The Docket - March 2024

DOCKET THE

20th Annual Lake County High School Mock Trial Invitational

Congratulations to the Maine South High School Mock Trial Team on their 1st place finish at the 20th Annual Lake County High School Mock Trial Invitational.

2024 LCBA OFFICE RENTAL PRICING

CONFERENCE ROOM

For meetings only. Seats 16 – 20 comfortably

During business hours (8 am – 5 pm)

• Member- Free

• Non-Member $150/1st hour. $50/hour after

• Non-Member, Not-for-Profit: $25/hour

After Hours (5 pm – 9 pm)

• Member - $25 per hour

• Non-Member – Not Available

• Non-Member, Not-for-Profit: $50 per hour

MEMBER CENTER “The Bar”

Accommodates up to 100 people

During business hours (8 am – 5 pm)

Members (add $25/hour for after hour events)

• Meeting only (individual or group, no food or beverages served: Free

• Self-Service reception or party (provide own alcoholic beverages): $50 per hour

• Hosted beer & wine reception or party (beer & wine provided by Association): $250/ 1st hour, $50/hour after

Non-Members: (add $50/hour for after hour events)

• Meeting only (individual or group, no food or beverages served): $50 per hour

• Self-Service reception or party (provide own alcoholic beverages and food): $300/ 1st hour, $50/hour after

• Hosted beer & wine reception or party – Not Available

Non-Member, Not-for-Profit: (add $25/hour for after hour events)

• Meeting only (individual or group, no food or beverages served): $25 per hour

• Self-Service reception or party (provide own alcoholic beverages and food): $150/1st hour, $25/hour after

• Hosted beer & wine reception or party – Not Available

Association Committee Meetings (Conference Room or Member Center)

Without beer & Wine - Free

With Hosted Beer & Wine - $150 flat fee (for 5 – 15 people), $200 (over 15 people)

Room rentals are based on availability. Rentals include use of A/V already in room (phone, TV, Speaker. WIFI).

All rentals include free parking in our large, well-lit, 45 vehicle parking lot adjacent to the LCBA building.

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

10 Heads Up! A New Illinois Supreme Court Decision

BY JEFFREY A. BERMAN

14 What Is the Judicial Performance Evaluation Program?

BY HON. MITCHELL L. HOFFMAN, RET.

16 Life After Cash Bond

BY PAUL B. NOVAK

2 President’s Page Women Rock Lake County Law

BY KATHARINE HATCH, PRESIDENT

4 The Chief Judge’s Page Court Reporting and Hybrid Capabilities BY CHIEF JUDGE

5 Meet the Board Sarah Raisch

6 Bar Foundation Battle of the Bands Roundup!

BY JOANN FRATIANI,

PRESIDENT

22 Lake County Bar Foundation Minutes December 19, 2023 BY

SHYAMA PARIKH,SECRETARY

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.

24 Board of Directors’ Meeting Minutes

January 18, 2024

BY JEFFREY

BERMAN,

SECRETARY

26 In the Director’s Chair Member Engagement, Volunteer Leadership, and the Future of the LCBA

BY GREG WEIDER, EXECUTIVE DIRECTOR

FURTHER INFORMATION

IFC Office Rental Pricing

5 New LCBA Members

5 Grapevine

7 Gridiron Thank You

8 Battle of the LCBA Bands

11 Lake County Bar Foundation

23 Calendar of Events

23 LCBA Annual Meeting

25 Lawyer Referral Service

27 Family Law Seminar

14 Monthly Committee Meetings

BC Member Reception Sponsorship Opportunities

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.

Women Rock Lake County Law

As we commemorate Women’s History Month, it is important to honor the remarkable contributions of women in shaping the legal profession and advocating for justice and equality. Throughout history, women have overcome barriers and shattered glass ceilings, leaving an indelible mark on the legal

landscape. In particular, I want to acknowledge the exemplary leadership of women who have served as presidents of our bar association, paving the way for future generations of legal professionals.

Here are just a few of the outstanding women who have served as presidents of the Lake County Bar Association, each leaving a lasting legacy of empowerment, advocacy, and progress:

President’s Page The

BY KATHARINE HATCH PRESIDENT

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

1. Honorable Claire C. Edwards: As the first woman to hold the position of president at the Lake County Bar Association Claire broke new ground and inspired countless others to pursue leadership roles in the legal field. Her tenure was marked by a steadfast commitment to promoting diversity and inclusion within the legal profession, advocating for equal representation of women and minority attorneys.

2. Mary Clark: A trailblazer in her own right, Mary made history as the youngest president ever elected to the Lake County

Bar Association. Throughout her tenure, she championed initiatives aimed at bridging the gender gap in the legal profession, mentoring young women lawyers, and advocating for policies that support work-life balance and gender equality in the workplace.

3. Jennifer Howe: Widely respected for her expertise in probate and estates, Jennifer brought a wealth of knowledge and experience to her role as president of the Lake County Bar Association. During her tenure, she spearheaded initiatives to address systemic barriers prohibiting access to justice and worked tirelessly to advance the cause of equality.

4. Deborah Goldberg: A tireless advocate for social justice, Deb led the Lake County Bar Association with passion and dedication. Under her leadership, the association played a pivotal

role in advocating for policy reforms and promoting access to justice for marginalized communities.

These remarkable women exemplify the spirit of Women’s History Month and serve as role models for future generations of legal professionals. Their leadership, vision, and advocacy have helped to shape a more inclusive and equitable legal profession, where women have a seat at the table and a voice in shaping the course of history.

As we celebrate Women’s History Month, let us not only reflect on the achievements of the past but also recommit ourselves to the ongoing work of advancing gender equality and empowering women in the legal profession and beyond. Together, we can build a future where every individual has the opportunity to thrive and succeed, regardless of gender or background.

Jennifer Ashley

Tara Devine

Jaclyn Kurth

John Mennie

ChiefPageJudge’s The Court Reporting and Hybrid Capabilities

BY CHIEF JUDGE DANIEL B. SHANES

Does anyone else feel like March is the longest month in the year? Of course, it’s not: January, May, July, August, October, and December also have 31 days. Maybe because it follows the short-lived February (extra long at 29 days this year!), or perhaps because it can be so cold and dreary, but whatever the reason, March often feels to me like, well, a long march.

Nonetheless lots of great stuff happens in March. As I shared with you previously, at the courthouse we are kicking March off with Law Merit Badge Day. And of course the LCBA is gearing up for what is sure to be another outstanding Gridiron production. It is always fun to check out the Playbill to see the outstanding ads before witnessing so many in our bench and bar showcase hidden and

budding talents. Naturally, it will be entirely deferential to our judiciary, just as it always is. Seriously, if we can’t make a little fun of ourselves, something bigger is wrong.

In other news, I am pleased to report that our juvenile courtrooms are now entirely electronic-court-reporting (ECR) capable. As we talked about last month, courthouse regulars are acutely aware of the shortage of official court reporters in our circuit. Lake County has been blessed for decades with wonderful court reporters; when the inevitable and well-earned retirements come, we are glad for our friends and colleagues but stretched that much thinner.

Enter ECR. For the past several years, we have been able to equip many of our courtrooms to provide for ECR in the absence of

a live court reporter. Now that our juvenile courtrooms are ECR-capable, the two official court reporters that otherwise would have been in Vernon Hills can take proceedings in Waukegan. Not a complete solution, but everything helps.

While ECR can get the job done, many of us— starting with me—prefer our outstanding live official reporters. One of the thrills of serving as chief judge is the responsibility of swearing in new court reporters when they join our ranks, and we have added several wonderful court reporters over the past number of years.

And recruitment continues. Did you know that much of the administration of official court reporters in Illinois is managed by the Conference of Chief Judges? Last month, the Conference

approved a full tuition waiver for students enrolling in and completing court reporter school who agree to work as an official court reporter for the first two years after graduation. Do you know anyone who may be interested in becoming a court reporter? If so, please feel free to have them contact me (courts@ lakecountyil.gov), and I can get them connected with the program.

The Conference also approved an additional incentive: any court reporter (new or coming from the private sector) who joins the circuit court and becomes an official court reporter this fiscal year will receive a $5,000 bonus after six months with the court. Again, if you know any current or future court reporters, please feel free to have them reach out to me.

Over the past few

years, most courthouse practitioners have participated in court proceedings both in-person and remotely, depending upon the various circumstances. During the early days of the pandemic, of course, it was almost entirely remote. As the pandemic waned and our courtrooms physically reopened, we often have experienced cases where at least one party is physically present in the courtroom and another party appears remotely. We refer to this as hybrid proceedings, neither all in-person nor remote appearances. All of our courtrooms are hybrid-appearance capable (for appropriate proceedings).

However, our arbitration center is not. Thousands of civil cases are addressed each year in our arbitration center, yet arbitration hearings must currently be held either

entirely in-person or entirely remote. Our next technological project is to equip our arbitration center to provide hybrid-appearance proceedings, just as our courtrooms do.

These are just some of the things happening at your courthouse. Hope to see you at the Gridiron, and looking forward to catching up more next month.

Welcome ATTORNEY

New LCBA Members

Elka Blonder

Cooper Trachtenberg Law Group

Annemarie Tarara

Merel Family Law

ACTIVE DUTY MILITARY

Katherine Pitz Marine corps

Meet the Board

SARAH RAISCH

Sarah Raisch is a Senior Attorney at Romanucci & Blandin, LLC. She represents clients in all areas of personal injury law, including those harmed by medical malpractice, mass torts and auto accidents. She also represents clients who are victims of civil rights violations, and gained expertise in seeking justice for individuals affected by the criminal justice system after proudly serving as an attorney

with the Office of the Lake County Public Defender for a decade.

Sarah is a double Badger- she received her Bachelor of Arts degree and her Juris Doctorate from the University of Wisconsin- Madison. She has been a member of the Lake County Bar Association since 2013 and has served as Committee Chair for the Criminal Law and Young and New Lawyers Committees and

Lake

is an enthusiastic Gridiron participant. Sarah joined the LCBA Board of Directors in 2021. In addition to the LCBA Sarah is involved with the North Suburban Bar Association, Women’s Bar Association of Illinois, Illinois Trial Lawyers Association, and the Jefferson American Inn of Court.

Sarah enjoys participating in triathlons and completed the 140.6-mile Wisconsin Ironman in

2019. She is a mother of twins, and spends her free time chasing them.

The

County Bar Foundation is pleased to support the North Suburban Legal Aid Clinic as they work to provide accessible, high-quality, equitable, free legal services in the areas of domestic violence, housing, and immigration to give low-income, at-risk community members access to justice and the opportunity to live productive and secure lives. To learn more about the North Suburban Legal Aid Clinic go to www.nslegalaid.org.

Battle of the Bands Roundup!

The Lake County Bar Foundation recently concluded a successful Fundraiser entitled “The Battle of the Bands.” The event occurred at

BOARD OF TRUSTEES

Joann Fratianni President

Kristie Fingerhut Vice President

Perry Smith Treasurer

Shyama Parikh Secretary

Douglas Dorando Immediate Past President

Jennifer L. Ashley

Nandia P. Black

Louise Hayes

Steven P. McCollum

Scott B. Gibson

David J. Gordon

Keith Grant

Fredric B. Lesser

Hon. Michael Nerheim

Michael Ori

John Quinn

Eric Reinhart

Melanie K. Rummel

David Stepanich

28 Mile Distilling Co. in Highwood on February 8, 2024. The charitable organizations that will benefit from the proceeds are A Safe Place and the North Suburban Legal Aid Clinic. A Safe Place is the sole provider of services addressing domestic violence and human trafficking in Lake County. The North Suburban Legal Clinic provides free legal services in the areas of domestic violence, housing issues and immigration.

The five bands participating in the event electrified the attendees with a variety of songs ranging from oldies, modern pop, as well as country tunes. The five bands competing in the event were Wango, Merge Left, See Alice, The Perqs, and Crosby, Stills, Nolle and Pros. The evening concluded with a fierce competition for

BY JOANN FRATIANNI PRESIDENT

the votes of the remaining audience members. Two of the Bands, the Perqs and Crosby, Stills, Nolle and Pros ended in a tie and forced a Super Bowl overtime ending to fight it out for the winning spot. The winning Band was Crosby, Stills, Nolle and Pros, but not without a little undue influence exerted upon the voting audience. Congratulations to Band members Steve Rice, Emma Smoler, Don Tyer, Tim Rout, Hon. Charles Johnson, Marty Smith, and Evelyn Olson. What did they win? Bragging rights across Lake County!

I would like to extend my gratitude to the many individuals who helped make this a successful event. First of all, to our Co-Chairs Jennifer Ashley and David Stepanich, who organized this event. A special thanks is extend-

ed to our Emcee, Craig Mandell, for introducing and keeping the bands adhering to a time schedule. Thank you to all the bands that donated their time and talent. Thank you to all the attendees, as well as the following sponsors, for their monetary donations: Salvi Schostok and Pritchard; Lesser, Lutrey, Pasquesi and Howe, LLP; Rummel Associates, Inc.; Power Rogers; AWALC; Albarran and Mennie P.C.; Douglas Law; FW Family Law Group LLC; Hon. Michael Nerheim; Hon. Valerie Ceckowski (Ret.); Stephen Komie; and yours truly, Joann Fratianni. Last, but not least, our thanks goes out to our hard working LCBA/ LCBF staff: Greg Weider, Jose Gonzalez, and Nancy Rodriguez.

That’s all for now and Happy Spring!

THANK YOU FOR FEEDING THE GRIDIRON CAST

Harter & Schottland, P. C

Salvi, Schostok & Pritchard, P.C.

Berna Family Law & Human Rights, LLC

Joe Morrison Kelleher & Holland, LLC

Nineteenth Judicial Court

Hon. Nancy Waites (ret.)

Association of Women Attorneys of Lake County

Gabe Conroe & Emily Rozwadowski

Hon Michael Fusz (ret ) & Joe Fusz

Advocus National Title Insurance Company

Don Morrison Kelleher & Holland, LLC

Curtin Whitcombe, LLC

Don Tyer

Steiner, Howeth, Pasquesi & Hatch, Ltd.

Ciesla Beeler, LLC

Smoler Law Office, P.C.

Law Offices of Richard S Kopsick, P C

Law Offices of Timothy R Evans

Strauss & Hoyt, LLC

Greenwich Law Group, LLC

LCBA Board of Directors

Johnston, Tomei, Lenczycki & Goldberg, LLC

Del Re Law Group

Cohen Law

Bock, Hatch & Oppenheim, LLC

Judges Bishop, Salvi, Smith, Stride, Shanes, Fix

Albarran & Mennie, P C

The Lake County Courts of Review

Law Offices of Hon. Henry "Skip" Tonigan, ret.

Hon. Daniel Jasica

of the

Battle Bands

February 8, 2024

Thank you to everyone attended the Lake County Bar Foundation’s Battle of the Bands fundraising event in support of A Safe Place and the North Suburban Legal Aid Clinic. Your support and generosity will help two wonderful nonprofit organizations have a positive impact on Lake County.

Heads Up!

A New Illinois Supreme Court Decision in Waukegan Hospitality Group, LLC v. Stretch’s Sports Bar & Grill Corp. Provides an Object Lesson in How Not to Handle an Appeal

BY JEFFREY A. BERMAN

And then one day you find Ten years have got behind you No one told you when to run You missed the starting gun1

1In a case that reads more like a law school exam question, or perhaps a cautionary tale and primer on how not to handle the filing of a notice of appeal, the Illinois Supreme Court has affirmed the decision by the Second District Court of Appeals to dismiss an appeal for lack of jurisdiction where the record only supported the conclusion that plaintiff electronically filed its notice of appeal five days late (despite purported support outside of the record to the contrary) and where plaintiff failed to avail itself of either of two potential avenues for relief available under the Supreme Court Rules. Although the appellate court itself acknowledged the harshness of its decision, the Supreme Court affirmed, holding the appellate court correctly concluded that it lacked jurisdiction to hear the Plaintiff’s appeal.

1 Pink Floyd, “Time,” The Dark Side of the Moon (1973).

BACKGROUND

On September 1, 2020, Plaintiff, Waukegan Hospitality Group, LLC, filed a verified complaint for eviction against defendant, Stretch’s Sports Bar & Grill Corporation. It sought possession (Count I) and a money judgment (Count II).2

Jeffrey Berman of the law firm of Bock Hatch & Oppenheim, LLC has extensive experience in commercial litigation, class actions and insurance coverage litigation in state and federal courts across the country. He is Co-Editor of the Docket and currently serves as Secretary of the LCBA Board of Trustees.

The matter then proceeded to a bench trial before the Honorable Michael B. Betar. 3 At the close of plaintiff’s case, on March 1, 2021, the court directed a finding against plaintiff and entered judgment in favor of defendant. 4 The next day,

2 Waukegan Hospitality Group, LLC v. Stretch’s Sports Bar & Grill Corp., 2022 IL App (2d) 210179, ¶¶ 1, 3; Waukegan Hospitality Group, LLC v. Stretch’s Sports Bar & Grill Corp., 2024 IL 129277, ¶ 3.

3 2022 IL App (2d) 210179, at ¶ 4; 2024 IL 129277, at ¶ 3.

4 2022 IL App (2d) 210179, at ¶ 4; 2024 IL 129277, at ¶ 3.

on March 2, 2021, the court entered a written order memorializing the judgment. 5

On April 6, 2021, plaintiff filed a notice of appeal.6 In the notice, plaintiff certified that it served the notice on defendant on April 1, 2021.7 Plaintiff asserted the appellate court had jurisdiction under Illinois Supreme Court Rules 301 and 303.8

APPELLATE COURT DECISION

The appellate court began its analysis by addressing its jurisdiction to consider the appeal.9 It noted that Rule 301 provides that every final judgment in a civil case may be appealed as of right by filing a notice of appeal, and “[n]o other step is jurisdictional.”10 In addition, it noted that Rule 303(a)(1) states, in pertinent part, that “[t]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from,” unless the appellant files a motion directed against the judgment within the period.11 Thus, when a party does not file a post judgment motion, the appellate court only obtains jurisdiction if that party files a notice of appeal within 30 days of the appealed judgment, unless the appellate court extends that period.12

of appeal was thus due no later than April 1, 2021.”16

Plaintiff’s notice of appeal contained a stamp from the Circuit Clerk of the Nineteenth Judicial Circuit, which stated that it was electronically filed on April 6, 2021—five days after the time for filing a notice of appeal expired.17 Plaintiff nevertheless asserted it “timely filed and served its Notice of Appeal on April 1, 2021[,] pursuant to Illinois Supreme Court Rule 303” via the court’s electronic filing manager. However, “on April 6, 2021, the [Circuit Clerk] returned the filing with instructions to resubmit, to which Plaintiff promptly complied” on April 6, 2021.18

...perhaps a cautionary tale and primer on how not to handle the filing of a notice of appeal…

The critical question to be answered, therefore, is what was the operative judgment date?13 To answer that query, the court turned to Supreme Court Rule 272, which provides “If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by the judge … the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed.”14

The appellate court also observed that the trial court’s March 1, 2021, docket entry contained a notation that, although judgment had been entered in defendant’s favor, no order was entered that day.15 As a result, the appellate court concluded that “the time for filing a notice of appeal commenced on March 2, 2021, when the court signed and entered the written judgment, and plaintiff’s notice

5 2022 IL App (2d) 210179, at ¶¶ 4, 9; 2024 IL 129277, at ¶ 3.

6 2022 IL App (2d) 210179, at ¶ 5; 2024 IL 129277, at ¶ 3.

7 2022 IL App (2d) 210179, at ¶ 5.

8 2022 IL App (2d) 210179, at ¶ 7, citing Ill. S. Ct. R. 301 and Ill. S. Ct. R. 303.

9 2022 IL App (2d) 210179, at ¶ 7.

10 Id. at ¶ 8.

11 Id. at ¶ 8, citing Ill. S. Ct. R. 303(a)(1).

12 Id. at ¶ 8, citing Ill. S. Ct. R. 303(d) (permitting the appellat court to extend the time to file a notice of appeal).

13 Id. at ¶ 9.

14 Id. at ¶ 10.

15 Id. at ¶ 10.

The appellate court rejected plaintiff’s assertion that it timely submitted the notice of appeal April 1, 2021, “find[ing] no support in the record.”19

Going one step further, the appellate court held that even “taking as true plaintiff’s assertion,” it must still dismiss the appeal.20 In that regard, the court turned to Supreme Court Rule 9, which governs the electronic filing of documents, and provides, in pertinent part, that a document is considered timely filed in the relevant court if submitted before midnight on the due date.21

Rule 9(d) also allows a party to seek relief when a system error or user error causes a document to be untimely, providing, in pertinent part, “[if] a document is rejected by the clerk and is therefore untimely, the filing party may seek appropriate relief from the court, upon good cause shown.”22 Thus, when a document is timely submitted but rejected after the deadline for filing, the electronic transmission “ha[s] no effect, unless the … court subsequently grant[s] ‘appropriate relief.’ ”23

While Rule 9 does not specify from which court a party must seek relief, in the “context of a notice of appeal,” the appellate court held, “the appropriate court from which to seek relief would be the trial court because that is the only court, up to that point, that ever had jurisdiction over the parties and subject matter.”24 However, by the time the Circuit Clerk rejected the notice of appeal on April 6, 2021, 35 days after the date of the judgment, the trial court already was divested of jurisdiction.25

16 Id. at ¶ 10.

17 Id. at ¶ 11.

18 Id. at ¶¶ 11, 12.

19 Id. at ¶ 11.

20 Id. at ¶ 12.

21 Id. at ¶ 13, citing Ill. S. Ct. R. 9(d).

22 Id. at ¶ 13, citing Ill. S. Ct. R. 9(d)(2).

23 Id. at ¶ 13, citing Davis v. Village of Maywood, 2020 IL App (1st) 191011, ¶ 19.

24 Id. at ¶ 13.

25 Id. at ¶ 14, citing Village of Bloomingdale v. Lake/Ridge, LLC, 2021 IL App (2d) 200232, ¶ 13 (trial court loses jurisdiction 30 days after judgment is entered unless a party files a motion

Thus, the appellate court observed, “the procedure to seek relief under Rule 9(d)(2) may not apply to a notice of appeal because (1) a trial court loses its jurisdiction 30 days after final judgment, and (2) the rule does not state that a trial court retains jurisdiction to grant such relief.”26

That leaves the tardy putative appellant with only the possibility of seeking relief from the appellate court under Rule 303(d), which states the appellate court may, upon a showing of a “reasonable excuse,” grant leave to file a late notice of appeal.27 That relief must be sought, moreover, “within 30 days after expiration of the time for filing a notice of appeal.”28

The appellate court declined to decide whether Rule 9(d)(2) or Rule 303(d) would have been the proper vehicle to excuse a late electronic filing of a notice of appeal in this case, however, “because plaintiff did not seek relief under either” and “never attempted to show good cause to the trial court or a reasonable excuse to” the appellate court.29

The Court held, therefore, that because the circuit clerk rejected the notice of appeal, plaintiff’s earlier electronic transmission of the document had no effect.30 The notice of appeal thus became effective on April 6, 2021, when it was resubmitted, accepted, and stamped “filed” by the clerk. Accordingly, the plaintiff’s notice of appeal was untimely.31

Notably, the appellate court recognized that its conclusion would yield “a harsh result” but it nonetheless dismissed the appeal for lack of jurisdiction, concluding:

This case demonstrates the perils of waiting until the thirtieth day to file a notice of appeal. We appreciate that mistakes happen, and a party is not without recourse when they do. But the party must seek that recourse promptly. Plaintiff did not do so. We must apply the supreme court rules as written, and when jurisdiction is lacking, we are compelled to dismiss the appeal.32

SUPREME COURT DECISION

Plaintiff’s subsequent petition for leave to appeal was allowed by the Illinois Supreme Court.33 The Supreme Court framed the issues before it as considering “whether the appellate court had jurisdiction to hear the appeal of plaintiff,” where “plaintiff (1) electronically filed its notice directed against the judgment or obtains from the court an order extending the time in which to do so).

26 Id. at ¶ 14, citing Peraino v. County of Winnebago, 2018 IL App (2d) 170368, ¶ 19 (although Rule 9(d)(1) “do[es] not explicitly limit the time in which the court may enter an order backdating a document” where system error caused the document to be untimely, Rule 9(d)(1) does not “apply … over the specific jurisdictional deadline[ ] in … Rule 303(a)(1).”).

27 Id. at ¶ 15, citing Ill. S. Ct. R. 303(d).

28 Id.

29 Id. at ¶ 16.

30 Id. at ¶ 16, citing Davis, 2020 IL App (1st) 191011, ¶ 19.

31 Id. at ¶ 17.

32 Id. at ¶¶ 18-21.

33 2024 IL 129277, at ¶¶ 1, 6.

of appeal five days after it was due and (2) did not file a motion seeking leave to show good cause or a reasonable excuse for the late filing.”34

After summarizing the appellate court’s decision,35 the Supreme Court began its analysis by observing that “Plaintiff again argues that its notice of appeal was filed timely because it electronically submitted the notice of appeal before midnight on the due date, April 1, 2021,” that “Plaintiff invokes due process concerns and argues that it should not be penalized where the clerk erroneously rejected its notice of appeal,” and “plaintiff recommends that this court ‘consider ordering the clerks of this State discontinue the process of outright rejecting motions to reconsider and notices of appeal when a non-material defect is recognized in the electronic filing’.”36

The Supreme Court, exercising de novo review of the jurisdictional question presented, then proceeded to reject each of those arguments.37

The Court first revisited the interplay between Rules 9(d)(2), 301 and 303 for notices of appeal and concluded, consistent with the appellate court, that “a document is untimely if it is rejected by the clerk and not timely resubmitted and accepted.”38 In that event, the Court noted, the Rules “provide two potential avenues of relief.”39

First, the Court observed, under Rule 9(d)(2) the filing party may seek appropriate relief from the court, upon good cause shown.40 Upon receiving such a request, the circuit court is vested with “sound discretion” in determining whether “good cause” has been shown.41

Second, the Court pointed out that Rule 303(d) also offers a potential “avenue for relief” by allowing an appellate court “to grant leave to appeal” on a “motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, accompanied by the proposed notice of appeal and the filing fee, filed in the reviewing court within 30 days after expiration of the time for filing a notice of appeal.”42

Turning to the facts of the case before it, the Court observed it was undisputed that (1) plaintiff’s notice of appeal was filed on April 6, 2021, five days after it was due, and (2) plaintiff did not seek relief in the circuit court under Rule 9(d)(2) or in the appellate court under Rule 303(d).43 Nonetheless, the Court noted, plaintiff relied on two facts to argue that the appellate court had jurisdiction: (1) that it submitted a notice of appeal electron-

34 Id. at ¶ 1.

35 Id. at ¶¶ 4-5.

36 Id. at ¶ 8.

37 See id. at ¶¶ 8, 12.

38 Id. at ¶¶ 14-15.

39 Id. at ¶ 15.

40 Id.

41 Id. The Supreme Court observed the existence of a disagreement in the appellate courts on whether Rule 9(d)(2) can be used to establish jurisdiction when a notice of appeal is not timely filed. Id. at n.1. The Court declined to decide that question in this case, however, “because plaintiff never sought such relief.” Id.

42 Id. at ¶16, citing Ill. S. Ct. R. 303(d).

43 Id. at ¶18.

ically on April 1, 2021, and (2) that the clerk erroneously rejected the notice of appeal.44 The Court rejected these arguments for two stated reasons: “First, the record does not support either of plaintiff’s factual assertions. Second, under our rules, plaintiff was required to have its untimely filing excused by a court.”45

On the first point, the Supreme Court reiterated the non-controversial, black letter propositions that an appellant has the burden of presenting a sufficiently complete record on appeal, and an appellant may not generally rely on matters outside of the record to support its position on appeal.46 The documents alleged to support plaintiff’s factual assertions, alas, were not in the record.47

Plaintiff had included in its appendix to its brief and relied upon documents titled “Notice of Appeal Filed April 1, 2021” and “E-Filing Envelope Information.”48 The “E-Filing Envelope Information” consisted of the clerk’s rejection, which indicated that the April 1 filing was a notice of appeal with the trial court’s order included as an attachment.49

Based on these “exhibits,” plaintiff asserted that its April 1 filing was “Rejected,” that the clerk’s explanation was that there “should not be any attachments, and that the clerk directed plaintiff to “resubmit with all pages as one lead document.”50 Plaintiff further argued that the clerk’s reason for rejecting its filing was “in contravention of the Nineteenth Judicial Circuit’s specific rule requiring litigants to upload documents separately and expressly forbidding filers from combining multiple documents into one PDF.”51

Materials outside the record, however, may not be placed before a reviewing court in an appendix.52 The Court thus held that because the documents were only found in the appendix, the facts and inferences flowing from them “are not within the record.”53 As such, “evidence of plaintiff’s assertions—that it timely submitted its notice of appeal electronically and that the clerk erroneously rejected the electronic filing—is not” in the record.54 And, as a result, “there is no basis in the record to find that plaintiff’s notice of appeal was timely.”55

Because the plaintiff’s notice of appeal was untimely, plaintiff was required to seek relief under Rule 9(d)(2) or Rule 303(d). Plaintiff, however, did not do so.56 The

44 Id.

45 Id.

46 Id. at ¶ 20, citing Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 319 (2003) (citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984), and Keener v. City of Herrin, 235 Ill. 2d 338, 346 (2009)).

47 Id. at ¶ 21.

48 Id.

49 Id.

50 Id.

51 Id. at ¶ 21, citing 19th Judicial Cir. Ct. R. 1-2.08(E) (“Bulk filings of multiple cases or multiple documents combined into one PDF document shall not be accepted.”).

52 Id. at ¶¶ 21-22, citing Ill. S. Ct. R. 342 and Oruta v. B.E.W., 2016 IL App (1st) 152735, ¶ 32.

53 Id. at ¶ 22.

54 Id.

55 Id.

56 Id. at ¶ 24.

Supreme Court determined “that fact is fatal to plaintiff’s claim that the appellate court had jurisdiction.”57

In reaching its conclusion, the Supreme Court also rejected the Plaintiff’s due process arguments because “two of our rules provide potential recourse for a litigant who has an initial submission rejected by the clerk,” and “plaintiff did not utilize the remedies available.”58 In that regard, the Supreme Court expressly held:

Taking plaintiff’s premise as true, that the clerk erroneously applied local rules in rejecting his initial submission, one would be hard-pressed to find a more compelling case of “good cause” or “reasonable excuse” to allow plaintiff’s appeal to proceed. However, plaintiff never sought to establish that premise in either the circuit or appellate court. Because plaintiff did not seek to excuse its untimely filing, it is left with the fact that its notice of appeal was filed five days after the due date. The legal effect of that fact is that the appellate court did not have jurisdiction to hear plaintiff’s appeal.59

Affirming the appellate court’s decision to dismiss the appeal on that basis, the Supreme Court thus summarized:

Under our rules, when the clerk’s rejection of a litigant’s electronically filed notice of appeal causes it to be untimely, the litigant must invoke the Illinois Supreme Court rules to seek recourse. Plaintiff’s notice of appeal was untimely, and plaintiff did not seek recourse in our rules. Accordingly, the appellate court was correct that it lacked jurisdiction.60

As the appellate court observed, the outcome of this case was indeed “a harsh result.” For those of us observing it in retrospect, akin to Monday morning quarterbacking, it might be easy to dismiss it as reflecting little more than an utterly disordered and mismanaged situation. There are, however, some very practical, general lessons that can be gleaned from the case. Chief among them is, as the appellate court admonished, in this day of e-filing, and taking into account everything that can go wrong, including errors in managing that system, and perhaps a possible loss of internet connectivity, among others, practitioners would be wise not to wait until the last minute to file a notice of appeal. Further, when mistakes happen, a party must avail itself of the recourse available under the Rules and do so promptly. Further, it must do so on the basis of evidence properly incorporated into the appellate record. In this case, the plaintiff did not do any of those things. Unsurprisingly, albeit harshly, the courts applied the Supreme Court Rules, found jurisdiction was lacking, and thus dismissed the appeal. Don’t let that happen to you and your client.

57 Id.

58 Id. at ¶ 24, citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).

59 Id. at ¶ 24.

60 Id. at ¶¶ 26, 27-28.

What Is the Judicial Performance Evaluation Program?: Insights from a Facilitator

BY HON. MITCHELL L. HOFFMAN, RET.

Judges, just like the attorneys who practice in their courtrooms, benefit greatly from feedback on how well they’re performing in their jobs. While attorneys typically work closely with their peers, and likely undergo regular performance reviews in their law firms, this process is more difficult for judges.

Judging tends to be a solitary endeavor. While there’s time for judges to talk and compare notes at the end of the day, for the most part judges work alone in their individual courtrooms while other judges do the same. Of course, judges occasionally get positive or negative feedback from the Appellate Court, but a candid and detailed assessment of how a judge handles his or her courtroom on a day-to-day basis can only come from the attorneys and court staff who share the courtroom with them, and who are able to respond to detailed questions on a confidential basis. It’s this kind of information that supports professional development for judges.

In March of 2011 the Illinois Supreme Court launched a new program for mandatory judicial performance evaluation. As stated in Supreme Court Rule 58, “[T]he program is designed for the purpose of achieving excellence in the performance of individual judges and the improvement of the judiciary as a whole”. Since the

inception of the program, well over 1,000 Illinois judges have gone through this performance evaluation process.

Under the Supreme Court program, judges are confidentially evaluated by the attorneys who appear before them, and the court staff who serve in their courtrooms. The evaluated judges are then required to meet with another judge from outside their own circuit who is a trained facilitator. The evaluated judge and the facilitator will confidentially review the evaluation, process and discuss the information, and work together on strategies to address issues that may be presented by the results.

Mitchell L. Hoffman is a Senior Mediator and Arbitrator at ADR Systems. He previously served as the Presiding Judge of the Civil Division in the 19th Circuit Court in Lake County.

As the Supreme Court worked with the National Center for State Courts to develop the program, they compiled a comprehensive electronic questionnaire for the purpose of measuring many specific aspects of judicial performance. Having worked as a facilitator in the program, I can tell you that the questionnaire is far more detailed than any bar association sur-

vey. The questionnaire seeks specific information on the judge’s legal ability, impartiality, professionalism, communication and court management skills. Each of these general areas is broken down into an individual section containing many specific questions designed to gauge performance on discrete skills using a numerical scale. The questionnaire also allows for comments relating to the judge’s performance in each specified area. The final evaluation is compiled with all identifying information about the responding attorneys and court staff removed.

I think the most important takeaway for attorneys reading this article is that they should trust that the process is taken very seriously by the evaluated judges…

A key part of the Supreme Court’s program is the training of the judges who will become evaluation facilitators. Facilitators are active or retired judges with at least 6 years of experience who have been selected to undergo facilitator training. The judges selected to be facilitators go through a training process which covers not only how the performance evaluation program operates, but how to best work with the evaluated judges when reviewing the evaluation results, a process which can be delicate and challenging at times (as with performance reviews in any professional setting).

I’ve served as a facilitator since 2012, and although I was at first concerned about the time commitment and the inherent difficulties of the assignment, looking back over the past 11 years I have to say that it’s been one of the most rewarding experiences of my judicial career (and one that I continue in my retirement). Sometimes, the evaluations provide a lot of positive feedback and very little negative. Other evaluations clearly highlight one or more areas that need improvement. Reading the report can be a difficult and humbling experience for some evaluated judges, and their reactions can range from relief to surprise, irritation or even dejection.

As I see it, the interaction between the evaluated judge and the facilitator is really a two-way street, and the best way to help another judge work through a performance issue is to acknowledge that each of us sometimes share the same frustrations, problems and shortcomings in fulfilling our judicial duties. The important thing is to be able to assess and respond to any criticism you receive in a positive and productive way. Often this involves the evaluated judge and the facilitator comparing notes on how the court calls or legal cultures in their respective circuits may be similar or different. It’s

also important to identify what stressors may affect the judge’s performance. Ultimately these discussions lead to brainstorming specific solutions for improvement in the identified problem areas. Depending on the results of the evaluation, these discussions could include strategies for keeping your cool in stressful circumstances, how to determine when to speed up or slow down while managing a high-volume court call, making sure to clearly state the reasons for a ruling, or how to deal with self-represented litigants fairly and effectively. I have frequently learned quite a bit from the judges I work with in the program, and often continue to communicate with them after the formal process is completed.

I think the most important takeaway for attorneys reading this article is that they should trust that the process is taken very seriously by the evaluated judges. Although I’ve seen a wide array of responses to the evaluations from different judges, I can honestly say that judges take the results very seriously and that most of them benefit from the process and develop concrete plans for improving their performance. This of course is not possible unless attorneys also take the process seriously, and that means taking the time and making the effort to fill out the questionnaire honestly and completely. By responding with your honest input, you’ll be doing your part to improve the judiciary and to thereby enhance the quality of justice delivered to the public. That’s the ultimate goal that both the bench and the bar are focused on achieving.

Life After Cash Bond

BY PAUL B. NOVAK

As all criminal law practitioners know, our world changed on September 18, 2023--the effective date of the end of cash bail for new offenses. What has come to be known as both the “SAFE-T Act” and the “Pretrial Fairness Act” (collectively, the “Act”), 1 eliminated cash bail in Illinois and set forth a new procedure for the pretrial detention of criminal defendants. 2

12As all criminal law practitioners know, our world changed on September 18, 2023--the effective date of the end of cash bail for new offenses. What has come to be known as both the “SAFE-T Act” and the “Pretrial Fairness Act” (collectively, the “Act”),3 eliminated cash bail

1 Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T Act). Neither the SAFE-T Act nor the Pretrial Fairness Act are official names but rather are common shorthand for the sequence of public acts, it will be called the Act for this article. See Rowe v. Raoul, 2023 IL 129248, ¶ 4 & n.1.

2 See 725 ILCS 5/110-1.5. Abolition of monetary bail. On and after January 1, 2023, the requirement of posting monetary bail is abolished, except as provided in the Uniform Criminal Extradition Act, the Driver License Compact, or the Nonresident Violator Compact which are compacts that have been entered into between this State and its sister states.

3 Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Safety, Account-

Paul B. Novak is an Associate Judge for the Nineteenth Judicial Circuit where he is assigned to the Restorative Justice Division. There he presides over Specialty Courts.

in Illinois and set forth a new procedure for the pretrial detention of criminal defendants.4 The Act amended Article 110 of the Code of Criminal Procedure of 1963 so that there is now a presumption that all defendants, regardless of the alleged offense, are eligible for pretrial release and in fact are presumed entitled to release on a

ability, Fairness and Equity-Today (SAFE-T Act). Neither the SAFE-T Act nor the Pretrial Fairness Act are official names but rather are common shorthand for the sequence of public acts, it will be called the Act for this article. See Rowe v. Raoul, 2023 IL 129248, ¶ 4 & n.1.

4 See 725 ILCS 5/110-1.5. Abolition of monetary bail. On and after January 1, 2023, the requirement of posting monetary bail is abolished, except as provided in the Uniform Criminal Extradition Act, the Driver License Compact, or the Nonresident Violator Compact which are compacts that have been entered into between this State and its sister states.

personal recognizance.5 To detain a defendant prior to trial, the State must first file a verified petition seeking detention for an offense that is enumerated in the Act as detainable.6 Then, during a detention hearing, the court must find by clear and convincing evidence that the proof is evident or the presumption great that the defendant committed the alleged offense, that the defendant poses a real and present threat to the safety of any person or the community, and that no conditions of release can mitigate that threat.7

… the committee created a Guidebook for Implementation of the Pretrial Fairness Act in the Nineteenth Judicial Circuit to assist us all.

The Act was slated to go into effect on January 1, 2023, but on December 31, 2022, it was stayed by the Illinois Supreme Court pending an appeal. On July 18, 2023, the Illinois Supreme Court handed down its opinion in Rowe v. Raoul, 8 reversing a trial court’s finding that the Act was unconstitutional. The Illinois Supreme Court therein set September 18, 2023, as the effective date.

Here in Lake County, we were ready. Our Chief Judge at the time, the Honorable Mark Levitt, assembled the Executive Committee on Pretrial Reform, which included all major stakeholders, including but not limited to the Lake County State’s Attorney’s Office, the Lake County Public Defender’s Office, the Lake County Clerk of the Circuit Court, the Lake County Sheriff, Court Services including Probation, Lake County Administration, Lake County Board Members, the Nineteenth Circuit Judiciary and court administration, and the private criminal defense bar. These parties met on a regular basis leading up to January 1, 2023, for the original implementation date, and then again throughout 2023. Along with regular collaborative preparatory meetings, the committee created a Guidebook for Implementation of the Pretrial Fairness Act in the Nineteenth Judicial Circuit to assist us all.

As we all know, the Act carried many unknowns. It would take rulings by the trial courts to guide us initially and then review by the appellate courts to “make law.” That usually takes years. The Act created specific avenues for appeals of pretrial detention/conditions decisions. That is, upon conclusion of a hearing to deny pretrial release, both the State and the defendant may appeal.9 In addition, both parties may appeal a finding by the trial court regarding pretrial release conditions. 10

5 725 ILCS 5/110-2(a).

6 725 ILCS 5/110-6.1(a).

7 725 ILCS 5/110-6.1(e).

8 2023 IL 129248.

9 725 ILCS 5/110-6.1(j), (k).

10 725 ILCS 5/110-5(k).

The Illinois Supreme Court then amended Rule 604— which governs the permissibility of appeals in criminal cases—and created an expedited time frame for pretrial detention/conditions appeals, stating that “(a)fter the appellant has filed the Notice of Appeal, supporting record, and any memorandum and the time for filing and response and memorandum has expired, the Appellate Court shall consider and decide the appeal within 14 days.”11 Thus, with this expedited time frame, as we sit here just 4 months after the effective date of the Act, we already have a wealth of cases interpreting the Act.12

FIRST APPEARANCE

Starting September 18, 2023, once a person is arrested for an offense for which pretrial release may be denied, they “…shall be taken without unnecessary delay before the nearest and most accessible judge in that county…within 48 hours, and a charge shall be filed.”13 Here in Lake County, we call this location First Appearance Court--formerly known as Bond Court--and the first appearance occurs in courtroom T-020. Individuals brought before the court in T-020 include individuals arrested for new offenses, failure to appear warrants, new information warrants, etc. According to the Act, for offenses where pretrial release may be denied, a defendant must be in person unless a statutory exception applies.14 15

11 Ill. Sup. Ct. R. 604(h)(5).

12 As a reminder, opinions pursuant to Rule 23 are not precedential. See Ill. Sup. Ct. R. 23(e) (“Effect of Orders. (1) An order entered under subpart (b) or (c) of this rule is not precedential except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case. However, a nonprecedential order entered under subpart (b) of this rule on or after January 1, 2021, may be cited for persuasive purposes. When cited, a copy of the order shall be furnished to all other counsel and the court.”).

13 725 ILCS 5/109-1(a); see People v. Williams, 2023 IL App (1st) 232219-U, ¶ 19-30 (although the defendant was not taken before a judge within 48 hours, the defendant was properly before a court as the statute allows for “some latitude” in determining “without unnecessary delay”).

14 725 ILCS 5/109-1 (a) (“…except that a hearing to deny pretrial release to the defendant may not be conducted by two-way audio-visual communication system unless the accused waives the right to be present physically in court, the court determines that the physical health and safety of any person necessary to the proceedings would be endangered by appearing in court, or the chief judge of the circuit orders use of that system due to operational challenges in conducting the hearing in person. Such operational challenges must be documented and approved by the chief judge of the circuit, and a plan to address the challenges through reasonable efforts must be presented and approved by the Administrative Office of the Illinois Courts every 6 months.”); see also 725 ILCS 5/110-6.1(f)(3.5).

15 See People v. Gathing, 2023 IL App (3rd) 230491 (holding

Generally, at the first appearance, the State informs the parties if they are seeking to detain the defendant. If the State is not seeking to detain the defendant, the parties recommend pretrial conditions to the court and the court sets pretrial conditions within its statutory discretion (see below). If the State seeks detention, it must file a verified pleading, which shall state the basis for denying pretrial release.16 A petition to detain can be filed without notice at the first appearance, or within 21 days of the first appearance.17 Again, generally, the State files a petition to detain on the first appearance.

DETENTION HEARING

Prior to the actual detention hearing, a defendant has a right to consult with their attorney,18 and to obtain copies of the defendant’s criminal history, any written or recorded statements, the substance of any oral statements made by any person if relied upon by the State in its petition, and any police reports in the prosecutor’s possession at the time of the hearing.19 The defendant shall appear in person for the detention hearing,20 and the State may proceed by way of proffer.21 The defendant shall be allowed to cross-examine any State witnesses, present witnesses of their own, and testify.22 Although Section 110-6.1(m)(1) requires the State to contact the applicable victim, the failure to contact a victim is not fatal to a finding of detention.23 Normal rules of criminal trials do not apply in detention hearings.24 For example, a defendant may not move to suppress evidence for the detention hearing, but the court may consider an argument that offered evidence may have been the result of an unlawful search or seizure or improper

that State violated Act when defendant appeared via two-way audio-video communication system in hearing on petition to revoke pretrial release).

16 725 ILCS 5/110-6.1(d)(1).

17 725 ILCS 5/110-6.1(c)(1).

18 725 ILCS 5/110-6.1(f)(3).

19 725 ILCS 5/110-6.1(f)(1); see also People v. Morales, 2023 IL App (2d) 230334 ¶8 (State required to disclose only the information that it relied upon in filing the petition to deny pretrial release); People v. Chapman, 2024 IL App (1st) 2318979-U (State not required to tender surveillance video for detention hearing not in their possession); People v. Mezo, 2024 IL App (3d) 230499 ¶ 9-12 (State’s failure to tender defendants’ criminal history warranted reversal); but see People v. Davis, 2023 IL App (1st) 231856, ¶ 40 (the failure to tender the defense copies of the defendant’s criminal history was not fatal as defense counsel showed a sufficient knowledge of the defendant’s criminal history).

20 725 ILCS 5/110-6.1(f)(3.5); see People v. Gathing, 2023 IL App (3d) 230491 (discussion even though proceedings were revocation of pretrial release).

21 725 ILCS 5/110-6.1(f)(2); see also People v. Horne, 2023 IL App (2d) 230382, ¶ 24 (finding that a police synopsis and pretrial services bond report were sufficient to meet the State’s burden); People v. Teion Jones, 2024 IL App (2d) 230546-U (police synopsis alone was sufficient proffer).

22 725 ILCS 5/110-6.1(f)(3).

23 People v. Contreras, 2024 IL App (2d) 230389-U ¶ 12 (failure to contact victim as required by statute not fatal to detention finding); People v. Keogh, 2024 IL App (2d) 230400-U ¶ 17 (a defendant alleged State failed to contact victim not fatal to detention finding).

24 725 ILCS 5-110-6.1(f)(5).

interrogation.25 Raising a bona fide doubt as to a defendant’s fitness shall not delay a detention hearing.26 For the court to detain a defendant, the State bears the burden of proving by clear and convincing evidence that the offense is a statutorily authorized detainable offense,27 or the defendant has a high likelihood of willful flight,28 and:

1. That the proof is evident or the presumption great that the defendant has committed a listed offense.29 As an aside, two areas of litigation for this first prong have been “forcible felonies” as referenced in Section 110-6.1(a)(1.5), 30 and the notion of willful flight;31

2. That the defendant poses a real and present threat to the safety of any person or the community based on the specific articulable facts of the case, by conduct. Here, the court may consider many factors, including nature of offense and the history and characteristics of the defendant;32 and

3. That no condition or combination of conditions of pretrial release can mitigate the real and present threat to safety or risk of willful flight. This again requires consideration of the specific articulable facts of the case as well as various potential conditions and

25 725 ILCS 5/110-6.1(f)(6); see People v Forthenberry, 2024 IL App (5th) 231002 (trial court properly applied the Act as to evidence that may be subject to suppression).

26 People v. Harris, 2024 IL App (4th) 231123-U.

27 See 725 ILCS 5/110-6.1(a)(1) through (7).

28 See 725 ILCS 5/110-6.1 (a)(8).

29 725 ILCS 5/110-6.1(a)(1) through (8). No definition of “the presumption is great” is included in the Act, but seems to be merely carryover language from the prior version of the statute, which itself quotes the Illinois Constitution of 1970 bail provision (Ill. Const.1970, Art.I, §9), which carries over the phrase from Illinois’ first constitution. See Foley v. People, I Ill. 57 (1822). It does not appear to have meaning independent from “the proof is evident.”

30 See 725 ILCS 5/110-6.1(a)(1.5); see also People v. Grandberry, 2024 IL App (3d) 230546 (analyzing Section 110-6.1(a)(1.5), in that a defendant was detained for charges of aggravated battery to a police officer and a nurse, where the State sought detention under the forcible felony “aggravated battery resulting in great bodily harm or any other felony which involves the threat of or infliction of great bodily harm or permanent disability or disfigurement;” the phrase “any other felony…” does not include forms of aggravated battery); but see People v. Rodriguez, 2023 IL App (3d) 230450 (a charge of resisting a peace officer involving injury was sufficient to satisfy Section 110-6.1(a)(1.5)); People v. Brookshaw, 2023 IL App (4th) 230854-U (State failed to show sufficient evidence of great bodily harm).

31 See 725 ILCS 5/110-6.1 (a)(8); see also People v. Perez, 2024 IL App (4th) 230967-U; People v. Crowder, 2023 IL App (4th) 230857-U; People v. Mills, 2023 IL App (5th) 230774-U.

32 See 725 ILCS 5/110-6.1(g)(1)-(9); see also People v. Borgert, 2023 IL App (2d) 230371-U; People v. Flores-Hidalgo, 2023 IL App (1st) 231837-U; People v. Tolentino, 2023 IL App (4th) 230855-U, People v. Jones, 2023 IL App (5th) 230731-U; People v. Gibbs, 2023 IL App (5th) 230700-U.

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how they may or may not impact safety or flight risks.33

At the conclusion of the hearing, the court must execute a written order summarizing its findings, 34 including why less restrictive conditions of release would not avoid a real and present threat.35 Second District Appellate Court cases related to detention findings include:

Trial court affirmed:

• People v. Hernandez, 2023 IL App (2d) 230361-U

• People v. Velazquez, 2023 IL App (2d) 230362-U

• People v. Davidson, 2023 IL App (2d) 230344

• People v. Villarreal, 2023 IL App (2d) 230313-U

• People v. Crago, 2023 IL App (2d) 230323-U

• People v. Mendoz-Camarga, 2023 IL App (2d) 230330-U

• People v. Tran, 2023 IL App (2d) 230347-U

• People v Woodson, 2023 IL App (2d) 230391-U

• People v. Horne, 2023 IL App (2d) 230382

• People v. Feazelle, 2023 IL App (2d) 230397-U

• People v. Trottier, 2023 IL App (2d) 230317

• People v. Robinson, 2023 IL App (2d) 230345-U

Trial court reversed:

• People v. Norris, 2024 IL App (2d) 230338-U

• People v. Finch, 2023 IL App (2d) 230381-U.

A special mention is appropriate as to a certain class of defendants. With the implementation of the Act, individuals that were arrested, brought to court, and remained in custody as of September 18, 2023, are in a different position. This group of defendants has generated a myriad of appellate opinions. These defendants may either “file a motion seeking a hearing to have their pretrial conditions reviewed anew” under the Act’s amendments to the Code or they “may elect to stay in detention until such time as the previously set monetary security may be paid.” 36 Generally, if a defendant files a petition to review pretrial release pursuant to Section 5/107.5 (b), then the State, as a responsive pleading, may file a petition to detain.37 For those defendants who did

33 See People v. Stock, 2023 IL App (1st) 231753 (the trial court failed to properly consider less restrictive means); see also People v. Riaz, 2023 IL App (1st) 231833-U; People v. Herrera, 2023 IL App (1st) 231801; People v. Borgert, 2023 IL App (2d) 230371U; People v. Crowder, 2023 IL App (4th) 230857-U.

34 725 ILCS 5/110-6.1(h); see People v. Hodge, 2024 IL App (3d) 230543 (trial court’s use of check-the-box forms was appropriate); see also People v. McKenzie, 2024 IL App (4th) 231063-U, ¶ 17; but see People v. Odehnal, 2024 IL App (5th) 230877-U (written findings insufficient for failing to “provide any explanation as to why, under the pertinent facts, less restrictive means would not ensure the safety of the victim or the community”).

35 725 ILCS 5/110-6.1(h). The Second District has pointed out that the form detention order used in the 19th Circuit may not comply with all statutory requirements. See People v. Valderama, 2024 IL App (2d) 230462-U, n.2.

36 People v. Rios, 2023 IL App (5th) 230724, ¶ 16.

37 People v. Borgert, 2023 IL App (2d) 230371-U; see also People

not file a petition to review anew, to seek detention pursuant to the Act the State must file a petition to detain within 21 days of the defendant’s first court appearance or the petition will be considered untimely.38

PRETRIAL RELEASE CONDITIONS

If the court does not order that the defendant be detained, it must impose mandatory conditions of pretrial release and may impose additional conditions.39 In determining which conditions of pretrial release should be ordered, the court looks to the nature of the offense, weight of evidence against the defendant, history and characteristics of the defendant, the nature seriousness of the to the safety of any person or the community and lastly the nature and seriousness of the risk of obstructing the criminal justice process.40 Statutorily mandated conditions include appearance in court, submission to process of court, and no violating any laws of any jurisdiction.41 The Act also allows the court discretion to issue other conditions of pretrial release, including orders to not leave the State of Illinois, not possess firearms, and not have contact with certain individuals or locations, as well as comply with Pre-Trial Bond Supervision (PTBS), BAID, Orders of Protection, etc.42 Permissive conditions of release shall be set only when it is determined that they are necessary to ensure the defendant’s appearance in court, ensure the defendant does not commit any criminal offense, ensure the defendant complies with all conditions of pretrial release, prevent the defendant’s unlawful interference with the orderly administration of justice, or ensure compliance with the rules and procedures of problem-solving courts. However, all determinations must be individualized and any non-listed conditions imposed by the court shall not only be individualized, but must also be reasonable and “the least restrictive means” of achieving the goals of ensuring a defendant’s appearance and compliance, as well as ensuring defendant does not commit any criminal offense or interfere with the proceedings.43

PRETRIAL RELEASE VIOLATIONS

Obviously, a defendant ordered to comply with pretrial release conditions must do so. If a defendant fails v, Wetzel-Connor, 2023 IL App (2d) 230348-U; People v. Davidson, 2023 IL App (2d) 230344; People v. Rios, 2023 IL App (5th) 230724; People v. Whitmore, 2023 IL App (1st) 231807; People v. Kurzeja, 2023 IL App (3d) 230434; People v. Jones, 2023 IL App (4th) 230837.

38 People v. Morales-Vargas, 2023 IL App (2d) 230346-U; see also People v. Triplett, 2024 IL App (2d) 230388; People v. Clark, 2023 IL App (1st) 231770.

39 725 ILCS 5/110-10.

40 See 725 ILCS 5/110-5(a). Note that Section 110-5 governs how courts determine whether to impose conditions, while Section 110-10 governs the conditions that can be imposed upon a 1105 determination, although, as with many provisions in the Act, there is significant overlap between sections concerning release conditions.

41 725 ILCS 5/110-10(a)(1) through (5).

42 725 ILCS 5/110-10(b)(0.05) through (9).

43 725 ILCS 5/110-5(c),10(b).

to comply, the court then has options including revocation of pretrial release and sanctions. As for revocation of pretrial release, the court on its own motion or on motion of the State may seek to revoke a defendant’s pretrial release only when the defendant is on pretrial release for a class A misdemeanor or felony and is then subsequently charged with committing a class A misdemeanor or any felony.44 45 Section 110-6(a) requires the revocation hearing to be held within 72 hours.46 Although the court may not revoke pretrial release for a failure to appear in court, the court may sanction the defendant.47 Sanctions are only permissible upon motion of the State, and it must be proven by clear and convincing evidence that the defendant had actual knowledge of the order, was in willful violation of it, and the violation was not caused by a lack of access to financial resources.48 Remedies include a verbal and/or written admonishment by the court, up to 30 days in jail and/or a modification to existing pretrial conditions. 49

APPELLATE REVIEW

As mentioned above, upon conclusion of a hearing to deny pretrial release, both the State and the defendant may appeal.50 In addition, both parties may appeal a finding by the trial court regarding pretrial release conditions.51 Lastly, with the expedited appeal process a defendant must file a notice of appeal within 14 days,52 as opposed to the traditional 30-day time frame. Defense counsel, both trial and appellate, may utilize approved forms and truncated filings, but should be mindful of recent caselaw regarding the sufficiency of the contents of such filings.53

44 725 ILCS 5/110-6(a).

45 People v. Hood, 2024 IL App (1st) 232062-U ¶ 18-21 (revocation of pretrial release affirmed); People v. Peters, 2024 IL App (4th) 230948-U (same); People v. Gamill, 2024 IL App (4th) 231015-U ¶ 27-30 (same); People v. Smith, 2023 ILL App (1st) 231756-U; (a defendant on bond prior to implementation of the Act and alleged to commit new offense after the Act, revocation of pretrial release was proper); People v. Peters, 2024 IL App (4th) 230948-U (revocation of pretrial release affirmed).

46 See People v. Walker, 2024 IL App (1st) 232130-U (affirming revocation where the court failed to conduct the hearing within 72 hours, but statute provides no remedy for failure to comply with 48-hour time frame).

47 725 ILCS 5/110-6(c), (d); see also People v. Barner, 2023 IL App (1st) 232147 ¶ 18-25.

48 725 ILCS 5/110-6(e)(1) through (4).

49 725 ILCS 5/110-6(f)(1) through (4).

50 725 ILCS 5/110-6.1(j), (k).

51 725 ILCS 5/110-5(k).

52 Ill. Sup. Ct. R. 604(h).

53 See, e.g., People v. Mancilla, 2024 IL App (2d) 230505 (noting ethical duties to present only meritorious claims); People v. Delgado, 2023 IL App (2d) 230483-U, ¶ 7 (conclusory argument without explanation and contrary to plain statutory language was frivolous); People v. Acosta, 2024 IL App (2d) 230475, ¶ 16 (declining to address arguments raised only in notice of appeal but not in appellate memorandum); People v. Rollins, 2024 IL App (2d) 230372, ¶ 22 (same).

CONCLUSION

By the time this article is published, I am quite certain we will have many more appellate decisions guiding us as we move forward. In terms of trying to stay on top of all these cases, the Illinois Supreme Court’s website is very helpful.54 In addition, just recently the Supreme Court has added a dedicated page to Act-related cases.55

54 www.illinoiscourts.gov/top-level-opinions/.

55 www.illinoiscourts.gov/courts/additional-resources/pretrial-resources/.

Lake County Bar Foundation Minutes

December 19, 2023

Present: Joann Fratianni (President, in person), Kristie Fingerhut (Vice President, in person), Perry Smith Jr. (Treasurer, zoom), Shyama Parikh (Secretary, in person), Michael Ori (zoom), Jennifer Ashley (zoom), Keith Grant (in person), David Stepanich (zoom), John Quinn (in person), Honorable Michael Nerheim (zoom). Also present was Greg Weider, Executive Director of the LCBA and LCBF and Kevin Berrill from the LCBA Executive Board.

I. CALLED TO ORDER: Meeting was called to order by President Fratianni at 4:03pm, a quorum being present in person/zoom, at the LCBF office.

II.

APPROVAL OF

MINUTES: Motion made to approve the minutes of the 10/18/23 meeting by Keith Grant and seconded by John Quinn. Motion approved.

III. TREASURER’S

REPORT: Treasurer, Perry Smith Jr., reported no unusual expenses for October and November, except that the September check for the carpet repair cleared in October. There were two additional deposits of note, one was from the Lake County Bar Association for the contributions made with their membership dues/ renewals and another was from Burr Anderson. The bank card fees have been removed from the operating account and building fund account.

WARRANT APPROV-

AL OF EXPENSES PAID: The Warrants for Expenses were presented for approval. Motion made by Keith Grant to approve the expenses and was seconded by David Stepanich. Motion approved.

IV. NEW BUSINESS:

A. Funding Requests

a. A request for $600 was made for contribu-

The

Meeting Minutes

BY SHYAMA PARIKH SECRETARY

tion to the 19th Circuit Law Day Merit Day Badge Program. A similar contribution was approved last year, but the monies were not needed and were returned. Motion made by John Quinn to approve $600.00 for the 19th Circuit Law Day Merit Day Badge Program and seconded by Keith Grant. Motion approved.

b. A request for $2,200 was made for contribution to the Lake County High School Mock Trial Invitational. Board discussed the value of this program, the participation by Lawyers/Judges and the talent of the youth that participate and travel to our court. Motion made by Shyama Parikh to approve $2,200 for the Lake County High School Mock Trial Invitational and seconded by Kristie Fingerhut. Motion approved.

c. A request for $12,000 was made for contribution to the Art Impact Project. Discussion took place

about our past support of the Project, amounts provided, and specific details of the current request due to the large amount sought. Motion to approve $6,000 for the Art Impact Project was made by John Quinn and was seconded by Kristie Fingerhut. Motion approved.

B. Expiring Trustee Terms/Trustee Nominations: Greg will update the list of the Foundation Board members indicating when terms expire. Any current members that are interested in remaining on the Board should notify President Fratianni and do not need to submit the application. Anyone new that is applying for a Board position is required to submit the application. The Lake County Bar Association will receive the slate so it can be presented at the annual meeting in February, 2024 for approval by the membership.

C. Committee Reports:

a. Fundraising and Grants: The recipients of monies raised at Battle of the Bands event at 28 Mile on 2/8/24 will be A Safe Place and North Suburban Legal Aid. The goal is to raise more monies than last year. Sponsorships are available and Board members will be selling raffle tickets as well as obtaining gift cards for the event. It was discussed that the timing of this event is not ideal because half of the Judges will be at an educational conference, however it was difficult to secure venues as well as schedule dates due to Gridiron so this date was selected and a lot of progress has been made thus far to justify changing it at this point.

b. Long Range Planning: The committee met and discussed supporting something continuous and law related that is needed in the legal community. Continued discussions took place about a Guardian ad Litem fund for Probate cases and the challenges associated with something of that sort. Discussions will continue

and additional ideas are sought.

c. By-Laws: The committee will further read and review provisions, especially related to meetings and voting, in light of COVID and possible need to modify same.

d. Website: Greg has met with people regarding their website, who they use, and the cost of same. LCBA President K. Hatch is reviewing proposals for websites and her husband has offered to assist in reviewing costs based on his work experience in this field. Discussions remain to be had about the level of spending wanted as well as what the site should ultimately look like. More information about costs and options should be available in January, but progress is being made.

D. Building Update:

a. An extension for filing of taxes was made by Lisa Molina. Our property tax exemption remains in place for 85%, but we are not yet in the State’s system to easily reapply for same annually.

b. We have submitted the invoice to Wintrust for

our last pledge of $10,000, which will be deposited into our building fund upon receipt.

V. ADJOURNMENT: Motion to Adjourn was

made at 5:05pm by John Quinn and was seconded by Keith Grant. Motion approved.

Next Meeting:

February 20, 2024

Calendar of Events

Juvenile Law Committee Meeting

March 20 12:15 p.m.

Zoom

Debtor Creditor Committee MeetingLien Cuisine; Perfecting and Enforcing Mechanics Liens

March 21 12:15 p.m.

Zoom

2024 Annual Family Law Seminar

April 11 - 13 5:00 p.m.

Napa, CA

Brown Bag CLEEthical Implications of Using Generative AI

April 15 12:15 p.m.

Zoom

2024 Real Estate Conference

March 14 8:00 a.m. - 5:30 p.m.

Ivanhoe Club

Solo & Small Firms Committee MeetingSuccession Planning March 18 12:15 p.m. Zoom

Annual Meeting Luncheon

March 19 12:15 p.m.

Glen Flora Country Club

Family Law Committee Meeting

March 20 12:00 PM Zoom

Zoom

Lake County Bar Foundation Board of Trustees Meeting

April 16 4:00 p.m.

LCBA Office

Law Day 2024Lawyers in the Classroom

April 29 - May 3 8:00 a.m.

2024 Civil Trial & Appeals Seminar

May 23 7:30 a.m.

Glen Flora Country Club

Board of Directors’ Meeting

Thursday, January 18, 2024

Minutes 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

Craig Mandell Director

Jeremy Harter Director

Jeffrey O’Kelley Director

Sarah Raisch Director

Judy Maldonado Director

Hon. Bolling Haxall Director

Greg Weider Executive Director

Grand Avenue, Waukegan, Illinois, on Thursday, January 18, 2024.

CALL TO ORDER

President Hatch called the meeting to order at 12:05 p.m.

ROLL CALL

Roll call indicated a quorum was established, with the following individuals present in person: 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; Hon. Bolling Haxall, Director; and Greg Weider, Executive Director. The following individuals participated by Zoom videoconference: Craig Mandell, Director; Sarah Raisch, Director; Judy Maldonado, Director; Jeremy Harter, Director.

The

Meeting Minutes

BY JEFFREY A. BERMAN SECRETARY

ACTION ITEMS

• Consent Agenda Items

December 21, 2023 Board of Directors Meeting Minutes

The Draft minutes from the December 21, 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.

New Members and Membership Report

The Membership Report as of January 5, 2024, and New Members Report as of January 4, 2024, was included in the Agenda packet.

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 December 2023 Financial Report and supporting materials were included in the Agenda

packet. Treasurer Gellersted made a presentation regarding the December 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

• Real Life Program Update

President Hatch made a presentation concerning the status of the Real Life program. Discussion followed.

• Meet the Board –Docket / Social Media

President Hatch and Executive Director Weider made a presentation regarding the Meet the Board program. Discussion followed.

• Real Life Program Update

President Hatch and First Vice President Hodgkinson lead a discussion on the best approaches and key partners for reengaging the Real Life Program.

NEW BUSINESS

• Job Descriptions

President Hatch and Executive Director

Weider made a presentation concerning on-going efforts to clarify staff job descriptions. Discussion followed.

OTHER MATTERS

• Committee Liaison Reports

Board members provided Committee updates.

• Executive Director Report

Executive Director

Weider presented his Executive Director Report for January, including providing an update on the

on-going website project, upcoming scheduled events, meetings and CLE opportunities, committee attendance, the Access to Justice: Gideon’s Award and Access to Justice: Robert H. Jackson Award, and a reminder that applications for positions on the Board of Directors are due by February 2, 2024.

ADJOURNMENT

A motion was made to adjourn. Upon unanimous voice vote, the motion was declared carried. The meeting concluded at 12:37 p.m. The next Board of Directors Meeting is scheduled to take place on Thursday, February 15, 2024.

client referrals. The service benefits the public by helping callers

of law in which they need

fees but whose ability to locate legal representation is frustrated by a lack

Member Engagement, Volunteer Leadership, and the Future of the LCBA

Voluntary bar associations play a crucial role in the legal profession, providing a platform for networking, professional development, and advocacy. Central to the success of bar associations is the active engagement of their members and the dedication of volunteer leaders. These elements are not just beneficial but essential for the growth and effectiveness of a healthy bar association.

Member engagement is the cornerstone of a vibrant bar association. It fosters a sense of community among legal professionals, creating opportunities for networking and collaboration. Engaged members are more likely to participate in association activities, attend events, and contribute to the organization’s goals. This active participation strengthens the bonds within the legal community and enhances the association’s overall impact.

Volunteer leadership

plays a pivotal role in driving innovation and growth within a bar association. Volunteers bring fresh perspectives, ideas, and energy to the table, leading to the development of new programs, services, and initiatives. These efforts not only benefit the members but also help the association stay relevant and competitive in a rapidly changing legal landscape.

Member engagement and volunteer leadership are essential for advancing the association’s advocacy efforts. Engaged members are more likely to support the association’s policy initiatives, amplifying its voice and influence in the legal community and beyond. Volunteer leaders, through their expertise and commitment, play a critical role in shaping the association’s advocacy agenda and driving positive change.

Bar associations are

2024 Family Law Seminar

April 11- April 13, 2024

Napa, California

The Meritage Resort & Spa

Thursday, April 11, 2024 - Welcome Reception

Friday, April 12, 2024 - 4 hours of CLE & Activity

Saturday, April 13, 2024 - 4 Hours of CLE & Departure

More information coming soon

$399 LCBA Member

Monthly

Committee Meetings

• 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.

300

MEMBER RECEPTION

LCBA Member Receptions will generally be held on the 4th Thursday of every month. Contact info@lakebar.org

Your $500 sponsorship includes:

• Recognition in advertising before the event and on signage at the event

•Reception from 4:30 – 6:30 p.m.

• Complimentar y beer and wine. Upgrades available for additional fee.