination.23 Neither exemption contemplates the possibility of a company in bankruptcy to unilaterally modify retirement benefits obligations.24
The legislators unambiguously drafted subsection (e) to include the only two means by which a debtor company or a court-appointed trustee can modify retiree medical benefit payments, and therefore desired subsection (e)
21 Id. at § 1114(e)(1)(a)-(B). 22 Id. at § 1114(e)(1)(a). This subsection allows modification of
term benefits only where “the court, on motion of the trustee or authorized representative, and after notice and a hearing, may order modification of such payments, pursuant to the provisions of subsections (g) and (h) of this section.” Id.
23 11 u.s.C. § 1114(e)(1)(B) (2006). This subsection allows modification of term benefits in situations where “the trustee and the authorized representative of the recipients of those benefits . . . agree to modification of such payments.” Id.
24 Id. at § 1114(e)(1)(a)-(B) (2006).
to be completely inclusive. 25 The language found within subsection (e) is neither ambiguous nor dichotomous, and it certainly does not justify any amount of judicial interpretation of the rbbPA and § 1114 of the bankruptcy code.26
Despite the seemingly clear language of § 1114, no standardized interpretation exists and many questions still remain.27 From the outset, the rbbPA has been subject to varied interpretations by federal courts.28 It is these interpretations that have contributed to the misunderstanding of the purpose, intent, and application of the rbbPA.29
However, the sole issue discussed here is whether § 1114(e)(1) applies against a bankrupt company when the retiree benefits plan contractually allows for unilateral termination or modification outside of bankruptcy.30 one of the first courts to address this issue was the bankruptcy court for the District of Kansas in the case, In re Doskocil Companies.31 The case involved a pre-existing retiree benefit medical plan created by a subsidiary company, wilson Foods, which was maintained by the parent company, Doskocil companies, Inc.32 This retiree medical benefit plan was reported according to employee retirement Income security Act (erIsA)33 standards using a summary Plan Description.34 The key provision
25 See, s. ReP. no. 100-119 (1987), as reprinted in 1988 u.s.C.C.a.n. 683, 687. “The bill provides that payments of retiree benefits shall not be modified by a debtor except by agreement with the authorized representative or upon order of the court.” Id.
26 See, s. ReP. no. 100-119 (1987), as reprinted in 1988 u.s.C.C.a.n. 683, 685-89.
27 See, In re ionosphere Clubs, 134 B.R. 515, 517 (Bankr. s.d.n.y. 1991).
28 See, e.g., In re new valley Corp.,no. 92-4884, 1993 u.s. dist. leXis 21420 at *1, *15-*16 (Bankr. d.n.j. jan. 29, 1993); In re delphi Corp., no. 05-44481, 2009 wl 637315 at *1, *6 (Bankr. s.d.n.y. Mar. 10, 2009).
29 This article only focuses on the issue of the applicability of § 1114 to retiree medical benefit plans that have a pre-petition contractual right to modify or terminate the plans, at the discretion of the issuing company. it largely ignores the other issues that have arisen in applying § 1114.
30 Compare In re Doskocil Co., 130 B.R. at 877 (rejecting the proposition that § 1114 applies to modifications or terminations of retiree benefits where the debtor has contracted for the right to do so at will in the applicable agreement), with In re farmland indus., 294 B.R. 903, 919 (Bankr. w.d. Mo. 2003)(upholding that § 1114 applies to all modifications of retiree benefits in place at the filing of the petition for Chapter 11 bankruptcy, regardless of a prepetition right to unilaterally modify such benefits at will).
31 In re Doskocil Co., 130 B.R. at 870.32 Id. at 871.33 29 u.s.C. § 1022 (2006).34 Id. in addition to requiring certain information to be included
within the summary Plan description, the description must be written in a manner sufficient to allow the “average plan participant” to understand their rights, benefits and obligations under the plan. Id.
business dispute • divorce • probate litigation fraud • business valuation • p.i.
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38 D c b a b r i e f
for the court to consider in the case was the employer’s pre-petition right under the plan that maintained the ability of wilson Foods and its parent company to modify or terminate the benefit plan at will.35 The court relied upon the holding of a previously decided case, In re White Farm Equipment Co., in which the sixth circuit held that parties may adopt the terms under which retiree benefit plans vest, or alternatively, may be terminated by one or both parties. The court further held that there existed no obligation on the grantor to continue to provide uninterrupted benefits to retirees where the plan otherwise allows for such a pre-petition right.36 Accordingly, the employer could modify the plans at will, despite § 1114.37 However, it is important to note that the court in In re Doskocil relied on a case that was decided prior to the creation of the rbbPA and §1114,38 and therefore, its holding is not directly applicable to situations occurring after the implementation of the statute. unfortunately since In re Doskocil, the majority of courts have since relied on similar reasoning created to conclude that §1114 does not supersede the contractual provisions of a valid retiree benefit plan during chapter 11 bankruptcy proceedings.39
Despite the majority view of the courts, a recent case from the Third circuit of the united states court of Appeals, IUE-CWA. v. Visteon Corp.(In re Visteon Corp.), recently held that §1114 is applicable to retiree benefit plans even where a pre-petition right to terminate at the will of the employer exists.40 Visteon corporation (“Visteon”) was one of the largest distributors and suppliers of automotive parts when the company voluntarily filed for chapter 11 bankruptcy on may 28, 2009.41 At the time of filing bankruptcy, their most recent sPD agreed upon between the company and employers provided for Visteon, at their discretion and in a unilateral manner, the ability to “suspend, amend or terminate the Plan [retirement medical benefits]—at any time and in any maer [sic] to the extent
35 In re Doskocil Co., 130 B.R. at 871-73.36 In re white farm equip Co., 788 f.2d 1186, 1186 (6th Cir.1986).
The case involved the purchase of white farm, in bankruptcy at time, to white farms usa, inc., a wholly-owned subsidiary of TiC. Id. at 1188. white farms usa agreed to assume existing retiree medical benefit contracted for by white farms prior to bankruptcy. Id. The plans included a clause allowing the company to terminate the plan at any time. Id. at 1189. The court concluded “that the parties may themselves set out by agreement or by private design, as set out in plan documents, whether retiree welfare benefits vest, or whether they may be terminated.” Id. at 1193.
37 See, In re Doskocil Co., 130 B.R. at 873.38 See, In re White Farm Equipment Co., 788 f.2d at 1189.39 See, e.g., In re new valley Corp.,no. 92-4884, 1993 u.s. dist.
leXis 21420 at *1, *15-*16; In re delphi Corp., no. 05-44481, 2009 wl 637315 at *1, *6 ..
40 In re Visteon Corp., 612 f.3d 210, 224-25 (3d Cir. 2010). 41 Id.
permitted by law.”42 Visteon moved to terminate all of their retiree benefits plans, including the health insurance benefits provided for in the most recent cbA.43 The motion brought by Visteon affected approximately 2,100 retirees covered by the most recent sPD.44 on December 10, 2009, the bankruptcy court granted the majority of Visteon’s request to terminate retiree benefit plans.45 The bankruptcy court, in reaching its decision, relied upon the majority opinion held by most courts regarding the issue at hand in the case.46
on appeal, the Third circuit addressed each of the rationales in their reversal of the district court, along with several ancillary issues considered by the lower court.47 The court began its analysis by looking specifically at the language of §1114(e)(1),48 and reading it in its “ordinary and natural sense.”49 The court concluded that congress intended to impede upon the ability of a debtor “to modify any entity or person under any plan, fund or program in existence when the debtor files for chapter 11 bankruptcy, and it does so notwithstanding any other provision of
42 Id. 43 Id. 44 Id. 45 In re Visteon Corp., 612 f.3d at 213-14. visteon made this request
to the court on june, 26, 2009; in addition to affecting the 2,100 retirees from the recently closed Bedford and Connersville plants, this motion also affected approximately 5,900 other present and former employees of visteon. See id at 214.
46 See, e.g., In re New Valley Corp.,1993 u.s. dist. leXis 21420 at *15-*16; In re delphi Corp., no. 05-44481, 2009 wl 637315 at *1, *6 (Bankr. s.d.n.y. Mar. 10, 2009); In re Doskocil Cos., Inc., 130 B.R. at 874 .
47 In re Visteon Corp., 612 f.3d at 219-37. The bankruptcy court based part of its interpretation on a dismissal of the plain language of the statute, stating that the language of the statute cannot be correct since it would afford beneficiaries greater protection under bankruptcy law than under non-bankruptcy law. Id. at 214. further, the court cited non-bankruptcy law as prevailing over bankruptcy law where the two meet head-to-head. Id. finally, the court eluded the relevancy of the language explicitly used by Congress as absurd so as to require its judicial construction of the applicability of § 1114. Id.
48 Id. The court also focuses on § 1129(a)(1) and other subsections of § 1114 where it relates directly to a reading and understanding of the express meaning of § 1114(e)(1). See In re Visteon Corp., 612 f.3d at 220-226. however, the court maintains the crux of its analysis on § 1114(e)(1) since this is the statutory language which is directly at dispute between both sets of parties in the bankruptcy proceedings. See id.
49 See In re harvard indus., 568 f.3d 444, 450-51 (3d. Cir. 2009). in whole, the passage taken from this case reads as follows: “as there is no binding authority interpreting this statute, we rely on basic tenets of statutory interpretation. when interpreting a statute, ‘the literal meaning of the statute is most important, and we are always to read the statute in its ordinary and natural sense.’” Id. at 450-51 (quoting Galloway v. united states, 492 f.3d 219, 223 (3d Cir. 2007)).
39O c t O b e r 2 0 1 2
the bankruptcy code.”50 The court discussed the words that congress explicitly chose, as well as those left out, in coming to its conclusion that congress made a calculated decision in drafting the language of the statute.51
In further applying the definition of a retiree benefit as found in §1114(a),52 the court found that a plain reading of the definition of retiree benefits unambiguously includes retiree health benefit plans, including those with a pre-petition right at issue.53 Accordingly, since the court found that the plain reading of both §1114(a) and §1114(e)(1) does not allow for the language to be “reasonably susceptible of different interpretations,”54 and the language is not ambiguous so as to allow any inference by the court in enforcing the code section’s provisions.55
After considering the plain language of the statute, the court focused on the appellees’ second argument,56 which contends that the rbbPA’s legislative history is at odds with the plain language of §1114(e)(1).57 In particular, this
50 In re visteon Corp., 612 f.3d 210, 220 (3d. Cir. 2010). it should be noted here, and the court later addresses this provision of §1114, that it is still subject to §1114(l), which extends protection to those plans in existence at the time of filing Chapter 11 bankruptcy and those in existence in the past 180 days preceding the filing of Chapter 11 bankruptcy by the debtor. 11 u.s.C. §1114(l) (2006).
51 See In re Visteon Corp., 612 f.3d at 220.52 11 u.s.C. § 1114(a) (2006). This subsection states the following:
for purposes of this section, the term “retiree benefits” means payments to any entity or person for the purpose of providing or reimbursing payments for retired employees and their spouses and dependents, for medical, surgical, or hospital care benefits, or benefits in the event of sickness, accident, disability, or death under any plan, fund, or program (through the purchase of insurance or otherwise) maintained or established in whole or in part by the debtor prior to filing a petition commencing a case under this title. Id.
53 In re Visteon Corp., 612 f.3d at 220-21; see also In re farmland indus., inc. 294 B.R. 903, 916-917 (Bankr. w.d. Mo. 2003).
54 In re Visteon Corp., 612 f.3d at 221 (quoting dobrek v. Phelan, 419 f.3d 259, 264 (3d Cir. 2005)).
55 See id. 56 in this case, the appellees include both visteon Corporation, as
debtor in possession, and the official Committee of unsecured Creditors of visteon Corporation, who are also a party to the bankruptcy proceedings as a result of their collective interest in its outcome. In re visteon Corp., 612 f.3d 210, 210 (3d Cir. 2010).
57 Id. at 226-27.
argument points to specific statements made by legislators that indicate that the purpose of §1114 is prevent “debtors from reneging on their ‘promises’ or their ‘legal and con-tractual obligations.’”58 These statements seems to indicate that unlike the language of the statute, 59 which provides
protection for any retiree ben-efit plans during the pendency of chapter 11 pro-ceedings, §1114 was enacted sole-ly to provide pro-tection for those retiree benefits where the debtor has created an
absolute obligation in their financial position.60 The appellees’ argument “cherry-picks” individual com-
ponents of the entire legislative history in an effort to find support for their particular position,61 a practice that the court recognized as “rife with the potential for mischief and abuse.”62 As a result, the court is careful to point out that where the language of the statute is not, in itself, am-biguous, Mitchell v. Horn requires that “[w]e do not look past the plain meaning unless it produces a result ‘demon-strably at odds with the intentions of its drafters.’”63 Hav-ing this framework in mind, the court looked to contrary statements from other legislators that provide support for the statute’s language to demonstrate that the Mitchell re-quirement is not met in this case.64
The court concluded its analysis by looking at the senate report that supplemented the rPPbA, which the court found to be more authoritative than specific state-ments from particular legislators.65 looking to an excerpt from that report,66 the court finds that the legislators in-
58 Id.59 The particular language at issue here is “the debtor in
possession . . . shall timely pay and shall not modify any retiree benefits.” 11 u.s.C. § 1114(e)(1) (2006) (emphasis added).
60 Id.61 See In re visteon Corp., 612 f.3d at 228, n.20. 62 Id. 63 Mitchell v. horn, 318 f.3d 523, 535 (3d Cir. 2003).64 In re Visteon Corp., 612 f.3d at 228.65 In re Visteon Corp., 612 f.3d at 229. 66 s. ReP. no. 100-119 (1987), as reprinted in 1988 u.s.C.C.a.n. 683,
687. The following is the excerpt from the senate Report relied on by the court:
section 1114 makes it clear that when a Chapter 11 petition is filed retiree benefit payments must be continued without change until and unless a modification is agreed to by the parties or ordered by the court. section 1114(e)(1) rejects any other basis for trustees to cease or modify retiree benefit payments. Id.
...the prospect of our economy being prepared or even able to take on the extra health care obligations in maintaining the
livelihood of retirees is unlikely.
40 D c b a b r i e f
01.indd 1 8/10/2012 3:29:27 PM
tended that additional protections accompany retiree ben-efits immediately upon the filing of a chapter 11 petition, and that this protection makes any pre-petition contrac-tual rights, including the ability to unilaterally terminate the benefits outside bankruptcy, irrelevant.67 Accordingly, the court finds that the evidence offered by the appellees is insufficient to meet the requirement set out in Mitchell to allow the courts to look past the plain language of the statute.68
Finally, the court rejected the debtor’s argument that imposing additional restrictions on a debtor during bankruptcy proceedings that erIsA does not impose outside of such proceeding is clearly absurd, since giving a creditor greater rights during a debtor’s bankruptcy is counterintuitive.69 The court reasoned that the debtor’s argument mischaracterizes the underlying reason for the creation of the rbbPA, which was to explicitly offer the additional protections of the statute for a particularly vulnerable group.70 The court found that § 1114 stood as congress’ attempt to protect the otherwise defenseless rights of retirees at a time when such rights are most at risk.71 In other words, the Act only provides the protection during bankruptcy proceedings, when a reorganizing company is most likely to eliminate such obligations due to internal desires to re-emerge as an economically profitable entity, and external influences by creditors to shed unattractive liabilities.72
This additional protection is entirely consistent with the legislative history accompanying the rbbPA and the intent of congress in moving forward with the passage of the Act.73 Finding the desire of congress to provide an equal platform for a disparaged class of creditors, the court rejects the absurdity argument that the appellees’ put forward.74
while the holdings of the majority of courts and the Third circuit are matters of legal significance, the protection of retirees, particularly as they begin to comprise a greater proportion of the population in the next few years,75 is also an important public policy matter. Adding to the problems that retirees will encounter if their anticipated retiree medical benefits are terminated is the poor state of the economy, which has either been in decline or been
67 In re Visteon Corp., 612 f.3d at 229.68 Id. at 226-28. all of these factors provide little support for the
debtor’s argument and ultimately support the holding of the court that the legislative history is not convincingly “at odds” with the language of the statute. Id. at 228-31.
69 Id. at 232.70 In re Visteon Corp., 612 f.3d at 232.71 Id. at 234.72 Id. at 234-35; see also stabile, supra note 5, at 1953-54.73 In re Visteon Corp., 612 f.3d at 236-37.74 Id.75 eCon. and sTaTisTiCs admin., supra note 6.
stagnant for the past several years.76 Holding companies responsible for the retiree medical benefits that they have created is not only important for the retirees, but also for society and the economy as a whole. If the majority reasoning is applied, and companies are allowed to shed these liabilities, every section of our nation must bear the cost of this released obligation in the form of governmental income maintenance programs like medicare. The issue then becomes who should bear this cost, the company attempting to reorganize, or the taxpayers.
unlike the majority of courts that have relied upon non-legal principles and arguments to rationalize their opinions,77 the Third circuit correctly applied the long-honored principle of judicial deference to the legislature.78 It is for congress to decide upon the wisdom and rationale in passing legislation;79 the court must adhere to the language of the statute unless the language of the statute is ambiguous.80 combining this legal precedent, with the fact that our economy is currently still recovering from a recession,81 and that our government is already spending enormous amounts in the national budget to pay for subsidized health care for the nation’s citizens,82 the prospect of our economy being prepared or even able to take on the extra health care obligations in maintaining the livelihood of retirees is unlikely. As a result, there exists a significant reason for the united states supreme court to provide a definitive ruling that is consistent with that of the Third circuit in In re Visteon Corp., in order to avoid a catastrophic shift in the responsibility for the promised benefits to retirees from their former employers to the government, in the form of taxpayer funding. □
76 see bUsiness CyCLe daTing CommiTTee, naTionaL bUReaU of eConomiC ReseaRCh, data and figures (september 20, 2010), available at http://www.nber.org/cycles/recessions.html. utilizing the fourth quarter of 2007 as the base index, since then, the indexed levels of Gross domestic Production has not yet returned to that level through the first quarter of 2010, with the Gross domestic Product shrinking by 7.15% at its worst point in the fourth quarter of 2008. id.
77 These non-legal principles include concepts such as wisdom, fairness and personal views on sensible policy. See In re visteon Corp., 612 f.3d at 219, 237.
78 See united states v. Granderson, 511 u.s. 39, 68 (1994) (concurring opinion). “it is beyond our province to rescue Congress from its drafting errors, and to provide for what we might think, perhaps . . . is the preferred result.” Id. (citation omitted).
79 See In re Visteon Corp., 612 f.3d at 237.80 See Granderson, 511 u.s. at 68. 81 See bUsiness CyCLe daTing CommiTTee, supra note 78.82 in 2009, the total national expenditure for health care was 2.5
trillion dollars. CenTeRs foR mediCaRe and mediCaRe seRViCes, UniTed sTaTes dePaRTmenT of heaLTh and hUman seRViCes, naTionaL heaLTh exPendiTURes 2009 highLighTs (2009), available at http://www.cms.gov/nationalhealthexpenddata/downloads/highlights.pdf. direct government health care financing programs, like Medicare and Medicaid, accounted for 44% of that total amount. Id. on the other hand, only 21% of this total amount was financed by businesses. Id.
42 D c b a b r i e f
Michael Sitrick practices in Best, Vanderlaan & Harrington’s DuPage County office where he concentrates in civil litiga-tion. He received his B.S. in Business Management and a minor in Music from Millikin University in Decatur, Illi-nois, where he graduated magna cum laude. He received his J.D. from Loyola University Chicago School of Law, where he also earned a certificate in Trial Advocacy, received two CALI Awards, was recognized on the Dean’s List multiple semesters, and was President of Loyola’s chapter of the International Le-gal Fraternity Phi Delta Phi.
IllINoIs lAw uPDAte
ediTed By MiChael siTRiCk
New Appellate court Decisions in civil, criminal and Family law
Criminal Law Admissibility of Hearsay EvidenceBy Michael R. Sitrick
People v. Andrew, 2012 Il App (1st) 100173-u (may 7, 2012). In Andrew, the Defendant was convicted of first-degree murder for shooting a man who had been standing on a street corner. Three separate witnesses saw the Defendant commit the murder, but none had seen him before or knew his identity at the time. Thus, the police’s only initial leads were a physical description of the Defendant and witness’ statements that the suspect went by the nickname “D-dub.” However, during its investigation, the police came across a man who had not witnessed the shooting but identified the nickname “D-dub” as belonging to the Defendant. As a result of this man’s statement, the Police were able to identify the Defendant as a suspect and eventually present him for identification to the murder’s eye-witnesses through lineups and photo arrays. The Defendant was ultimately convicted at trial on the testimony of the eye-witnesses; however, the man who linked the nickname of the suspect to the Defendant was not called to testify as a witness. The Defendant appealed his conviction arguing, inter alia, that the trial court had erred by allowing the state to improperly elicit hearsay testimony from the police regarding the man linking the nickname “D-dub” to the Defendant.
on appeal, the court affirmed the trial court holding that police may testify about statements made by others when such testimony is not offered to prove the truth of the matter asserted, but is instead used to show the investigative steps taken by the police leading up to a defendant’s arrest. In so holding, the court
distinguished three prior cases that had rejected the admission of hearsay testimony: People v. Escobar, 77 Ill. App. 3d 169 (1st Dist. 1979); People v. Rivera, 277 Ill. App. 3d 811 (1st Dist. 1996); and People v. Jura, 352 Ill. App. 3d 1080 (1st Dist. 2004). First, with regard to Escobar, the court distinguished it on the ground that, in that case, only one of five witnesses to that shooting (as opposed to three as here) had identified the defendant and that the state had made an argument in closing that others had kept quiet regarding the defendant’s identity out of fear. second, with regard to Rivera, the hearsay identifications in that case had been made by unknown people as the defendants exited a police car, whereas here, the hearsay statement at issue was not used to specifically indicate that the Defendant was the offender, but rather to show that his nickname was tied to the suspect. And third, with regard to Jura, the hearsay statements in that case were used repeatedly by the state during its opening and closing arguments, whereas here, the state merely introduced the hearsay statement to explain to the jury the steps that the police had taken in its investigation of the crime and how the Defendant came to be identified.
44 D c b a b r i e f
ConTinued on neXT PaGe
Family LawCollege Contributionsby Danya A. Grunyk, Hilary A. Sefton, Leah D. Setzen and Victoria C. Kelly1
In re Marriage of Koenig, 2012 Il App (2d) 110503 (April 27, 2012). In Koenig, an ex-wife filed a post-decree petition against her ex-husband for retroactive contribution for $257,000 in college and law school expenses that she incurred for her daughter. Her ex-husband then filed a motion for summary judgment, which the trial court granted. on appeal, the court reversed and remanded the trial court’s decision upon conducting a thorough review of Petersen v. Petersen, 403 Ill. App. 3d 839 (1st Dist. 2010) (ex-wife was not entitled to retroactive college expenses where the allocation of said expenses was reserved in the judgment; therefore, the allocation would be in the nature of a modification of child support) and In re Marriage of Spircoff, 2011 Il App (1st) 103189 (2011) (judgment specifically stated an obligation for college expenses but said obligation was not expressly reserved as in Petersen). specifically, the court held that this case was more in line with Spircoff than with Petersen because, here, the parties’ settlement agreement, which had been incorporated into the judgment for dissolution of marriage, contained neither a reservation clause on the issue of college and postgraduate expenses nor any reference to §513 of the Illinois marriage and Dissolution of marriage Act (750 Ilcs 5/513). rather, it affirmatively assigned responsibility to both parties for the college and post-college expenses of the parties’ daughter. Accordingly, the cause was remanded for hearing on contribution to the expenses.
Civil Practice Tort Immunity Act and Joint Tortfeasor Contribution Actby Michael Sitrick
Ponto v. Levan, 2012 Il App (2d) 110355 (June 27, 2012). In Ponto, the Plaintiff brought a personal injury action for negligence against the Defendant truck driver for injuries she sustained after the Defendant lost control of his vehicle and crashed into her. The
1 Grunyk & associates, P.C., naperville, illinois
Defendant truck driver was intoxicated at the time of the incident, but the evidence also showed that the Defendant struck an ice patch just prior to colliding with the Plaintiff, which contributed to the incident. within one year of the Plaintiff filing her complaint, the Defendant filed a third-party complaint for contribution against the city arguing that its negligent maintenance of a broken water main caused the incident. After the one-year limitations period had passed, the Plaintiff then sought leave to amend her complaint to add the city as a direct defendant, but the trial court denied her motion. The Defendant later admitted partial liability for the incident and a jury awarded the Plaintiff a verdict of approximately $600,000, finding the Defendant 65% liable and the city 35% liable. After the Defendant’s insurance coverage was exhausted, the Plaintiff tried to recover the remainder of her verdict from the city, but the trial court refused to allow her to do so on the ground that the city did not have to pay any contribution until after the Defendant had paid more than his pro rata share of the verdict.
on appeal by both the Plaintiff and the Defendant, the court upheld the trial court’s ruling holding: (1) that the one-year statute of limitations period to sue the city provided under §8-101 of the Illinois tort Immunity Act was not trumped by section 2-406 of the Illinois code of civil Procedure, which generally allows a Plaintiff to amend her complaint to add a third-party defendant who could have originally been named as a defendant filing a proper pleading; (2) the city, despite being a third-party defendant that was more than 25% at fault for the Plaintiff’s injuries, could not be held jointly and severally liable to the Plaintiff under §2-1117 of the code because the city had not been directly sued by the Plaintiff; (3) the Joint tortfeasor contribution Act (740 Ilcs 100/0.01 et seq.) permitted the city as a third-party defendant to be shielded from judgment unless and until the Defendant paid more than his pro rata share of the judgment against him; and (4) the trial court properly precluded the city from asserting immunity for the alleged discretionary acts of its employee because the city official in charge of fixing the water main at issue was not aware of the severity of the problem with it until after the incident.
45O c t O b e r 2 0 1 2
Family Law:Savings Withdrawals as Net Income by Donald C. Schiller and Michelle A. Lawless2
In re the Marriage of McGrath, 2012 Il 112792 (may 24, 2012). At issue before the supreme court was whether money that an unemployed parent regularly withdrew from a savings account could be included in the calculation of net income pursuant to §505 of the ImDmA. The supreme court held that it was in fact not includable, and reversed both the appellate and trial courts. At the trial level, the father testified that he was unemployed and living off assets awarded to him as part of the judgment for dissolution of marriage at a rate of $8,500 per month. Although the supreme court agreed that the trial and appellate courts were rightly concerned that the amount of support generated by the payor’s actual net income was inadequate, it found fault with the inclusion of the savings withdrawals as “income.” The court remanded the case with instructions for the trial court to calculate the net income without regard to the amounts the father regularly withdrew from his savings account, but directed the court to then consider whether 28% of that amount of support is inappropriate under the new calculation based on his assets. If the
2 schiller duCanto & fleck llP
court determines that the amount is inappropriate, it should make the specific finding required by §505(a)(2) and adjust the award accordingly.
Family LawSetting Unallocated SupportBy Donald C. Schiller and Michelle A. Lawless3
In re the Marriage of Kincaid, 2012 Il App (3rd) 110511 (July 3, 2012). wife filed a post-judgment motion to modify support based on husband’s increase in income. The trial court increased his unallocated support obligation from $5,500 per month to $9,800 per month based on his gross income. The Appellate court reversed and held that while a court is not explicitly required to consider a payor’s net income when making a maintenance award, it is required to do so when making a child support award. Therefore, since unallocated support is always comprised of some child support, a trial court must always determine the payor’s net income, as that term is defined in § 505(a)(3) of the ImDmA, before awarding unallocated support. The court remanded in order for the trial court to determine husband’s net income and then order him to pay an unallocated support award based on that amount. □
3 schiller duCanto & fleck llP
The Law Firm of Dreyer, FooTe, STreiT, FurgaSon & SLocum, P.a.
Takes Pleasure in announcing
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Adam R. WirtzFormerly of the Wirtz Law offices, LLc
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1999 West Downer Place Telephone: (630) 897-8764 aurora, illinois 60506 Facsimile: (630) 897-1735
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Thomas J. Streit richard m. Furgason richard c. SlocumPaul T. Patricoski robert F. Brouch Jonathan B. Shanower michael W. Huseman
adam r. Wirtz Thomas e. St. Jules
William J. Foote – of counsel
Dreyer Foote ad_final.indd 1 8/15/12 1:29 PM46 D c b a b r i e f
fe aTuRes Profile: DCBA’s New
President Sharon R. Mulyk 48by Sean McCumber
PLUS
DCBA UPDATE by Leslie Monahan 51ISBA UPDATE by James McCluskey 52
LEGAL AID UPDATE by Brenda Carroll 53WHERE TO BE by John Pcolinski 56
47O c t O b e r 2 0 1 2
Don’t stop believing: A Profile of DcbA President sharon r. mulyk
By sean MCCuMBeR
on may 31, 2012, the Hon-orable Thomas Else gave the oath of office to Sha-
ron R. Mulyk, swearing her in as President of the DuPage county bar Association (“DcbA”). mulyk be-came the youngest person to serve as President, the fourth woman to lead the DcbA, and the first person to serve as President of the three major DuPage county bar associations, the DcbA, the DuPage Association of women lawyers, and the DuPage Justinian society of lawyers. Adding to those job titles, mulyk is a principal of mulyk, laho & mack, llc, a law firm practicing primarily in the area of family law, as well as being a wife,
mother, stepmother, professor, soror-ity mentor, and friend. However, like all bar leaders, even ones with such a monolithic career, it begins with the path to law school.
mulyk grew up in bolingbrook, and is a bicentennial baby, to which she chuckled, “Are you really going to backhandedly reveal my age?” she attended bolingbrook High school, where she was classmates with her now husband, Jim, and where she finished her high school credits in 3 ½ years. with her last high school semester fo-cusing on college courses, she gradu-ated and then enrolled at Illinois state university in Normal, Illinois. when discussing her major, she notes, “I was
a political science major; I had every in-tention of becoming President.” when asked President of what, she replies, “The united states of America.” while she was preparing for her goal of run-ning the country, a somewhat prophetic foreshadowing of her leadership future, she played soccer for the then-newly cre-ated women’s soccer
team, served as an active member of the student government Association, and joined and participated in the Al-pha gamma Delta sorority. Her time as a redbird was not all fun and po-litical preparation, as she says, “I was always studying and pushing myself in my coursework.” Again, this paid off, as mulyk completed her studies at Illinois state early, leading her to her next path – law school.
In January 1997, she began her law school career at John marshall law school in chicago, Illinois. she says, “I always wanted to be a lawyer; there was never a question in my mind.” This is bolstered by the fact that she worked for attorney John Bush, at Hunt, Kaiser, bush & Aranda, since she was in middle school, so, as mu-lyk puts it, “I knew at early age what being a lawyer meant and what it took to be one.” However, she adds, “law school, or more getting into law school, was my first real challenge. I took the lsAt (law school Admis-sions test1) two times.” some of her graduating classmates included Du-Page attorneys Darius Sethna, Jason Cook, Kevin Hull, and Kathy Bach-mann, as well future John marshall
1 lsaT and law school admission Test are registered trademarks of the law school admission Council, inc., a delaware corporation.
Colleen Mclaughlin and sharon Mulyk
48 D c b a b r i e f
graduates Angel Traub and Emily Carrara. mulyk studied hard and achieved success in law school, too. Kathy bachmann notes, “sharon was always so smart and prepared, and ac-tive and involved. she was even an executive officer of the moot court competition.” even though mulyk completed her law school credits early, readily able to explain the early foun-dations of champerty and the concept of the fertile octogenarian, she contin-ued at John marshall for the full three years, graduating in January, 2000.
with graduation behind her, but the February, 2000 bar examination looming ahead, she began her legal ca-reer at the law firm of Fortunato, Far-rell, Davenport & Arnold. she notes, “I have had the opportunity to work for and with some great attorneys. Linda Davenport and Joel Arnold were absolutely great mentors, from whom I learned a great deal.” while there, mulyk also became involved with the DcbA, first as a member, though that would not be the case for long. she was appointed to the DcbA Planning committee in 2001, as well as serving a Judicial Interven-tion leader. In 2003, she began her first bar leadership role, when she became treasurer of the DuPage Jus-tinian society of lawyers. For the DcbA, she was appointed as Associ-ate general counsel in 2004. success was not always in her grasp, as mu-lyk comments, “I ran for a director position with the DcbA four times and lost each time.” so how did this unsuccessful string of lost elections, rivaling the super bowl2 runs of the buffalo bills, lead to a DcbA presi-dency? That requires mulyk to disin-ter some radishes of truth from the moist soil of history.
she comments, “I was deterred. I was not sure where I was going to go
2 super Bowl is a registered trademark of the national football league, an unincorporated association of football clubs based in the state of new york.
with the DcbA, and I was already on leadership tracks with D.A.w.l. and the Justinians.” However, it was the Honorable Thomas else, then an at-torney and DcbA leader himself, who encouraged mulyk to run for Third Vice President of the DcbA. In 2009, she did run, facing off against attorney and colleague Timo-thy Whelan in a contested, but not contentious, election, where she suc-ceeded by a very close margin. she states, “I like the DcbA to have con-tested elections. It encourages people to look at issues facing the DcbA and encourages the candidates to ex-press goals and opinions.” As with all DcbA presidents of the modern era, mulyk had three years to prepare for her presidency as an executive officer in various vice president roles. when asked what she saw as an area of improvement for the DcbA, she says, “I wanted a board [of di-rectors] with an opinion, where they would chal-lenge the executive board and have real and open dis-cussions on the direction of the [DcbA].” bilge and fluff do not exist in her vo-cabulary, as she sees issues and opens them for discus-sion and planning.
As she enters her presi-dency, mulyk finds the DcbA on solid footing. It is very solvent, and has a solid reserve fund. The mortgage on the bar cen-ter has been paid in full, and there are hints of a “burn the mortgage” cel-ebration at the DcbA Pig roast on November 1, 2012. For staffing, the DcbA looks to hire a per-manent public relations and media person, as well as a con-tinuing legal education person. with
all of that bar association goodness at her doorstep, mulyk wisely states, “I am proud of all that we, as an asso-ciation, have achieved and completed, but there is more we can do and new ideas I hope to introduce this year.” one of those new ideas is a DcbA podcast. with the faint cries of Jo-seph mirabella asking what that is, as he furiously scrolls through the mes-sages on his iPad3, a podcast would be a prerecorded, digital audio or video program that is part of a themed or episodic series. mulyk opines, “we could begin with podcasts of commit-tee meetings. our members would not necessarily receive mcle credit, but at least they would have a digital
3 iPad is a registered trademark of apple, inc., a California corporation.
49O c t O b e r 2 0 1 2
storehouse of information that they could access on their computers, tablets, and smartphones.”
some of the challenges facing the DcbA President, which mulyk reveals in tell-all format with all the gusto of the tom & Katie4 split, are the type that most organiza-tions face. mulyk shares, “when I prepared for my year as President, I found it amazing the number of people I needed to appoint to com-mittees.” she continues, “luckily, we have excellent membership in-volvement, as well as a great core group of members, all of whom are willing to lend a hand, lead a com-mittee, or share their ideas.” There are not only administrative com-mittees and substantive law com-mittees that require mulyk’s attention. The DcbA has worked to cultivate a strong relationship with the members of the judiciary in DuPage county. The resulting fruits of that cultivation mean a synergy of bench and bar to tackle other law and justice issues in DuPage, ranging from the rising pro se litigant activity in domestic relations matters, to the intermingling of law and technology, such as with e-filing, which requires a review and update to local court rules.
Another challenge for mulyk’s year as President, as she notes, is “getting members excited about being mem-bers” of the second largest regional bar association in the state of Illinois. Noting that the economy has taken
4 The author is not aware that either Tom or katie are registered trademarks of any entity.
its toll on DcbA members, and attorneys as a whole, she comments, “I hope to find a way for each member of the DcbA to find the value in their dues. to some, it will be cost-effective mcle pro-grams. to others, it will be socialization and network-ing from Young lawyers Nights and Judges’ Nite.”
The challenge remains of getting oth-er members, who have vast skills, and knowledge to contribute, to increase their involvement. she says, “Asking someone to give a little more of their time, when that cuts into time away from a personal life, is a big request. I hope that bringing satisfaction and recognition to those members will make their effort worth it.” Again, with a solid reserve and fully paid-for building, the DcbA now has resourc-es available to offer more options to its members and to increase the value of those annual dues to the members.
lastly, mulyk hopes to increase the DcbA involvement in the Illinois state and American bar Associations. For the IsbA, mulyk has worked with IsbA President John Thies to create a strong connection between the two associations. on a national level, the
Sean McCumber is a Partner at Sullivan Taylor & Gumina, P.C. in Wheaton, Illinois. He con-centrates his practice in divorce, paternity, guardianships, and adoption. He has a brother who is training to be a sommelier and a mother who is an executive assistant in the tax department of Kirkland & Ellis, LLP. He is active in the DCBA, serving this year on the Planning Committee and as the Chair of the Professional Responsibility Committee
DcbA has one delegate position in the AbA’s House of Delegates, as does the chicago bar Association. In the past, mulyk says, “the DcbA was not using the delegate position effective-ly.” For this year, she adds, “I want to have the DcbA work on national is-sues. we have members that can and should be at the forefront of national legal issues. we have a strong oppor-tunity to position the DcbA as an
invaluable resource to the AbA.” mulyk and DcbA President elect Patrick Hurley attended the AbA’s mid-year meeting in New orleans, which provided mulyk and Hurley the opportunity to develop new ideas for the future of the DcbA
mulyk embraces the upcom-ing year and its challenges, just as she has done with college and law school and her legal career. Yet one question remains. like the keeper of the pirate codex, the venerable John Kincaid, a Past President of the DcbA, regularly asks the in-coming President about his or her theme for the year. Themes and catchphrases have been used over the years by past presidents to sum
up those years’ goals and ideas for ad-vancement and improvement of the DcbA. so yes, President mulyk, what is the theme this year? mulyk asserts, “I don’t have a ‘theme.’ There’s no need for a theme.” she continues, “my focus is on growing the bar, en-couraging people to get out of the bar what they put into it. but also to have fun doing that. we have hard jobs that take us away from our families. we should make that time productive, but also, enjoyable.” she concludes, “I enjoy the people I work with, and have worked with, and be-cause of that, I continue to be bet-ter at the practice of law.” one need only listen to the roar of the engine of mulyk’s Dodge charger, the one not painted with magnesium Pearl clearcoat, to know that she enjoys her life and her life as a lawyer. □
50 D c b a b r i e f
DcbA uPDAte
Have I mentioned That I love my Job?!By leslie Monahan p
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Leslie Monahan is the Executive Director of the DuPage County Bar Association and the DuPage County Bar Foundation. A graduate of North Central College, she previously worked with the Promotional Products Association of Chicago, American Fence Association and Coin Laundry Association.
Have I mentioned that I love my job?! I love the constant change of projects and tasks
and the lack of a dull moment. All during the year, my staff and I often sets aside projects “to work on in July when it is slow.” well, July came and went and I don’t remember a slow mo-ment. because this is supposed to be a behind the scenes look at DcbA, here is a sampling of what we’ve worked on just in the last two weeks:
Attended the Annual Meeting of the National Association of Bar Executives. I love this annual meeting of my peers as I get to hear all the great programs and benefits other bar asso-ciations are offering and maybe “bor-row” them for use here. I always leave with a long list of new ideas and a long list of things we still need to work on.
Welcomed a New Staff Member. we are thrilled to welcome Marija Malacina to the continuing education Administrator position. You can learn more about her else-where in this issue, but I just want to say again how lucky we are to have her.
Renewed Two Corporate Sponsors and Signed a New One. we are pleased to welcome back Digiovine, Hnilo, Jordan & Johnson as a sponsor for this year. They offer a plethora of accounting related services for many different areas of law. we encourage you to check out how they can serve your practice. we also wel-come back everyone’s favorite spon-sor, Greg Wildman and online Video concepts. greg will continue to spon-sor the New lawyer Happy Hours and other events. be sure to thank him for his ongoing support of DcbA and see
what he can do for you! Had the Pleasure of Introducing
Smokeball as a New Sponsor this Year. This Australian company has chosen DuPage county as the place to introduce their toolbar to insert firm, client and matter-related details into every day forms. The smokeball toolbar has up-to-date forms for prac-tice areas such as real estate, family law, estates, bankruptcy and litigation. Hopefully, you had a chance to meet with Hunter steele and get signed on with them.
Discovered That the Courthouse Future Is Wi-Fi. The DcbA executive committee meets quarterly with the chief and Presiding Judges of the eighteenth Judicial circuit. one recent agenda item was the is-sue of free wi-fi access for attorneys throughout the courthouse. As the meeting progressed, it looked like this was something that wasn’t go-ing to happen until DcbA President Sharon Mulyk and chief Judge John T. Elsner got into a dialogue about the reasoning behind the request and how such a service could benefit attorneys. The end result was a decision on mov-ing the idea forward as long as there are clear restraints on what the wi-fi is used for. Hopefully soon, you will be able to access your email and client files from anywhere in the courthouse.
Met with Other DuPage Area Bar Leaders. DcbA recently hosted a joint board meeting for the board members of DcbA, the DuPage Association of women lawyers, the robert e. Jones Inns of court and the DuPage Justinian society of lawyers. This was a great opportunity for board
members to meet informally, share cal-endars and discuss how they can sup-port each other’s programs this year. The program was well attended and received and we look forward to work-ing together to serve our members.
Watched a taping of Legal Action. The second episode of the 2012 legal Action series was recently taped at the Nc-tV studios in Naperville. Host Susan O’Neill Alvarado was joined by guests Nancy Fallon-Houle, Gerry Cassioppi and Steve Ruffalo to dis-cuss common practices and pitfalls of starting a company. watch for the episode on Nc-tV or on the DcbA Youtube page.
well, I could go on and tell you about the quest to find a location for the 2013 Judges’ Nite or reviewing bids from contractors for remodel-ing at the bar center or negotiations with database companies or a tour of golf courses for the DcbF ryder cup raffle, but I’m out of space. I hope that you had a relaxing summer and are ready to get back into the swing of DcbA events. The mcle calendar is filling up fast, so I’m sure we’ll see you soon.
Lesson Learned: There is no slow time at DCBA and I love it! □
51O c t O b e r 2 0 1 2
James F. McCluskey, a principal of Momkus McCluskey LLC, handles a wide range of litigation. His areas of expertise incorporate 30 years of experi-ence in contract, shareholder disputes, real estate, partnership dissolution, and professional liability litigation. He is the 18th Circuit’s Governor of the Illinois State Bar Association and Past President of the DCBA.
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New leadership; court system crisisBy jaMes f. MCCluskey
IsbA uPDAte
the Illinois state bar Asso-ciation Annual meeting was held June 14th through 16th
at The Abbey resort in Fontana, wis-consin. John E. Thies was installed as the IsbA’s 136th president.
The theme of outgoing President John locallo’s tenure for 2011-2012 was technology and the practice of law. In his installation speech, Presi-dent Thies stressed that his focus is going to be the core values of the legal profession, that is, the maintenance of attorney-client privilege, the indepen-dence of the judiciary, and the preser-vation of the rule of law.
President Thies stated that the IsbA mission is to serve the legal needs of the citizens of Illinois. “First and fore-most, our attention to achieving this mission is very important and is the reason why the IsbA is so relevant to its 33,000 members.” He added that, among his goals for the year is the es-tablishment of special committees to fulfill the IsbA’s mission.
Special Committee for Fair and Impartial Courts. The ongoing weak-ened economy has only exacerbated the funding crisis facing our courts. The crisis in this area threatens public access to the courts and creates an un-stable environment. This instability is a long-term challenge to the econom-ic viability of the courts, which are so crucial to providing access to legal ser-vices for our citizens.
As such, the IsbA will take on a leadership role in calling attention to this problem. President Thies created
a special committee to be co-chaired by Kane county Judge Patricia P. Golden and Fifth District Appel-late Justice James M. Wexstten. The group’s mission is to coordinate the IsbA’s effort to identify and publicize threats to the courts from the lack of funding and to consider measures to address this problem.
Special Committee for Review of Standards Governing Judicial Dis-qualification. President Thies also commented that the integrity of the nation’s courts is being threatened by the role of politics in the way we se-lect judges. special interest spending is increasing, raising an issue of bias in favor of those who contribute.
The IsbA has long been on record in its support of merit selection of judges. However, until the state of Illinois develops the political will to adopt this alternative form of judi-cial selection, we should look at other ways to advance the public’s trust in fairness and impartiality in the judi-ciary.
In 2011, the American bar Asso-ciation House of Delegates adopted a resolution that urged states to es-tablish clearly articulated procedures for (a) judicial disqualification de-terminations, and (b) prompt review by another judge or tribunal, or as otherwise provided by law or rule of court, of denials of requests to dis-qualify a judge. The resolution urged the states in which judges are subject to elections of any kind the adoption of (a) disclosure requirements for liti-
gants and lawyers who have provided, directly or indirectly, campaign sup-port in an election involving a judge before whom they are appearing, and (b) guidelines for judges concerning disclosure and disqualification obliga-tions regarding campaign contribu-tions as an issue of judicial disquali-fication.
A new committee will be co-chaired by Justice Gino L. DiVito and the current chair of the IsbA/IJA/cbA Judicial ethics committee, Warren Lupel. Justice DiVito and mr. lupel have been assigned the fol-lowing tasks:a. consider judicial disqualifica-
tion standards in Illinois and, in particular, the interrelationship between 735 Ilcs 5/2-1001(a)(3), supreme court rule 63 (3)(c), the u.s. supreme court case of Caperton v. A.T. Massey Coal Co., Inc., and our supreme court’s recent decision In re Marriage of John O’Brien;
b. evaluate how to clarify and im-prove such standards and related
52 D c b a b r i e f
procedures in a manner that en-hances public confidence in our judicial system; and
c. report its findings and conclu-sions.
Special Committee on Legal Ed-ucation Debt Crisis. As the practice of law evolves, the core membership of the IsbA -- the small firm -- will have a more difficult time hiring new lawyers and therefore meeting the le-gal needs of the firms’ communities. This is a direct result of the higher cost of legal education and corre-sponding new lawyer debt, leading to salary and benefit needs that cannot easily be met by smaller firms. since these firms currently provide a large percentage of the legal services to the citizens of our state, the strain on the firms’ ability to do so raises significant public policy issues.
President Thies believes that the debt crisis is a national issue requir-ing a national solution. However, he acknowledges that because there is little national discussion about the impact of this problem on the delivery of legal services, there is a role to be played for the state bar associations. Associations such as the IsbA must be at the forefront of a solution to the problem because of their closeness to day-to-day practitioners. This spe-cial committee will be co-chaired by 2nd District Justice Ann B. Jorgensen and granite city attorney and for-mer IsbA treasurer Dennis J. Orsey. Their assignment is to study the im-pact of the crisis on the future delivery of legal services and to report on the subject so discussions can be started with the goal of finding practical solu-tions.
Food Bank Committee. Finally, a fourth newly created committee will be spearheaded by President Thies’ wife, terry, who will be leading a committee in coordinating a state-wide food drive, to be called Lawyers Feeding Illinois. This food drive will take place in February 2013. □
legAl AID uPDAte
New lAF boardBy BRenda CaRRoll
Brenda Carroll has been the DuPage Legal Assistance Director since 1988 and on the DCBA Board of Directors since 2004. She earned her JD at IIT-Chicago Kent College of Law in 1986. She was admitted in Illinois and the Northern District in 1986 and to the U.S. Supreme Court in 2005. She serves as an Officer/Secretary of the Child Friendly Courts Foundation and is a Past President and current Board Member of the DuPage Association of Women Lawyers.
LegaL aid UPdate ConTinued on PaGe 54 »
DuPage Legal Assistance Foundation New Board of Directors. the new
board of Directors of the DuPage legal Assistance Foundation was voted in at the recent Annual meet-ing in July. the board consists of six attorneys and five lay persons who serve four years and who have an interest in the purpose of the Foundation which is the following:
A. to assist natural persons and community organizations to secure legal protection against injustice and to obtain due process of law and the equal protection of the laws;
b. to promote knowledge of the law and of legal process, rights and responsibilities among the poor and the public generally; and
c. to study the use of law and legal process to combat poverty and living conditions among the poor and to provide counsel to natural persons and groups seeking these ends.
Our current Board and Officers for 2012-2013
Christa Winthers PresidentSean McCumber, Vice PresidentThomas Slymon, secretaryDorothy Mintz, treasurerConnie GessnerMichael ScalzoJeff YorkDaniel SmythKenneth SchroederBobbi WalshBernard Kleina
DuPage County Bar Associa-tion Annual Gold Outing. our thanks go out to all those who took part in the helicopter ball drop fun-draiser which was held during the DcbA’s annual golf outing. Half of the proceeds went to legal Aid which received $1,120.00. con-gratulations to lili cinta whose ball landed closest to the hole.
Is this Case No Retainer or Pro Bono? If we have a family law case where one of the parties has too much income or assets to qualify for legal aid, our program has kept a panel of lawyers who agree to be re-ferred the indigent spouse or party on a no-retainer basis. If you find that your no-retainer case turns into a pro bono case, please call us and we will assign the case to you pro bono or we will be glad to accept the case back into our pro bono
53O c t O b e r 2 0 1 2
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» LegaL aid UPdate ConTinued fRoM PaGe 53
program and assign another law-yer.
October is Domestic Violence Month. many agencies in our county provide services to victims of domestic violence, but we work most frequently with Family shel-ter service, Hamdard center and the DuPage county senior ser-vices which handles elder abuse where the victim is sixty years of age or older.
In 1981, the National coali-tion Against Domestic Violence established the “Day of unity” to connect all the advocates across the country who were working to stop violence against children and adults including the elderly living at home. the Day of unity idea has grown into a week of obser-vance and, in 1987, a month long observance called Domestic Vio-lence Awareness month was initi-ated.
the DuPage Family Violence coordinating council and the 18th Judicial circuit court host an Annual symposium every year during october which is Domes-tic Violence month. this year’s symposium will take place at the Jack t. Knuepfer Administration building Auditorium at 421 N. county Farm road and is entitled Responding to Sexual & Domestic Violence Against People with Dis-abilities. the Keynote speaker will be shirley Paceley, m.s. who is an international trainer in this area. continuing education credits are available and the event is free.
registration information will be forthcoming.
Sally Fairbank, Illinois Out-standing Full-Time Faculty Member. DcbA member and former Assistant Public Defender in our circuit’s juvenile division, Sally Fairbank is now a Profes-sor and coordinator of Paralegal studies at the college of DuPage (coD). At legal Aid, we have used student interns from the Paralegal studies program and been very happy with them.
sally was recently named by the Illinois community college trustees Association as outstand-ing Full-time Faculty member for the state of Illinois. she was cho-sen as the winner out of awardees from all 48 Illinois community colleges.
sally graduated from washing-ton university school of law and before joining the Public Defend-er’s office, she worked as a trans-actional lawyer for motorola and Navistar and as a civil litigator with a law firm. she began teach-ing business law at the college of DuPage in 2002.
sally was hired in 2006 by coD to create the Paralegal studies Pro-gram and as such she designed the curriculum, interviewed and hired adjunct faculty, scheduled courses, selected textbooks and formed an advisory committee that currently consists of 19 lawyers, paralegals and career professionals. the pro-gram was approved in 2010 by the American bar Association.
If you want to know more about this program visit www.cod.edu/programs/paralegal. □
54 D c b a b r i e f
PARALEGAL/LEGAL ASSISTANT Spanish Speaking
established wheaton solo practitioner Attorney with criminal, Divorce and Appellate practice seeks spanish speaking Full-time Paralegal/legal Assis-tant. candidates must be mature, must type at least 70 wpm, must have knowledge of ms word, excel and outlook, should have strong work ethic, strong organizational skills, excellent communication skills, strong grammar, the ability to multi-task, someone who takes initiative and has follow through. Previ-ous experience in small office environment would be beneficial, but not necessary. To apply, please forward your resume to [email protected]
WORKERS’ COMPENSATION DEFENSE ATTORNEY-Chicago Office
we are currently seeking aggressive, self-starting, workers’ compensation defense attorneys to join our highly successful staff in an excellent location. good writing skills required for both entry level at-torneys and those with 2-5 years of wc experience. rusin maciorowski & Friedman, ltd. is an equal opportunity employer. Contact: Please submit your resume and cover letter via fax to Mark Rusin at 312.454.6166 or E-mail [email protected].
Cl a ssifiedsDOWNTOWN WHEATON
office suite for rent in the heart of Historic Down-town wheaton, just steps away from the 300+ car city parking garage and two blocks from the metra train station. second floor with skylights, kitchen and bathroom with granite countertops, fully car-peted, central forced-air HVAc. Approximately 1394 square feet. utilities, except electric and tele-phone, included. $1,670/mo. 630-462-0898.
WHEATON
one office (approx. 12’ x 11”) in prestigious Da-nada area of wheaton; office suite has 4 offices, 3 of which are occupied by other lawyers; conference room, kitchen, reception area, copier; available im-mediately. $650 per month. Call (630) 260-9647
DOWNTOWN DOWNERS GROVE
Downtown Downers main & metra station of-fice suite for rent $1250.00 street level newly built high visibility, high walking & car traffic, easy access to I88/355 – suite offers 2 bright offices, rec/sec area, storage& bathroom, hardwood floor, share conf room & kitchen, signage & onsite parking. Call Dean@ 630-880-9648
WHEATON – Danada Area
one office (approx. 12’ x 11”) in prestigious Da-nada area of wheaton; office suite has 4 offices, 3 of which are occupied by other lawyers; conference room, kitchen, reception area, copier; available im-mediately. $650 per month. Call (630) 260-9647
WHEATON – 2 blocks from DuPage Courthouse
superb location! 2 separate offices for rent. one smaller office without cubicle ($600.00), one larger office with secretarial space ($1,300.00), both avail-able July 1st. both spaces include shared kitchen, receptionist (no phone answering service and must bring in own phone line); scheduled use of confer-ence rooms; wiFi; reasonable use of copier and pa-per supply; all utilities included. suite has 6 offices, 4 of which are occupied by other lawyers. Contact: Mary McSwain or Veronica at 630-653-7999
NAPERVILLE-Washington Street
High visibility office space available on washing-ton street, near gartner. large office (221 sq. ft.) and smaller office (74 sq. ft.) available July 1st. Any reasonable offer will be accepted. electric, water, gas and parking spaces included. (630) 428-8888, ext. 107
ADDISON
Furnished office space (8.5 by 13.5) available in a three office suite; small space for assistant. The other two offices are occupied by attorneys. use of con-ference room, copier and kitchen; ample parking. excellent location on lake street near I-355. For more details, call Ted at (630) 467-0400.
LISLE
executive conference room available for meetings, depositions, seminars, client interviews, etc. can be used as a mail drop by prior arrangement. terms $25 per hour or $125 per day. (630) 960-0500 [email protected] www.irstax.com• LocatedinaprofessionalofficebuildingonRt.
53 in lisle, next to river bend golf course • ClosetoI-355andI-88.• WirelessbroadbandInternetconnectionavail-
able. use of common areas, including waiting room and kitchenette. Ideal for attorneys, ac-countants, and other professionals.
County Court Reporters, Inc.600 S. County Farm RoadSuite 200Wheaton, IL 60187www.countycourtreportersinc.net [email protected] - 630.653.4119 (fax)
Metro Reporting Services, Ltd.310 S. County Farm Rd. 3rd FloorWheaton, IL [email protected] - 630.588.9866 (fax)
55O c t O b e r 2 0 1 2
The dCBa Brief is the journal of the duPage County Bar association (“dCBa”). unless otherwise stated, all content herein is the property of the dCBa and may not be reprinted in whole or in part without the express permission of the dCBa. ©2012 dCBa. opinions and positions expressed in articles appearing the dCBa Brief are those of the authors and not necessarily those of the dCBa or any of its members. neither the authors nor the publisher is rendering legal or other professional ad-vice and this publication is not a substitute for the advice of an attorney. Publication Guidelines: all submitted materials are subject to acceptance and editing by the editorial Board of the dCBa Brief. Material submitted to the dCBa Brief for pos-sible publication must conform with the dCBa Brief’s writers Guidelines which are available at dcbabrief.org. advertising and Promotions: all advertising is subject to approval. approval and acceptance of an advertisement does not constitute an endorsement or representation of any kind by the dCBa or any of its members. Contact information: all articles, com-ments, criticisms and suggestions should be directed to the editors at [email protected].
wheRe To Be in oCToBeR:
mulyk and company take manhattan
the annual President’s trip for the DcbA will be to New York city october 4-7 2012.
The association has reserved a block of rooms at the Doubletree by Hilton metropolitan NYc.
Highlights of the trip will include an early morning trip to rockefeller center on Friday to catch the today show with breakfast to follow, as well as a trip to the 911 memorial. Friday
evening, Dinner will be at the famous Del Frisco’s grille at 8:00 p.m.
saturday morning, two hours of cle credit will be offered on “Foun-dations and objections” (speaker
yet to be determined) and “tablets, smart phones and the cloud...oh my!” (speaker Bryan M. Sims).
After the cle presentations on sat-urday, attendees will be exploring the city in smaller groups. some mem-bers plan on attending the saturday 2:00pm performance of the broad-way show The Book of Mormon at the eugene o’Neill Theatre. If interested, contact Sue Makovec at the DcbA right away as seating is limited.
when asked about her choice of
destinations and timing, Sharon Mu-lyk stated, “I was debating between New York and california. I had been to New York once before and just loved it! I figured the DcbA had not been to New York; there is so much
to do. I am very excited that many of those who are attending are first tim-ers. I had originally wanted to go the last week in september, but the uN general Assembly meetings are taking place then and rooms were impossible to come by or extremely expensive. columbus Day weekend seemed to be a great alternative.” □
By john PColinski, jR.
56 D c b a b r i e f
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October 4-7, 2012 President’s Trip to New York City
November 1, 2012 Pig Roast & Hayride: Danada House
November 13, 2012 Veteran’s Day Lunch: Attorney Resource Center
December 13, 2012 Holiday Party: Maggiano’s Naperville
December 20, 2012 Holiday Breakfast: Attorney Resource Center
January 26, 2013 Mega Meeting: Lisle/Naperville Hilton
February, 2013 Judges’ Nite: TBD
March 15, 2013 Celtic Lunch: Klein Creek Golf Club
April 19, 2013 Memorial Service: Attorney Resource Center
April 26, 2013 President’s Ball: Danada House
Visit the calendar at dcba.org to view the dates of our CLE meetings
May 1, 2013 Law Day Lunch: Cantigny
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