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PROGRAMS, EVENTS AND SERVICES OF THE WCBA

JUDGES’ NIGHT – An informal gathering to allow new (and not so new) members to meet and talk

to the Judges of the 17th Judicial Circuit.

THE LAWYER MAGAZINE – A monthly publication with Association news, seminars, case law

updates and general information relevant to members.

YOUNG LAWYERS SECTION – An active group of our “younger” members who regularly organize

social events throughout the year.

GENERAL MEMBERSHIP MEETINGS - Luncheon meetings with speakers, forums, and programsregarding community, legal, or law-related topics.

LAWYER REFERRAL SERVICE – A telephone and web-based resource which refers community

members seeking legal services to WCBA members.

COMMUNITY SERVICE COMMITTEE - A dedicated group that organizes service projects such

as bell ringing for Salvation Army at Christmas, serving food at Carpenter’s Place, or other projects

for local not-for-profit organizations in the community.

MEMORIAL SERVICE – An annual remembrance by the Association and the Judiciary to

recognize local attorneys who have died during the year and their contributions to the profession

and the community.

CLE PROGRAMS – Educational seminars planned and presented by WCBA practice area sections

throughout the year with Illinois MCLE accreditation.

WEBSITE - A source of Association news, including meetings, seminars, and member listings.

LAW DAY - An annual luncheon celebrating the role of law in our country with a distinguished

speaker or program.

SECTION MEETINGS – Lunch meetings of various practice are a Se ctions to discuss relevant

developments or topics of special interest to the group.

WINNEBAGO COUNTY BAR FOUNDATION – The charitable arm of the WCBA which annuallydistributes funds to law-related community organizations.

CLAMBAKE - Last, but certainly not least, the annual Association Golf Outing, complete with

lobster, prizes, and lots of sunburn.

Page 2

Membership Survey 2009

Please rate the services and activities of the association:

Services or Activity Not Important Important Very Important

Community Service Committee 1 2 3 4 5

Bar Foundation 1 2 3 4 5

Young Lawyers Social Events 1 2 3 4 5

Section Meetings 1 2 3 4 5

Judge’s Night 1 2 3 4 5

Lawyer Referral Service 1 2 3 4 5

Law Day 1 2 3 4 5

Annual Membership Meeting 1 2 3 4 5

The Lawyer Magazine 1 2 3 4 5

Clambake 1 2 3 4 5

Memorial Service 1 2 3 4 5

Website 1 2 3 4 5

CLE Classes 1 2 3 4 5

General Membership Meetings 1 2 3 4 5

Have you attended a General Membership Meeting in the last year? If no is it because: (please circle)

Cost? Topic? Time? Location?

What topics would you like to see presented?

Have you attended a CLE course put on by the WCBA in the last two years? If no is it because: (please circle)

Cost? Topic? Time? Location?

What topics would you like to see presented?

What do you value most in your membership in the Winnebago County Bar Association?

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SUPREME & APPELLATE COURT REVIEW Page 6

CIVIL

Newton Tractor Sales, Inc. v. KubotaTractor Corporation, No. 106798, 2009 WL 886866

(Ill. Apr. 2, 2009)

Following up on a Fifth District cas e that was

reported in this column in the August 2008 issue of The

Lawyer, the Illinois Supreme Court has overturned a line

of case law from the Fifth District of the Illinois Appellate

Court that had held that promissory estoppel may only be

pled as a defense and not as an affirmative cause of action.

In so doing, the Supreme Court resolved an inter-district

split of authority on the issue and conclusively held that

promissory estoppel is an affirmative cause of action in

Illinois.

The Fifth District has held for some time that

promissory estoppel may only be pled as a defense and not

as a cause of ac t ion-only as a "shield" and not as a

"sword." DeWitt v. Fleming, 357 Ill.App.3d 571 (5th Dist.

2005); ESM Development Corp. v. Dawson, 342

Ill.App.3d 688 (5th Dist. 2003). The Fifth District's

holdings in these cases relied on the court distinguishing

two Illinois Supreme Court cases in which prom is s ory

estoppel was discussed, Doyle v. Holy Cross Hospital, 186

Ill.2d 104 (1999) and Quake Construction, Inc. v.

American Airlines, Inc., 141 Ill.2d 281 (1990). Doyle, the

Fifth Distric t had held, was decided solely on promissory

estoppel and contract grounds. The Fifth District had also

reduced the Supreme Court's discussion of the elements of

promissory estoppel in Quake Construction as an aside

buried in "a scant two pages of its o therwise voluminous

opinion" that was not essential to its holding.

The Supreme Court rejected this reasoning of the

F if th District, holding that, not only had it actually

recognized promissory estoppel in Doyle and Quake

Construction ("In Quake this court affirmed the appellate

court judgment allowing plaintiff's promissory estoppel

claim to go forward, recognizing that promissory estoppel

is an available theory in the absence of a contract"), but it

had long done so in previous cases such as Bank of Marion

v. Robert "Chick" Fritz, Inc., 57 Ill.2d 120 (1974), and

Estate of Beatty v. Western College, 177 Ill. 280 (1898).

Furthermore, the Court explicitly adopted Section 90 of

the Restatement (Second) of Contracts as declarative of

I llinois law, and reaffirmed its own announcement of the

elements of promissory estoppel in Quake. In order to

establish a promissory estoppel claim in Illinois , "the

plaint if f must prove that (1) defendant made an

unambiguous promise to plaintiff, (2) plaintiff relied on

such promise, (3) plaintiff's reliance was expec ted and

foreseeable by defendants, and (4) plaintiff relied on the

promise to its detriment." Newton Tractor Sales, Inc.,

2009 WL 886866 at *3 (citing Quake Construc tion, 141

Ill.2d at 309-310).

The Court further commented that even if Illinois

c ase law did not establish that promissory estoppel is

available as an affirmative cause of action, the Court

would be unw illing to accept Kubota's argument that

promissory estoppel should be limited solely to defensive

actions based on the nature of common law promissory

estoppel and public policy concerns. Having concluded

that promissory estoppel is an affirmative cause of action

in Illinois, the Court remanded for a determination

whether the plaintiff had adequately pled a claim for

promissory estoppel.

In re Marriage of Rolseth, No. 2-08-1184, 2009

WL 1098989 (2d Dist. Apr. 20, 2009)

The Illinois Appellate Court recently held that, in

an action by a presumed father to declare the

non-existence of a parent-child r elationship, a 2008 order

vacating a determination of fatherhood contained in a

Judgment of Dissolution of Marriage issued in 1999 was

not barred by the two-year limitations period for relief

from judgments under Section 2-1401 of the Code of Civil

Procedure.

In 1999, Wesley and Sheila Rols eth were

divorc ed, and the Judgment of Dissolution of Marriage

included a marital settlement agreement in which the

parties agreed that they shared parentage of four children,

and c onsequently the Judgment of Dissolution provided

that Wesley pay child support accordingly. In June 2008,

Wesley discovered by DNA paternity testing that two of

the four children were not his biological children. On July

14, 2008, Wesley f iled a petition to declare the

non-existence of a parent-child relationship with respect to

those two children. That petition w as captioned with the

original case name and number of the original divorce.

The case appeared for hearing before the family

divis ion of the Kane County Circuit Court on July 28,

2008; Sheila appeared pro se and was personally served

with summons related to the petition in open court on that

day. As the court was hearing evidence and reviewing the

paternity test results , the court asked Sheila whether she

wis hed to hire counsel and if she wished for time to

res pond to the petition. She declined both of the court ' s

offers, and Wes ley and Sheila entered into an "agreed

order" in w hich the court ruled that Wesley is not the

father of the two children, and "To the extent that this

Order conflicts with the Judgment of Dissolution of

Marriage or any other prior order of Court, such prior

orders are hereby vacated only to the extent that they

evidence a finding of paternity, or obligation of support

related to [the two children]." In August 2008, Sheila filed

a motion to vacate the agreed order, which was denied.

She timely appealed.

The Appellate Court summarily rejected Sheila's

arguments on appeal that the agreed order was improper

SUPREME & APPELLATE COURT REVIEW Page 7

because it was not preceded by proper s ummons and

bec aus e she was not represented by counsel. On the

summons issue, the Appellate Court pointed out that the

agreed order could have been filed and entered without the

filing of Wesley ' s petition, much less summons.

Moreover, by her participation in the hearing and her

affirmative declination of the court's offer for additional

time to r es pond, Sheila waived her objection. The

Appellate Court was also unconcerned that Sheila was not

represented by counsel as she had expressly declined an

opportunity to obtain counsel.

Sheila's final effort to gain some traction with the

Appellate Court was to argue that Wesley's petition to

declare the non-existence of a parent-child relationship

was untimely because it was, in essence, a petition for

relief from the original divorce judgment under Section

2-1401 of the Code of Civil Procedure, but was not filed

within the required two-year per iod. The Appellate Court

rejected this argum ent, however, finding that Wesley's

petition, rather than being a petit ion for relief from

judgments under Section 2-1401, was actually a new

action filed under Section 7 of the Parentage Act, 750

ILCS 45/7. That section, among other things, allows a

presumed father to initiate an action to declare the

non-existence of a parent-child relationship where he

discovers by DNA testing that he is not the biological

father, and the relevant statute of limitations for suc h an

action is 2 year s f rom the time that the petitioner obtains

actual knowledge of the relevant facts, 750 ILCS

45/8(a)(4). T he authors note that Wesley might have

avoided all doubt whether the action was a new action by

filing a 2008 action in the Circuit Court captioned "In re

Parentage of" the two children, rather than filing his

petition with a caption under the original divorce case. In

any event, the Appellate Court found that Wesley's

petition was timely and affirmed the order of the Circuit

Court.

Adam M. Fleming is an

associate with the law f irm

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 LLP

A graduate of the

University of

Wisconsin-Madison

School of Law, he was

admitted to the practice

of law in Illinois in 1988.

CRIMINALSUPREME COURT OF ILLINOIS

Compiled From Illinois Courts Website

People v. Smith, People v Titus cons. __Ill

2d__ (No. 104685, 105575 filed April 12, 2009)

FACTUAL BACKGROUND: These separate Cook

County c r iminal appeals were consolidated in the Illinois

Supreme Court. Leratio Smith was charged in connection

with an armed robbery that took place in 1998 at Pete's

S idelines Bar in Chicago. Cash from the register w as

taken and a patron was fatally s hot in the chest after a

struggle. Adam Titus was charged in connection with the

2002 armed robbery and murder of a pizza delivery man

who was knocked down a flight of stairs, beaten and then

fatally shot in Harvey.

Each defendant was charged with first degree

murder, of which there are three forms-intentional,

knowing and f elony murder. Each defendant requested a

separate verdict form for felony murder and that request

was refused, with the juries returning general verdicts of

guilty in both cases. The validity of these murder

convictions is not at issue here, but the type of verdict

forms used had consequences for sentencing. Because of

these consequences, the circuit courts erred in refusing the

defendant's requests for separate verdict forms as to felony

murder, which would allow the s entencing court to

determine if each defendant was found guilty on this basis.

HOLDING: For a remedy, the supreme court held that the

general verdicts should be interpreted as findings on

felony murder for sentenc ing purposes. In Smith's case,

his convictions and sentences for murder and arm ed

robbery were affirmed, but his conviction and sentence for

attempted armed robbery was vacated. In Titus' case, his

conviction and sentence for murder were affirmed, but the

conviction and sentence for armed robbery was vacated.

T he c auses were remanded to the circuit courts for the

mittimuses to be corrected.

People v. Davison, __Ill2d__(No. 106219, filed

April 2, 2009) Opinion Justice Thomas.

FACTUAL BACKGROUND: In 2003 in Clark County,

this defendant was cited for driving with a suspended

license. A search of his pickup truck revealed a 30-pound

cylinder labeled as propane, but which contained

anhydrous ammonia. He was charged under section

20.5-6(a) of the Criminal Code of 1961, which makes it a

Class 1 felony to posses s or transport any poisonous gas

with intent to commit a felony.

At trial, evidence was offered as to the dangerous

properties of anhydrous ammonia, and , in this appeal,

there was no dispute that the defendant had possessed it

with intent to use it in the manufacture of

methamphetamine (a felony). This jury returned a

(CONTINUED)

SUPREME & APPELLATE COURT REVIEW Page 8

conviction and a 26-year sentence was imposed, but the

appellate court reversed.

HOLDING: The term "poisonous gas" is not defined in the

statute. One possible m eaning of the term "poison gas"

(w ording not used in the statute) refers to chemic al

warfare. Because of this, the appellate court found

ambiguity and proceeded with statutory construction,

reaching the conclusion that the legislature was intending

to refer only to gases used in chemical warfare, which

anhydrous ammonia is not.

In this decision, the s upreme court reversed the

appellate court and upheld the conviction. The appellate

court should not have advanced to the stage of statutory

construction because the language of the enactment is not

ambiguous. The dictionary defines a "poisonous"

subs tanc e as one which is harmful or fatal in sufficient

quantities, and the meaning of the statute is, therefore,

clear in covering anhydrous ammonia. Poison gas is

merely a subset of poisonous gas. The appellate court's

judgement was reversed and the defendant' s c onviction

was affirmed.

People v. Cardamone, __Ill2d__(No. 106 200, filed

March 19, 2009) Opinion by Justice Garman.

FACTUAL BACKGROUND: In the circuit court of Du

Page County, this defendant received a three-year sentence

on his bench-trial convictions for two counts of

harassment of a witness, and the appellate court affirmed.

Proceedings had been going on at the Du Page

County courthouse in a different matter in which

Cardam one had been charged with criminal wrongdoing.

The individual who was alleged in the instant proceeding

to have been harassed was the mother of the victim in that

other case and her familial relationship with that victim

was the basis for one of the harassment counts. The other

harassment count was based on the fact that she was also

a witness in that other matter.

A hearing was held in the other c ase at the Du

Page County courthouse in 2004. In leaving the

courthouse separately by car, the mother and Cardamone

traveled the same route. Defendant, following behind the

mother, made a 911 call to report that she was a drunken

dr iver, and the mother was subsequently stopped by

police. However, the allegations against her could not be

substantiated. She testified that this made her very upset.

Defendant's 911 call w as the bas is for the

witness-harassment charges here. It was also the basis for

the defendant's conviction on three counts of disorderly

conduct for filing a false police r eport, which the

defendant did not appeal.

HOLDING: In this appeal, the defendant theorized that he

c ould not be convicted without showings that the alleged

victim was put in fear of harm c onc erning her person or

property and also that the defendant intended her to know

who he was, showings which, he claimed, were not made

here. However, in this decision, the supreme court held

that these are not offense elements. The supreme court

also found the evidence was otherwise sufficient to

convict the defendant of witness harassment because, with

requisite intent, it showed he comm unicated with the

witness (indirectly through police) in such a manner as to

produce mental anguish or emotional distress.

The convictions stand affirmed.

People v. Howard, People v. Holland, __Ill2d__(No. 104608, 105022 cons. Filed March 19,

2009) Opinion by Chief Justice Fitzgerald. Concur -

Justice Freeman, Garman, Karmeier , and Burke. Dissent

- Justice Thomas, joined by Justice Kilbride.

FACT UAL BACKGROUND: In these two appeals from

Cook County, convicted individuals had received

gubernator ial pardons that specifically authorized

expungement of their criminal records. In each c as e, a

petition requesting such expungement was denied by the

circuit court in 2005.

HOLDING: In this decision, the supreme court reviewed

the applicable statutory language and held that a circuit

court may exercise its discretion in ruling on a pardoned

person's petition to expunge.

In the case of Stanley Howard, the appellate court

believed that statute provided for automatic expungement

and r eversed the circuit court's refusal to grant relief,

remanding for entry of an expungement order. In this

decision, the Illinois Supreme Court held that the appellate

c ourt had been incorrect in its view that there was an

automatic right to expungement. The appellate court's

judgement remanding for an order of expungement was

reversed.

In the case of Dana Holland, the appellate court

held that the circuit court retained discretion. It remanded

to the cir c uit court for further consideration. In this

decision, the supreme court affirmed that result.

Lawrence Bauer is the

director of the Off ice of the

State’s Attorney Appellate

Prosecutor-Second District.

He is a graduate of the

Valparaiso University

School of Law. Mr. Bauer

was admitted to the practice

of law in Illinois in 1976.

WONDERFUL MEMORIES OF SUMMERS PAST & A MEMORABLELAWYER ROLE MODEL Page 13

BY SUSAN K. RIEGE, J.D., L.L.M.

Ever since I was a young child, I’ve looked

forward to summer with great anticipation. Only in

summer could I and my friends play outside in the evening

hours, chase fireflies, play tag, and breathe in the sweet

fragrance of rose and honeysuckle. Only in summer, when

we were freed from c las sroom lectures and nightly

homework, were we free to learn from simply

experiencing life and being with each other. In summer,

too, we were able to go swimming. My friends and I spent

many a summer day at the Surf Club which, unfortunately,

is no more. It was a wholesome family-oriented place

where we could easily pretend that we were on vacation by

a real lake or by the ocean. Instead of just being with our

families, however, we were with our friends. It was great.

For me, however, the best part of summer was my

family’ s almost annual visit to the New Jersey shore--

Ocean City, New Jersey to be exac t . How I loved (and

s t ill love) Ocean City! I first visited there when I was a

tiny tot. We made our annual pilgrimage there to see my

mother’s family. My mother was one of nine children.

They grew up in Woodbury, which is a New Jersey suburb

of Philadelphia. She was one of nine children and all of

them lived within an hour of Oc ean City. Growing up,

Ocean City was her second home. She and her brothers

and sisters worked part-time at their family’s pharmacy

soda fountain there to earn money for college. They also

spent many a day sunning on the little beach nearest to

their summer home and many a summer evening telling

jokes and discussing politics. Every spring, I’d start

yearning to be in Ocean City. In my mind I’d visualize the

ocean, its breaking waves, its sandy shores. I’d also smell

the ocean breeze, taste its salt, and walk the boardwalk

long before we ever arrived in Ocean City. My inner

compass was programmed to go ‘home’ to New Jersey. It

still is.

Every year I yearn to make the journey to Ocean

City even though those idyllic summer evenings spent with

my relatives are no more. The ocean calls me home. Near

the ocean, I feel centered and at one with the universe. All

my worries are washed away and I am reinvigorated.

There I also get in touch once more with the ideals and

traditions of my mother’s family, which I adopted whole-

heartedly. My mother’s family was all about educ ation.

Learning was very important. So were the twin duties of

being a person of integrity and always doing one’s best.

Today, I cannot otherwise strive.

Why do I share these very personal summer

mem ories with the readers of The Lawyer? My reasons

are tw o-fold. First, I hope that my sharing of memories

will perhaps enable others to evoke their cherished

summer memories. Lawyers as an occupational group

tend to work so hard. A large part of their w ork day is

typically spent reading voluminous amounts of technical

materials. They work in a field that has very high

expectations of its members and little tolerance of human

frailty. Their clients are very often in a stressed state or in

a rush to obtain the legal results they want. Lawyers, who

tend to be high achievers, often respond to the demands on

them by w orking feverishly hard and foregoing time with

their families and friends. Sometimes, I believe, simply

evoking pleas ant memories of things like summers past

can help those whose work is so consuming to touch base

with their inner beings again and put their work in

perspective. That, I think, is a good thing.

The other reason I share these memories with

readers of The Lawyer is that they are linked for me with

my memories of the person who inspired m e by his

example to be a lawyer. That person was my “Uncle Joe”

-- Josiah E. DuBois, Jr. to be exact. We’d visit him each

time we traveled to Ocean City. As a small child, I did not

know that he was a lawyer. I knew simply that he was my

favorite uncle--an uncle that was always ready to turn me

upside down and ‘throw me in the garbage can’ [to my

squealing delight]. He was also the uncle who taught me

how to ‘body surf’ the waves at the Ocean City beach. As

I grew a bit older, I came to adm ire his intellect. Uncle

Joe played chess with great expertise. He was able to play

several games simultaneously and could visualize the

movement of the chessboard pieces in his mind. He also

was an astute observer of the political scene, having

worked in Washington, D.C. for several years. I loved to

engage in political debate with him. We’d sit on the

screened porch of my mother’s family summer home and

talk for hours about the politics of the day. We’d also all

share jokes, most of which involved w ord play.

Sometimes I’d laugh so hard that my sides hurt.

By the time I was in fourth grade or so, I also

came to appreciate deeply Uncle Joe’s character. He

always stood up steadfastly for what was right and just.

He never hesitated to defend the underdog. He never ‘put

on airs’. He was a fun person to be around. I wanted to

be like that. I wanted to be like him. Uncle Joe was a

lawyer-- a fine lawyer. His career took off like a shot after

his graduation from the Univer s ity of Pennsylvania law

school. This was in no small part due to his having been

recomm ended for, and having secured, a position as a

government lawyer in the Roosevelt adm inistration during

World War II. Many young people of that t im e were

catapulted into prominence during this era.

In my mind, however, Uncle Joe stood apart from

the r es t . That is because of the role he played in saving

the Jews from the concentration camps. To explain, he

discovered while working for the U.S. Treasury

SUMMERS PAST Page 14

Department that the U.S. State Department knew that Jews

w ere being exterminated in the German concentration

camps but that the Roosevelt administration, although

alerted to the situation, was doing nothing to stop the

slaughter. His conscience would not allow him to remain

silent. He alerted U.S . Secretary of the Treasury

Morgenthau to the situation and threatened to resign then

‘blow the whistle’ on the U.S. government c ontinued to

‘turn a blind eye’ to the taking of innocent lives. Secretary

Morgenthau in turn pressured President Roosevelt to act.

The rest is history. The United States eventually helped to

liberate the Jews from the German concentration camps

while helping to lead the Allies to victory.

After the war, Uncle Joe served as an assistant

prosecutor at the Nuremburg trials. So that the atrocities

committed in the concentration camps would never be

forgotten, he also wrote a book about his Nuremburg

experiences. Not long after his work at Nuremburg w as

done, he left government service to join his brother’s New

Jersey law firm as a partner. He worked there as a litigator

for the rest of his lif e, ultimately cherishing small town

family life and private practice more than his life of

prominence as a government attorney.

Growing up, it never ceased to amaze me that

Uncle Joe could come across as such a humble man in his

everyday life but be such a formidable attorney in court.

It never ceased to fascinate me that this uncle of mine, the

great litigator, was at the same time so very human. While

contemplating case strategy, he’d ride his bicycle up and

down the streets near his home. He liked nothing more

than simply visiting with friends and f amily . Uncle Joe

was, simply put, my hero. This was due in no small part

to my admiration of his character. However, it was also

due to my admiration of the work he did as a law yer . I

was fascinated by the w ay he analyzed legal problems.

Like many lawyers, he carried his legal analysis skills over

to his analysis of life in general. Today, I, too, enjoy

engaging in legal analysis. Indeed, I never stop analyzing.

While I c annot ever hope to the same caliber attorney as

my Uncle Joe, I do hope that I will be able to have the

same integrity as he did.

Summer memories… an attorney to remember. In

my mind, due to my family history, they are linked. In

c losing, let me ask the readers of The Lawyer the

following: Who inspired you to become a lawyer? Do

you have any stories about what ins pired you to be a

lawyer that you’d like to share? I, for one, would love to

hear them. I’m sure others in our legal community would

love to hear them, too.

Have a wonderful summer everyone, one filled

with memorable moments.

Winnebago County Bar AssociationSixty-Fourth Annual

CLAMBAKEFriday, July 31st, 2009

MACktoWn ForeSt PreServe12 Miles North of Rockford on Route 2

ReseRvations Must be Made be july 24th. absolutely no Refunds.

Tickets will be mailed approximately July 27th. No RefuNds!Reservations for tickets must include the name and address of each lawyer or judge and the name and office of each public official.

ReseRve By FRiday, July 24th ONly 325 tickets tO Be sOld

MAil to: Winnebago Country Bar Association 321 W. state street - suite 300 - Rockford, il 61101name: address:

Enclosed find:$___________for ___ WCBA Tickets with Golf @ $130 ea.$___________for ___ WCBA Tickets - Food Only @ $100 ea.$___________for ___ Non-Member Tickets with Golf @ $170 ea. $___________for ___ Non-Member - Food Only @ $140 ea.$___________for Clambake Shirts @ $10 ea. Size M, L or XL

Reservations desired:GolF: two shotgun starts7: 30 a.m. or 1:00 p.m. (Please circle one)NO GuARANTEES! Only 265 Golf Reservations Available.CARTS INCLudEd IN TICkET PRICE.

Foursomes include: (indicate dinner choices)______________________________ Lobster Tail & Chicken or Ribs & Chicken

______________________________ Lobster Tail & Chicken or Ribs & Chicken

______________________________ Lobster Tail & Chicken or Ribs & Chicken

______________________________ Lobster Tail & Chicken or Ribs & Chicken

you will be contacted by mail with your assigned golf playing time.

lunCh 11:00 A.M.-2:00 P.M.Clam Chowder - Shrimp - Oysters on the 1/2 Shell - Bratwurst - Chicken Wings - Hamburgers - Italian Sausage - Shrimp deJonghe - Shrimp Jambalaya

Dinner 6:00-7:30P.M.Lobster Tail & ChickenoRBarbeque Ribs & Chicken

PriCeWCBA members All day with Golf - $130food only $100

Non-members All day with Golf - $170food only $140

due to limited facilities, attendance restricted to lawyers, Judges, elected Officials, and Sponsors.

Clambake 2009Winnebago County Bar Association

P R YT

like a lobster

2010MANDATORY ARBITRATION HEARING DATES

WINNEBAGO and BOONE COUNTIES

8:30 a.m./10:45 a.m.

Wednesday Monday Tuesday Thursday

January 13 Holiday 19 21

February 10 Holiday 16 18

March 10 15 16 18

April 14 19 20 22

May 12 17 18 20

June 9 14 15 17

July 14 19 20 22

August 11 16 17 19

September 15 20 21 23

October 13 18 19 21

November 10 15 16 18

December 8 13 14 16

Page 18

OBITER DICTUM Page 20

This summer, among all of the other topics which

will inundate in the political or government realm

(bailouts, tax hikes, budget w oes, etc.), we will now be

able to watch the sport of judicial confirm ation, with the

announcement of a vacanc y on the Supreme Court bench

and the selection of Judge Sotomayor as the first candidate

of the new administration. After only a week or so of this

new “news”, one harkens back to the good old days – pre-

Youtube and instant reporting via the Internet – of partisan

bickering and ideological arguments between the two

bastions of our freedom and liberty: not the Democrats

and Republicans, but the liberals and conservatives?

Just over two decades ago, before C-SPAN was a

household name and cable news w as still the wide-eyed

idea of some young newshound, Robert Bork was

nom inated to a position on the Court – and bloodlet t ing

ensued between the ideologues and politicians toward a

final showdown rejecting the appointment (under the

committee led by our current vice-president). Short years

later, most of us remember the sordid depths to which

testimony sank over the qualifications of Clarence Thomas

– different result as to appointment, but an equal amount

of vitriol and casualties (including relevant facts).

Confirmations have been f ar less exciting since

then – while there have been some headlines over judicial

philosophy with more recent select ions, none have

garnered the publicity or f ever of Bork or Thomas.

UNTIL now, when the media presented Mr. Obama’s

selection as the first Latina nominee – addressing both the

race and sex characteristics in one fell swoop. Already we

have heard how any challenges against this nominee

smacks of racism, while certain comments and soundbites

f rom the nominee herself tends to raise a question of

whether she maintains the objective lack of bias that we all

expect our jurists to possess.

Conventional wisdom is that, regardless of the

news stories over the next few w eeks, Judge Sotomayor

will, before Labor Day more than likely, be Justice

Sotomayor. That fact does not create a reason to ponder

the process – nor does the anticipated mischaracterizations

of inquiries by both sides during the confirmation process,

nor the slanted views from the media (from MSNBC to

Fox). But perhaps we should consider whether this

discussion over r ace and sex is of impact to us, not at

Washington’s level but at a level more important to those

of us here in Winnebago County – the judicial polls and

the questions as to bias.

In all polls for the past several years, a question is

posed for each respondent to grade various judicial

applicants (or sitting judges, for r etention purposes) on

sensitivity to diversity . Is there one way to consider that

question? Does that mean that we should consider

whether the subject exhibits bias or subjective signs

against a particular class or group (based on s ex, creed,

race, etc.)? Does that mean that we should consider if

there is bias in favor of a particular class or group?

Should the goal be c om plete neutrality – after all, a judge

is to rule based on the applicable law applied to the facts

presented to him or her, regardles s of who stands before

the bench, right? But c an complete neutrality – being

oblivious to a party’s characteristics – lead to a claim that

the subject fails to possess the sensitivity needed for the

position?

In the current swirling of news c yc les , Ms.

Sotomayor is quoted as stating she would hope a wise

Latina woman, rich in experience, would be more likely to

reach better conclusions than a white man who has not

lived her life. Certainly the context of the statement must

be viewed to determine a more appropriate meaning than

has been ascribed by some m edia and talking heads. The

surrounding text of the speech seem to evidence her

introspective conclusion that she brings a different life

experienc e to the bench than, for example, a white man.

Recognizing such differences is an inherent fac t of life –

no two people have the same life experience, so no two

people will interpret facts presented in the exact same

manner. Variances certainly exist between sections of our

communities (race, sex, wealth, family dynamic,

neighborhood, etc.). But does a candid admission of

difference in exper ience prove the sensitivity to diversity

sought in our local judicial polls – or does it evidence an

inherent bias or pre-occupation with a topic that actually

contradicts the neutral goal of an unbiased and

dispassionate jurist who focuses on the law and facts, and

not the parties before the bench?

Maybe as the confirmation hearings move

forward, we may all obtain insight into the issue of

sensitivity to bias and what is expected from our judges.

Knowing the cast of characters involved in the hearings, I

am not optimistic we will advance our level of true

knowledge. Is the goal similar to something Chief Justice

Roberts wrote a few years ago, commenting that

government will not s uc c eed in finding an end to

discrimination until it ceases categorizing people based

upon discrimination? Or are the observations akin to

Judge Sotomayor the true example of the sensitivity that is

now considered another factor in judging our judges? We

are fortunate, in this c ircuit, to have a wealth of jurists

(Continued on Page 21)

BRIAN L. BUZARD APPOINTED WINNEBAGO COUNTY LAWLIBRARIAN Page 21

Brian L. Buzard has been appointed the Director

of the Winnebago County Law Library, replacing the

venerable and long serving Robert Lindvall who retired

last October. Brian says he doesn’t know haw to respond

when asked where he’s f rom as he was born in Denver,

Colorado but grew up in Simsbury, Connecticut.

Following high school graduation Br ian did his

undergraduate work at Columbia College in the City of

New York, receiving a BA in economic s in 1980. There

followed a varied business career in insurance, building

materials and industrial gas sales.

When asked how he ended up in I llinois he

explained his wife, Connie Augsburger, grew up in

DeKalb and went to law school in Connecticut, so since he

grew up in Connecticut he had to go to law school in

DeKalb in order to maintain the balance of ‘karma’ in the

universe. Graduating from N.I.U. with a JD in 1991 Brian

was in private practice with Connie for fifteen years in

Ogle County, w here they have a daughter (graduating

senior) and a son (starting high school).

Dec iding to change his career course somewhat

Brian obtained a Mas ters degree in Library and

Information Science in 2008 at the University of

Wisconsin- Milwaukee. He now looks forward to serving

the diverse constituencies’ that use the Winnebago County

Law Library.

CIVIL JURY REPORTJUDGE: Hon. Gwyn Gulley

CASE NAME AND NUMBER: Valerie Wynn and

Donald Wynn v. Jacqueline Foltz, 2006 L 52

PLAINTIFFS' ATTORNEYS: Kar l Szym ans ki and

Jonathan Schaefer, The Szymanski Koroll Litigation

Group

DEFENDANT'S ATTORNEY: Beth Groncki, Howard &

Hardyman, LLP

FACTS: The Defendant admitted liability in a rear

end auto accident. Plaintiff, Valerie Wynn, underwent five

years of chiropractic treatment, several phys icians' visits

and a stress test which were alleged to be related to the

accident. Plaint iff, Donald Wynn, claimed loss of

consortium as the result of the accident.

INJURIES: Soft tissue, neck and back

SPECIALS: $11,485.65

PLAINTIFFS' EXPERT: Dr. Jacob G. Caraotta,

Caraotta Chiropractic Orthopedics

DEMAND: $25,000.00

OFFER: $20,000.00

ASKED OF JURY: $ 6 , 3 3 8 . 1 7 b y D e f e n d a n t .

Approximately $170,000.00 by Plaintiffs.

VERDICT: $6,338.17 for Plaintiff, Valerie Wynn. For

Defendant on loss of consortium claim.

LAW LIBRARIAN PRACTICE TIP(an ongoing example of the blind leading the …)

Prac tic ally every IICLE title the library has

received the last few years has come with a CD-ROM that

has the forms and examples in Rich Text Format (RTF).

RTF is easily imported into word-processing programs like

Word or WordPerfect. So if you want to save yourself the

15¢ per page charge for copying and save your secretary

the time to re-transcribe, bring a USB drive (thumb-drive,

flash-drive or whatever you c all it ) to the library and

download to your hearts content. This works for jury

instructions too.

OBITER (continued from Page 20)

who, despite their varied backgrounds and experiences,

take great effort to dispense justice based upon the f ac ts

and law before them – regardless of what a party looks

like, and sometimes despite a par ty baiting them on an

alleged issue of bias . I t is a shame our judicial selection

process is not more like the impending battle – not because

we need the limelight, but because we would probably

focus much better on the true important factors guiding the

selection of a judge than those in D.C. under the camera's

eye arguing over how a comment years ago will accurately

predict the type of justice any nominee will become. It is

readily accepted that Jus t ic e Souter turned out a lot

different than President Bush (41) expected – who knows

how Ms . Sotomayor may evolve after confirmation and a

few years on the Big Bench?

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090226

Winnebago County Bar Association

Family Law Golf Outing & DinnerThursday, August 27, 2009

Golf-Aldeen Golf Course

Dinner-Franchesco’s Ristorante

Tee times starting at 1:00 p.m.

Cocktails starting at 6:00 p.m. Dinner sometime thereafter

Open to all WCBA members and Family Law Attorneys

Limited number of tee times available RESERVE NOW!

Send reservation to: Attorney Gerry Shelton,

321 W. State Street Suite 1204, Rockford, IL 61101

Name:___________________________Phone:________________

Each golfer will pay for golf at the course.

Are you golfing? Circle One YES NO

Preferred golf partner/foursome/tee time:_____________________

_____________________________________________________

Dinner @ $30.00 per person, make check payable to

Kalivoda & Shelton Trust Account.

Circle choice of entree:

Veal Parmigiana, Chicken Parmigiana, Baked Cod or Vegetarian

YES! (Circle) Sign me up for the Family Law Section!

Prsrt StdU.S. Postage

P A I DRockford, ILPermit No 14