Coronavirus impacts even the taking of depositions in Illinois

Before the world ended, Illinois Supreme Court Rule 206(h) provided:

Remote Electronic Means Depositions. Any party may take a deposition by telephone, videoconference, or other remote electronic means by stating in the notice the specific electronic means to be used for the deposition, subject to the right to object. For the purposes of Rule 203, Rule 205, and this rule, such a deposition is deemed taken at the place where the deponent is to answer questions. Except as otherwise provided in this paragraph (h), the rules governing the practice, procedures and use of depositions shall apply to remote electronic means depositions.

(1) The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties.

(2) Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition.

(3) Nothing in this paragraph (h) shall prohibit any party from being with the deponent during the deposition, at that party’s expense; provided, however, that a party attending a deposition shall give written notice of that party’s intention to appear at the deposition to all other parties within a reasonable time prior to the deposition.

(4) The party at whose instance the remote electronic means deposition is taken shall pay all costs of the remote electronic means deposition, unless otherwise agreed by the parties.

Now, at the end of the world, any depositions will be remote depositions.

And the old rule runs afoul of new social distancing requirements -- requiring the court reporter to be with the witness, for example.

So, yesterday, the Illinois Supreme Court issued a new, temporary Rule 206(h) (new language indicated by underscore, deleted language indicated by strikeout):

Remote Electronic Means Depositions. Any party may take a deposition by telephone, videoconference, or other remote electronic means by stating in the notice the specific electronic means to be used for the deposition, subject to the right to object. For the purposes of Rule 203, Rule 205, and this rule, such a deposition is deemed taken at the place where the deponent is to answer questions. Except as otherwise provided in this paragraph (h), the rules governing the practice, procedures and use of depositions shall apply to remote electronic means depositions.

(1) Reserved. The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties.

(2) Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition, unless the deposition participants are able to view the exhibits in real time during the deposition.

(3) Reserved. Nothing in this paragraph (h) shall prohibit any party from being with the deponent during the deposition, at that party’s expense; provided, however, that a party attending a deposition shall give written notice of that party’s intention to appear at the deposition to all other parties within a reasonable time prior to the deposition.

(4)The party at whose instance the remote electronic means deposition is taken shall pay all costs of the remote electronic means deposition, unless otherwise agreed by the parties.

(5) Time spent at a remote electronic means deposition in addressing necessary technology issues shall not count against the time limit for the deposition set by Rule 206(d), by stipulation, or by court order.

(6) No recording of a remote electronic means deposition shall be made other than the recording disclosed in the notice of deposition.

Even lawyers are beset by technical difficulties (actually I think we may be more prone to these than most) -- so the new rule wisely provides that technical difficulties will not count against the three-hour deposition time ordinarily permitted for depositions.

Also note the order stresses that no recording other than that provided for by notice will be permitted -- although you have to wonder who is going to take a video deposition of a picture on a laptop in the first place....

We are now all involuntary experts in Zoom -- and recordings can be made of Zoom meetings.

But not legally.

Court proceedings are now taking place every day on Zoom -- and the Circuit Court of Cook County has made it abundantly clear that "any video recording, audio recording, photographing and/or reproducing of the livestream is strictly prohibited. The recording, publishing, broadcasting or other copying or transmission of courtroom proceedings by video, audio, still photography or any other means is strictly prohibited by Illinois Supreme Court Rule 68(A)(8) and is subject to the penalties for contempt of court."

In other words, don't do it.

And, while we're on the subject of don't do it, the Supreme Court issued a comment with the new, temporary rule 206(h):

Where a deponent testifies from a remote location and no neutral representative or representative of an adverse party is present in the room with the testifying deponent, care must be taken to ensure the integrity of the examination. The testifying deponent may be examined regarding the identity of all persons in the room during the testimony. Where possible, all persons in the room during the testimony should separately participate in the videoconference. In furtherance of their obligations under Illinois Rules of Professional Conduct 3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), and 8.4(d) (Misconduct), counsel representing a deponent should instruct the deponent that (a) he or she may not communicate with anyone during the examination other than the examining attorney or the court reporter and (b)he or she may not consult any written, printed, or electronic information during the examination other than information provided by the examining attorney. Unrepresented deponents may be similarly instructed by counsel for any party.

An attorney who produces a client or other witness for deposition without properly admonishing the witness along these lines may wind up with an ARDC beef if it develops that the witness had a coach or some other undisclosed crutch off camera.

The most solid foundation for the stay-at-home orders is...

...the willingness of people to abide by them. Consensus. The consent of the governed.

Like it or not -- and, if you've been paying attention at all, you know that Gov. J.B. Pritzker does not like it -- the courts are going to get increasingly involved in the questions of what authority the Governor has to implement the many restrictions he has imposed on our day-to-day lives during this coronavirus crisis and whether the Governor has exceeded that authority.

Among the latest challenges is this Complaint, filed by another Republican State Representative, John Cabello.

The Attorney General has, as the Governor has promised he would, asked the Supreme Court to take the appeal directly in the Bailey matter and bypass the Fifth District Appellate court (you can access the Governor's Emergency Motion for Direct Appeal Under Illinois Supreme Court Rule 302(b) and/or Supervisory Order Under Illinois Supreme Court Rule 383 by clicking here).

The deeper you get into the weeds on these questions of authority, the more likely you are to find flaws.

That's not a knock against Gov. Pritzker or his legal team. They are trying to pay attention to the requirements of the law but they are understandably distracted by the demands of reality: People continue to get sick from the COVID-19 virus. Not all of them get better. And a lot of those who do get sick will need extensive hospitalization, potentially swamping our medical systems -- but for the stay-at-home orders.

Gov. Pritzker and the other authorities who talk seriously about this crisis are extraordinarily deferential to the "experts" -- the epidemiologists, the mathematicians, the doctors -- who have prescribed these life-altering stay-at-home orders.

But these men and women are not asking us to shelter in place because they know so much about the coronavirus. On the contrary, their advice is based on the fact that they know so little about it. Remember, just a couple of months ago, these same experts were absolutely convinced that you could not get the disease unless you got sneezed on by someone recently arrived from Wuhan, China.

The experts have learned an awful lot in the last eight or 10 weeks, and they've been sharing what they've learned with the rest of us right along. Sometimes what they learned, or thought they learned, on Monday was undercut by something they learned on Tuesday. Sometimes the experts don't agree with each other. None of this makes them bad experts.

The experts tell us we need to stay at home, and to maintain a "social distance" from everyone we encounter whenever we are forced to venture out, because that's the surest way to avoid picking up any infectious disease.

That makes sense.

Now... there's a balancing that has to be done here... and everywhere... whether the damage to the economy caused by the shutdown is outweighed by danger of this particular disease. Open the economy back up too soon, or too fast, and more people will die. On the other hand, as Gov. Pritzker has said himself many times, it's not a question of whether you will get the disease, it is only a matter of when. So we can't stay put forever.

And, clearly, some people are getting more antsy than others.

Not surprisingly, there is more discontent in areas where the disease has not made the same inroads as it has in other communities.

But it seems to me -- and maybe it's the bubble that I live in, but I don't think so -- that there is broad support for the continuation of the stay-at-home orders, at least for now.

And that's the best possible news for the Governor and his team.

Unless the Governor is prepared to abandon the stay-at-home orders entirely, there really is no alternative to forging and maintaining a consensus. (That's not to say there could not be other approaches -- Sweden did not do a complete lockdown, for example -- but the Governor has determined a course of action, consistent with the approach taken, at least initially, by most other American states.)

Think about it.

The only alternative to consensus acceptance is bayonets. And, while the Chinese Communists may have done it in Wuhan without hesitation, the American people would not stand for shooting people for failing to maintain a proper social distance.

That's why the Governor keeps saying that he counts on people to 'do the right thing', making only vague threats of 'consequences' for those who do not comply. That's the approach Mayor Lori Lightfoot has taken as well. (If the host of that infamous house party really is an Ambulance Commander in the Chicago Fire Department, however, I would not expect that the mayor to be as diplomatic in private as she has been in public.)

The courts will address the challenges to the Governor's orders. That's their job.

The legislature may yet convene and provide support or assistance for the orders or (and this is not likely, as a practical matter) challenges to the Governor's actions. That's their job.

But, in the meantime, the best thing the Governor and his team can do is maintain and sustain the consensus supporting the actions he's taken so far. That's not a legal defense to the various lawsuits challenging his authority, but it's his best defense.

Looking at the source of the Governor's emegency powers, the challenge thereto, and the potential resolutions to the controversy

The Governor's stay-at-home orders, both the original and all subsequent ones, are grounded in §7 of the Emergency Management Act, 20 ILCS 3305/7.

According to that statute, where a disaster (as defined by §4 of the Act) exists, "the Governor may, by proclamation declare that a disaster exists. Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers" (14 of them, if you're counting, delineated in great detail).

And there is no question that the COVID-19 pandemic is within the §4 definition of "disaster."

Section 4 of the Emergency Management Act defines "disaster" as an "occurrence or threat of widespread or severe damage, injury or loss of life or property resulting from any natural or technological cause, including but not limited to fire, flood, earthquake, wind, storm, hazardous materials spill or other water contamination requiring emergency action to avert danger or damage, epidemic, air contamination, blight, extended periods of severe and inclement weather, drought, infestation, critical shortages of essential fuels and energy, explosion, riot, hostile military or paramilitary action, public health emergencies, or acts of domestic terrorism" (20 ILCS 3305/4).

The Governor's original coronavirus-related disaster declaration came on March 9 -- and that is why, in accord with the statute, the original stay-at-home order was set to expire on April 8.

The stay-at-home orders have been "extended" twice now -- that's the way it's been explained to the public -- most recently with some modifications that are to take effect on May 1. But §7 says nothing about 'extending' any proclamation; indeed, the statute says that, pursuant to any disaster proclamation, the Governor's extraordinary powers last only "for a period not to exceed 30 days."

So what actually happened was that, on April 1, the Governor again declared that a "continuing disaster exists within the State of Illinois and specifically declare[d] all counties in the State of Illinois as a disaster area." That proclamation was intended to extend the Governor's authority another 30 days, to April 30. Presumably another proclamation has been, or will shortly be, filed with the Secretary of State.

This brings us to Rep. Darren Bailey's suit against the Governor and the TRO entered yesterday afternoon, during Gov. Pritzker's daily press briefing.

The Governor was asked about the TRO before Clay County Circuit Court Judge Michael D. McHaney's signature was dry -- and Gov. Pritzker was not happy. He called Bailey's suit insulting and dangerous.

Pritzker didn't cool down overnight. He began this afternoon's daily briefing with a blast at Bailey's suit, calling it a "cheap political stunt designed so that the representative can see his name in headlines." He said that the State has already appealed (and the Clay County docket already reflects the filing of a notice of appeal).

Later, during today's question and answer period, the Governor stated that he has great respect for the judiciary and supports everyone's right to go to court -- even though he sees Bailey's suit (and there's apparently another one that may soon be filed by another state representative, too) as reckless in the extreme. Rich Miller's substantial (and invaluable) notes of today's proceedings didn't pick this up, but I distinctly heard the Governor say that he expects "responsible members of the judiciary" to overturn yesterday's decision.

Yikes.

There are any number of reasons why Bailey's suit may ultimately fail and I hope to go into some of them in a future post. And, certainly, if one were forced to bet, the smart money would go against Judge McHaney's April 27 ruling being affirmed.

But.

Lawyers will probably not be shocked to discover that there is almost no case law interpreting the Illinois Emergency Management Act and, according to my Lexis search today, none at all regarding the all-important §7.

The Governor's powers in this emergency, though substantial, are not just grounded in the Emergency Management Act, they are bounded thereby.

Our government functions, or is supposed to function, on a system of checks and balances. In junior high school, when you were studying for the Constitution tests, you learned that this was why we have three coequal branches of government. But checks and balances exist within each branch as well: When a governor or a judge or any other government employee is given great powers, they are either narrowly focused or, if broad, are of limited duration -- like the 30-day period of §7.

I completely agree with the Governor and the responsible medical authorities that the COVID-19 pandemic is real, it is continuing, and (much as I wish otherwise) it has not gone away. But it is only one pandemic.

That fact -- that there is one and only one pandemic -- may not necessarily preclude the Governor from making multiple, valid disaster declarations. But only if the statute can be read to permit this.

And there is one other inescapable fact, namely, that the statute does not specifically or expressly provide for extensions of a governor's extraordinary powers, even where the disaster has refused to go away, as here, within the initially allotted 30 days.

In fact, though the Governor is downright scornful about it, it seems a reasonable and logical construction of the statute that, where there is only one disaster, there can be only one proclamation.

It may take some creative judicial thinking to get around all this.

My own unhappy experience may suggest one way.

I had a case in the Appellate Court many years ago involving the owner of eight McDonald's restaurants. All eight restaurants were insured under a single policy. Every day the franchise owner sent a courier around to pick up the proceeds from each of his restaurants and take them to the bank.

The courier had a run of bad luck.

First, his vehicle was broken into after the cash had been picked up from seven of the restaurants (the courier was inside the 8th store when it happened).

Thereafter, he got robbed again, but this time he'd been to only four of the stores.

How many robberies were there?

Two, right?

That was my client's position -- I represented the insurer -- and, therefore, my client owed the restaurant owner $20,000, because the policy provided for a $10,000 per occurrence limit for losses like this. The insured, however, contended and, eventually, the Chancery Court and the Appellate Court agreed, that there had been 11 occurrences, not two. (The Appellate Court did agree with my client that, logically, these appeared to be only two occurrences; no news reporter, for example, would have said otherwise. But that was only the beginning of the analysis, not the end. For my client, all went downhill from there.)

Gov. Pritzker may well prevail over Rep. Bailey -- as I said, there are many reasons why and not all may reach this question of how many disaster declarations a governor can issue for a single disaster.

But judges will occasionally reach a result that is unpopular or unexpected because they find that the law compels, and their oaths require, it. Even when the whole world has contrary expectations. There's a reason why lawyers can never guarantee results in any case.

Of course, any confusion here about the Governor's authority can be speedily rectified by action of the General Assembly.

I would assume that there would be broad, bipartisan support for an amendment to §7 of the Emergency Management Act that would allow for multiple extensions, in appropriate circumstances.

If the Legislature could be coaxed into session, that is. With the obvious exception of Rep. Bailey, the Legislature has not been heard from much in this crisis. And the legislative year is fast drawing to a close.

Section 22 of the Emergency Management Act provides, "No emergency services and disaster agency established under the authority of this Act shall be employed directly or indirectly by any person or persons for political purposes." And the Governor has pleaded on many occasions for party sentiment to be put aside as we all deal with the Covid crisis. Let's do that. Let the courts figure out how best to construe §7 while we continue to observe the reality of the orders in effect and the disease that has so disrupted our lives. And, in the meantime, could we get an amendment to Emergency Management Act in place that eliminates the controversy in the first place?

The official list of the Cook County judicial primary winners... the majority does not always rule

Now that all the votes are counted, and the results certified, we know for certain who won each Cook County judicial race.

Just for fun, I've bolded the names of those successful candidates who achieved more than 50% of the votes in the Democratic primary.

Note that this list does not contain the names of the winners of primaries in the 12th and 13th Subcircuits. I'll explain why in a moment.

But first, the list:

Illinois Supreme Court

P. Scott Neville, Jr., Freeman vacancy

Illinois Appellate Court

Michael B. Hyman, Neville, Jr. vacancy
Sharon O. Johnson, Simon vacancy

Circuit Court - Countywide

Tiesha L. Smith, Bellows vacancy
Kelly Marie McCarthy, Coghlan vacancy
Laura Ayala-Gonzalez, Ford vacancy
Celestia L. Mays, Funderburk vacancy
Levander "Van" Smith, Jr., Larsen vacancy
Chris Stacey, Mason vacancy
Teresa Molina, McCarthy vacancy
Sheree Desiree Henry, Murphy Gorman vacancy
Elizabeth Anne Walsh, O'Brien vacancy
Lynn Weaver Boyle, Patti vacancy (uncontested)
Lorraine Mary Murphy, Roti vacancy
Maura McMahon Zeller, C. Sheehan vacancy
Jill Rose Quinn, K. Sheehan vacancy

Circuit Court - Subcircuits

Krista D. Butler, 1st Subcircuit Hughes vacancy (uncontested)
Tyria B. Walton, 1st Subcircuit Crawford vacancy (uncontested)

Sondra Nicole Denmark, 2nd Subcircuit "A" vacancy

Daniel Edward Maloney, 3rd Subcircuit Filan vacancy (uncontested)
Regina Ann Mescall, 3rd Subcircuit Flynn vacancy
Erin Haggerty Antonietti, 3rd Subcircuit Murphy vacancy

Jamie Guerra Dickler, 6th Subcircuit Nega vacancy
Eileen Marie O'Connor, 6th Subcircuit Pantle vacancy

Pamela Reaves-Harris, 7th Subcircuit Jackson vacancy

Jonathan Clark Green, 8th Subcircuit Fleming vacancy
Michael A. Forti, 8th Subcircuit Gubin vacancy (uncontested)

Thomas M. Cushing, 9th Subcircuit Axelrood vacancy
Julie Bess Aimen, 9th Subcircuit Luckman vacancy

John G. Mulroe, 10th Subcircuit Allen vacancy (uncontested)
Maire Aileen Dempsey, 10th Subcircuit McGing vacancy
Mary Catherine Marubio, 10th Subicruit O'Brien vacancy

Gerardo Tristan, Jr., 14th Subcircuit Bertucci vacancy
Perla Tirado, 14th Subcircuit Lacy vacancy

Nichole C. Patton, 15th Subcircuit Griffin vacancy

Every person listed above faces no opponent on the November ballot. They aren't elected yet -- but it would take something extraordinary to derail any of these candidates at this point.

There are two contested judicial races on the November ballot, one each in the nothernmost and northwestern corners of the county.

In the 12th Subcircuit, Judge Patrica M. Fallon (who won the Democratic Primary with 57.70% of the vote) will have to face Frank R. DiFranco, who was unopposed in the Republican Primary.

In the 13th Subciruit, Suzanne Michele Groebner won the Democratic Primary with 42.60% of the vote. Gary William Seyring won the Republican Primary with 72.65% of the vote and will face Groebner on the November ballot.

Interestingly, while there will be almost no contests for judicial vacancies on the November ballot, most of November's presumptive winners did not even command a majority of the votes in their own primaries.

In the most extreme example in this primary, one candidate won nomination, and almost certain election, with only 20.97% of the primary vote. Justice P. Scott Neville, Jr. will get a full 10-year term on the Illinois Supreme Court despite winning only 26.21% of the votes in the primary.

Only 19 of the Democratic Primary winners received more than 50% of the vote (18 on the original list, plus Judge Fallon) -- and six of those races were uncontested. If Illinois had adopted a nonpartisan primary for judicial races, a great many of these now successful and presumptively elected candidates would be facing very competitive, interesting races in November. (In a nonpartisan primary system, if no candidate achieves 50% of the primary vote, the top two finishers face off in the general election.)

Many voters will show up at the polls in November and be confused, or even angry, when they realize that they have no say in the election of judges in this county. And the majority of our judges will, once again, be elected without obtaining a majority of votes cast in any election. This does not inspire confidence in the democratic process generally, or in the judiciary in particular. With a nonpartisan primary process, however, voters who did not participate in the primary would still have a meaningful say in shaping the county judiciary.

This could be accomplished legislatively. But will there be any support for the idea?

Mescall over Glennon by 281 votes in 3rd Subcircuit

All the votes have been counted now; the results have been certified.

The final tally in the crowded race for the Flynn vacancy in the 3rd Subcircuit shows Regina Ann Mescall with 3,079 votes in the suburbs and 9,725 votes in the City of Chicago, for a total of 12,804. Lauren Brougham Glennon finished with 2,996 votes in the suburbs and 9,527 votes in the City of Chicago. The winning margin was 281 votes, far and away the closest finish in any Cook County judicial race.

Coronavirus in the court system: An update

The Sun-Times reported yesterday that 11 employees of the Clerk of the Circuit Court have tested positive for COVID-19. Two of three most recently diagnosed employees are now hospitalized, according to David Struett's article.

Meanwhile, the Office of the Chief Judge advised yesterday that a sixth employee of that office has tested positive. The latest employee to test positive works for the Social Service Department on the lower level of the Daley Center and last reported for work on March 18.

One of the newly diagnosed Circuit Clerk's employees last reported to work in the Traffic section in the lower level of the Daley Center on March 19; another last reported for work in Domestic Relations, on the 8th floor, on March 20, according to the Sun-Times account.

Updated election returns in 2nd, 3rd Subcircuit races

Looking at City returns updated March 30 and County returns updated last evening, here is where the 2nd and 3rd Subcircuit races now stand.

In the 2nd Subcircuit, Judge Sondra Nicole Denmark has 10,309 suburban votes and 7,689 City votes, for a total of 17,998. Felicia H. Simmons-Stovall has 8,417 votes in the suburbs and 8,819 votes in the City, for a total of 17,236. Denmark's margin has lengthened since Election Night, as additional votes have been counted. The trend certainly appears to be in her favor.

In the race for the Flynn vacancy in the 3rd Subcircuit, Lauren Brougham Glennon has 2,980 votes in the suburbs currently and 9,468 votes from City precincts, for a total of 12,448. Regina Ann Mescall stands with 3,067 votes from the suburbs and 9,625 votes in the City, for a total of 12,692, a margin of 244 votes.

This margin, though razor-thin, represents a turnaround from Election Night, when Glennon had a roughly 200 vote margin.

Yesterday was the last day that mail-in votes could be received by the election authorities. Votes received as late as yesterday will be counted so long as they are postmarked or certified as having been mailed on or before March 17.

We are now 15 days out from the primary election. The City and County election authorities are required to certify the election results by no later than 21 days following the primary.

Clearly, votes have been counted since Election Night by both City and County election authorities. FWIW has no information at this juncture as to how many votes remain to be counted.