Springfield stalemate

Springfield stalemate
December 2016
By David Thomas
Chicago Lawyer correspondent

With the dust settled after the Nov. 8 election, prominent bar associations have begun to craft their legislative agendas for an Illinois General Assembly that is still overwhelmingly controlled by Democrats who are still at odds with a Republican governor.

But no one — from prosecutors to criminal-defense attorneys, from trial lawyers to defense counsels — is anticipating the 100th legislative session to be the year to move and pass legislation to change how civil or criminal law is practiced in the state.

Bar association officials who spoke with Chicago Lawyer described the on-the-ground situation for bills affecting civil and criminal law as being “pretty much the same” or “status quo.”

“Things either move, or they don’t,” said Thomas M. Suffredin, who lobbies on behalf of The Chicago Bar Association. “Nothing’s happened in the election that completely changes the environment. It’s all pretty much the same, from a practical, day-to-day perspective.”

Barring a sea change in the legislature, bar group leaders said they expect partisan changes in civil and criminal law, like workers’ compensation and tort reforms, to be introduced as legislation but not to move in any serious fashion.

This means the only changes to civil and criminal law that will pass in Springfield are either technical changes that inspire no partisan resistance and criminal justice reforms that could move with bipartisan backing.

At the same time, bar association officials cautioned it was too early for them to speculate what their legislative agendas will look like beyond vague generalities. Nor do lawmakers in leadership have an idea of what the calendar will look like this spring.

“It’s really hard to tell, whether we get further bogged down than we have in the last year and a half — I don’t know,” said Rep. Barbara Flynn Currie, D-Chicago, the Democrats’ House leader. “There are so many imponderables, especially tempers. It might be a little testy from the last campaign.”

Turnaround on workers' comp?

Potential changes to the Illinois workers’ compensation system and other various tort reforms have become political footballs under the plan Gov. Bruce Rauner’s labeled as his “Turnaround Agenda.”

The Turnaround Agenda is a series of business-friendly reforms Rauner has been pushing since he took office in early 2015. Democrats have charged that the reforms would gut unions of their political power base.

In particular, Rauner has called for, among other things, raising the causation standard in workers’ compensation cases, in which workers would have to prove that the accident they allege occurred at work was “more than 50 percent responsible for the injury compared to all other causes,” as spelled out in the agenda itself.

As can be expected, the Illinois Trial Lawyers Association and the Illinois Association of Defense Trial Counsel are on opposite sides of this proposed change.

Christopher T. Hurley, the president of the ITLA and a partner at Hurley McKenna & Mertz, said the proposed causation change was a “complete sellout of the working man.”

“We’re going to fight that to the death,” Hurley said.

Meanwhile, R. Mark Mifflin, the president of the IDC and a partner at the Springfield-based Giffin Winning Cohen & Bodewes, said the workers’ compensation changes would make the system fairer to employers.

But the IDC is not a driving force of those reforms, Mifflin added. Rather, he said the governor’s office and the business community are behind them.

Rauner has also proposed placing restrictions on where plaintiffs can file lawsuits in an effort to prevent so-called “forum shopping.” As part of this, a plaintiff’s lawsuit would be dismissed if the defendant does not reside in Illinois or the cause of action did not occur in the state.

The changes Rauner has been seeking was codified into legislative language in House Bill 4248, introduced by House Republican leader James B. Durkin of Westchester. The bill is sitting in the House Labor & Commerce Committee.

So far, no aspect of the governor’s Turnaround Agenda has been approved by the Democratic supermajorities in the House and Senate. But the Nov. 8 general election saw the loss of the Democratic supermajority in the House, meaning Speaker Michael J. Madigan, D-Chicago, cannot override a veto from Rauner on a party-line vote.

Hurley and Mifflin disagreed whether the loss of the supermajority will lead to Democrats capitulating on some of Rauner’s priorities, including workers’ compensation reform.

“There may be difficulty overriding the veto,” Hurley said. “I don’t think any legislation which harms workers’ rights or the right to a trial by jury will not pass in the legislature.”

“I don’t think there has been a dramatic change in the circumstances,” Mifflin said. “But to this point, Governor Rauner has insisted upon some workers’ compensation relief in exchange for some of the items the Democrats want.”

Rauner’s insistence on these reforms led to him vetoing parts of the state budget in 2015, leaving state universities and social service agencies twisting in the wind for nearly a year. A stopgap budget was approved in June 2016 that funded state government until Dec. 31.

Lawmakers and the governor have not reached a solution on funding the state for the rest of the fiscal year. Currie insisted that the remaining funding be approved without stipulation.

“We did the half-year budgeting, and we did it without referencing the so-called Turnaround Agenda,” Currie said. “We can do it for the second half.”

In addition to the causation standard, both the governor and the IDC are looking to change the joint and several liability of defendants. Current Illinois law allows for one defendant to be on the hook for paying a plaintiff’s total recovery even if they were not 100 percent at fault. The governor’s Turnaround Agenda takes aim at this principle, framing it as the targeting of “deep-pocketed defendants.”

Under Senate Bill 2310 and HB 4426, the defendants in an injury lawsuit will have a better shot at being held only severally liable for an accident, thus paying a smaller amount of money to the plaintiff.

“We believe that it is patently unfair that the plaintiff’s calculations are based differently than the defendants,” Mifflin said. “It allows for the calculation of fault on everybody, like the plaintiffs do now, for the defendants too.”

Meanwhile, the ITLA is not pressing for any specific bill; it’s been on defense, Hurley said.

“We haven’t gained any victories,” Hurley said. “Ever since Governor Rauner was elected, he has been trying to dial back the rights of injured workers and injured people. To the extent he has been unsuccessful, I guess you would call that a victory.”

Tweaking the machine

Outside of these partisan priorities, lawmakers could pass a wide range of tweaks to existing Illinois civil law.

For instance, lawmakers could “sand off some of the rough edges” to the changes they made to the Illinois Marriage and Dissolution of Marriage Act, said James R. Covington III, the director of legislative affairs at the Illinois State Bar Association. The act’s overhaul came on the heels of other changes state lawmakers made to statutes governing maintenance, parentage and income shares in divorce cases.

Covington didn’t say what kind of changes needed to be made to the statute when pressed for details; instead, he framed them as being technical, noncontroversial and not dependent on who controlled the legislature.

“When major legislation is passed, there’s always tweaks needed. And this was four major changes in a couple of years that were related to each other,” Covington said in a follow-up e-mail.

Additionally, both the ISBA and the CBA support — and would oppose any legislative impediments — to a person’s ability to seek legal counsel or access-to-justice issues. Suffredin added the CBA is also supportive of more funding being directed to the state court system.

Improving criminal justice system

In terms of criminal law, the proverbial elephant in the room is the governor’s State Commission on Criminal Justice and Sentencing Reform — a group of criminal justice stakeholders, including prosecutors and lawmakers, who are charged with reducing the state’s prison population by 25 percent by 2025.

Since its creation, the commission has published the first part of its final report, which included a wide-ranging number of recommendations, including expanding the use of risk assessment tools by the Illinois Department of Corrections and allow certain offenses to be probational. Part One, which was published in December 2015, pledged that work on Part Two, which will look at broader sentencing reductions, would proceed “in the coming months.”

Meanwhile, lawmakers pushed their own criminal justice reforms, some of which appeared in the commission’s report. In August, Rauner signed into law bills requiring judges to view presentencing reports and explain prison sentences for some first-time offenders and allow juveniles to expunge their arrest records.

Getting reform bills passed in the legislature is a delicate balance: They have to have bipartisan backing, and the votes have to come from members who are in safe districts. Even with the statewide push to be “smart on crime,” Currie said no lawmaker wants to be slammed as soft on crime.

“People are very antsy of being … on the wrong side of criminal justice issues,” Currie said. “They’re very sensitive topics that have to be dealt with in a very sensitive fashion.”

Criminal justice reform is a multiyear project, said Stephen W. Baker, the legislative liaison for the Cook County Public Defender’s Office, a sentiment Currie separately agreed with. Baker is also the legislative liaison for the Illinois Association of Criminal Defense Lawyers and the Illinois Public Defender Association.

“If the advocates tell us, ‘I’m not moving forward without Republican sign-on,’ or they don’t want to move it until after the election, then you’re stuck,” Baker said.

Both Baker and Matthew P. Jones, the associate director for administration of the State’s Attorneys Appellate Prosecutor’s Office — who effectively acts as a lobbyist for prosecutors statewide — voiced similar sentiments regarding criminal justice reform. Both wanted to see broader changes as opposed to tweaks and both are watching the work of the governor’s sentencing commission.

But the underlying philosophies of prosecutors and public defenders — as espoused by Baker and Jones — mean the two sides will come into conflict. In general, prosecutors want greater independence to conduct their work, while public defenders want greater oversight by the court.

In Illinois, juveniles will be automatically transferred to adult court if they have allegedly committed certain crimes, and this transfer is one-way. Baker expressed support for legislation that would eliminate this transfer.

“Whether that would be doable this year, we are obviously supportive of more judicial discretion so that the prosecutor does not control the spigot totally,” Baker said.

Jones signaled he is more amenable to lowering criminal penalties for juvenile offenders, but not violent adult offenders. But before penalties can be lowered, Jones said more money has to flow to alternate programs first in order to combat recidivism.

“We want to look at, are you going to put more money into drug treatment and mental health treatment to make the existing diversion courts or diversion programs successful, or are we simply going to reduce penalties down with no meaningful way to get folks the services they need to not recidivate?” Jones said.

Jones indicated prosecutors are not looking to enhance criminal penalties. Instead, he is looking to defeat legislation that would adversely affect a state’s attorney’s ability to seize a person’s civil assets without actually charging them and “leftover” juvenile justice issues from the U.S. Supreme Court ruling in Miller v. Alabama, 567 U.S. 10-9646 (2012), in which the high court found that lifetime sentences for juvenile offenders are unconstitutional.