Illinois Attorneys Mertes and Mertes

By Attorney Magen J. Mertes 

           The eye-opening HBO documentary “Hot Coffee” exposes the so-called tort reform movement for what it really is: a strategic attack upon our civil justice system with the goal of tipping the scales of justice in favor of big business.  The documentary uses four real life stories to illustrate the campaign that “tort reform” has waged against the civil justice system.

            “Hot Coffee” obtains its name from the story of Stella Liebeck, the seventy-nine year old woman that sued McDonald’s when she received third degree burns on her inner thighs and genitals after spilling coffee in her lap.  “Hot Coffee” reveals the way in which the big business lobby spun and twisted the case’s facts in order to support legislation which caps jury awards and protects big profits.

            To illustrate the devastating effects of caps on jury awards, “Hot Coffee” uses the story of Colin Gourley, a child that was born with cerebral palsy as a result of medical malpractice committed at his birth. Colin’s family sued and obtained a $5.65 million dollar jury award. However, Nebraska had passed legislation capping damage awards. His family collected $1.25 million of the $5.65 million the jury had awarded.  The cost of Colin’s medical condition far exceeded the amount collected.  He will never live independently.  In the documentary, Colin’s mother and father explain how the caps have affected their family.  They describe their fear that due to the damages cap, Colin will become dependent on state aid when they are no longer able to care for him.

            “Hot Coffee” then addresses the insurance industry’s newest target: judicial elections.  Because some courts found that caps on jury awards were unconstitutional, the tort reform movement pursued a national campaign to place justices in the appellate courts who would sympathize with the big business agenda.  Oliver Diaz, a Mississippi Supreme Court Justice, was caught in the cross-hairs of this campaign. Oliver Diaz managed to retain his seat in hotly contested election, but was then prosecuted on charges of campaign fraud.  Ultimately, he was found innocent of the charges, but his political career was ruined.

            The final chapter of “Hot Coffee” deals with how big business uses mandatory arbitration clauses to contract around the civil justice system.  The documentary follows the story of Jamie Leigh Jones, who alleged that she was brutally raped by her co-workers while working for KRB/Halliburton in Iraq.  Jamie attempted to hold Halliburton accountable for placing her in male housing despite her repeated complaints.  But her attempts to utilize the civil justice system were thwarted by a mandatory arbitration clause in her employment agreement.  United States Senator Al Franken used Jamie’s story to successfully pass legislation to ban mandatory arbitration clauses covering sexual assault in government contracts.

            “Hot Coffee” demonstrates that the so-called “tort reform” movement’s true goal has absolutely nothing, whatsoever, to do with “reforming” the “tort” of negligence. Rather, the movement’s true goal is to slant the justice system heavily in favor of big business, while eliminating those who stand in its way.  

            The Illinois legislature has previously passed caps on jury awards for non-economic damages.  However, the caps were eventually found to be unconstitutional by the Illinois Supreme Court.  Like Oliver Diaz, the Justices that found the caps unconstitutional were targeted by the tort reform movement in the 2010 election. Chief Justice Thomas Kilbride recently came under intense fire from the big business lobby for having the audacity to uphold the constitution and protect the justice system from the ravages of its big profit agenda. 

            “Hot Coffee” is a must-see documentary for those interested in protecting the justice system from big business influences.

On January 31, 2011, Illinois Governor Pat Quinn signed the Illinois Religious Freedom Protection and Civil Union Act into law.   The new law becomes effective June 1, 2011.  Under the new law, homosexual civil unions will become legally recognized in the State of Illinois.  The new law equates civil unions with marriages under state law.  Specifically, the Act provides that “a party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law.” 

“The Act appears to legalize homosexual marriage in the State of Illinois, while simply labeling it something else,” Attorney James Mertes commented. “Effective June 1, 2011, the parties to a civil union will enjoy all of the same rights and undertake all of the same responsibilities as husband and wife under Illinois law,” he added.  “Under this law, the formation of a civil union will be very much like a marriage, and the dissolution of a civil union will be very much like a divorce.”  

On June 1, 2011, Illinois law will become one of only six states to recognize civil unions.  “Today is an important day in the history of our state because today we are showing the world that the people of Illinois believe in equality for all,” said Illinois Governor Pat Quinn. “We look forward to individuals and businesses from across the country choosing to move to Illinois where we believe that everyone is entitled to the same rights.”

Mertes believes that educating the public will be an important first step to ensuring the success of the law.  “As with the evolution of other fundamental civil rights,” Mertes said, “it will be extremely important for the public to be fully informed of the scope and import of this Act.”  ”One of the problems we face as a society is that we read short and sometimes inaccurate summaries of new laws in the newspaper, but we don’t take the time to fully read and understand what they mean.”   

“The new Illinois Religious Freedom Protection and Civil Union Act represents a dramatic shift in the public policy of this State,” Mertes explained.  “The challenge to our state government over the next four months will be to ensure that the public fully understands the new rights and responsibilities that were just created by the Act,” he added.

The full text of the Illinois Religious Freedom Protection and Civil Union Act is as follows:

Section 1. Short title. This Act may be cited as the Illinois Religious Freedom Protection and Civil Union Act.

 Section 5. Purposes; rules of construction. This Act shall be liberally construed and applied to promote its underlying purposes, which are to provide adequate procedures for the certification and registration of a civil union and provide persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses.

 Section 10. Definitions. As used in this Act: “Certificate” means a document that certifies that the persons named on the certificate have established a civil union in this State in compliance with this Act. “Civil union” means a legal relationship between 2 persons, of either the same or opposite sex, established pursuant to this Act. “Department” means the Department of Public Health. “Officiant” means the person authorized to certify a civil union in accordance with Section 40.”Party to a civil union” means a person who has established a civil union pursuant to this Act. “Party to a civil union” means, and shall be included in, any definition or use of the terms “spouse”, “family”, “immediate family”, “dependent”, “next of kin”, and other terms that denote the spousal relationship, as those terms are used throughout the law. 

Section 15. Religious freedom.  Nothing in this Act shall interfere with or regulate the religious practice of any religious body. Any religious body, Indian Nation or Tribe or Native Group is free to choose whether or not to solemnize or officiate a civil union.

Section 20. Protections, obligations, and responsibilities.  A party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law.

Section 25. Prohibited civil unions.  The following civil unions are prohibited: (1) a civil union entered into prior to both parties attaining 18 years of age; (2) a civil union entered into prior to the dissolution of a marriage or civil union or substantially similar legal relationship of one of the parties; (3) a civil union between an ancestor and a descendent or between siblings whether the relationship is by the half or the whole blood or by adoption; (4) a civil union between an aunt or uncle and a niece or nephew, whether the relationship is by the half or the whole blood or by adoption; and (5) a civil union between first cousins.

 Section 30. Application, license, and certification. (a) The Director of Public Health shall prescribe the form for an application, license, and certificate for a civil union. (b) An application for a civil union shall include the following information: (1) name, sex, occupation, address, social security number, date and place of birth of each party to the civil union; (2) name and address of the parents or guardian of each party; (3) whether the parties are related to each other and, if so, their relationship; and (4) in the event either party was previously married or entered into a civil union or a substantially similar legal relationship, provide the name, date, place and the court in which the marriage or civil union or substantially similar legal relationship was dissolved or declared invalid or the date and place of death of the former spouse or of the party to the civil union or substantially similar legal relationship. (c) When an application has been completed and signed by both parties, applicable fees have been paid, and both parties have appeared before the county clerk, the county clerk shall issue a license and a certificate of civil union upon being furnished satisfactory proof that the civil union is not prohibited. (d) A license becomes effective in the county where it was issued one day after the date of issuance, and expires 60 days after it becomes effective. (e) The certificate must be completed and returned to the county clerk that issued the license within 10 days of the civil union. (f) A copy of the completed certificate from the county clerk or the return provided to the Department of Public Health by a county clerk shall be presumptive evidence of the civil union in all courts.

 Section 35. Duties of the county clerk. (a) Before issuing a civil union license to a person who resides and intends to continue to reside in another state, the county clerk shall satisfy himself or herself by requiring affidavits or otherwise that the person is not prohibited from entering into a civil union or substantially similar legal relationship by the laws of the jurisdiction where he or she resides. (b) Upon receipt of the certificate, the county clerk shall notify the Department of Public Health within 45 days. The county clerk shall provide the Department of Public Health with a return on a form furnished by the Department of Public Health and shall substantially consist of the following items: (1) a copy of the application signed and attested to by the applicants, except that in any county in which the information provided in a civil union application is entered into a computer, the county clerk may submit a computer copy of the information without the signatures and attestations of the applicants; (2) the license number; (3) a copy of the certificate; and (4) the date and location of the civil union. (c) Each month, the county clerk shall report to the Department of Public Health the total number of civil union applications, licenses, and certificates filed during the month. (d) Any official issuing a license with knowledge that the parties are thus prohibited from entering into a civil union shall be guilty of a petty offense.

Section 40. Certification. A civil union may be certified: by a judge of a court of record; by a retired judge of a court of record, unless the retired judge was removed from office by the Judicial Inquiry Board, except that a retired judge shall not receive any compensation from the State, a county, or any unit of local government in return for the solemnization of a civil union and there shall be no effect upon any pension benefits conferred by the Judges Retirement System of Illinois; by a judge of the Court of Claims; by a county clerk in counties having 2,000,000 or more inhabitants; by a public official whose powers include solemnization of marriages; or in accordance with the prescriptions of any religious denomination, Indian Nation or Tribe or Native Group, provided that when such prescriptions require an officiant, the officiant be in good standing with his or her religious denomination, Indian Nation or Tribe or Native Group. The person performing a civil union shall complete the certificate and forward it to the county clerk within 10 days after a civil union.

 Section 45. Dissolution; declaration of invalidity.  Any person who enters into a civil union in Illinois consents to the jurisdiction of the courts of Illinois for the purpose of any action relating to a civil union even if one or both parties cease to reside in this State. A court shall enter a judgment of dissolution of a civil union if at the time the action is commenced it meets the grounds for dissolution set forth in Section 401 of the Illinois Marriage and Dissolution of Marriage Act. The provisions of Sections 401 through 413 of the Illinois Marriage and Dissolution of Marriage Act shall apply to a dissolution of a civil union. The provisions of Sections 301 through 306 of the Illinois Marriage and Dissolution of Marriage Act shall apply to the declaration of invalidity of a civil union.

 Section 50. Application of the Civil Practice Law.  The provisions of the Civil Practice Law shall apply to all proceedings under this Act, except as otherwise provided in this Act. A proceeding for dissolution of a civil union or declaration of invalidity of a civil union shall be entitled “In re the Civil Union of … and …”. The initial pleading in all proceedings under this Act shall be denominated a petition.  A responsive pleading shall be denominated a response. All other pleadings under this Act shall be denominated as provided in the Civil Practice Law.

 Section 55. Venue.  The proceedings shall be had in the county where the petitioner or respondent resides or where the parties’ certificate of civil union was issued, except as otherwise provided herein, but process may be directed to any county in the State. Objection to venue is barred if not made within such time as the respondent’s response is due. In no event shall venue be deemed jurisdictional.

 Section 60. Reciprocity.  A marriage between persons of the same sex, a civil union, or a substantially similar legal relationship other than common law marriage, legally entered into in another jurisdiction, shall be recognized in Illinois as a civil union.

 Section 90. Severability. If any part of this Act or its application to any person or circumstance is adjudged invalid, the adjudication or application shall not affect the validity of this Act as a whole or of any other part.”

By Matthew T. Klahn, Associate Attorney, Mertes & Mertes, P.C.

          If you have ever wondered how courts decide the amount of child support that non-custodial parents must pay for their child or children, you are not alone.  Calculating child support is an important consideration for both custodial and non-custodial parents regardless of whether they are single or going through a divorce.  The bottom line is that, for the most part, child support calculations are fairly predictable because the child support guidelines make awards of child support predictable.  However, the assistance of an attorney is crucial because while the guidelines provide some predictability, it is not as simple as multiplying the guideline percentage by net income represented in a current pay stub to determine the proper calculation of child support.     

             Under Illinois law, the child support guidelines are based upon net income.  Net income is not the same as what is commonly referred to as “take home pay.”  Net income is defined by law.  It is a person’s gross income from all income sources minus certain statutory deductions.  Income includes a person’s regular wages, overtime wages, second job wages, bonuses, rental property income, stock dividend income, interest income, and more.  It is crucial to determine the correct amount of gross income in order to calculate the correct net income. 

             Our attorneys frequently use discovery processes to find all items of income including items of hidden income which are not shown by pay stubs and tax returns.  For example, we inquire about employment perks to see if they have an actual cash value.  In addition, our attorneys determine how many exemptions will be claimed by each party and other deductions shown on the parties’ tax returns before calculating the mandatory deductions. 

              Once all sources of income are discovered, Illinois law requires that net income be computed after applying certain deductions.  750 ILCS 5/505(3) defines “net income” as that term is used in the computation of child support.  Net income is defined as the total of all income from all sources, minus the following deductions: (a)   Federal income tax (properly calculated withholding or estimated payments); (b)   State income tax (properly calculated withholding or estimated payments); (c)    Social Security (FICA payments); (d)   Mandatory retirement contributions required by law or as a condition of employment; (e)    Union dues; (f)     Dependent and individual health/hospitalization insurance premiums; (g)   Prior obligations of support maintenance actually paid pursuant to a court order; and (h)   Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts.  The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.

             After we calculate a person’s net income, the rest, in most cases, is pretty simple.  We multiply the net income by the guideline percentage for support.  The guidelines stated below must be applied in each case unless the Court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines.  The percent of the non-custodial parent’s net income per child is:

  Number of children                           Percent of Net Income

            1                                                                  20%

            2                                                                  28%

            3                                                                  32%

            4                                                                  40%

            5                                                                  45%

            6+                                                                50%

          There are cases where a non-custodial parent is entitled to a downward deviation.  In rare cases where a downward deviation is awarded, the non-custodial parent will not be required to pay the statutory percentage of their income.  Usually, this becomes relevant when custody is split, parenting time is equal, or the non-custodial parent has an unusually high income.  However, downward deviations are not automatic.   In fact, the court has discretion in making this decision.  The courts will always look at the disparity of the parents’ incomes and are bound by what is in the best interests of the child or children in considering a downward deviation in statutory child support.

              What about other expenses?  If the non-custodial parent’s employer offers medical insurance, then it is most likely that the Court will require the non-custodial parent to provide it for the benefit of the children. 

                The calculation of child support is important to both parents and the children.  The ultimate goal is to calculate the correct amount of child support that should be paid.  A parent needs the help of an experienced attorney to determine this amount. 

                 At Mertes & Mertes, P.C., when you’re with us, no matter what you are going through, you’re not alone.