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PRESIDENT’S PAGE-FEBRUARY 2009 Page 1BY DAN WILLIAMS

As you already know, the 17th Circuit is workingwith the Commission on Professionalism of the IllinoisSupreme Court on a circuit-wide initiative to promote themission of the Commission. Justice Kathryn Zenoff, thenour Chief Judge, offered the 17th Circuit as a Pilot Projectsite. Under Justice Zenoff’s leadership, a ProfessionalismAdvisory Council was formed, it crafted a draftaspirational statement which was subsequently approvedin September, 2007. Frank Perrecone reported on thatdevelopment to you in one of his President’s pages.

The Professionalism project continues to moveforward. Chief Judge Holmgren has determined to inviteseven (7) individuals to participate on the first referralpanel. Their duty will be to receive and considercomplaints regarding alleged unprofessional conduct byattorneys in our Circuit when such are received by, andreferred to them, by the Chief Judge. This is the majorfeature of the Intervention Model, a part of the ultimatemission of the Commission on Professionalism, whichdefines it to “encourage behavior consistent with thehighest aspirations of the legal profession.”

Judge Holmgren took under consideration, andthen selected, a list of individuals whom she intends toinvite to form the first intervention referral panel. By thetime you read this page, I hope that those attorneys willhave accepted her invitation to join the first panel. Expectan announcement from her office when the panel has beenformed and a process to follow once it is in place.

In another area under the auspices of theCommission on Professionalism, the lawyer mentorprogram is also moving forward in the 17th Circuit. 46attorneys completed the mentor training program onSeptember 18, 2008 and some were paired with 18 newattorneys in November. Another 22 lawyers are scheduledfor training on February 26, 2009.

Now that the Illinois House of Representatives hasvoted to impeach Governor Blagojevich, the action hasmoved to the state Senate for trial. In the meanwhile,Roland Burris has been seated as Senator to fill PresidentObama’s vacancy. The political circus within thegeopolitical boundaries of our state continues to generatesnickers, giggles, and outright guffaws from around thecountry and globe. I even get emails about it from mybrother-in-law in England. I recently heard a fellow on alocal radio station suggest that a pool be organized on thesubject of how many days and hours it would take SenatorBurris to have the words “United States Senator” inscribedon his tombstone! The inscription may already be inplace. In the words of a famous deceased writer, “ and soit goes.”

On January 15, I was listening to the first portionof the confirmation hearing for Eric Holder, PresidentObama’s nominee for Attorney General. The very firstquestion asked of him by Senator Leahy, the JudiciaryCommittee Chair, was whether or not Mr. Holder believed,in light of our country’s prosecution of Japanese militaryfor the same conduct after World War II (and our owntroops for similar conduct during Vietnam) that water-boarding was torture. Mr. Holder answered in theaffirmative. Mr. Holder also said that he intended topersonally review the decision made by the United StatesAttorney in the District of Columbia to decline prosecutionof an individual alleged to have screened and eliminatedlawyers to be hired by the Department of Justice based ontheir political beliefs. It will be very interesting to followthe legal developments at, and actions of, the Departmentof Justice over the next 4 years regarding those subjects.

Finally, we all have memories of particular daysduring our lives when we can say, with clarity, what wewere doing when a certain event occurred, and we are ableto recall time and place in vivid detail because we werestruck by the magnitude of the event. I am writing this onJanuary 20, 2009. The Emancipation Proclamation wassigned by Abraham Lincoln on January 1 , 1863. 146years later, Barak Obama has just been inaugurated as the44th President of the United States. I watched theceremony and marveled at the size of the crowd in theMall. Today is one of those days that won’t be forgotten.Now the really hard work begins for him, all day, everyday, for the next four years. Good luck, Mr. President.

Dan Williams is a partner in the firm of McGreevy Williams, P.C. A graduate of the University of Illinois College of Law, he was admitted to the practice of law in Illinois in 1971. He is the 2008-2009 President of the Winnebago County Bar Association.

WCBA REPORTING Page 3CARPENTER’S PLACE

WCBA COMMUNITY SERVICEThe Carpenter’s Place is an organization that

works with homeless men and women providing the toolsfor rebuilding their lives. They are located at 1149Railroad Ave. The Community Service Committee serveslunch on the second Thursday of each month.Carpenter’s Place is currently serving lunch to 100homeless guests on a daily basis.

On a quarterly basis we have been providing thefood in addition to serving. Donations to make thatpossible are welcome. The cost of providing the meal isapproximately $350.00. Please make checks toWCBF/Community Service.

CHANGESThe Law Office of Robert D. Lowe has moved to 202 W.State Street, Suite 110, Rockford, IL 61101. Phone numberis 815-968-8332, Fax Number is 815-968-8329. Thischange affects Robert D. Lowe and Robert F. May.

Brette E. Freedle has opened The Law Offices of BretteE. Freedle. His address is 695 N. Perryville Road, Suite 4,Rockford, IL 61107. His phone is 815-399-7035, fax is888-241-5854 and email is bfreedle@comcast.net.

Idalis Edgren has moved her office to 202 W. State Street,Suite 410, Rockford, IL 61101. Her phone is 815-964-9770, Fax, 815-839-7299, email attyedgi@gmail.com.

The Law Office of John Gilbert has moved to 5010 North2nd Street, Loves Park, IL 61111. The phone is 815-877-2500 and the fax is 815-877-2300. Renee Cook has joinedthe firm.

Brendan Maher has joined the federal prosecutors officeat 308 W. State Street, Suite 300, Rockford, IL 61101. Hisphone is 815-987-4444, fax is 815-987-4236, email isBrendan.Maher@usdoj.gov.

WCALSThe Winnebago County Association of Legal

Secretaries will present a mini-seminar on Thursday,February 19, 2009 from Noon to 1:00 P.M. at the lawoffices of Hinshaw & Culbertson LLP, 100 Park Avenue inRockford. The speaker will be Kara McCluskey from theWinnebago County Health Department speaking onreportable diseases including HIV, STDs, and food-borneillnesses; the Illinois rules and regulations regarding same,and how the Health Department follows up on thereporting. Bring your own lunch; soda and water will beavailable. Cost for the seminar is $1.00. Reservationdeadline is February 18, 2009. For more information or to

make a reservation, please contact Alice Field or NinetteCooney at 815-968-7591.

The Winnebago County Association of LegalSecretaries will hold its March Dinner Meeting on Thursday,March 5, 2009, at KiKi B’s, Edgebrook Center, 1641 NorthAlpine Road in Rockford. Business meeting at 6:00 P.M. anddinner at 6:15 P.M. Speaker will be State’s Attorney JoeBruscato. Reservation deadline is February 23, 2009. Formore information or to make a reservation, please contactCindy Walters at 815-969-4308. All members and guests arewelcome.

VOLUNTEER LAWYER HONOR ROLLWe want to acknowledge and celebrate the involvement ofprivate attorneys in the delivery of legal services to thosewho cannot afford legal assistance. On behalf of PrairieState Legal Services, thank you to the following attorneyswho accepted a new case in the month of December:

Nancy Mindrup & Jason RockRecruitment continues to involve additional members of theBar Association in the Volunteer Lawyer Program. Many ofyou already give generously of your time and expertise. Weinvite those not yet involved to give it a try! Join the manylocal attorneys who have made the commitment to work withthe Volunteer Lawyer Program

Please consider assisting those in our community who aremost in need of the legal support only an attorney canprovide. Contact Wendy Crouch, VLP Coordinator atwcrouch@pslegal.org or by phone at 815-965-2902 for moreinformation.

CALENDAR-FEBRUARY 20092 Editorial Board-Noon Bar Office4 Criminal Section-Noon Bar Office10 Worker’s Compensation-Noon Bar Office12 Membership Committee-Noon Bar Office

Community Service Serves Lunch at Carpenter’sPlace

13 Young Lawyer’s St. Patrick’s Day Party-5:00 p.m.Krypto

16 Holiday-Bar Office Closed16 10 hour GAL Training Giovanni’s 8:00 a.m. to

6:00 p.m.23 Board of Directors-Noon Bar Office24 Bankruptcy CLE-Giovanni’s Noon to 4:00 p.m.25 Estate Section-Noon Forest Hills26 Bar at the Bar-Swilligans-5:00 p.m.

MARCH 20092 Editorial Board-Noon Bar Office5 Real Estate Section CLE-Noon to 5:00 p.m.

Giovanni’s6 Criminal Law CLE-Noon to 5:00 p.m. Giovanni’s

SUPREME & APPELLATE COURT REVIEW Page 4CRIMINAL

People v. DeLeon, __Ill.App.3d__(No. 2-07-0926, 2nd

Dist., filed 1/15/09) opinion by J. Jorgenson, concurred byJ. Zenoff, and J. Bowman.

Convictions for domestic battery and DWLR.Defendant filed petition under section 2-1401 (735 ILCS5/2-1401 (West 2006). Trial court granted the People’smotion to dismiss. On appeal affirmed. Post-Conviction (failure to admonish at guilty plea ofimmigration/deportation consequences):

Defendant claimed that the trial court failed toadmonish him, at guilty plea, that his conviction couldhave the consequence of deportation, exclusion fromadmission, or denial of naturalization required by section113-8 of the Criminal Code (725 ILCS 5/113-8 (West2006). Defendant claimed he entered his plea under amisapprehension of the law and therefore his plea was notinformed, knowing , and voluntary. The question beforethe appellate court was whether a trial court’s failure toadmonish a defendant regarding immigration consequencesunder section 113–8 of the Criminal Code entitles adefendant to withdraw his plea. The Second District Courtacknowledged a split in authority as to this question. Uponreviewing the legislative history of the statute and notingthat the penalty portion had been deleted prior to passage,the reviewing court in the case of People v. Bilelegne, 381Ill.3d292 (1st Dist. 2008), determined that theadmonishment was in advisement and not mandatory.Shortly thereafter another division of the First District heldotherwise, People v. Delvillar, 383 Ill.App3d 80 (1st Dist.2008), holding that the admonishment was mandatory.

The Second District Court disagreed with Delvillarand concluded that the language in section 113-8 wasdirectory, not mandatory. The Court also noted that“shall” in this determination was not dispositive and thatthe legislature had failed to include a consequence forfailure to comply. The Court also noted that the legislaturedid not include words of negative limitation in the statute.In sum, the Court held that section 113-8 is directory and,thus, that the trial court did not err in dismissing thedefendant’s petition under section 2-1401. People v. Rincon, __Ill. App.3d__(No. 2-07-0393, 2nd

Dist., filed 12/23/08) Opinion by J. Zenoff, J. Schostokconcurs, J. McLaren, specially concurring.

Defendant convicted of attempt arson. Affirmed.Jury Waiver - Defense attorney informed the court in thedefendant’s presence that defendant preferred a bench trial.Defense counsel said he wanted the issue “reserved” overthe weekend. On Monday, the day of bench trial, the courtasked counsel if it would be a bench trial and received anaffirmative answer. Defendant did not voice objectioneither day. A written jury waiver was signed by defendantand filed that day.On appeal, defendant argued there was no discussion of the

written jury waiver with him and no confirmation heactually signed it. The appellate court held the law doesnot require such discussion or confirmation. The defendantfurther argued that the waiver made by his attorney wasnot binding. The appellate court held that the defendanthad been admonished at arraignment of his right to a jurytrial, and at the final pretrial in defendant’s presence thecourt asked explicitly if defendant wanted to waive a juryand his attorney answered affimatively. As such defendanthad not established error. Reasonable Doubt: Defendant argued that the People’sproofs failed to establish that he had the requisite intentand that he took a substantial step toward the commissionof arson. The Court found that the complainant’s testimonythat she saw defendant try to light a rag in a bottle outsideof her home and that sparks were emitted was enoughbased upon the standard of review and that a rational trierof fact could have found the evidence sufficient.Discovery: Defendant argues the People violated SupremeCourt Rule 412 where it failed to disclose thecomplainant’s contradiction in the police report regardingthe color of the bottle used in the incident. The Peopleresponded that this was done unintentionally and that thecolor of the bottle was not material. The court agreed. People v. Hood, __Ill.App.3d __(No. 2-07-0833,Dist., filed 12/10/08). Opinion by J. Bowman, Concur JJHutchinson and Grometer. Guilty Plea - Attempted vehicular hijacking. AppealDismissed.Jurisdiction: Because defendant did not (1) timely appealwithin 30 days of the final judgement on his guilty plea,(2) timely file a motion to either withdraw the plea orreconsider sentence and thereafter timely appeal or (3) filea motion for leave to file a late notice of appeal, the courtlacks jurisdiction to address any issues regarding his guiltyplea and sentence, including the issue of whether the trailcourt properly found him fit to enter the plea. People v. T. Apscott, __ Ill.App3d__(No. 4-08-0026,4th Dist., filed 12/19/08). Opinion by T. Myerscough, JJKenecht and Turner concur.Criminal Sexual Assault -Affirmed. Fitness - Hearing : The trial court did not abuse itsdiscretion by not sua sponte ordering a fitness hearing afterthe presentence investigation report indicated that thedefendant was mildly mentally impaired, had beendiagnosed and treated for of mental disorders, and hadbeen prescribed numerous medication for the disorders.The appellate court noted that the instant case wasfactually similar, but also distinguishable from its decisionin Shanklin.

(Continued Page 5)

SUPREME & APPELLATE COURT REVIEW Page 5 COUNSEL: - Ineffective Assistance - Counsel was notineffective for failure to request a fitness hearing.Defendant could not prove the prejudice prong fo theStrickland test where under the circumstances, it wasunlikely that the trial court would have held a fitnesshearing. The trial court had several opportunities toobserve defendant and interact with him in the courtroom.The trial court was aware of defendant’s low IQ. Defensecounsel saw nothing to indicate that defendant did notunderstand the proceedings or that there was a bona fidedoubt of defendant’s fitness.

Lawrence Bauer is the director of the Office of the State’s Attorney AppellateProsecutor-Second District. He is a graduate of theValparaiso University School of Law. Mr. Bauer was admitted to the practice of law in Illinois in 1976.

CIVILMorr-Fitz, Inc. v. Blagojevich, et al., No. 104692,2008 WL 5246307 (Ill. Dec. 18, 2008)

In an opinion issued late last year, the IllinoisSupreme Court ruled that a highly-publicized challenge bycertain licensed pharmacists and pharmacies to anadministrative rule requiring Illinois pharmacies that sellcontraceptives to dispense what the Court referred to as“Plan B Contraception” (commonly referred to as“emergency contraception” or the “morning-after pill”)may be heard in the Circuit Court, notwithstanding theState’s objections based on ripeness and the plaintiffs’alleged failure to exhaust administrative remedies.

This case arises out of Governor Blagojevich’sfiling of an “Emergency Rule” that became permanent onAugust 25, 2005, and was codified at 68 Ill. Adm. Code §1330.91(j). The rule was amended on April 16, 2008(during the pendency of the appeal in the Supreme Court). The rule requires retail pharmacies to dispense any type ofcontraceptives (including Plan B Contraceptives; see §1330.91(j)(5)) “without delay” upon receipt of a validprescription (1330.91(j)(1)); use best efforts to maintain anadequate stock of Plan B contraceptives to the extent thepharmacy continues to sell contraceptives at all (thoughpharmacies are not prohibited from deciding not to sellcontraceptives at all; 1330.91(j)(2)); comply with adetailed dispensing protocol involving “remote medicationorder processing” (or RMOP; a means by which a licensedpharmacist at a remote location may authorize a non-pharmacist employee to dispense the medication) in theevent that the only pharmacist then on duty objects tofilling the prescription at the time the prescription for a

Plan B Contraceptive is presented (1330.91(j)(3)); and toensure either that there is a non-objecting pharmacistscheduled or that there is a licensed pharmacist availableto perform RMOP for Plan B Contraceptives at all timesthe pharmacy is open (1330.91(j)(4)). As GovernorBlagojevich publicly warned when he originallypromulgated the rule, pharmacists and pharmaciesviolating the rule face potentially severe penalties rangingfrom fines to the loss of professional licenses. Slip Op. at5; see also 225 ILCS 85/30.

On September 14, 2005, several licensedpharmacists and pharmacies filed a complaint and motionfor TRO in Sangamon County Circuit Court. The motionfor TRO was denied. On October 28, 2005, the plaintiffsfiled their first amended complaint in which they soughtinjunctive relief and a declaration that the rule is invalid,as well as another motion for TRO. In short, the plaintiffshave argued that they object to dispensing Plan Bcontraceptives on the basis of their religious beliefs andpersonal ethics and that the rule therefore violates theirrights under the Illinois Health Care Right of ConscienceAct (745 ILCS 70/), the Illinois Religious FreedomRestoration Act (775 ILCS 35/), and the First Amendmentto the U.S. Constitution.

On the same day that the plaintiffs filed theiramended complaint, the State filed a 2-619 motion todismiss, which the Circuit Court granted based on ripenessgrounds and the failure to exhaust administrative remedies,because they did not wait for an enforcement action to betaken by the Department of Financial and ProfessionalRegulation prior to filing their lawsuit. The plaintiffs fileda timely notice of appeal in December 2005.

On March 19, 2007, the Fourth District of theIllinois Appellate Court affirmed the Circuit Court’sdismissal. Morr-Fitz, Inc. v. Blagojevich, et al., 371Ill.App.3d 1175 (4th Dist. 2007). In its opinion, the FourthDistrict adopted the two-prong test for ripeness announcedin the U.S. Supreme Court’s decision in AbbottLaboratories v. Gardner, 387 U.S. 136 (1967) (AbbottLabs.), which requires a court “to evaluate both the fitnessof the issues for judicial decision and the hardship to theparties of withholding court consideration.” Morr-Fitz,Inc., 371 Ill.App.3d at 1179 (quoting Abbott Labs., 387U.S. at 149). The Appellate Court conceded that theplaintiffs’ facial attack on the validity of the rule satisfiesthe first prong, but ultimately held that the plaintiffs failedto satisfy the second prong because “the chances ofplaintiffs suffering any hardship in the future as a result ofthis rule are so slim, albeit not impossible, they do notoutweigh the judiciary’s traditional reluctance to getinvolved in administrative determinations such as this.”

(Continued Page 6)

SUPREME & APPELLATE COURT REVIEW Page 6Morr-Fitz, Inc., 371 Ill.App.3d at 1181. Finding thatdismissal was therefore warranted on ripeness grounds, theFourth District declined to consider whether dismissal wasalso warranted based on the exhaustion doctrine.

The plaintiffs then filed a petition for rehearing,attaching an affidavit of plaintiff Luke Vander Bleek. Init, he stated that his pharmacies had been presented withprescriptions for Plan B Contraceptives more than 15 timessince the rule had gone into effect. In addition, VanderBleek alleged that a pharmacy his corporation owned inProphetstown was forced to close because the onlyavailable local pharmacist was concerned that thecompany’s policy against dispensing Plan BContraceptives could result in the loss of its license, and hetherefore refused to work there. These additional facts didnot persuade the Appellate Court, and the plaintiffssubsequently appealed to the Illinois Supreme Court.

In reversing both of the lower courts, the SupremeCourt addressed both the ripeness issue and the plaintiffs’alleged failure to exhaust administrative remedies. Whilethe Supreme Court agreed with the Appellate Court thatAbbot Labs. provides the correct ripeness standard, unlikethe Appellate Court, the Supreme Court found thatsufficient hardship did exist to warrant judicial review.Slip Op. at 14. Since the rule, particularly as amended,expressly requires the plaintiffs, under penalty of severesanctions, to take the affirmative steps necessary to stockand dispense Plan B contraceptives, the Court found that,far from having remote consequences, the rule “affects[plaintiffs’] business operations on a day-to-day basis andexposes plaintiffs to strong sanctions.” Slip Op. at 14.Further, the Court concluded that Vander Bleek’s affidavitcontained sufficient allegations of actual hardship resultingfrom the rule to overcome the ripeness requirement.

Before finally concluding that the plaintiffs’claims were ripe for judicial review, the Court also “noted”that the plaintiffs’ allegations that the rule chills their FirstAmendment rights should result in a relaxing of theripeness standard announced in Abbott Labs. Slip Op. at16. Although it is unclear whether this part of the analysisis truly essential to the Court’s holding or whether it isdicta, the Court’s statement regarding First Amendmentclaims appears to announce a significant accretion to theripeness doctrine to be applied by the Illinois courts inadministrative review actions.

Possibly of even greater significance to manypractitioners is the Court’s subsequent discussion of theapplicability of the exhaustion-of-remedies doctrine in thiscase. The Court observed that there were two issuespresented under this category: (1) whether the plaintiffswere required to “slog through a disciplinary proceedingand suffer loss of their licenses, or at least wait to be citedand sued, before challenging the rule in circuit court” (theCourt’s phrasing of the question appears to the authors toanswer it); and (2) whether plaintiffs were required to seek

a variance before proceeding. See Slip Op. at 17. In an extensive analysis, the Court assaulted the

defendants’ exhaustion arguments on several fronts. First,the Court noted that while the Pharmacy Practice Act, at225 ILCS 85/11, and the regulations, at 68 Ill. Adm. Code§ 1330.110, provide that the Department of Financial andProfessional Regulation may grant a variance from therequirements of the rule under certain circumstances, thosesources provide no procedure that would govern theagency’s decision whether to grant a variance. Slip Op. at17. This led the Court to distinguish this case from otherexhaustion-of-remedies decisions in which either theapplicable statute gave the litigants a right to bring a claimbefore the agency and set forth a corresponding procedurefor adjudicating those claims, or the litigant brought anaction during the pendency of an administrativeenforcement proceeding. The Court also distinguishedother exhaustion-of-remedies cases based on theseplaintiffs’ express rights to seek judicial relief contained inthe Right of Conscience Act and the Religious FreedomRestoration Act.

(Continued Page 7)

SUPREME & APPELLATE COURT REVIEW Page 7The foregoing analysis led the Court to suggest that anexhaustion-of-remedies analysis should not even beapplied in cases such as this one. However, the Court heldthat even if a court undertook an exhaustion analysis in thiscase, an exception to the exhaustion requirement shouldapply, such as the rule that litigants bringing a facialchallenge to a rule or statute need not first exhaustadministrative remedies. Slip Op. at 19 (citing Canel v.Topinka, 212 Ill.2d 311, 321 (2004)). Furthermore, theCourt extended the other exceptions to the exhaustiondoctrine that it applied in Canel, holding (1) that seekingrelief from the administrative agency under the factspresented would be futile because “granting variances inthese kinds of cases would eviscerate the whole purposefor the rule,” Slip Op. at 22; and (2) the lack of procedureor authority for conducting a hearing “militates against thenotion that a fact question or agency expertise is crucial,”and therefore exhaustion of remedies is not required, SlipOp. at 24.

While the Court’s opinion in this case receivedsome coverage in the popular press for its effect on thesubstantive challenge to the validity of the rule, which is infact fairly minimal as the Supreme Court expresslydeclined to comment on the merits, the lasting legacy ofthis opinion could likely lie in its extensive restatement ofthe doctrine of ripeness in the Illinois State courts and in

its announcement that the exhaustion doctrine would notrequire the plaintiffs in this case to seek a variance fromthe enforcing State agency or endure the consequences ofan enforcement proceeding prior to challenging the rule inthe State court. The Court’s rulings on both of thesequestions may well be cited with some frequency in thefuture by challengers to other Illinois administrative rulesseeking to overcome these gatekeeper doctrines.

Adam Flemmingassociate with the law firm of WilliamsMcCarthy LLP. A graduate of the University of Notre Dame Law School, he was admitted to the practice of law in Illinois in 2007.

Marc C. Gravino is a partner in the law firm of WilliamMcCarthy LLPA graduateof the University of Wisconsin-Madison School of Law, he was admitted to the practiceof law in Illinois in 1988.

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JUDGE J. TODD KENNEDY- REFLECTIONS Page 10BY SHERRI RUDY

In case you missed it, Judge J. Todd Kennedyretired effective November 30, 2008 after a multi-facetedlegal career. Judge Kennedy graduated from the Universityof Illinois College of Law in 1972; he spent four years asa prosecutor under State’s Attorney Phil Reinhard and wenton to spend twelve years in civil litigation at Reno &Zahm.

Judge Kennedy was appointed to the bench inApril of 1989. When Judge Fred Kapala was appointed tothe Federal Court in 2007, Judge Kennedy was appointeda Circuit Judge. During his twenty year career on thebench, Judge Kennedy had the opportunity to preside overevery courtroom in both Winnebago and Boone Counties,which led him to believe he could do a credible job in anycourtroom at any time.

Famed courtroom watcher Attorney Joseph Kosekwas prosecuting traffic court the day that Judge Kennedytook the bench. As Mr. Kosek recalls, the courtroom wasfull with people sitting in the jury box and overflowing intothe second floor hallway, which in those days was thickwith smoke and restless banter from those waiting. Thejudge was late taking the bench and the crowd wasincreasingly impatient. When Judge Kennedy finally tookthe bench, he apologized for the delay and explained thathe had been rather busy that morning being sworn in as anAssociate Judge. Apparently it was quite a “baptism byfire” but Judge Kennedy finally did get through the call,well after the noon hour. Mr. Kosek still wonders if howJudge Kennedy’s subsequent days compared to that firstchaotic morning.

Judge Kennedy served two “tours” as presidingjudge in the Winnebago County probate court; his first stintwas in 1997-98 and also started somewhat inauspiciously.In one of his first cases, the attorney requested that theCourt delay distribution of a minor’s estate to a non-disabled young man who had just turned eighteen. JudgeKennedy did not see a problem with this; he opined that itprobably was not a good idea to distribute a fairly largeestate to an eighteen year old and was preparing to grantthe motion to retain the parents as guardians. Looking upfrom the bench, he must have noticed that several of theprobate “regulars” appeared to be in shock and wereshaking their heads no. He caught the cue, took the matterunder advisement, and after much of the traffic cleared outof the courtroom asked what the problem was. After aquick check of the statute, he realized that the court had noauthority to extend the guardianship and eventually thefunds were released to the young man. During those firsttwo years, Judge Kennedy was always courteous and fairto clients and litigants but it was a learning experience forboth him and the attorneys who appeared before him.

After four years in Boone County (more on thatlater), a new and improved Todd Kennedy returned toWinnebago County Probate Court. Judge Kennedy grew

into the role of presiding probate judge; he developed anin-depth grasp of the issues, a real interest in the plights ofthe elderly and disabled people who appeared before him,and his quiet sense of humor emerged. Probate becameJudge Kennedy’s favorite courtroom because, as he says,“in most of the guardianship cases you end up helping kidsor the elderly.”

One case of which he is particularly proudconcerned a young woman who was hospitalized at SingerMental Health Center in a totally catatonic state. Hermother filed a pro se petition for electroconvulsivetreatment. Attorney Ruth Robinson was the guardian adlitem and convinced Judge Kennedy that he had the legalauthority to order electroconvulsive shock treatment for thewoman. The treatment worked. The young woman cameinto court a month later and thanked Judge Kennedy forentering the order. To this day, Judge Kennedy firmlybelieves that between himself, the girl’s mother, andAttorney Robinson, the young lady’s life was saved. Ruthconfirms that Judge Kennedy’s ruling was indeed alifesaver and notes that he put an extraordinary amount oftime and consideration into his ruling.

Judge Kennedy also served two tours of dutywhich were not as pleasant as those in Winnebago CountyProbate Court. One was his tour of duty in Viet Nam in1970 with the 25th Infantry Division. The second was his“tour” as an associate judge in Boone County from 1998-2002. This assignment was marked by a very difficultperiod of hostility from the state’s attorney’s office as aresult of some rulings that Judge Kennedy was forced tomake in a highly emotional, high profile, felony case.

The Probate Gang

J. TODD KENNEDY Page 11Other highlights and little-known anecdotes

include: presiding over what may be the highest civilverdicts in both counties ($35 million in Winnebago, $1million in Boone); People v. Peterson, a Lake Countyfelony case which received daily coverage by the ChicagoTribune and featured a cast of characters including TedPhillips (President of the Chicago Bears) as jury foreman;years of commiserating with Mike Shalbrack over theUniversity of Wisconsin Badgers; seeing Rich Gainesappear in court with a toothbrush in his pocket and arequest to be held in contempt of court; monitoring the“Probate Court Fashion Police;” and being lucky enough tomiss our beloved Forest City Queen skinny-dip at acelebration in honor of Judge Kennedy’s transfer to theCircuit Court in 2007.

“The thing I enjoyed most about Todd Kennedy is howmuch we have in common”-Pete Savitski

His plans for retirement? Travel, improve his golfgame, enjoy his two young granddaughters, and engage involunteer work. Hopefully this busy schedule will leavehim some time to enjoy the Stiftskeller in Madison....

FROM THE BENCHMay I draw the bar’s attention to Local Rule 83.12

which requires attorneys to be members of the NorthernDistrict’s trial bar if they appear unaccompanied by a trialbar advisor in a testimonial proceeding in federal court.Testimonial proceedings, as defined by Local Rule83.11(a)(1), are evidentiary proceedings in which alltestimony is given under oath and a record is made of thetestimony; the witness or witnesses are subject tocross-examination; a presiding officer is present; and theparties to such proceedings are generally represented byattorneys.

It is not uncommon for attorneys to appear in suchproceedings without the necessary trial bar certification.Consequently, the case languishes until the appearance ofa substitute trial bar attorney or a trial bar advisor can besecured. In some instances, the case is unnecessarilycontinued to another day. In an effort to avoid thisinconvenience, delay, and expense, I would like to remindattorneys contemplating an appearance in federal court thatcompliance with the local rule is mandatory. Further, Iwould like to highlight that trial bar membership is easyand inexpensive to obtain. An applicant who is a memberin good standing of the Northern District’s general bar andwho has the required trial experience merely has tocomplete a form and file it, along with a $50.00 fee, in theClerk’s office. See L.R. 83.11.

Thank you in advance for your cooperation. I lookforward to working with you on your next federal case.

Fred KapalaDistrict Court

SUSTAINING MEMBERS OFTHE WCBA2008-2009

Steve Balogh, Kim, Casey, Mathew Cicero,Renee Cook, Ed Enichen, David Faulkner,

John Goddard, Keith Hyzer, ThomasJohnson, Frank Maggio, Angus More, Jr.,

Frank Perrecone, George Picha, ChuckProrok, Frederick, Raffety, Gordon Ring,

Stan Roszkowski, Elmer Rudy, SherriRudy, Bill Snively and John Sype.

Winnebago County Bar Association, Law Practice Management SectionPresents

Best Practices for Managing YOUR PracticeFriday, March 20, 2009, 12:00 Noon to 5:00 p.m.

Giovanni’s Restaurant, 610 North Bell School Road

Topics and Presenters:

Work/Life Balance, it’s not an Urban LegendDon Moore & Holly Hanson, Name of Business

Six Things that can Kill Your PracticeNerino Petro-State Bar of Wisconsin Practice Management Advisor

Integrating Technology into Your PracticeAaron Brooks, Holmstrom & Kennedy P.C.

HR Considerations for Your PracticeTBD

Managing Partners Roundtable:Navigating in Uncertain Times; Recruiting, Marketing and Practice Development

Shawn Fulbright, Moderator, Fulbright & Associates

Bruce Ross-Shannon, McGreevy Williams P.C.

Philip Frankfort, Holmstrom & Kennedy P.C.

Jeffery Makeever, Reinhart, Boerner & Van Deuren S.C.

Nancy Hyzer, Hyzer, Hyzer & Jacobs

Burkhard Geissler, Attorney at Law

4 Hours MCLE Credit-Lunch & Program $140.00 (WCBA Members $70.00)

Law Practice Management 3/20/08-$140.00 (WCBA Members $70.00)

Name(s)___________________________________________________________________________________

Please circle the names of those preferring a vegetarian meal

Amount Enclosed $___________________________

Winnebago County Bar Association-321 W. State Street Suite 300, Rockford, IL 61101 (815)-964-4992

BOOK REVIEW: Lawyers’ Poker: 52 Lessons That Lawyers Can LearnFrom Card Players Page 13by Steven LubetSusan K. Riege, J.D., L.L.M., ReviewerPreface: Would you like some law practice tips delivered in anentertaining, unique book format by a fellow lawyer?Could you benefit from vignettes offering insights intohuman nature? Do you like to read about the legal strategyof famous lawyers? Have you ever wondered how thepractice of law compares with other endeavors? If so,then I invite you to consider reading Lawyer’s Poke: 52Lessons That Lawyers Can Learn From Card Players,which I’ve reviewed below.Book Review: I found this book by Northwestern University LawSchool professor Steven Lubet both intriguing andinsightful. Its very title enticed me to read it; Iimmediately wanted to learn more about how the artfulpractice of law compares with the art of playing poker.Why? I know that a good card player can ‘read’ peopleand is a supreme strategist. The successful lawyer shouldalso have these skills, I reasoned. Mr. Lubet appears tofeel the same way. The book is very well organized and easy to read. Theintroduction lends logic to the theme of the book. A youngman seeking to practice law in nineteenth century Texas isquestioned by the Texas Supreme Court. He expected tobe grilled on the substantive law. Instead, he was askedonly four questions: 1) Have you studied Blackstone?; 2)Do you read the Bible?; 3) Do you know yourShakespeare?; and 4) Do you play poker? He answered“yes” to the first three questions with ease. He feared thefourth, however. With trepidation, he also answeredaffirmatively that he had indeed played poker. After beingadmitted to the Bar, he mustered the courage to ask whyhe’d been queried about poker. He was told that he’dbetter have such a skill to survive during the first threeyears of practice. It turns out that this young man was nota fictional character. His name was Edward FontaineNicolds. He went on to practice law successfully in Texasfor many years. He also continued to play poker. Thisstory is related on pages 3-4 of the book. The lawyer’sidentity is revealed in the Notes section of the book onpage 255. At first when I considered that practicing law mightsomehow be like playing poker, I felt a bit chagrined.Indeed, I felt a bit ashamed to be perusing this book. I amnot a poker player, having always considered the game tobe ‘gambling’. My shame disappeared when I realized thatthe author is a well-reputed law professor and that the bookdeals far more with legal strategy than with poker. Eventhough I don’t play poker, I was able to learn a lot fromreading the book. It seems credible to me as I have playedother card games where strategy is important. I think that

many of the precepts here could apply to other card gamesas well. The comparison between the practice of law andthe playing of poker seems especially apt, however, afterreading about the characteristics of good and bad pokerplayers and lawyers. Mr. Lubet discusses artfully how thestrategies of good poker players could be helpful topracticing lawyers. There are many types of poker, I learned from thebook. Mr. Lubet bases his 52 lessons on a variety of pokercalled Texas Hold’em. I’d never heard of it but shortlyafter finishing the book I read an e-mail from the ChicagoBar Association about Texas Hold’em tournaments amongtheir members. Evidently they are quite popular. I don’tknow if Mr. Lubet started the trend in Chicago but it doesexist. I also know that lawyers already gauge others’character and style during golf games and otherrecreational activities. After reading this book, I’d saythey can also learn much about other lawyers’ styles andcharacter by watching them play cards. I doubt I will start playing poker any time soon but Iwas able to learn a lot about strategy and litigation lawpractice from this book even without knowing how to playpoker. The fifty-two lessons are divided into fourcategories that mirror the four suits of a card deck: 1)diamonds (maximizing your winnings); 2) clubs(controlling the opposition); 3) spades (digging forinformation); and 4) hearts (ethics and character). In eachlesson, the analogies between law practice and poker aredetailed. The two endeavors’ differences are alsodiscussed. The book includes many very interestinganecdotes about law practice and about poker. To give you an example of the interesting anecdotesincluded in the book, I’ll refer to its discussion of a trialdilemma Abraham Lincoln faced as a lawyer. It isdiscussed in Lesson 9 (Loose Wiring) on pages 51-53. Atthe time, Abraham Lincoln was a young lawyer. He wasrepresenting a man who’d been charged with biting offanother man’s nose. The prosecution’s witness testifiedthat he’d seen the defendant commit the atrocious act. Oncross-examination, Lincoln set out to prove that thewitness couldn’t have seen as much as he’d claimed. Reading the dialogue, I felt for sure that Lincoln hadblundered when the witness gave a most disconcertingreply to Lincoln’s question of how he could have possiblywitnessed what happened when he’d been busy watchingbirds in the trees at the edge of the field where the incidenttook place. The witness replied that he saw the defendantspit the other man’s nose out! Can you imagine how youwould have reacted to such a reply? (!) It would be hardnot be flustered, I’d think, by such a response. Lincoln,however, remained cool and calm.

BOOK REVIEW Page 14 He continued his cross-examination of the witness andproceeded to impeach him. Lincoln, it turns out, had laid atrap for the prosecution’s witness. When the witnessclaimed under further questioning that he was able to seewhat happened by the light of the moon, Lincoln promptlyintroduced into evidence a Farmer’s Almanac. The almanacreported that there had been no moon at all on the night inquestion. Lincoln went on to win that case for his client.Fascinating! The lesson offered here by the author for otherlawyers is that Lincoln did not ‘tilt’, i.e., did not lose his‘cool’ when he heard the witness’s testimony shockingtestimony about the nose-biting. Because he remainedclear-headed, he was able to respond well strategically tothe turn of events. Following the lessons are some handy supplementarymaterials: 1) a rank of [poker] hands; 2) glossary; 3) notes;4) bibliography; and index. It might have been useful toalso include a supplementary section explaining how TexasHold’em is played. Readers like myself who’ve neverplayed poker could benefit from that. Overall, however, I’d highly recommend this book topracticing lawyers. I think it would be especially helpful tolitigators as it talks in detail about strategy. While it ispossible to read the book in one day, it is probably better toread it a few lessons at a time. In that manner, one has moretime to contemplate its meaning and apply it to one’s ownlife and practice.Citation and related information: Steven Lubet, Lawyers’ Poker: 52 Lessons That LawyersCan Learn From Card Players, (Paperback ed., Oxford U.Press 2008) (originally published 2006). ISBN: 978-0-19-536901-4 List Price: $19.95 274 pages.

Winnebago County Bar Association, Estate Section Meeting

Wednesday, February 25, 2009, NoonForest Hills County Club

Guest SpeakerDr. Frank Nicolosi

Capacity and IncapacityEstate Section Lunch and Program $18.00

Reservations are required, reservation deadline,February 23, 2009

Name(s): Please circle the names of those that would prefer avegetarian meal(As this falls on Ash Wednesday, please order thevegetarian meal if you prefer not to eat meat this day)Amount Enclosed:$

WINNEBAGO COUNTY BARASSOCIATION TO TRAINMEDIATORS

The Winnebago County Bar Association has againcontracted with the Center for Conflict Resolution inChicago to provide 32 hours of mediation training toWCBA members over a four day period in March andApril of 2009. Training will be held at the ADR center onMarch 27 & 28 and April 3, & 4, 2009. Uponcompletion of the training the mediators will providemediation services in Winnebago County small claimscourt each Tuesday of the month at 8:30 a.m. Twomediators and a back up are scheduled on each first returndate. Mediation through the Small Claims MediationProgram is only available when both parties are pro se.The mediators will be scheduled on a rotating basis and onaverage an individual mediator will serve four or five timesin each six month period. The required commitment is forone year.

In the fall of 2005, 24 WCBA members weretrained. The majority of these mediators have remainedwith the program because it allows them the opportunity topractice their mediation skills and both the mediators andthe participants report a high degree of satisfaction with theprocess. Additionally, the mediators qualify for majorcivil case mediation based on their training. MCLE creditwill be given for this training. You must complete all 32hours of training to receive MCLE credit. Please keep inmind that the MCLE requirement for the first half of thealphabet is 24 hours in their second two year reportingperiod, however four of those hours are in the area ofprofessional responsibility which is not provided in thistraining.

The Winnebago County Bar Association hasobtained grants from various sources including theWinnebago County Bar Foundation and the Illinois BarFoundation to offset the cost of this training. The cost toeach participant will be $550.00. Reservations areavailable on a first come, first serve basis. Reservationdeadline is February 12, 2009. Your check will holdyour reservation. If you find it necessary to cancel, youwill only receive a refund if your spot can be filled. Youmust enter into a training agreement with the WCBAstating you will provide one year of volunteer mediation insmall claims court.

Winnebago County Bar AssociationBankruptcy Section

Dan Donahue, Section ChairPresents

Bankruptcy Update 2009

Tuesday, February 24, 2009Giovanni’s Restaurant

610 North Bell School Road, Rockford, IL12:00 Noon to 4:00 p.m.

Presenters and Topics:

Carole Ryczek, U.S. Trustee’s Office, Madison Wisconsin/The Means TestJeffrey Dahlberg, Balsley & Dahlberg/Chapter 13 From a Debtor’s Counsel Viewpoint

Fiona Whelan, Staff Attorney /Issues of Interest and New Developments with the Standing Chapter 13 Trustee

Bernard Natale, Attorney at Law/The Decision Making Process for Whether to File a Chapter 11Megan Heeg, Ehrmann, Gehlback Badger & Lee/Exemptions

Brad Waller, Klein Stoddard Buck Waller & Lewis LLC/Ways to Keep Your Trustee Happy

3 hours General MCLE hours $120.00/ WCBA Members $60.00

Bankruptcy CLE-2/24/09-$120.00 (WCBA Members $60.00)Name(s):______________________________________________________________________Please circle the names of those preferring a vegetarian mealAmount Enclosed $_______________________________

Winnebago County Bar Association-321 W. State Street, Rockford, IL 61101 (815)964-4992

PERSONAL INVESTING-BUCKETS OF MONEY Page 16

Amy L. Barrett MBA, CFA, CFP®, CDFA™ is a financialadvisor, specializing in investment and divorce planningissues, with Savant Capital Management, Inc., Rockford,IL (815)-227-0300. Risk is everywhere. Our success in life depends on howwe navigate risk. Investors can choose to avoid marketrisk by keeping money in presumably ultra-safeinvestments such a U.S. Treasury Bills. However, theyoften lose long-term purchasing power as their dollar doesnot buy as much as it did in the past. Other investorsaccept equity market risk by owning a diversified portfolioof stocks. For example, the S&P 500 index is widelyknown to track equity market risk. The benefit of holdingan S&P 500 index fund instead of Treasury Bills is thatyou may actually have a chance to earn returns aboveinflation. The downside is that holding a diversified basketof equities can lead to market volatility (downside risk) inthe short-term.

There is an implicit tradeoff between risk and return.The ability to measure, evaluate, and determine risk/returntradeoffs is necessary for effective planning. Savantrecognizes and evaluates risks across multiple dimensions.One common measure is standard deviation. Thismeasures the dispersion of returns around the average. Forexample, the S&P 500 has averaged 10.4% since 1926.The standard deviation is 21.4%. This means that duringnormal years, returns are generally average plus or minusthe standard deviation. So, returns typically fall between-11% (10.4% minus 21.4%) and 31.8% (10.4% plus21.4%). Of course, a common problem with standarddeviation is that it not a very intuitive measure of risk fornon-statisticians, engineers, and investment people. Infact, new behavioral research findings point out thatmost people care significantly more about losses(downside risk) than gains. As such, Savant alsomeasures downside risk–maximum losses during bearmarkets. For example, since 1973, the maximum declinefor a well-diversified global equity portfolio (100/0) wasapproximately 35%.

Yet, even downside risk measurements fail to relate to theconcept of risk in our daily lives. As such, Savant hasbeen focusing on developing a new and more robust riskmeasurement framework. Our goal is to help clients wraptheir arms around the relevant risks in their portfolio byusing measures other than basic standard deviation anddownside risk. In fact, we intend to publish a new positionpaper on the topic late in 2009. In the meantime, we arealready applying some of the new concepts.

Mental Money Buckets: To better understand how arobust risk model can lead to better decisions, imagine

measuring your risk by positioning your assets in a seriesof portfolio buckets aligned with your lifestyle needs andpreferences. In general, most investors have four bucketsin which they can put their investments. The first is asafety bucket which is designed to provide money forbasic short to intermediate-term needs—things like foodand shelter. Money in this bucket is always available evenif all the other buckets are low or in loss positions (badbear market). This bucket typically holds high qualitybonds and other preservation assets. The second bucket isthe lifestyle bucket. The bucket might primarily owndiversified lower risk stocks. These stocks provide long-term growth opportunities to protect your income againstinflation. This bucket may also pay for routine vacationsor new cars. The third bucket is the aspirational bucket.It holds riskier, (though typically liquid) assets that providehigher potential growth and more volatility than thelifestyle bucket. For example, the bucket may includeemerging market stocks and international small valuestocks. The bucket may one day provide means for extracharitable giving, a big luxury purchase, or provide a largeinheritance. The last bucket is the long-shot bucket (note:not all investors choose to fill this bucket). It typicallycontains high-risk investments that may one day provideextreme wealth. The speculative nature of this bucketkeeps things interesting for certain investors. This bucketmay contain private equity, family businesses,concentrated stock holdings, options, or real estateproperty. It is important to note that if the underlyinginvestments in this bucket are lost, it should not affect thelifestyle of the owner. These are extra assets.

Effective planning allows you to find the right size of yoursafety, lifestyle, aspirational, and long-shot buckets.Properly balanced, you may have a better opportunity tosleep at night while fulfilling your life-long dreams.

In future Personal Investing columns, Savant will addressyour questions with one exception. We will not analyzeindividual assets for buy or sell recommendations. Pleases e n d y o u r i n v e s t m e n t q u e s t i o n s t oabarrett@savantcapital.com. Savant Capital Management,Inc. is a Registered Investment Advisor. Please contactSavant to find out if the investment advisor is qualified toprovide investment advisory services in the state whereyou reside. The Advisor does not attempt to furnishpersonalized investment advice or services through thisarticle. Past performance is no guarantee of future results.

SEALING COURT CASE FILES: THE STRINGENT STANDARDREQUIRED TO SHIELD COURT DOCUMENTS FROM PUBLIC ACCESS

BY KELLY MORTON & GINO GALLUZZODuring litigation, parties may need to introduce sensitiveinformation to either prove elements of a case or to mounta proper defense against a claim. Once such informationis filed with the court it becomes a public record and istherefore subject to public scrutiny. Clearly, this gives riseto concerns regarding confidentiality, as certaininformation may cause damage to a party’s businessinterests or reputation. In these situations, parties maypetition the court to seal all or part of a case file.

To obtain approval from a court to have sensitivedocuments sealed, a party must be able to prove to thecourt’s satisfaction that such action is necessary to protecta compelling interest, and unfortunately for these parties,this a difficult thing to prove. The right of public accessalmost always trumps individual privacy concerns, asdiscussed in detail below.

Public PolicyHistorically, court proceedings and court documents in thiscountry have been open to the public. The United StatesSupreme Court has recognized the existence of apresumption that the general public should be allowed toaccess court records, including judicial records anddocuments, in both criminal and civil proceedings.1 Thispresumption is grounded in the First Amendment as wellas the common law and is based upon the principle thatpublic scrutiny is necessary to ensure the accountability ofour court system.2

The Illinois legislature has also demonstrated its preferencefor public access with the Clerks of Courts Act, whichrequires that all records, documents, and books required bylaw to be kept by the court clerk shall be open for publicinspection at no charge.3 Still, as vital as public access is toour court system, it is not absolute. Courts have thediscretion to order the sealing of certain documents if thereis sufficient evidence to overcome the presumption ofpublic access.4

Cases Studies: Filing in Court “Under Seal”

According to the court in Skolnick v. Gray, a party movingto have court documents sealed in a has the burden toprove the following:

1. “A compelling interest exists that favors thesealing of the file; and

2. The sealing order is drafted in the least restrictivemanner possible.”5

This ‘compelling interest’ standard has been somewhatnarrowed over time. The court in Press Enterprise Co. v.Superior Court held that suppression must be, “essential topreserve higher values,” before a court may find sealing isappropriate.6 In A.P. v. M.E.E., the court noted that sincelitigation consumes public resources, in all but the most“extraordinary cases (like weighty national securitymatters) complaints must be made public.”7 Clearly,strong evidence is required to rebut the presumption ofpublic access. The mere desire of parties that matters bekept private is not an acceptable basis to justify a sealing.8

Justice Steigmann, specially concurring in Johnson v.Turner Construction Company, noted that the onlydocuments he believes will meet the ‘compelling interest’standard are “those which are both privileged andpotentially seriously damaging or embarrassing to theperson holding the privilege.”9 Examples are psychiatricrecords which demonstrate that a person has a behavioralor mental problem, or medical records that reveal a personhas a sexually transmitted disease.10 The court in Skolnickalso notes that in some cases sensitive financialinformation may be subject to sealing.11

Using the above standards, courts may determine whethercertain materials may be sealed from public access. In theevent sealing is found to be appropriate, the order mayonly apply to those documents or portions of documentsthat reference or contain confidential information. Anindiscriminate sealing of all documents involved in a caseis wholly improper. Therefore, courts must individuallyreview each document before issuing a seal order.12 If

1 Skolnick v. Gray, 191 Ill.2d 214 (2000). 2 Id.3 705 Ill. Comp. Stat. Ann. §§ 105/16(6).4 A.P. v. M.E.E., 354 Ill.App.3d 989 (2004).

5 191 Ill.2d 214 at 231 (2000). 6 Press Enterprise Co. v. Superior Court, 464 U.S.501 at 502 (1984). 7 354 Ill.App.3d 989 at 997. 8 A.P. v. M.E.E., 354 Ill.App.3d 989 (2004).

9 Johnson v. Turner Construction Company, 232Ill.App.3d 1068 at 1076 (1992). 10 Id.11 Skolnick v. Gray, 191 Ill.2d 214 (2000). 12 A.P. v. M.E.E., 354 Ill.App.3d 989 (2004).

SEALING COURT CASE FILES Page 18 there is any question as to whether sealing is appropriate,“all doubts should be resolved in favor of disclosure.”13

Each sealing order should also be accompanied by astatement from the court which supports the conclusionthat sealing is necessary. In the event an order ischallenged, this statement will provide a reviewing courtwith a basis to determine whether the seal was justified.14

In A.P., a newspaper intervened in a proceeding to contestthe sealing of court files and made a motion to unseal courtdocuments. The trial court denied this motion and thenewspaper appealed. In the event a motion to disclose isunsuccessful at the trial court level, a party may petitionthe appellate court for review. In civil cases, the appellatecourt will decide if legitimate grounds for sealing exist bydetermining whether the lower court abused its discretion. If an abuse of discretion is found, the case will be reversedand remanded to the lower court with instructions as tohow to proceed. 15

After conducting a review, the appellate court in A.P.found that the action of the circuit court in sealing theentire court file was inappropriate. The materials werereturned, in their sealed condition, to the circuit court withinstructions to make a determination as to whether anydocuments or portions of documents may properly besealed. The appellate court further instructed that thesealing order be limited to only those documents, “whichare directly relevant to the legitimate interest inconfidentiality.”16 At this point the burden will fall uponthe party opposing disclosure to offer a compelling interestto support a finding that the documents should remainsealed.17

In Grove Fresh Distributors, the court held that thirdparties have standing to challenge a protective ordersealing court documents for abuse or impropriety.18 There,one group of consumers and one group of mediachallenged an order to seal, claiming that certaindocuments had been wrongly classified as confidential inan attempt to avoid damage to the defendants’ businessreputation. The appellate court found that access to thedocuments was unjustifiably restricted and remanded thecase for further proceedings.19 The court noted that“intervention is the procedurally appropriate course for

third-party challenges to protective order.”20 The courtmade no distinction between the general public’s right toaccess and the media’s right to access in this case.

Conclusion

The public’s ability to access and inspect court documentsis an undoubtedly essential part of our court system. Itfunctions as a check on the judiciary to ensure bothfairness and accuracy of court proceedings and is valuedover individual privacy concerns. For this reason, a courtmay only seal documents when it is essential to protect thecompelling interest of a party. If such a compellinginterest does not exist, the documents must remainavailable to the public. January 31, 2009

Dear Colleagues:

I was recently privileged to be invited on the LegalAdvisory Committee for the Paralegal Program atRockford Career College. The first item on the agendaconcerned a series of surveys sent to the legal communitydesigned to advise the college on meeting the needs of itsparalegal students. One Hundred surveys were mailed onJune 19, 2008. Of these surveys, there were fiveresponses. In August, 62 additional surveys were sent tomembers of the Bar. There were no responses. I find theseresults both sad and discouraging.

Rockford Career College is a valuable resource inour community. An organization that assists people totransition to a new career in what is now a perilouseconomy should be given due consideration. As membersof the legal community, this organization looks to us forguidance and assistance in trying to determine how tobetter serve their students and members of our legalcommunity.

I am asking every member of our community to beresponsive when he or she receives a call for assistancefrom this very worthy organization.

Very truly yours,FRANCIS M. MARTINEZ

13 Grove Fresh Distributors v. Everfresh JuiceCompany 24 F.3d 893 at 897 (1994). 14 A.P. v. M.E.E., 354 Ill.App.3d 989 (2004). 15 Id.16 Id. at 1001. 17 Grove Fresh Distributors, 24 F.3d 893 (1994). 18 Id. 19 Id. 20 Id. at 896.

Winnebago County Bar AssociationCriminal Law Section

Presents:

Criminal Law Update 2009

Friday, March 6, 2009 Noon to 5:00 p.m.

Giovanni’s 610 North Bell School Road, Rockford, IL

Topics to be covered include:

Juvenile Law UpdateImmigration Law and Criminal Practice

Sex Offender Registry StatusLegislative and Case Law Update

4 hour MCLE CreditLunch and Program $140.00 (WCBA Members $70.00)

Criminal Law Section 3/6/09 $140.00/$70.00Name(s)__________________________________________Please circle the names of those preferring a vegetarian mealAmount Enclosed $_________________________

Winnebago County Bar Association-321 W. State Street Suite 300Rockford, IL 61101 (815)964-4992

TIM NAILL Page 20BY TOM WARTOWSKI

Last May, as Rockford Attorney Timothy Naillwas preparing to depose a neurologist at his law firm,Reese & Reese, he received a life-altering phone call. Itwas a call that would lead to an abrupt exit from his job,his family and friends, and a comfortable lifestyle intowhich he had settled.

The unexpected phone call came 19 ½ years intoa 20-year commitment that the Lieutenant Commander hadmade with the U.S. Navy Reserve. It pulled him from thesafety of his community and into the dangers of strife-tornAfghanistan.

Tim, who had planned to retire from the NavyReserve at the end of his commitment, instead foundhimself, at the age of 42, training for war at Fort Jacksonin South Carolina, and being shipped to Kabul, the Afghancapital, where he is attached to International SecurityAssistance for the U.S. Army.

“The call came as a surprise to me since I am asurface warfare officer by training and have worked aboardDestroyers and Amphibious ships,” Tim wrote in an email.“The orders had me reporting for assignment to the UnitedStates Army.” At Fort Jackson Tim underwentmarksmanship and convoy training.

“I was then sent on for further assignment inKabul, Afghanistan. I arrived in theater around the firstweek of August.” Tim wrote. “As I arrived I was able torender honors at the airport for PFC David Badie ofRockford who had given his life in service to ourcountry in Afghanistan . I won’t ever forget that day at theairport (when) I arrived and he departed. My heart goes outto his family and all of those who have paid such a highprice for our freedom.

“I reached Kabul and was assigned to work aso p e r a t i o n s o f f i c e r a t t a c h e d t othe International Security Assistance force in Kabul. Wework under the commander in this theater, General DavidMcKiernon. He commands both the US forces, known asUS Forces Afghanistan, as well as the international troopshere. Most are NATO troops but not all. At the operationscenter I work with troops from England, Poland, France,Italy, Germany, Sweden, Ireland, Greece, Macedonia,Australia, and Canada, just to name a few. Most of us whodon’t work the night shifts start the day at about 7am andwork until about 10 at night.

“My work focuses on combat operations that areongoing throughout the country and I have a collateralduty of closely monitoring and investigating allegations ofcivilian casualties. I give weekly briefings to the Afghanministry of defense in Kabul and to their Ministry ofInterior which is the Afghan police headquarters. There isalso a contingent of officers here from Pakistan and I briefthem weekly on operations in the country.”

Tim said the deployment was hardest on his wife,Kathy, “who has had to raise our two boys (Braden, 4, and

Cole, 3) by herself and try to explain to them why I am notthere to play with them.”

It’s been hard on Tim, too, and though hegenerally doesn’t talk much about his feelings, he wrote,“I cried when I left them. I cry whenever I think aboutthem. I hope to be done crying the day I scoop them upinto my arms when I return.”

Tim hopes to return sometime between April andJune. In June he will have completed the one-year tour towhich he was assigned. He plans to retire from the NavyReserve at that point.

In the meantime, Tim faces the dangers of the warin Afghanistan which continues to escalate. He doesn’twrite about the war but when asked about a recent incidentinvolving a suicide bomber who killed six near a U.S.military base and German embassy, he responded: “Closeenough to see the fire and the smoke and feel the darnblast. Too damn close, in other words. Bad day today.Americans killed, Brits as well. Bad day.”

Tim is no stranger to peril. He joined the Navy in1989 after graduating from the University of Illinois witha B.S. in math and science for secondary education. Hesaw action in the North Arabian Gulf where he was part ofa Tomahawk Missile Strike Force in the first Gulf War.His ship, the USS Paul F. Foster struck a mine thatfortunately didn’t explode. He later did a second tour ofduty in the Persian Gulf where he was part of the “No FlyZone” operations.

Tim is a 1998 cum laude graduate of the NorthernIllinois College of Law. He worked briefly at a law firmin Ottawa, Illinois, but was glad to return to his family inWinnebago County and work for Reese and Reese wherethey keep his name on the sign outside the building onNorth Main Street and on their website. Tim practicesWorkers’ Compensation and Personal Injury.

Tim was born in Rockford and moved to theVillage of Winnebago where he graduated from the highschool. His parents, Bill and Rosemary, still live there.Tim is the sixth of seven children.

To know Tim is to know that he values his familyand friends above all else. And, to know Tim, it’s easy tovalue his friendship. He wrote this in one of his emails:

“Many have thanked me for my service over here,and it leaves me very humble especially when I rememberhow much others like PFC Badie have been called to do.I could not do this without the support of the (Reese)office, the community, and my family and friends. I havereceived letters and card and care packages from manyschool children in Rockford as well as family, friends,clients and co workers. The law office of Reese and Reese

(CONTINUED)

TIM NAILL Page 21has supported me while I have been here including carepackages and even helping my wife with watching ourboys while she gets groceries. My neighbors have pitched to help my wife from mowing the lawn to shoveling thedrive. For example, Robbie Martin of Winnebago who isin the Army Reserve and has deployed several times in thepast (including Iraq) has without so much as a phonecall shown up at the house (after) each snowfall to clear thedrive for my wife. Todd Schroeder and his wife Lisa andchildren have spent countless hours playing with my boysand helping my wife. How can you ever thank somebodyenough for that kind of help? “I have shared all the care packages with all thetroops from all over the world and words can ' t describehow grateful everyone is to know we are not forgotten overhere. So many have done so much all these years from theworld wars, Korea, Vietnam, to Iraq and Afghanistan notto mention those at home in police, fire, andmedicine, who save lives every day and who give somuch. They have done so much and we have so much tobe thankful to them for. I hope we can keep the peace andI hope to be home as soon as possible and thankeveryone in person for remembering us over here!” Before he left Tim asked for and received aWinnebago County Flag. Shortly before Christmas Timsent a photo of himself with two comrades holding the flagin the hills of Afghanistan. The photo now hangs in Room510 of the Winnebago County Administration Building.

If you want to email Tim, you can reach him atTNaill@aol.com. If you want to send him a letter or apackage, you can mail to Tim Naill; ISAF HQ- CJOC;APO AE 09365. (For security reasons, do not use hisrank.)

About the Author: WCBA member Tom Wartowski becamefriends with Tim in law school.

TIM NAILL Page 21has supported me while I have been here including carepackages and even helping my wife with watching ourboys while she gets groceries. My neighbors have pitched to help my wife from mowing the lawn to shoveling thedrive. For example, Robbie Martin of Winnebago who isin the Army Reserve and has deployed several times in thepast (including Iraq) has without so much as a phonecall shown up at the house (after) each snowfall to clear thedrive for my wife. Todd Schroeder and his wife Lisa andchildren have spent countless hours playing with my boysand helping my wife. How can you ever thank somebodyenough for that kind of help? “I have shared all the care packages with all thetroops from all over the world and words can ' t describehow grateful everyone is to know we are not forgotten overhere. So many have done so much all these years from theworld wars, Korea, Vietnam, to Iraq and Afghanistan notto mention those at home in police, fire, andmedicine, who save lives every day and who give somuch. They have done so much and we have so much tobe thankful to them for. I hope we can keep the peace andI hope to be home as soon as possible and thankeveryone in person for remembering us over here!” Before he left Tim asked for and received aWinnebago County Flag. Shortly before Christmas Timsent a photo of himself with two comrades holding the flagin the hills of Afghanistan. The photo now hangs in Room510 of the Winnebago County Administration Building.

If you want to email Tim, you can reach him atTNaill@aol.com. If you want to send him a letter or apackage, you can mail to Tim Naill; ISAF HQ- CJOC;APO AE 09365. (For security reasons, do not use hisrank.)

About the Author: WCBA member Tom Wartowski becamefriends with Tim in law school.

WINNEBAGO COUNTY BAR ASSOCIATION PRESENTS

BASIC SKILLS COURSE FOR THE NEWLY ADMITTED ATTORNEY

Thursday and Friday, April 23 & 24th

8:30 a.m. to 5:00 p.m. each day

Giovanni=s Restaurant 610 North Bell School Road

Rockford, IL 61107

This comprehensive, two day (fifteen hour) course will cover all areas required under Illinois= Minimum Continuing Legal Education.

WCBA Members-$200.00, Non Members $300.00 The Winnebago County Bar Association is an approved provider of

MCLE in Illinois.

Basic Skills Course April 23 & 24, 2009-WCBA Members $200.00 Non Members $300.00

Reservation deadline, April 21, 2009 Name(s) Please circle the names of those requesting vegetarian meals Amount enclosed $

Winnebago County Bar Association, 321 W. State Street Suite 300, Rockford, IL 61101

(815)964-4992

Choose from the following courses. Check website for new offerings.

Examinations Under OathRick L. Hammond • 1 Hour

Managing Yourself and Others – Professional Communication

and Relations Carol Semrad • 1 Hour – professionalism (ethics)

Insurance Defense ConflictsJill B. Berkeley • 1 Hour – professionalism (ethics)

Class ActionsHoward S. Suskin • 1 Hour

Perfecting AppealsChristopher S. Carroll • 1 Hour

Election Law – Getting on the BallotMichael J. Kasper • 1 Hour

Stress ManagementAlton Baird • 1 Hour – professionalism (ethics)

Social Security DisabilityJerrold Zivic • 1 Hour

Other courses available:Persuasion Through Storytelling • Suing Securities Professionals

Workers’ Compensation • Zoning and the First Amendment • Arbitration • Pro-Bono for the SoulCourt Organization, Rules, and Practice • Hospitality Contracts • Tax and Financial Planning

• Free View the course

without charge. Pay our low price only if you want MCLE credit.

• Convenient View online at your office

– at home – anywhere – anytime.

• Interesting Engaging interview format.

• Relevant Presented for Illinois attorneys, by Illinois attorneys.

No tests to take

Approved Online Video CLE Courses Only $19.95 per credit hour

Audio courses also available. Sample courses for FREE at www.MentorCLE.com

MentorCLE is presented by Professional Education Resource Corp., an Illinois attorney-owned company.

No subscription needed — Buy only the hours you need

CLASSIFIED Page 24Space Available Five lawyer office interested in someoneto share space and expenses. Some case referrals possible.Not a partnership. Need more information? Contact:Keith S. Morse at 967-5000.Office Space Available Great Location, across from Burpee Museum, 1800 sq. ft..Ideal for 2-4 lawyers or other professional business. Nicesize offices, large conference room separate break andcopy room. On/off street parking. Contact Rich or LuciButera (815) 962-9996.Storage Garages Available Storage space for yourvehicle, boat, camper or classic car. Four garagesavailable, each $50.00 per month. Close in. Call (815)399-2860Office Space for Rent Office space for rent in One CourtPlace. Closest building to the Court House entrance. Twooffices in a five office suite with space for secretaries.Will share office equipment and expenses. Please callBrian K. Larkin 815-964-4601.Office Space Morrissey Building 200 to 1000 square feetof prime office space in well-maintained, historic building.Cable t.v. & hi-speed internet available. Network withbankers, engineers, videographers, developers, the RiverDistrict and even lawyers, all in one building. Ask for Billor Joe, 965-5505.Office Space to Rent Space to rent, up to 4,200 squarefeet; floor plan allows for configuration to suit what youneed for your “suite” and to accommodate up to ten-pluslawyers. Includes 1,200 squar foot meeting area availablefor larger office use and /or subdivision. Ample off-streetparking, within walking distance to Courthouse. ContactDonald L. Shriver at 963-4895.Office Space for Rent Space available at 838 N. MainStreet. Parking and utilities included. Five offices; 1,100square feet; $1,200 per month. Call Peter DeBruyne at964-3810. Associate Attorney Employment OpportunityDowntown Rockford Law Firm seeks attorney with at least1-3 years litigation experience. Please mail or fax yourresume to FABIANO LAW OFFICES, Attn: ThomasFabiano, 321 W. State Street, Suite 1200, Rockford, IL61101. Fax (815)965-6782.Space Available - Interested in office sharing arrangementwith room for attorney and one staff person. Situated inprime Northeast location. If interested in developing abankruptcy practice, referrals possible. Available January1, 2009. For more information contact Barney Natale at(815) 964-4700.

Apartment for RentLargest of 4 Morrissey Loft Apartments at 1,400 squarefeet with huge window views of the beautiful Rock River,Millennium Fountain, Jefferson Street and State StreetBridges. Building included on the National Register ofHistoric Places and includes hardwood floor, whirlpooltub, indoor, heated parking for 2 vehicles, two elevatorsand centrally located to the YMCA, Metro Centre,Coronado Theatre, Burpee and Rockford Museums andDiscovery Center, Bike Path, Library and numerous FineDining Restaurants. Security Cameras and SecurityEntrance. Located in the heart of the River District. Joinother urban loft dwellers and enjoy the beautiful RockRiver from your own living room, terrace and roof! Call815.965.5505, Morrissey Law and Morrissey RealtyGroup, L.L.C.

Office Space for Rent. More than 1,000 square feet onMadison Street across from the YMCA tennis courts.Bungalow tastefully converted into office building andZoned C1. Clean and well-maintained. Wired for computernetwork. Large reception area, two offices and kitchen onfirst level. Available January 1, 2009. $850 triple-net. CallTom at 815-229-0277 or email tom@wartowski.com.

Office Space Available. 728 North Court Street. Suitablefor one or two lawyers or other professionals. Rents from$250.00 to $500.00 per month, including all utilities, offstreet parking, storage, small conference room, DSL andwireless connection. Contact Ken Ritz at 815-968-1807 orevenings and weekends at 815-962-5717.

Associate Attorney Mid-sized loop law firm seeksmotivated associate attorney for its practice. Attorneyposition available in our Rockford for attorney with 2-5years of defense litigation experience. Exceptionalorganizational, analytical and writing skills required. Weoffer a competitive salary & benefits package and anexcellent work envisionment. Send resume with salaryrequirements, academic history and references toSmithAmundsen, LLC, Fax 815-987-9891,HR@salawus.com EOC.Office Space Professional Office Space for Rent,Downtown Rockford. 5000 sq. ft, $2000.00 plus utilities.Call deb at (815)968-8332.

Prsrt StdU.S. Postage

P A I DRockford, ILPermit No 14