Vol 38. No.2 Winter 2014 | School of Law | SIU

Vol 38. No.2 Winter 2014

ARTICLES

The Art of Motions:  Understanding Illinois Civil Pretrial Motions

Steve L. Dellinger .................................................................... 183

This Article explores common civil pretrial motions in Illinois, primarily substantive motions under sections 2-615, 2-619, and 2-1005 of the Code of Civil Procedure.  It briefly addresses procedural motions, ethical aspects of motion practice, and how to draft and respond to a motion.  It relies on recent case law to articulate the distinctions between the substantive motions and provide the practitioner with an up-to-date understanding.  Examples are used to explain the various distinctions and what motion is appropriate in certain circumstances.  A section 2-615 motion is used to challenge the legal sufficiency of the complaint.  A section 2-619 motion is used to argue that the complaint is barred by an outside matter, not to contest the complaint’s factual allegations.  A section 2-1005 summary judgment motion is used to argue that no genuine issue of material fact exists and other fact-based arguments.  The Article discusses Illinois Supreme Court Rule 191 affidavits, how to attack an affidavit for failing to comply with the rule, and when affidavits are used to support section 2-619 and 2-1005 motions.

FOIA vs. FERPA/Scalia vs. Posner

Kristin Knotts .......................................................................... 241

Two different Illinois newspapers have sued the University of Illinois-Springfield (UIS) and the University of Illinois at Urbana-Champaign (UIUC) for the release of documents pursuant to Illinois’ Freedom of Information Act (FOIA).  These cases present somewhat new, interesting, and developing problems in the law, including, but not limited to:  the public’s right to information, student privacy rights, and whether a federal law like the Federal Education Rights and Privacy Act (FERPA) can override any state’s FOIA.  If the universities are forced to violate FERPA, or if the newspapers appeal a negative decision and file for certiorari, their cases could end up in front of the U.S. Supreme Court and Justice Scalia.  Since the UIUC case has already been before Judge Posner of the Seventh Circuit Court of Appeals in Illinois and the media has recently characterized him as Scalia’s foe, this Article examines their supposed contrasting judicial philosophies and determines just how each of them would decide the discussed cases.

The Penalty for Failing to Submit to an Examination Under Oath

James E. DeFranco ................................................................. 261

The state and federal courts have considered the appropriate remedy to provide insurance companies when their insureds fail to submit to examinations under oath or produce documents during claim investigations.  The courts have created a wide variety of remedies for the insured’s breach of the policy provisions, some of which frustrate the purpose of the requirements imposed on the insured by the insurance policy.  In this Article, the author argues that the courts should apply the fundamental rules governing the construction and enforcement of all
contracts and effectuate the purposes of the contractual requirements
placed on insureds when fashioning the remedy for the breach of those
requirements.

 COMMENTS

Shared Responsibility:  Time for Illinois to Adopt The Income Shares Model of Child Support

J. David Sanders ..................................................................... 281

Illinois child support laws are outdated and inconsistent with the majority of child support laws in other states.  Adopted by forty states and territories, the leading child support guideline is the Income Shares Model.  The design of the Income Shares Model is to level the financial playing field for both parents by considering both parents’ incomes as well as the financial and non-financial contributions of both parents.  Unlike the Income Shares Model, Illinois’ current child support model fails to recognize the existing societal change of both parents earning an income due to the subjective focus on the non-custodial parent’s net income.  Essentially, the child support laws in Illinois penalize the non-custodial parent and provide no incentives or financial compensation for parental involvement.

This Comment argues that Illinois should join the national trend and enact legislation adopting the Income Shares Model of child support.  First, this Comment will briefly discuss the history of child support laws in the United States and the different types of child support models.  Next, this Comment will examine the current Illinois child support statute and discuss the multiple deficiencies with the guidelines.  Finally, this Comment will provide an in-depth analysis supporting the reasons why the Illinois General Assembly should adopt the Income Shares Model and highlight important provisions the new statute should include

Qualified Immunity Not Accident-Proof, Official Discretion Advised: The Need to Clearly Establish the Right to Raise Qualified Immunity in Civil Rights Claims Under 42 U.S.C. § 1983 

Jessica R. Sarff ........................................................................ 309

The qualified immunity defense has been available to police officers defending civil rights lawsuits under 42 U.S.C. § 1983 since the landmark Supreme Court case of Pierson v. Ray in 1967.  However, since that time, the defense has evolved, and recent Supreme Court decisions have hinted that it may not be available to officers who make routine mistakes in the course of duty.  As a result, the lower circuits have split with regard to whether government officials are able to raise the defense as of right or whether they must first show an exercise of discretion before getting to the critical inquiry of qualified immunity:  clearly established law.  This Comment looks to the Court’s original purpose for the qualified immunity defense and argues that the appropriate solution is to completely remove any gatekeeping inquiry into discretion.  Such action would allow all government officials to assert the defense as of right and not only increase the efficiency of civil rights litigation in the courts, but also allow those claims to be decided purely on the basis of clearly established law.

 CASENOTES

Three Strikes, You’re Out:  A Swing and Miss at Challenges to Insurance Staff Counsel in Brown v. Kelton, 380 S.W.3d 361 (Ark. 2011)  

Dean W. Davis ........................................................................ 329

Under most standard insurance policies, an insurer has a duty to defend its policyholder in the event a third party brings a claim against that policyholder.  To fulfill this duty, an insurer may either retain a private attorney or use its own staff attorney to represent the policyholder.  Choosing the latter option has become common practice throughout the country, and with that decision comes certain challenges.  First, critics argue that the use of staff counsel by an insurance company constitutes the unauthorized practice of law by the insurer.  Second, opponents of the representation claim that the use of staff counsel creates an inherent conflict of interest for the attorney.  Challenges aside, the use of insurance staff counsel is thriving in modern-day America, as courts and ethics committees across the country have approved the practice.    

With its holding prohibiting the use of staff counsel by insurance companies in Brown v. Kelton, Arkansas joined only two other state jurisdictions with similar results.  The decision disrupted over fifteen years of sound, consistent legal opinions from other jurisdictions that support the use of insurance staff counsel to represent policyholders. 

This Note will argue that the Arkansas Supreme Court erred in its ruling because a more practical, well-reasoned outcome was available.  Specifically, this Note will contend that:  (1) the insurance company in Brown should have fallen into the exception to the Arkansas statute that prohibits corporations from practicing law because litigation involves an insurance company’s “immediate affairs”; (2) there is nothing unique about the relationship between staff attorneys and insurers that creates an inherent conflict of interest and this representation arrangement is beneficial to policyholders; and (3) the Brown opinion was short-sighted, as it failed to consider the potential impact on the citizens of Arkansas that may result from prohibiting the use of insurance staff counsel.

To Prison or the Brig:  Slamming the Door Shut on Military Mental Competency Defenses in United States v. Fry, 70  M.J. 468 (C.A.A.F. 2012)

Eric P. Wilber .......................................................................... 357

With the prevalence of autism and developmental disabilities in today’s society, the military courts have been asked to wrestle with the implications of enlisted soldiers who have these disabilities.  This issue is especially important because the Uniform Code of Military Justice (UCMJ) requires that soldiers have the mental capacity to contract for the enlistment to be valid, and therefore for the military courts to have jurisdiction of the case at all.  The nation’s highest military court, the Court of Appeals for the Armed Forces, recently addressed this issue in United States v. Fry by ruling that a developmental disability does not destroy federal military jurisdiction even if the soldier did not have the mental capacity to contract under state law.  This Note examines the decision in United States v. Fry and argues that the decision was incorrect because it confuses the legislative history of the article of the UCMJ conferring jurisdiction, invites error by military trial judges in the handling of developmental disability cases, and inconsistently applies Department of Defense policies to soldiers who have developmental disabilities.