The Docket - November 2023 by Town Square Publications, LLC

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DOCKET The Official Publication of the Lake County Bar Association • Vol. 30 No. 11 • November 2023

V olunteer Lawyers Program Thank you to these attorneys who have either closed a pro bono case or taken a new pro bono case in 2021-2022. This program is supported by the Community Outreach Committee of the Lake County Bar Association. Members of the Lake County Bar Association are indicated with an asterisk (*). To become a volunteer please call Prairie State Legal Services at 847-662-6925.

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Contents THE DOCKET • Vol. 30 • No. 11 • November 2023

FEATURES 6 Parenting Coordinators and Illinois Supreme Court Rule 909 BY JUDGE RANDIE K. BRUNO

10 Is the Mail Hearsay?

BY STEPHEN J. RICE A publication of the

300 Grand Avenue, Suite A Waukegan, Illinois 60085 (847) 244-3143 • Fax: (847) 244-8259 www.lakebar.org • info@lakebar.org THE DOCKET EDITORIAL BOARD Jeffrey A. Berman,Co-Editor Hon. Charles D. Johnson,Co-Editor Jennifer C. Beeler Kevin Berrill Hon. Bolling W. Haxall Hon. Daniel L. Jasica Hon. Christopher M. Kennedy Jennifer Luczkowiak Kevin K. McCormick Shyama Parikh Stephen J. Rice Neal A. Simon Hon. James K. Simonian Rebecca J. Whitcombe Alex Zagor STAFF Greg Weider Executive Director Jose Gonzalez Assistant Executive Director Nancy Rodriguez Receptionist

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16 An Intense Dating Relationship or Cohabitation? Have the Courts Really Told Us How to Answer That Question?

BY GARY L. SCHLESINGER

COLUMNS 2 President’s Page Share Joy and Cheer This Holiday Season BY KATHARINE HATCH, PRESIDENT

4 The Chief Judge’s Page The Veterans History Project

BY CHIEF JUDGE MARK L. LEVITT

6 Bar Foundation Fall is in the Air

BY JOANN FRATIANI, PRESIDENT

22 Lake County Bar Foundation Minutes August 15, 2023

BY SHYAMA PARIKH SECRETARY

24 Board of Directors’ Meeting Minutes September 21, 2023 BY JEFFREY BERMAN, SECRETARY

26 In the Director’s Chair For The Public Good. BY GREG WEIDER, EXECUTIVE DIRECTOR

FURTHER INFORMATION IFC Office Rental Pricing 3 ARDC Update 3 New LCBA Members 9 LCBA Holiday Party 13 Pro Bono Awards 19 Veterans History Project 11 Cubs Game Social Sponsors 20 Community Outreach & Diversity Committee’s Chili Cook Off 25 Calendar of Events 28 Monthly Committee Meetings BC Member Reception Sponsorship Opportunities

Advertising Rates To place an ad or for information on advertising rates, call (847) 244-3143. Submission deadline: first day of month preceding the month of publication. All submissions must be made in electronic format (high resolution PDF or JPG format at a resolution of 300 pixels per inch or more.) See www.lakebar.org/page/Docket_Advertising The Docket is the official publication of the Lake County Bar Association, 300 Grand Avenue, Suite A, Waukegan, Illinois 60085 (847) 2443143, and is published monthly. Subscriptions for non-members are $45.00 per year.

Reproduction in whole or part without permission is prohibited. The opinions and positions stated in signed material are those of the authors and not necessarily those of the Association or its members. All submitted manuscripts are considered by the Editorial Board. All letters to the editor and articles are subject to editing. Publications of advertisements is not to be considered as an endorsement of any product or service advertised unless otherwise stated.

Share Joy and Cheer This Holiday Season

s we approach the holiday season, I am reminded of the importance of giving back to our community and those in need. This year has been a challeng-

Katharine Hatch President Danny Hodgkinson First Vice President Kevin Berrill Second Vice President Richard Gellersted Treasurer Jeffrey Berman Secretary Tara Devine Immediate Past President Hon. Jacquelyn Melius Craig Mandell Sarah Raisch Jeffrey O’Kelly Jeremy Harter Judy Maldonado Hon. Bolling Haxall

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ing one for many, and as legal professionals, we have a unique opportunity to make a positive impact through holiday giving. The legal community is known for its dedication to justice and equity, and what better way to demonstrate these principles than by extending a helping hand during the holiday season? Holiday giving is not just about spreading joy and cheer; it is a powerful means of ensuring that those who are less fortunate have a brighter and warmer holiday season. I encourage all of our members to consider participating in holiday giving initiatives this year. Whether it’s donating your time, money, or resources, your efforts can make a profound difference in the lives of those facing hardship. Here are a few ways you can get involved: Pro Bono Services:

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President’s Page

Many individuals and families face legal challenges they cannot afford to address. Consider offering pro bono services or volunteering your legal expertise to provide much-needed support via the volunteer lawyer network at Prairie State Legal Services. Donations: Financial donations to reputable organizations such as The Lake County Bar Foundation, Drinkwater Family services, PADS of Lake County or the National Alliance for Mental Health (NAMI). Many local charities and non-profits rely on holiday contributions to support their work throughout the year. Toy and Food Drives: Participate in Elliott Pinsel’s ornament clothing drive or the Lake County Guardian Ad Litem office clothing drive for needy children. By coming together as a legal community, we

BY KATHARINE HATCH PRESIDENT can create a positive and lasting impact on the lives of many during the holiday season. I am proud of the generosity and compassion I have seen from our members in the past, and I am confident that this year will be no different. As we reflect on our accomplishments and challenges of the past year, let us remember the power we hold to effect positive change. Our legal knowledge, skills, and resources can be instrumental in making the holidays brighter for those less fortunate. I am excited to see the innovative ways in which our members will engage in holiday giving this year. Let us lead by example and continue to uphold the principles of justice, equity, and compassion that define our profession. Wishing you all a joyful and fulfilling holiday season!

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ARDC E T A D P U Tuesday, November 14, 2023 12:15 pm - 1:15 pm Waukegan City Hall 1.0 CLE Credit

November 2023

The Veterans History Project

hen the calendar flips from October to November, thoughts turn immediately to the upcoming holiday season. And while November focuses my attention on frying turkeys and family gatherings, there are other events and courthouse activities that merit our attention and, more importantly, our participation. The first among those important events is Veterans Day. Originally known as Armistice Day, Veterans Day is celebrated each year on November 11. The holiday honors all those who have served our country in the armed forces. The day marks the anniversary of the Armistice with Germany, which officially took place on November 11, 1918. The day was renamed Veterans Day in 1954 and continues to be observed each November 11. In the 19th Circuit we began the tradition of marking Veterans Day with participation in the Veterans History Project (VHP)

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in 2012. Created by Congress in 2000, the VHP sought to create a living history of the wars and conflicts in which members have participated since World War I. The first-hand accounts include memories of veterans from each of the following conflicts: World War I 1914-1918 World War II 1939-1945 Cold War Korean War, 1950-1953 Vietnam War, 1961-1975 Grenada, 1983 Panama, 1989 Operation Restore Hope, 1992-1993 Persian Gulf War, 1991 United Nations Operation in Somalia Haiti, 1994-1995 Operation Allied Force, 1999 Peacekeeping forces-Bosnia Operation Joint Guardian, 1999War on Terror, 2001-2009 Afghan War, 2001Iraq War, 2003-2011 Our participation in the project dates to the administration of Chief

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Chief Judge’s Page Judge Fred Foreman. Judge Foreman was instrumental in forming the first committee for our participation in the VHP. The committee was chaired by Judges John Scully and Mike Fusz, both veterans of our military. Our celebration of Veterans Day and participation in the VHP has grown consistently over the years. This year, the committee is co-chaired by Judge Chuck Smith and Judge Mike Nerheim. Together they have done an outstanding job organizing the event and planning every aspect of the day. Judge Veronica O’Malley will again serve as emcee along with Judge Nerheim. A heartfelt thank you to all of the members of the committee for their hard work and dedication! As in years past, members of the LCBA will participate as interviewers of the veterans with volunteer

BY CHIEF JUDGE MARK L. LEVITT court reporters recording the sessions for submission to Congress. The event is truly special and includes presentation of Quilts of Valor to each of the veterans, as well as representatives of the Gold Star Families. I encourage each of you to attend if possible! On a personal note: Several weeks ago, and literally minutes apart, I received formal notice that two of our longest serving court reporters were retiring at the end of this calendar year. Caren Rapinchuk and Candy Sartwell will be leaving the 19th Circuit effective January 1, 2024. Caren and Candy have been fixtures of our Circuit for many years. It is hard to imagine court without these two veterans of the system. Please join me and the entire 19th Judicial Circuit family in wishing them all the best as they embark on the adventure ahead!

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November 2023

Parenting Coordinators and Illinois Supreme Court Rule 909

BY JUDGE RANDIE K. BRUNO

nyone who practices in the family law arena knows how crucial dispute resolution is and how very seldom it is effective. Parties literally have been known to fight about child-related issues for longer than the marriage lasted. At the end of the case, a GAL or child’s representative is discharged. This leaves the parties to stumble through the litigatry to resolve issues and to eliminate the need for costly tion process by themselves, often with disastrous results. and repeated court appearances. Although family law practitioners use mediation, alternative dispute resolution, and collaborative divorce as ways THE NEW RULE ON PARENTING to resolve issues without litigation, this process can be COORDINATORS costly, time-consuming, and emotionally draining. Illinois Supreme Court Rule 909 took effect on May 24, But fortunately, as they say in Star Wars and Princess 2023, and its implementation will likely lead to significant Bride 2, “there is another… .” The Illinois Supreme Court changes in how family courts are run in Lake County. Rule recently approved a new rule authorizing the appoint909 is entitled “Parenting Coordinators”, and it authorizment of “Parenting Coordinators” as a es each judicial circuit to adopt local means resolving child-related disputes rules on the appointment of a parentHon. Randie in family court. This new rule is quite ing coordinator (hereinafter “P.C.”) Bruno has been an associate simply a game changer in high-conflict in family law proceedings.1 The rule judge since July also authorizes the implementation cases, especially those that involve of 2020. Previof screening, procedure, and training domestic violence. Since those types ously, she was in protocols for a P.C. in cases involving of cases seem to happen with alarming private practice intimate partner violence.2 regularity in family court, the availafter having been an Assistant Before the implementation of ability of parenting coordinators will State’s Attorney Rule 909, there was no statutory likely become an important tool in the in both Cook and Lake counties as authority for a family court judge to court’s arsenal for resolving disputes. well as a contract public defender in As explained below, parenting coordiLake County. 1 Ill. Sup. Ct. R. 909(a) (West 2023). nators may prove to be a great way to 2

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appoint a P.C., and the judges of the 19th Judicial Circuit took the position that one could be appointed only by agreement of the parties. But then, the Cook County Circuit Court implemented its own Local Rule 13.10, which provides for a P.C. under “…broadly defined circumstances…” Last year, the Illinois legislature also drafted Senate Bill 3083 as a proposed statutory authority for appointing a P.C. in family court. Although S.B. 3083 has not been signed into law, its text largely mirrors the language used in Rule 909. In describing the purpose of parenting coordination, subsection (b) of Rule 909 states that it is “a child-focused alternative dispute resolution process conducted by a licensed mental health or family law professional, which combines assessment, education, case management, conflict management, dispute resolution, and decision-making functions.”3

to facilitate the resolution of conflict between coparents by acting to: (1) M onitor parental behaviors, including their compliance or lack thereof, with orders entered in their case by the court; (2) Mediate and make recommendations with respect to disputes between the parents upon request of a parent or a court order; (3) M ake recommendations for parents for outside resources as needed and/or guidelines or rules for communication between the parents; (4) D ocument allegation of noncompliance; and (5) M ake recommendations to the court upon proper notice and petition.5

…parenting coordinators may prove to be a great way to try to resolve issues and to eliminate the need for costly and repeated court appearances.”

APPOINTMENT OF A P.C. UNDER RULE 909 The prerequisites for appointing a P.C. are set forth in subsection (c) of Rule 909: “Following the entry of a parenting plan, or prior to entry if approved by the court, after considering any allegation of evidence of intimate partner violence where one coparent has exhibited or continues to exhibit patterns of violence, threat, intimidation and coercive control over a coparent, a parenting coordinator may be appointed by the court when deemed in the best interest of the child(ren) due to any of the following: (1) The coparents have failed to adequately cooperate and communicate about issues involving their children; (2) The coparents have been unable to implement the existing parenting plan or parenting schedule; (3) M ediation has not been successful or has been determined by the court to be inappropriate; (4) The agreement of the coparents; and (5) F or such other reason as the court deems appropriate that does not exceed the authority under this Rule.4 SCOPE OF P.C. AUTHORITY UNDER RULE 909 Once appointed, the P.C. has a substantial amount of authority and can make a huge difference in a highly contentious case. Subsection (e) of Rule 909 requires a P.C. 3 4

Ill. Sup. Ct. R. 909(b). Ill. Sup. Ct. R. 909(c).

Subsection (f) of Rule 909 also authorizes a P.C. to make “specific recommendations” regarding the existing parenting plan, including but not limited to: (1) Time, place and manner for exchanges in relation to the parent’s existing parenting plan or nonparent [i.e. grandparent, etc.] visitation; (2) Disputes regarding the extent and nature of the child(ren)’s participation in existing school and extra curricular activities including payment for same; (3) M inor alterations of parenting time or nonparent visitation to accommodate changes in schedule or availability of the child or parent, including make-up time if permitted by prior court order; (4) H oliday scheduling; (5) D iscipline and problematic behavior issues; (6) H ealth and personal care issues; and (7) Any other specific issues assigned to the P.C. by the court or agreed upon by the parents that does not exceed the authority under this Rule (i.e. (g) limitations).6 But at the same time, subsection (g) of Rule 909 prohibits a P.C. from making recommendations regarding: (1) Allocation of parental responsibilities for decision-making; 5 6

Ill. Sup. Ct. R. 909(e). Ill. Sup. Ct. R. 909(f).

November 2023

(1) I nitial allocation of parental responsibilities for parenting time and any allocation of parenting time beside minor alterations described in paragraph (e) [i.e. which sets forth the duties of a P.C.]; (1) R elocation; (1) E stablishing visitation by a nonparent; or (1) C hild support, spousal maintenance, or the allocation of property or debt of the marriage.7 As odd as it might sound, the limits in Rule 909 on the role of a P.C. are very logical. It is of course the trial court’s prerogative to set parenting time, decision-making, decide on relocation, child support and maintenance. Since a P.C. is intended to be a child-focused alternative dispute resolution process, matters involving property and debt allocation are outside their purview. REQUIREMENTS FOR P.C. RECOMMENDATIONS UNDER RULE 909 Subsection (h) of Rule 909 requires a P.C. to issue a report in writing within 14-days of receipt of all necessary and requested information.8 This report may be submitted to the trial court by the parties as an agreed order.9 As any current or former GAL will attest, getting relevant information out of the parties is often akin to herding cats. So it would be advisable for both sides’ attorneys to impress upon their clients the importance of getting any requested information to the P.C. as soon as possible. Under subsection (n) of Rule 909, there is another important consideration for attorneys to impress on their clients – communications with the P.C. are not confidential.10 If this warning is disregarded, it can lead to unexpected and unfortunate outcomes. For instance, one parent might tell the P.C. that he/she should decide one way because the other parent is fill-in-the-blank (e.g. a drug addict, a horrible person, unreasonable, all of the above). The P.C. then issues a report detailing these accusations. In response, the other parent says, “Oh yeah? I’ll show you unreasonable….” And then things really start to go off the rails.

be identical, though this is presumably an oversight on the part of Rule 909’s drafters. Subsection (l) of Rule 909 contains a provision for review of the P.C. recommendations by the trial court: “A coparent may file a motion in the circuit court for review of any recommendation(s) made by the [P.C.], and the circuit court shall review the recommendation(s) at issue under a de novo standard of review.” 12 In the event that the court affirms the recommendations of the P.C., it may order the parent opposing the recommendations to pay both parents’ reasonable attorney fees and costs pursuant to Section 508 of the IMDMA and Section 802 of the Illinois Parentage Act.13 So this is really a double whammy – If a parent wants to dispute the recommendations of the P.C., the parent will have to file a motion. But then, if the judge disagrees with the parent and affirms the recommendation, the parent may have to pay the bill. Talk about adding insult to injury. It would be beneficial to both the bar and the bench to have some idea of what exactly should be in the motions for review. I would suggest that the motion be as fact-specific as possible. The motion should clearly describe: (i) the issue in dispute; (ii) the respective parties’ positions on the issue; (iii) the P.C. recommendation on the disputed issue; and (iv) the movant’s argument for why the recommendation of the P.C. is either not in the best interests of the child/children, or how the P.C. recommendation exceeds the authority granted under Rule 909, the applicable local rules, or the order of appointment. TRAINING REQUIREMENTS FOR A P.C. UNDER RULE 909 Of course, a P.C. must have training to take on such an important role in the dispute resolution process. To that end, subsection (o) of Rule 909 requires a circuit court’s P.C.-related local rules to ensure that a P.C. is “qualified by education, experience, and training to undertake parenting coordination.”14 Although this subsection authorizes circuit courts to waive the formal P.C. training requirements, it does “suggest” the following minimum requirements for the role:

DISPUTING P.C. RECOMMENDATIONS UNDER RULE 909 Under subsections (d) and (k) of Rule 909, parents are required to comply with the recommendations made by the P.C. until the trial court, following a hearing, rules that either: the recommendations are “in contravention of the child(ren)’s best interests”; or the recommendations are “outside of the authority or scope of the authority granted to the [P.C.]” under either Rule 909, applicable local court rules, or the court order appointing the P.C. to the case.11 The text of subsections (d) and (k) appears to 7 8 9 10 11

Ill. Sup. Ct. R. 909(g). Ill. Sup. Ct. R. 909(h).) Id. Ill. Sup. Ct. R. 909(n). Ill. Sup. Ct. R. 909(k).

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(1) P ossess JD or Masters’s in social work, psychology or counseling or equivalent degree in a related field; (2) Have at least 5 years experience in law, mental health or related field; (3) C omplete an approved course on domestic violence; and (4) Attend at least 4 hours per year of continuing education, which shall address, at a minimum, psychological issues, needs of children in cases of family separation and family dynamics.15 12 13 14 15

Ill. Sup. Ct. R. 909(l). Id. Ill. Sup. Ct. R. 909(o). Id.

On the topic of P.C. training, I personally believe that having experience in domestic violence and substance abuse is often critical to successful parenting coordination. Too often, a GAL, child’s representative, or a P.C., does not have a background in criminal law, and lacks familiarity with these crucially important issues. PARTING THOUGHTS ON RULE 909 FROM JUSTICE ROCHFORD Justice Elizabeth Rochford has this to say regarding Rule 909: “Supreme Court Rule 909 was approved unanimously by the Supreme Court, entered on May 24, 2023, and it has been very enthusiastically received by the family law bar and related communities.” “SCR 909 is a child-focused alternative dispute resolution program for high-conflict parents who are unable or unwilling to cooperate in making parenting decisions, or to comply with parenting orders. Its stated purpose is to protect and sustain safe, healthy and meaningful parent-child relationships. Prior to the entry of the SCR, the use of parent coordinator programs had proven effective in several judicial circuits, including Cook County. The benefit to families was recognized, and at the urging of the Illinois State Bar Association and its Family Law Section Council, the statewide framework set forth in SCR 909 was crafted for intended availability in every jurisdiction.” “The rule authorizes a parenting coordinator (‘P.C.’) to make specific recommendations regarding compliance

with an existing parenting plan, but the P.C. is restricted from making recommendations about allocation of parental responsibilities, allocation of parenting time, relocation, child support, spousal maintenance or allocation of property or debt. The work of the P.C. is intended to reduce conflict among the parties, without usurping the court’s proper power and discretion. Ultimately, if the P.C. is unable to resolve the conflict, one or both parties may petition the court for review.” “I am optimistic that the new SCR 909 will expand the use of parenting coordinators across the state and consequently improve the lives of children whose parents are embroiled in conflict regarding parenting issues.”

H O L I D A Y

PARTY

THURSDAY, NOVEMBER 30, 2023 5:00 P.M. LCBA MEMBER CENTER

November 2023

Is the Mail Hearsay?

A case involving that question answers it, but also reveals more about the hearsay principle generally.

BY STEPHEN J. RICE

police officer legally enters a home. On a kitchen table in plain view, he sees drug paraphernalia such as scales, packaging, assorted white powders, and pills. Also, there he sees scattered mail, identifying an addressee by name (“Christopher Neal”). The officer takes a picture of the table, which is also viewable on his bodycam. Christopher Neal is not present when the officer the Fourth District’s Justice Steigmann to answer the takes his photo, and the home is a rental owned by EZ question, and the opinion does so in way that reveals Eckwitty, LLC. much about the nature of the hearsay rules more genFast forward: Neal is arrested; Neal asserts that erally. People v. Neal, 2020 IL App (4th) 170869. Justice “I do not live at the house where the officers took the Steigmann’s scholarly opinion merits review on both picture of the drugs” (and thus did not constructively the narrow question of the envelope, and on the broadpossess the drugs). The mail suggests otherwise, for it er question: “What is hearsay?” contains Neal’s name. When evidence of that mail is offered at trial to show Neal’s conFRAMING THE HEARSAY nection with the house, the defense QUESTION. Stephen J. objects: “Hearsay!” The basic fact pattern in Neal is Rice is an Assistant Is it hearsay? set forth above, modified for simState’s In case you jumped to a quick plicity. Note first that the facts do Attorney in answer, note that this issue “is one not present a Fourth Amendment the Civil Dithat courts in this nation and the issue, meaning that the lawfulness vision of the United Kingdom have wrestled with of the search—the officer’s presence Lake County State’s for—literally—almost 200 years . . . in the home—is unquestioned. The Attorney’s .” People v. Neal, 2020 IL App (4th) issue turns solely on the rules of Office. He 170869 (citing Wright v. Tatham, 112 evidence. was the 2019-20 President of the Eng. Rep. 488, 7 Ad & E 31 (1837)). Next, note that under the hearLake County Bar Association. In Illinois, we have an opinion from say rules, two things could be true

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regarding the admissibility of the address on the piece of mail: (1) the address information could be deemed hearsay, but admissible under an exception to the hearsay rule;1 (2) the address information could be construed to be not hearsay, and thus admissible if otherwise properly authenticated and passing the probative / prejudicial gates.

Fed. R. Evid. 807. One might expect Illinois courts to hold accordingly under the Illinois Rules of Evidence, only therein lies the rub. As Justice Steigmann writes in Neal: “The problem . . . is that the Illinois Supreme Court has not adopted the residual hearsay exception” contained at Fed. R. Evid. 807. There is no Ill. R. Evid. 807. Retired Appellate Justice Gino DeVito4 explains why this is so as part of his authoritative “The Illinois Rules of Evidence: A Color-Coded Guide,” where he states that “Illinois has adopted statutes that seek to accomplish the same goal.”5 But unless there is such a statute, or unless the Illinois Supreme Court adopts the “residual exception,” then Illinois courts cannot indulge the two choices set forth above (hearsay/ not-hearsay), whichever may be more theoretically consistent with the concept of hearsay. Rather, as Justice Steigmann’s opinion sets forth, the answer must lie in a theory that the “address” information is not, in fact, hearsay.

“The question in Neal “is one that courts in this nation and the United Kingdom have wrestled with for—literally— almost 200 years.”

In other words: hearsay or not hearsay, that is the question. Let’s start with approach #1, which asserts that the mail is hearsay. One of the pieces of mail might have been a ComEd bill. When the prosecution offers the bill to show the defendant’s connection with the home (i.e., his constructive possession of the drugs) the mail is being used for its implied assertion that the defendant lives at the address, and thus “to prove the truth of the matter asserted.” Viewed so, it is hearsay, so you will need one of the 30-odd Rule 803 or 804 hearsay exceptions to use it. Possibly it could be admitted as a business record with the foundational testimony of a ComEd recordkeeper.2 But otherwise there is no other readily usable exception for such a document. Treating the mail as hearsay is the correct approach, according to Prof. Michael Graham, author of the 8-volume, 7,000+ page Handbook of Federal Evidence. Prof. Graham would admit the evidence not as an exception to hearsay, but rather under the residual hearsay exception at Fed. R. Evid. 807.3 He advocates this approach even though ComEd may not intend the address to be an assertion that “the defendant lives at 123 Main Street,” because clearly ComEd nevertheless believes that fact to be true. Accordingly, it should be classified as hearsay, but because of its nature, it should be admitted under the residual hearsay rule of 1 2

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c). See U.S. v. Markopoulos, 848 F.2d 1036, 1039 (10th Cir. 1988) (contemplating a rental car contract, credit card voucher, and receipts, but finding no proper business records foundation laid). But in a criminal case the Confrontation Clause might present a hurdle to the document’s admissibility—a complicated analysis on its own. People v. Neal, 2020 IL App (4th) 170869, ¶¶ 153-156.

ABSENT AN EXCEPTION, TURN TO DOCTRINE In the absence of a hearsay exception, perhaps the mail is simply nonhearsay, and thus not in need of an exception. Like Schrödinger’s dead-and-alive cat, Justice Steigmann shows that two states-of-existence are simultaneously possible under Rule 801. Hearsay is a concept with many facets, and one must dive into the semantics of the rule to construe a piece of evidence as hearsay or not hearsay. Justice Steigmann does so by quoting the comments to the Federal Rules of Evidence, which Illinois courts consider a “useful guide in ascertaining the meaning of the Rules.”6 Federal Rule 801 is identical with its Illinois counterpart in substance.7 It reads: “(a) Statement. ‘Statement’ means a person’s oral assertion, written assertion, or non4

DeVito is a former Illinois Appellate Court Justice and was a member of the Special Supreme Court Committee on Illinois Evidence. 5 Gino L. DiVito, The Illinois Rules of Evidence: A Color-Coded Guide, at 295 (rev. Jan. 1, 2022). 6 Id. (quoting Tome v. U.S., 513 U.S. 150, 160 (1995)). 7 The disparity between the Illinois and Federal versions of Rule 801 stems from non-substantive textual changes made to the federal rules after the adoption of the Illinois Rules of Evidence: the federal rules have been drafted in a more readable manner by eliminating the passive voice in a rule such as 801.

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verbal conduct, if the person intended it as an assertion. (b) D eclarant. ‘Declarant’ means the person who made the statement. (c) Hearsay. ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”8 As bolded above, the definition of “statement” incorporates a person’s intent, regardless of whether the object of that intent is an oral assertion or nonverbal conduct.9 This is so because, as the comments to the Federal Rule state, the “effect of the definition of ‘statement’ is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.” Fed. R. 801 (1972 Advisory Committee Notes, emphasis added). Consider now the address on a piece of mail, which the police retrieve from a location that a prosecutor needs to connect with a defendant (because that is where contraband, but not the defendant, was found). If the mail is a bill from ComEd, did ComEd intend to communicate that “Christopher Neal lives at 123 Main Street”? Not really, because that is not the purpose of the address label. While we infer from these basic facts that Neal is connected to 123 Main Street, proving that connection was never within the contemplation of the company creating the mailing. This logic has circularity to it and is thus confusing (in case you are confused). Another way to think about the address on an envelope is to consider the address-and-mailing as nonverbal conduct: the business’s act of affixing an address and mailing it to someone is, in one manner of viewing it, conduct and, importantly, not conduct intended to be an assertion that “Neal lives at 123 Main Street.” “But,” you might object: “it is conduct involving words, and hence hard to reconcile with nonverbal conduct” (such as an interpretive dance). Consider though that words do not always convey intent, and that even when they do, the rules of evidence do not invariably preference the intent they bespeak. The statement “I am about to buy a Tesla” could be used in evidence to show what the speaker intended; but it can also be offered to show that the speaker was alive at a particular time—i.e., capable of speaking—before his later demise. 8 9

Id. (quoting Fed. R. Evid. 801(a)-(c)). The precise use of the terms verbal/nonverbal is important to note, because in common parlance, “verbal” is frequently used to mean “oral/spoken.” But a written statement is “verbal”—it uses words, versus, e.g., an interpretive dance—and so when the term nonverbal is used in the Rules of Evidence, that term is not a substitute for “oral,” but rather it is used in the true sense of the work: “not involving or using words or speech.”

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Or this: a Ring doorbell is programed to play an automated statement “Welcome to my home.” A burglar enters the door and asserts that the “welcome” message was an invitation to do so. Only, the “welcome” is not intended as an assertion that anyone approaching may enter; rather, it is meant only to draw someone’s attention to the fact that there is a Ring doorbell monitoring the door. (Think of it this way: instead of a “welcome” message, the doorbell could be programmed to just produce noise, eliminating the verbal nature of the alert.) SUPPORTING CITATIONS FROM ILLINOIS AND BEYOND. Justice Steigmann wrote that some state courts “have concluded that implied assertions of fact contained within mail and other documents are not hearsay,” but no Illinois court had done so.10 He then cataloged the reasoning of courts from North Carolina, Virginia, Idaho, New Mexico, Missouri, Florida, and Indiana, before then doing the same with five separate federal Circuit Court opinions. In all, he highlighted how these courts drew the basic distinction between— in the words of the Advisory Committee Notes to the Federal Rules of Evidence—“nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted . . . .”11 This distinction led the courts to allow the admission of various items that connected defendants to a particular location, such as letters (Neal ¶ 108),12 checks (¶ 103), a luggage invoice (¶ 98), and, in several cases, receipts (¶¶ 103, 105), including one in which a defendant’s methamphetamine was wrapped in one (¶ 87)! Additionally, Justice Steigmann reviewed materials on point from legal scholars and commentators, and then Illinois cases that have indirectly addressed the issue. This included an Illinois Supreme Court case in which a laundry receipt found in a motel room and containing the defendant’s name was allowed into evidence as circumstantial evidence.13 A few of the commentators Justice Steigmann cites merit quoting, because they succinctly articulate the rationale for treating documents containing verbal expressions as nonhearsay: “Because implied assertions entail fewer dangers than express assertions—especially because implied assertions raise no problems of insincerity—it is argued that they should be classified as nonhearsay.”14 10 11 12 13 14

¶ 82. ¶ 106-107. Neal, 2020 IL App (4th) 170869, ¶ 108. ¶ 114 (discussing People v. Stewart, 105 Ill. 2d 22, 57-58 (1984)). ¶ 110 (quoting Ted Finman, Implied Assertions as Hearsay: Some Criticism of the Uniform Rules of Evidence, 14 Stan. L. Rev. 682, 685-86 (1962)).

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November 2023

And: “First, when a person acts in a way consistent with a belief but without intending by his act to communicate that belief, one of the principal reasons for the hearsay rule—to exclude declarations whose veracity cannot be tested by cross-examination—does not apply, because the declarant’s sincerity is not then involved. In the second place, the underlying belief is in some cases self-verifying: There is frequently a guarantee of the trustworthiness of the inference to be drawn * * * because the actor has based his actions on the correctness of his belief, i.e., his actions speak louder than words.”15 Finally, Justice Steigmann wrote about the policy implications of courts deeming implied assertions as admissible non-hearsay evidence. He quoted Mauet and Wolfson’s Trial Evidence treatise, noting that Justice Wolfson has often lectured the following advice to judges about admitting evidence: “1. Is the evidence relevant for the offered pur15

¶ 111 (quoting Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, ¶ 801(a), at 801-61 to 801-62 (1st ed. 1990)) (emphasis added).

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pose? If not, the inquiry ends. If the answer is yes, 2. Is the evidence reliable for the offered purpose? If not, even though relevant, it should not be admitted. If yes, 3. I s it right to allow the fact resolver to receive the evidence for the offered purpose?”16 With “right,” the considerations include “constitutional strictures, matters of social policy, and considerations of unfair prejudice and courtroom efficiency.”17 Justice Steigmann concluded that these guidelines all supported treating the evidence as admissible nonhearsay. Regarding point three, he commented that “jurors can be expected to have had the common experience of receiving bills and other mail and can be further expected to appropriately evaluate the information written thereon.”18 CONCLUSIONS, PLURAL This summary of Justice Steigmann’s opinion does not match its thoroughness, which is worth reading in full. As of August 2023, the First District has adopted his reasoning.19 On the hearsay question, his opinion ends by noting authority contrary to the court’s conclusion. I included the key counter-authority that he cites at the outset of this article, to wit: with a residual hearsay exception, one need not resort to the mental gymnastics of construing the semantics of the hearsay rule. (That being said, there are other mental gymnastics required in the use of the Federal Rules’ residual exception.) The basic rule extending from the Neal opinion can be succinctly stated, but I have nevertheless led you though a significant portion of what Justice Steigmann considered along the way, and you might well wonder: why? Justice Steigmann’s opinion enlightens not just on the issue at hand, but on the broader nature of hearsay more generally. Since law school, a lawyer’s interaction with the hearsay rules likely runs towards the concrete and specific: Is X hearsay; how do I get it admitted? Justice Steigmann’s opinion is worth reading because it touches on the underlying rationale for the hearsay rule generally, which enlightens the reader about the hearsay concept more broadly. Like the implied assertion that a piece of mail conveyed in the Neal case—an inference that was not intended and therefore relevant and admissible—so too does Justice Steigmann’s opinion convey information in whole that is greater than the sum of its parts. 16 ¶ 141 (quoting Thomas A. Mauet and Warren D. Wolfson, Trial Evidence, § 1.2 (7th ed. 2020)). 17 Id. 18 ¶ 143. 19 People v. Padilla, 2021 IL App (1st) 171632, ¶ 123 (“we adopt the thoughtful and well-reasoned analysis set forth in People v. Neal”).

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An Intense Dating Relationship or Cohabitation? Have the Courts Really Told Us How to Answer that Question?

BY GARY L. SCHLESINGER

ypically, in a cohabitation case, the appellate court affirms the trial court. Not so in the case of In re Marriage of Miller.1 That case arose out of a petition by Jeffrey Miller for the termination of maintenance payments to his ex-wife, Lorena Miller, pursuant to Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act.2

The trial court found that Lorena was cohabiting with a man named Michael Meyers on a resident, continuing, and conjugal basis and, for that reason, terminated her maintenance. She appealed. Relying on earlier Supreme Court decisions like In re Marriage of Sappington that had addressed the level of commitment, permanence, and partnership that is needed to establish a de facto marriage,3 the appellate court in Miller reversed, finding the trial court’s decision was contrary to the manifest weight of the evidence. The appellate court held that the Lorena was Gary L. in an intense dating relationship, not a Schlesinger is a retired atde facto marriage, and thus was not cotorney whose 4 habiting. Notwithstanding the decision previous in Miller, however, it has been difficult practice was for practitioners to determine where concentrated 12

1 2 3 4

In re Marriage of Miller, 2015 IL App (2d) 140530. 750 ILCS 5/510(c). In re Marriage of Sappington, 106 Ill.2d 456 (1985). Id. at ¶¶ 62-63

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the line is to be drawn between cohabitation and an intense dating relationship. It is not the purpose of this article to trace the history of cohabitation law from the adoption of the governing statute, to Sappington, to date. Instead, it will endeavor to explore Miller and its progeny, such as the First District’s decision in In Re Marriage of Edson.5 The Edson decision is significant because the appellate court, in a lengthy, almost Herculean effort, attempted to mitigate the uncertainty flowing from Sappington and Miller and to clarify the point where an intense relationship ends and cohabitation begins. But did it succeed? Whether a relationship amounts to a de facto marriage is generally considered to be a question of fact. As such, the Miller court, and others, have in family law. He frequently utilized a non-exhaustive factor test to wrote on famdetermine whether such a relationship ily law topics exists, which is said to have “originated” and presented at family law seminars.

2023 IL App (1st) 230236.

from the Fourth District case of In re Marriage of Herrin.6 Those factors include: “(1) [the relationship’s] length; (2) the amount of time [the couple] spend[s] together; (3) the nature of the activities they engaged in; (4) the interrelation of their personal affairs; (5) their vacationing together; and (6) their spending holidays together.”7 In both Miller and Edson, however, the appellate courts indicated the Herrin factors were not a dispositive check list.8 In both cases, the standard on review was whether the trial court decision was contrary to the manifest weight of the evidence. In Miller, the appellate court said yes and reversed the cohabitation finding. In Edson, the appellate court affirmed the finding of no cohabitation. In doing so, it agreed with the trial court that Edson was a close case, and then it deferred to the trial court because it was better able to determine the credibility of the witnesses. In Miller, the court observed that after divorcing, Lorena had entered into an exclusive dating relationship with Michael.9 Michael began spending the night at Lorena’s home approximately twice per month.10 Eventually, according to Michael, the frequency increased such that he spent 70% of his weekends at Lorena’s home while (Lorena equivocally testified that the frequency was lower).11 When Michael was not at Lorena’s home for the weekend, and during the rest of the week, he resided at his own home.12 Over the course of their six-year relationship, moreover, Lorena and Michael went on approximately 14 trips together, usually sleeping in the same bed.13 Lorena and Michael also celebrated some occasions together.14 Soon after Michael and Lorena started dating, Michael brought up the subject of marriage but did not ask Lorena to marry him.15 Lorena told him that she was not looking for marriage at that time, he should not raise the topic again and it would be raised, if ever, only by her.16 The court also observed that over the course of the relationship, the parties did not commingle their finances.17 Thereafter, the romantic

relationship ended, and Michael stopped spending weekends at Lorena’s house.18 In reaching its decision that Lorena was cohabiting with Michael, the trial court placed “considerable weight” on its credibility determinations, specifically its finding that Lorena’s testimony was not credible in several respects.19 Based on its assessment of the evidence, the trial court deemed a de facto marriage existed and ordered Lorena to repay Jeffrey approximately $70,000 in maintenance payments.20 The appellate court in Miller began its analysis of the de facto marriage question by looking to the Herrin decision and its six-factor test.21 After reviewing the trial court’s assessment of Lorena’s credibility,22 the Court noted that it was Jeffrey’s burden to show that Lorena and Michael had a de facto marriage.23 In that regard, the Court observed that, critically, there was no evidence “that there was ever any intention to make the relationship permanent, commingling of finances, or a shared household or shared household duties.”24 As such, “the evidence supports finding only an intimate dating relationship and not a de facto marriage.”25 The appellate court further found that although the trial court had looked to the six Herrin factors, it “did little weighing of the facts,” and it failed to recognize that the factors “are not a checklist.”26 Continuing, the court stated:

“Whether a relationship amounts to a de facto marriage is generally considered to be a question of fact.”

6 7 8 9 10 11 12 13 14 15 16 17

262 Ill. App. 3d 573 (4th Dist. 1964); see Miller, 2015 IL App (2d) 140530, at ¶ 40; Edson, 2023 IL App (1st) 230236, at ¶ 112. Herrin, 262 Ill. App. 3d at 577; see Miller, 2015 IL App (2d) 140530, at ¶ 40; Edson, 2023 IL App (1st) 230236, at ¶ 112. Miller, 2015 IL App (2d) 140530, at ¶ 48; Edson, 2023 IL App (1st) 230236, at ¶ 113. Id., at ¶ 5. Id., at ¶ 9. Id., at ¶ 9. Id., at ¶ 12. Id., at ¶ 13. Id., at ¶ 14. Id., at ¶ 15. Id. Id., at ¶ 16.

Searching the evidence to find facts to assign to each of the six factors does not establish that a relationship rises to the level of a de facto marriage where those facts lack depth and seriousness…[C] ourts should be mindful that the circumstances of an intimate dating relationship are also likely to involve facts that fit into each of the six factors, such that those facts in their totality must attain a certain gravitas to establish a de facto marriage.27 The Miller court concluded that “the circumstances of this case demonstrate that Lorena and Michael did not have a de facto marriage. Rather, it found that although many of the six factors were present, Lorena and Michael shared no

18 19 20 21 22 23 24 25 26 27

Id., at ¶ 15. Id., at ¶¶ 27, 43. Id., at ¶ 28. Id., at ¶¶ 39-40. Id., at ¶¶ 41-43. Id., at ¶ 44. Id. Id., at ¶ 46. Id., at ¶¶ 46.47-50. Id., at ¶ 46.

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more than an intimate dating relationship.”28 Summarizing, the court stated: [T]he evidence clearly shows companionship and exclusive intimacy. However, a deeper level of commitment, permanence, and financial or material partnership are absent from Lorena and Michael’s relationship such that it cannot reasonably be elevated beyond an intimate dating relationship. It is not a de facto marriage.29 The First District’s more recent decision in Edson similarly arose out of post-judgment dissolution of marriage proceedings between former spouses Richard Edson and Julee Edson.30 Specifically, Richard filed a petition to terminate his obligation to make monthly maintenance payments, alleging that Julee was cohabiting with another party named Curt Leaich on a “continuing conjugal basis.”31 Specifically, Richard alleged that Julee and Curt cohabitated and held themselves out as a couple to both family and friends by attending family functions together; spending substantial time and overnights with one another; travelling and going on vacations together; spending holidays together and with friends and family on a regular basis; living and sharing meals together at Julee’s residence; holding themselves out as a couple on social media; attending one of Richard and Julee’s daughter’s wedding, as well as financially contributing to the celebration together; and listing Curt as a family member in an obituary for one of Julee’s relatives.32 As such, Richard asserted that the relationship rose to the level of a “de facto” marriage.33 Following a bench trial, the trial court determined that Richard had failed to meet his burden to prove that Julee was cohabiting with another in a resident, conjugal, and continuing relationship.34 Specifically, the trial court held that, although Richard established that Julee was involved in an intimate dating relationship, he had failed to establish that she was in a de facto marriage.35 After reviewing the trial court testimony, and applicable law, the appellate court agreed. The Edson appellate court acknowledged the Herrin decision, and its six-factor test, which it labeled as “nonexhaustive.”36 It also noted that a finding of an “intimate dating relationship” does not “equate to the conclusion that the relationship is resident, continuing, and conjugal, as required by statute.”37 It further found that the law is “now focused on 28 29 30 31 32 33 34 35 36 37

Id., at ¶ 51; see id. at ¶¶ 51-62. Id., at ¶ 62; see id. at ¶¶ 63-69. Edson, 2023 IL App (1st) 230236, at ¶ 1. Id., at ¶¶ 1, 9. Id., at ¶ 1. Id., at ¶¶ 1, 9. Id., at ¶ 2. Id., at ¶ 2, 95-102. Id., at ¶ 112. Id., at ¶ 115, citing In re Marriage of Bates, 212 Ill. 2d 489, 524 (2004); In re Marriage of Johnson, 215 Ill. App. 3d 174, 180-81 (4th Dist. 1991); and In re Marriage of Sappington, 106 Ill. 2d 456, 467-68 (1985).

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whether a relationship is ‘husband-and-wife-like’ in nature, i.e. one of a de facto marriage, based on the totality of the circumstances.38 Thus, each “case seeking a termination of maintenance based on the recipient spouse’s conjugal cohabitation rests on its own unique set of facts”.39 Among the salient facts the Edson appellate court found significant was that although Julee and Curt had been together for four years, “the length of the couple’s relationship carries less weight based on other relevant factors,” and other aspects of their relationship demonstrated that the relationship lacked the depth of commitment present in a de facto marriage.40 The court observed that Julee and Curt “had never been engaged,” they had not considered marriage and Julee was not interested in marriage.41 The amount of time the couple spent together also did not conclusively demonstrate the depth of commitment present in a de facto marriage.42 The evidence showed that Julee and Curt spent a significant amount of time together when able to, given Curt’s mostly out-of-town job schedule, they “were only able to spend time together on the weekends and did not live a day-to-day life together that would be more reflective of a husbandand-wife-like relationship.”43 The court contrasted this scenario with the facts of Herrin, where the couple “saw each other every day for two and a half years and spent most evenings together.”44 The appellate court further agreed that the nature of the activities the couple engaged in together also did not conclusively demonstrate the depth of commitment present in a de facto marriage.45 It noted: “it was clear that the two were in a monogamous, romantic relationship,” that they engaged “in same activities and events in which married couples typically participate” and they were “were physically affectionate with each other.”46 However, the evidence also showed that “the couple continued to live completely separate lives, even within their activities together.”47 Despite spending weekends with Julee, Curt did not have any belongings stored at her home, and she never stayed at his home.48 The court also pointed out that “[o]verall, the testimony was that both paid for their own expenses.”49 The appellate court noted that “socializing and eating together either in the home or in public have been found to be characteristic of de facto marriages.”50 Further, it noted that shared household chores, including laundry, cooking 38 39 40 41 42 43 44 45 46 47 48 49 50

Edson, 2023 IL App (1st) 230236, at ¶ 115, citing Sappington, 106 Ill. 2d at 467; and Miller, 2015 IL App (2d) 140530, at ¶ 2. Edson, 2023 IL App (1st) 230236, at ¶ 118. Id., at ¶¶ 122, 125. Id., at ¶¶ 123-124, 138. Id., at ¶¶ 126-133. Id., at ¶ 132. Id. Id., at ¶¶ 126-133. Id., at ¶ 136. Id., at ¶ 137. Id. Id. Id., at ¶ 138.

and maintenance work may evidence a de facto marriage.51 In addition, it observed that Curt and Julee shared a bedroom at her house, as well as on various vacations, which may point towards evidence of a de facto relationship.52 The court did not expound, however, on the question of how it would evaluate any of these individual considerations, particularly how much of each would be needed to establish a de facto marriage. Ultimately, the appellate court simply agreed with the trial court that Julee and Curt’s relationship was romantic and “clearly emotional, social and intimate.”53 The appellate court then turned to the question of the interrelation of the couple’s personal and financial affairs. It observed that the trial court had stated it had to assess the “totality of the circumstances to determine whether the new relationship functions practically and economically in a marriage-like way and resist deciding primarily upon emotional and social considerations.”54 With regard to personal affairs, the court acknowledged that the two had involved one another in their personal and social lives.55 In contrast, however, the two had never been engaged, and Julee was not interested in marrying Curt.56 Further, the trial court had found that the couple had “completely and consistently maintained separate households and finances.”57 With regard to credit cards and other financial accounts, the trial court observed that the two did not share any and maintained their own.58 There also was testimony that neither assisted each other with any of their bills or debts.59 Ultimately, the trial court concluded that, despite the length and nature of the relationship, “[o]n a practical and economic level,” the two “could end their relationship and go their own way with virtually no effort whatsoever” because “financially, there [was] nothing to untangle[,]” “no assets or debts to divide[,]” “no deeds to quit claim[,]” “no titles to transfer[,]” and “no refinancing [ ] necessary.”60 The appellate court concurred with the trial court’s conclusions.61 In doing so, it relied upon and quoted the following passage from Miller: In distinguishing an intimate dating relationship … from a marriage-like relationship … we think it fair to state the following. Intimate dating relationships have companionship and exclusive intimacy, whereas marriage-like relationships, while likewise having companionship and exclusive intimacy (not necessarily sexual but such that the former spouse does not engage in a similar relationship with a third person), also have a deeper level of commitment, intended permanence, and, unless reasonably 51 52 53 54 55 56 57 58 59 60 61

Id., at ¶ 139. Id., at ¶ 143. Id., at ¶ 144. Id., at ¶ 148. Id., at ¶ 149. Id. Id., at ¶¶ 150-152. Id., at ¶ 152. Id., at ¶ 153. Id. Id., at ¶¶ 155-158.

explained, financial or material partnership (which would most likely come in the form of a shared household).” 62 In the end, the appellate court reasoned that “companionship and exclusive intimacy” were not enough to carry the day against a lack of evidence relating to formal commitment and partnership ventures.63 The court gave credence to the fact that on a social and emotional level, Julee and Curt had begun to integrate their lives with the time they had together. However, when assessing the more “practical and economical” hallmarks of a husband-and-wife-like relationship, including showings of commitment and mutual permanence, it concluded that “the partnership is lacking.”64 The trial court’s denial of Richard’s petition rested on the fact that, based on the totality of the circumstances, Julee and Curt’s relationship was more akin to an intimate dating relationship, rather than a de facto marriage. The trial court agreed that Richard had sufficiently established the social and emotional aspects of a long-term, romantic relationship that involved both parties’ families. However, on balance, it determined that the “relationship lacked certain practical and economic characteristics, specifically with regard to their otherwise separate lifestyles and financial situations,” relying on Miller as persuasive to its conclusion.65 Noting that its review of the trial court’s decision was “not based on whether we would come to the same conclusion as the court, but whether an ‘opposite conclusion is clearly evident’ or if the decision is ‘unreasonable, arbitrary, or not based on the evidence’,” the appellate court held that the trial court’s conclusion was not “unreasonable.”66 Noting it must be “mindful that the trial court is in the best position to assess the evidence before it,” the appellate court could not “say that the court’s ultimate and well-reasoned conclusion is not supported by the record.”67 As such, the appellate court did “not find that the trial court’s denial of the petition was against the manifest weight of the evidence” and, thus, it affirmed.68 There you have it. The lesson learned from Edson, perhaps, is simply that without a demonstration of significant financial entanglement, a petition alleging cohabitation will fail. Both the trial court and the appellate court said that Edson “was a close call.”69 In this author’s opinion, it was not, given the courts’ heavy emphasis on lack of financial intermingling as apparently being dispositive of the issue. 62 63 64

65 66 67 68 69

Id., at ¶ 159, citing and quoting Miller, 2015 IL App (2d) 140530, at ¶ 61 (emphases added in original). Edson, 2023 IL App (1st) 230236, at ¶ 160, citing and quoting Miller, 2015 IL App (2d) 140530, at ¶¶ 62-63. Edson, 2023 IL App (1st) 230236, at ¶¶ 161-165. The appellate court also noted that the couple had vacationed together (id. at ¶¶ 166-173) and spent holidays together (id. at ¶¶ 166-182), it found these factors were not necessarily compelling in establishing a de facto marriage. Id., at ¶ 184. Id., at ¶ 185, citing and quoting Miller, 2015 IL App (2d) 140530, at ¶ 40. Id. Id. Id.

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Lake County Bar Foundation Minutes

The

Meeting Minutes BY SHYAMA PARIKH SECRETARY

August 15, 2023

resent: Joann Fratianni (President), Kristie Fingerhut (Vice President), Perry Smith Jr. (Treasurer), Shyama Parikh (Secretary), Scott Gibson (via zoom), Louise Hayes, Hon. Michael Nerheim, and John Quinn. Also present was Greg Weider, Executive Director of the LCBA and LCBF. I. CALLED TO ORDER: Meeting was called to order by President Fratianni at 4:07pm, a quorum being present in pers on/ zoom, at the LCBF office. II. APPROVAL OF MINUTES: Motion made to approve the minutes of the 6/3/23 meeting by Perry Smith and seconded by Judge Nerheim. Motion approved. III. TREASURER’S REPORT: Treasurer, Perry Smith Jr., reported that the loan

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was paid down $130,000 as previously discussed. There were no unusual income or expenses. The balances of the operating account, building fund, and RMB account were shared and there will be additional discussion on possibly using some monies from the operating account and investing same into an account that will earn interest. There were bank charges again that will need to be addressed. A Motion to approve the Treasurers Report was made by John Quinn and was seconded by Kristie Fingerhut. Motion approved. WARRANT APPROVAL OF EXPENSES PAID: The Warrants for Expenses were presented for approval. Motion made by Scott Gibson to approve the expenses and was seconded by Louise Hayes. Motion approved. IV. PRESIDENT’S

REPORT: President Fratianni will meet with LCBA President K. Hatch to discuss any joint issues of the Foundation and Association. Upcoming events were shared and discussion took place on how the Foundation could either assist various existing committees as well as help contribute on it’s own. V. OLD BUSINESS: Conflict of Interest statements should be completed, five remain outstanding. VI. NEW BUSINESS: A. 2023-2024 Budget: The budget was presented. The Special Projects Fund are monies for emerging projects that we want to take on during the year. Perry Smith made a Motion to approve the budget, it was seconded by John Quinn. Motion approved. B. Member Center Flooring: There are issues

at the office with the carpet with various bubbles, especially in the Members room. This is the third time this has become an issue and it will be the second time it will need to be repaired. It is unclear whether this is a carpet issue or a subfloor issue. An estimate was received from the company that did the repair last time and there are some challenges communicating with them. Motion was made to obtain two additional estimates for the flooring issue by Shyama Parikh, was seconded by Kristie Fingerhut. Motion approved. C. LCBA/LCBF Website Project: Both the LCBA and LCBF use the website and there were discussions about it being outdated, not user friendly, and there have been issues with logging in that have caused people to give up using it and calling the office. It was discussed

that two members from the LCBA and LCBF would work with Greg and an engineer to set goals and work backwards on how to accomplish them. There may be funds in the Member Management System that overlap and could be used for this project, which we anticipate both groups would fund. Perry Smith and Scott Gibson will work with Greg from the LCBF. D. Committee Reports: At the next meeting, the board members will be assigned to the committees (Fundraising/ Grant committee, Long Range Planning committee, By-Law’s committee, and the new Website committee) and each will have the option to change

if they want. Reports will be given thereafter at the meetings. E. DOCKET: Discussions took place to place a monthly bio of a LCBF member, similar to what the Associating has been doing. This is a good way to introduce ourselves to the community, inspire others to join and participate, and for some publicity/credit for the time/effort we put in as the Board. Greg will assign a Board Member to each month. VII. ADJOURNMENT: Motion to Adjourn was made at 4:55pm by Judge Nerheim and was seconded by Perry Smith. Motion approved.

Resolute Systems Welcomes

JUDGE DAVID BRODSKY, ret. MEDIATOR | ARBITRATOR

to Our Illinois Team of Dispute Resolution Professionals Resolute Systems is pleased to welcome Judge David Brodsky, Ret. to our team of dispute resolution professionals. Judge Brodsky will concentrate his mediation practice in the areas of: We congratulate Judge Brodsky on his outstanding judicial career where he developed a reputation as an extremely effective pre-trial mediator. To schedule mediation with Judge Brodsky, please contact Mike Weinzierl at 312.346.3770, x125 or go to our Web Pages at davidbrodskymediation.com

• Personal Injury

• Products Liability

• Nursing Home

• Wrongful Death

• Contract

• Premises Liability

• Medical Malpractice

• Mechanics Lien Litigation

• Defamation

• Legal Malpractice

• Eminent Domain

• Divorce & Family

• Commercial

• Probate

November 2023

Board of Directors’ Meeting

The

September 21, 2023

inutes of the regular meeting of the Board of Directors of the Lake County Bar Association held in the Executive Conference Room of the Lake County Bar Association, 300-A BOARD OF DIRECTORS Katharine Hatch

President

Daniel Hodgkinson

First Vice President Kevin Berrill

Second Vice President Richard Gellersted

Treasurer

Jeffrey Berman

Secretary

Tara Devin Immediate Past President Jeremy Harter

Director

Jeffrey O’Kelley

Director

Sarah Raisch

Director

Judy Maldonado

Director

Hon. Bolling Haxall

Director

Greg Weider Executive Director

24 The Docket

Grand Avenue, Waukegan, Illinois, on Thursday, September 21, 2023. CALL TO ORDER President Hatch called the meeting to order at 12:11 p.m. ROLL CALL Roll call indicated a quorum was established, with the following individuals present: Katharine Hatch, President; Daniel Hodgkinson, First Vice President; Kevin Berrill, Second Vice President; Richard Gellersted, Treasurer; Jeffrey Berman, Secretary; Tara Devine, Immediate Past President; Jeffrey O’Kelley, Director; Craig Mandell, Director; and Greg Weider, Executive Director. Sarah Raisch, Director, Judy Maldonado, Director, and Jeremy Harter, Director, participated by Zoom video conferencing. Hon. Bolling Haxall, Director was absent. ACTION ITEMS • Consent Agenda Items

Meeting Minutes BY JEFFREY A. BERMAN SECRETARY

August 17, 2023 Board of Directors Meeting Minutes The Draft minutes from the August 17, 2023 meeting of the Board of Directors was included in the agenda packet. There were no requests for other additions, corrections, or changes to the draft minutes. August New Members and Membership Report The New Members report as of September 8, 2023 was included in the Agenda packet, along with a full Membership report as of September 8, 2023. A motion was made and seconded to approve the Consent Agenda. Upon unanimous voice vote, the motion was declared carried. The Consent Agenda is approved. • Treasurer’s Report The August 2023 Financial Report and supporting materials were included in the Agenda packet. Treasurer Gellersted made a presentation regarding the August 2023

Financial Report. Discussion followed. A motion was made and seconded to approve the Treasurer’s Report. Upon unanimous voice vote, the motion was declared carried. The Treasurer’s Report is approved. OLD BUSINESS None NEW BUSINESS • Wayne Flanigan Award Nominee – Patricia Hogan President Hatch and Executive Director Weider made a presentation concerning the Wayne Flanigan Award and Nominee Patricia Hogan. Discussion followed. A motion was made and seconded to approve the nomination of Patricia Hogan. Upon unanimous voice vote, the motion was declared carried. The nomination is approved. • Employee Handbook Approval President Hatch and Executive Director Weider made a presentation

concerning the Employee Handbook update project. The project is complete, and a copy of the revised Handbook was included in the Agenda packet. Discussion followed. A motion was made and seconded to approve the Employee Handbook as proposed. Upon unanimous voice vote, the motion was declared carried. The Employee Handbook is approved. OTHER MATTERS • Committee Liaison Reports Board members provided Committee updates. • Executive Director Report

Executive Director Weider presented his Executive Director Report for September, including providing an update on an inquiry from Prairie State Legal Services regarding their Pro Bono Newsletter and upcoming scheduled events and meetings ADJOURNMENT A motion was made to adjourn. Upon unanimous voice vote, the motion was declared carried. The meeting concluded at 12:42 p.m. The next Board of Directors Meeting is scheduled to take place on Thursday, October 19, 2023.

Visit the LCBA Website: lakebar.org

The

Calendar of Events

Brown Bag CLE A Primer on the National Security Process and the Legal Framework Upon Which it Operates November 1 12:15 PM Virtual - Zoom Real Estate Committee Meeting November 2 5:30 PM Primo, Gurnee Community Outreach & Diversity Committee Meeting November 7 12:15 PM Virtual - Zoom

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Pictured above (from the left): Karina A. Elperin (Wealth Management Associate), David J. Gordon (Senior Portfolio Management Director, Executive Director, Financial Advisor), Rafal Fidowicz (Registered Associate)

2 3

Civil Trial & Appeals Committee Meeting| November 8 12:00 PM Virtual - Zoom Probate GAL, Trust & Estates Seminar November 9 8:00 AM Midlane Country Club / Encore ARDC Update Luncheon November 14 12:15 PM City of Waukegan 2nd Floor LCBA Holiday Party November 30 5:00 PM LCBA Member Center

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The use of the CDFA designation does not permit the rendering of legal advice by Morgan Stanley or its Financial Advisors which may only be done by a licensed attorney. The CDFA designation is not intended to imply that either Morgan Stanley or its Financial Advisors are acting as experts in this field. Certified Financial Planner Board of Standards Inc. owns the certification marks CFP®, CERTIFIED FINANCIAL PLANNER™ in the U.S. The appropriateness of a particular investment or strategy will depend on an investor’s individual circumstances and objectives. Morgan Stanley Smith Barney LLC (“Morgan Stanley”), its affiliates and Morgan Stanley Financial Advisor do not provide tax or legal advice. Clients should consult their tax advisor for matters involving taxation and tax planning and their attorney for matters involving trust and estate planning and other legal matters. Morgan Stanley Smith Barney LLC. Member SIPC. CRC 5343466 01/2023

November 2023 25

For The Public Good.

very October since 2009, legal organizations nationwide celebrate pro bono legal service. It is an important time to acknowledge the efforts of volunteer lawyers who provide no cost legal service, acknowledge the impact their work has in the community and contemplate the greater need for service to meet the ever-expanding demand. Access to justice is a vital component of a functioning democracy and access for all is more important than ever. Even before the birth of the United States of America pro bono service was part of the practice of law. In March of 1770 future President of the United States John Adams took on the pro bono defense of British soldiers who were being prosecuted for what became known as the Boston Massacre. Later in life Mr. Adams remembered his pro bono

26 The Docket

service by stating “It was one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.” Years later his son and former U.S. President John Quincy Adams would represent 53 Africans who had been kidnapped and later rebelled on the schooner Amistad. Mr. Adams provided pro bono representation to the Africans before the Supreme Court. The appeal was the very first civil rights case to come before the Court. Historian S.E. Morison considered it “the most important court case involving slavery before being eclipsed by that of Dred Scott.” Pro Bono comes from the Latin phrase pro bono publico, which means for the public good. That spirit of public good is alive and well at the Lake County Bar Association.

In the

Director’s Chair

The LCBA values pro bono and applauds the efforts of our members who provide this important service. We recently had the honor of recognizing two outstanding lawyers who are serving those in need by providing pro bono legal services. Patricia K. Hogan was recognized with this year’s Wayne B. Flanigan Award. The award recognizes a LCBA member attorney who provides a “hand up to those that need one” through their contributions to the public by providing legal services to indigent members of Lake County communities and through their support of and furtherance of the values of the LCBA. Marjorie Sher was recognized with this year’s Prairie State Legal Services Volunteer Lawyer Award. The award recognizes a pro bono attorney that has made an outstanding contribution to the work of PSLS and the Volunteer

BY GREG WEIDER EXECUTIVE DIRECTOR Lawyer Program. We were also privileged to acknowledge the efforts of lawyers who participated in the Volunteer Lawyer Program in the past year. As an organization the LCBA is fortunate to have member attorneys who are committed to providing access to justice and willing to give of their time to help those in need. Collaboration is an important part of pro bono efforts. The Lake County Bar Association is privileged to work with two community-focused legal partners. Prairie State Legal Services and the North Suburban Legal Aid Clinic work everyday to help address the legal challenges of those in need in our community. In celebration of Pro Bono Week, the NSLAC provided an Eth-

ical Considerations in Pro Bono Practice CLE for LCBA members. This highly informative legal educational opportunity

helps to build an even stronger pro bono foundation in Lake County.

The end of November signals the close of the first half of our LCBA program year. I want to take a moment to thank all of

our members who volunteer their time as committee chairs, presenters, and board members. I appreciate their engagement and dedication. Their efforts help make the LCBA membership

experience the best it can be. For members who would like to be more involved please feel free to contact me. I would be glad to help connect you to greater LCBA volunteer service. The LCBA has a

number of outstanding educational and social events planned for the second half of the program year. I look forward to seeing you there. Have a wonderful holiday season!

LAWYER REFERRAL SERVICE WHY SHOULD YOU JOIN? The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member attorneys with an opportunity to build business through client referrals. The service benefits the public by helping callers quickly find an attorney in the area of law in which they need help. The LRS program is designed to assist persons who are able to pay normal attorney fees but whose ability to locate legal representation is frustrated by a lack of experience with the legal system, a lack of information about the type of services needed, or a fear of the potential costs of seeing a lawyer. Cost is only $200 annually for a Standard listing or $350 for a Premium listing. Download the application at www.lakebar.org/page/LRS or contact the LCBA office for more information.

CONTACT THE LCBA AT 847.244.3143 OR INFO@LAKEBAR.ORG

LAKECOUNTYLAWYER.INFO AWALC 9TH BIENNIAL ETHICS AND PROFESSIONALISM SEMINAR FRIDAY, JANUARY 12, 2024 via Zoom

6.0 MCLE CREDITS PENDING

(Including Diversity & Mental Health)

TOPICS INCLUDE: Vicarious Trauma and Compassion Fatigue: Why the Work We Do Impacts Us Potential Witness Issues in the Era of Zoom Accessing Justice: Updates on Remote Proceedings and Other Supreme Court Access to Justice Initiatives I Believe Trans Kids Should Grow Up to Be Lawyers Rethinking Neurodiversity in the Legal Industry Ethical Issues in Labor and Employment Law Ethics in Today’s Practice of Law

November 2023 27

Monthly

Committee Meetings

DAY

GO TO

WWW.LAKEBAR.ORG FOR THE MOST UP-TO-DATE CALENDAR INFORMATION

Bar

Bulletin Board

To place an ad or for information on advertising rates, call (847) 244-3143

MEETING

LOCATION

TIME

1st Tuesday

Diversity & Community Outreach

Virtual Until Further Notice

12:15-1:15

1st Thursday

Real Estate

VUFN

5:30-6:30

1st Thursday (Even Mo.)

Docket Editorial Committee

VUFN

12:15-1:15

2nd Tuesday

Criminal Law

VUFN

12:15-1:15

2nd Tuesday (Odd Mo.)

Immigration

VUFN

4:30-5:30

2nd Wednesday

Family Law Advisory Group (FLAG)

VUFN

12:00-1:00

2nd Wednesday

Civil Trial and Appeals

VUFN

4:00-5:00

2nd Thursday

Young & New Lawyers

VUFN

12:15-1:15

2nd Thursday

Trusts and Estates

VUFN

12:15-1:15

3rd Monday (Odd Mo.)

Solo & Small Firms

VUFN

12:00 noon

3rd Tuesday

Local Government

VUFN

12:15-1:15

3rd Tuesday

LCBF Board of Trustees

VUFN

4:00

3rd Wednesday

Family Law

VUFN

12:00-1:00

3rd Thursday

LCBA Board of Directors

VUFN

12:00 noon

3rd Thursday

Debtor/Creditor Rights

VUFN

5:30-6:30

As Needed

Employment Law

VUFN

5:15-6:15

• RSVP to a meeting at www.lakebar.org. • Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143. • Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis.

ANNOUNCING OUR NEW NAME!

STILL IN THE SAME LOCATION, CONTINUING TO PRACTICE IN LITIGATION & APPEALS, RESIDENTIAL & COMMERCIAL REAL ESTATE, BUSINESS LAW, ESTATE PLANNING, & TRUST ADMINISTRATION

ROBERT W. CHURCHILL WILLIAM A. CHURCHILL JOHN W. QUINN MARK T. HAMILTON MARK VAN DONSELAAR JOHN L. QUINN LEO J. DELANEY AMBER L. DESSELLES MARY LEE BERRESHEIM

TWO SOUTH WHITNEY, GRAYSLAKE, IL 60030 • (847) 223-1500 • WWW.GRAYSLAKELAW.COM

28 The Docket

November 2023 29

300 Grand Avenue, Suite A Waukegan, IL 60085 Tel: 847-244-3143 Fax: 847-244-8259

MEMBER RECEPTION

MEMBER RECEPTION SPONSORSHIP OPPORTUNITIES

LCBA Member Receptions will generally be held on the 4th Thursday of every month.

Your $500 sponsorship includes: ecognition in advertising before the event and on signage at the event •R • Reception from 4:30 – 6:30 p.m. omplimentary beer and wine. Upgrades available for additional fee. •C

Contact info@lakebar.org to add your name to a reception.

30 The Docket