October 2025 IICLE FLASHPOINTS

In today’s hyper-connected world—where laptops, tablets, personal phones, and work phones generate and store vast amounts of information—it is critical for litigators to remain attentive to the interplay between forensic evidence and deposition testimony. Depositions remain one of the most powerful discovery tools, provided counsel listens carefully and follows up strategically.

In Mote v. Estate of McManus, 2025 IL App (4th) 241307, 265 N.E.3d 933, 485 Ill.Dec. 243, the defendant Matthew Stern loaned his 2018 Ford Mustang GT to Michael McManus on September 20, 2019. McManus, who was intoxicated, lost control of the Mustang, swerved across the center line, entered a ditch, struck a culvert, became airborne, cleared a fence, landed, and burst into flames—killing both himself and his passenger.

The plaintiffs, Melody Mote, Jim Mote, and Michael Silvia, sent Stern a preservation letter demanding he retain all evidence relevant to their claims. Their second amended complaint alleged negligent entrustment/wrongful death and negligent entrustment/survival arising from the passenger’s death.

In August 2021, the plaintiffs requested production of “any and all text messages and other forms of electronic communications” between Stern and McManus. 2025 IL App (4th) 241307 at ¶6. Stern’s sworn answers denied that any such communications existed.

Three months later, the plaintiffs’ counsel challenged that assertion, noting it was improbable that two close friends had exchanged no communications, and again demanded compliance. Stern’s counsel doubled down, insisting all responsive communications had already been produced.

Over six months later, Stern sat for his discovery deposition. He described McManus as a close friend he contacted nearly every other day, including at social gatherings. He acknowledged text messages existed on his cell phone and agreed not to delete them.

Two days later, Stern’s counsel produced some messages between Stern and McManus — dated September 20 and December 1, 2018, nine months before the fatal crash. That production also contained a Facebook post from McManus displaying a December 16, 2022, text exchange with Stern that had not been disclosed. When plaintiffs requested a meet-and-confer, Stern’s counsel failed to respond and told opposing counsel to file a motion to compel.

A mutual friend later testified that Stern and McManus met almost daily for three years, often drinking and using drugs, and were frequently intoxicated. The friend also testified that McManus was notorious for drinking and driving, something Stern knew or should have known.

The plaintiffs proposed a protocol for a forensic inspection of Stern’s cell phone to obtain all communications between Stern and McManus. Stern refused, maintaining that all responsive material had already been produced.

The plaintiffs moved to compel, arguing that (1) the messages were relevant to negligent entrustment, (2) the request was proportional because the burden of production was minimal, and (3) Stern’s phone was the only possible source since McManus’s phone had been destroyed. They emphasized that forensic review was the least invasive means available.

Stern later claimed his phone belonged to Stern Beverage, where he served as president, and that an in-house IT department had already searched the phone without locating responsive messages.

The trial court found Stern in contempt for failing to comply with its order compelling forensic examination and later granted the plaintiffs’ motion for sanctions, concluding Stern had not acted in good faith.

On appeal, Stern argued that the plaintiffs should have subpoenaed Stern Beverage, as the purported owner of the phone, and that forensic inspection was overly drastic and risked disclosure of privileged information.

The appellate court rejected these arguments, noting that Stern testified he had only one phone for both business and personal use, and therefore the plaintiffs were not required to issue a subpoena to Stern Beverage. The court held that Stern could not invoke technical ownership to avoid discovery obligations, particularly after he admitted to using the device for extensive personal communications.

The court cited Illinois Supreme Court Rule 201(b)(1), which allows discovery of any matter relevant to the subject of the litigation so long as it has “any tendency to make the existence of a fact in issue more or less probable.” [Emphasis omitted.] 2025 IL App (4th) 241307 at ¶51, quoting Shamrock Chicago Corp. v. Wroblewski, 2019 IL App (1st) 182354, ¶35, 162 N.E.3d 286, 443 Ill.Dec. 652. “Relevant information” includes not only admissible evidence but also material reasonably “calculated to lead to the discovery of admissible evidence.” Carlson v. Jerousek, 2016 IL App (2d) 151248, ¶37, 68 N.E.3d 520, 409 Ill.Dec. 667.

In negligent entrustment claims, liability hinges on whether the owner entrusted the vehicle to an incompetent or unfit driver and whether that incompetence was a proximate cause of the injury. Northcutt v. Chapman, 353 Ill.App.3d 970, 819 N.E.2d 1180, 289 Ill.Dec. 380 (4th Dist. 2004). The plaintiffs alleged Stern knew the Mustang had been modified into a high-performance vehicle and that McManus was a reckless, intoxicated driver. Texts about visiting bars and testimony from a mutual friend regarding near-daily drinking bolstered these claims.

Ultimately, the appellate court affirmed sanctions, holding that Stern’s refusal to comply — even after the trial court provided a protective order to safeguard privileged information and offered in camera inspection — warranted monetary penalties and attorneys’ fees.

Key Takeaways for Litigators

1. Requests for production must be monitored and enforced. Do not accept conclusory responses, challenge improbable denials and follow up with depositions or motions to compel.
2. Deposition testimony often opens discovery doors. Seemingly small admissions (e.g., acknowledging text messages exist) can justify broader requests and forensic inspections.
3. Relevance is broader than admissibility. Illinois courts continue to affirm that discovery encompasses not just admissible evidence but also material that may lead to admissible evidence.
4. Draft precise preservation letters. Anticipate mobile devices, social media, and cloud storage.
5. Corporate ownership does not shield personal use. A litigant cannot avoid discovery obligations by hiding behind technicalities of ownership when the device is used for personal communications central to the claims.
6. Discovery misconduct carries consequences. Courts are willing to impose contempt findings, monetary penalties, and attorneys’ fees when parties act in bad faith or obstruct forensic access.

For more information about civil litigation, see CIVIL APPEALS: STATE AND FEDERAL — 2025 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Andrea Fabian-Checkai, Borkan & Scahill, Chicago, IL

Andrea Fabian-Checkai is an associate at Borkan & Scahill, where she focuses on civil litigation with an emphasis on Section 1983 claims, including wrongful convictions, police pursuit, and excessive force cases. As a former Assistant State’s Attorney in Cook County, Andrea handled a range of felony prosecutions, including DNA-based and juvenile matters. Her prosecutorial insight and litigation experience inform her strategic approach to complex civil rights cases. A native Spanish speaker, Andrea emphasizes thoughtful advocacy across communities.

In Board of Directors of Lakelands Estate Homeowners’ Ass’n v. Pamnani, 2025 IL App (3d) 240564-U, the Illinois Appellate Court, Third District, affirmed the imposition of punitive damages against a board director who hijacked his association’s financial accounts over a $60 dispute and tried to create his own board.

Facts

The plaintiff homeowners’ association sued the defendant for breach of fiduciary duty after he falsely held himself out as the acting president of the association and caused the association’s bank account to be frozen so the association could not pay bills. 2025 IL App (3d) 240564-U at ¶4. The defendant filed a counter-complaint against two of the directors that was ultimately dismissed. Id. The defendant’s attorney withdrew from representation, and the defendant represented himself through the remainder of the proceeding and appeal. 2025 IL App (3d) 240564-U at ¶5. The opinion references several instances in which the defendant failed to conduct himself properly in representing himself. For example, he would not file pleadings with proper captions. Id.

Eventually, the plaintiff sought summary judgment on liability as to his breach of fiduciary duties. 2025 IL App (3d) 240564-U at ¶6. The plaintiff association sought damages, punitive damages, attorneys’ fees, and an order barring the defendant from serving on the board of three years. Id. The defendant responded and filed his own request for summary judgment although he did not have any claims pending. Id. The trial court granted the plaintiff’s motion for summary judgment finding that the defendant breached his fiduciary duty by sequestering the association’s funds and by attempting to hold unauthorized elections. 2025 IL App (3d) 240564-U at ¶7. Additionally, the court found that the defendant’s conduct was willful and malicious. Id.

The association’s damages totaled approximately $415, for postage, fees on dishonored checks, and printing new checks. The association sought $217,000 in punitive damages, which reflected its legal fees and costs through the litigation. 2025 IL App (3d) 240564-U at ¶8. It also sought, alternatively, $205,000 in S.Ct. Rule 137 sanctions for its attorneys’ fees incurred after the defendant filed his answer. 2025 IL App (3d) 240564-U, ¶¶8 – 9.

When the trial court questioned the disconnect between the amount in controversy and the legal fees incurred by the association, the plaintiff board responded that given the defendant’s actions in seizing the association’s assets and trying to set up a counter board, it had no choice but to follow through with this litigation. 2025 IL App (3d) 240564-U at ¶¶9 – 10. The defendant’s conduct was triggered by a dispute over a $60 deposit for a room rental for a board meeting that the defendant unilaterally tried to cancel. 2025 IL App (3d) 240564-U at ¶10.

The trial court awarded the plaintiff compensatory damages of $415, punitive damages of $43,000, injunctive relief barring defendant from serving on the board for a period of time, and Rule 137 damages in the amount of $4,300 in attorney fees. 2025 IL App (3d) 240564-U at ¶¶10 – 13. The punitive damages award of $43,000 was equivalent to the – amount of association funds defendant froze. 2025 IL App (3d) 240564-U at ¶12. The court also awarded $4,300 in attorneys’ fees as a Rule 137 sanction against the defendant because while in his answer he admitted to owing fiduciary duties to the association, he denied liability without ever establishing a basis over two years of litigation for the denial. 2025 IL App (3d) 240564-U at ¶13. The trial court noted that this sanction was a nominal amount and might have been higher but for the punitive damage award. It also was concerned about the disconnect between the complexity and overall outcome of the case and the amount of fees expended. Id.

Analysis

Although the defendant appealed arguing that summary judgment against him was improper, the appellate court considered the argument forfeited under S.Ct. Rule 341(h)(7) because it was unclear and undeveloped. 2025 IL App (3d) 240564-U at ¶15. Additionally, the defendant failed to argue that there were genuine issues of material fact.

Factors that Illinois courts will look to in considering the constitutionality of punitive damages are “(1) the degree of reprehensibility of the conduct; (2) the disparity between the harm or potential harm suffered by the plaintiff and the amount of punitive damages awarded; and (3) the difference between the punitive damages awarded and the civil penalties authorized or imposed in comparable cases.” 2025 IL App (3d) 240564-U at ¶16, quoting Blount v. Stroud, 395 Ill.App.3d 8, 24, 915 N.E.2d 925, 941, 333 Ill.Dec. 854 (1st Dist. 2009). The appellate court noted that the defendant failed to argue how the guideposts applied to the award in this case and that the Supreme Court has refused to adopt a bright-line ratio that cannot be exceeded. Id., citing International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 225 Ill.2d 456, 870 N.E.2d 303, 321, 312 Ill.Dec. 238 (2006). In finding that the punitive damages award was constitutional, the appellate court also looked at (a) the fact that equitable relief was also awarded in barring the defendant from running for office for a future period, (b) the damages suffered by the plaintiff in the form of attorneys’ fees that needed to be expended, and (c) that the trial court found the defendant intended to harm the association and that his conduct was willful and malicious. 2025 IL App (3d) 240564-U at ¶16.

The appellate court rejected plaintiff’s cross-appeal that the punitive damages award and Rule 137 sanction were too low because it could not find an abuse of discretion by the trial court. 2025 IL App (3d) 240564-U at ¶¶17 – 18. Additionally, the punitive damages award was significant in comparison to the amount of compensatory damages. 2025 IL App (3d) 240564-U at ¶18.

For more information about condominium law, see CONDOMINIUM LAW: GOVERNANCE, AUTHORITY, AND CONTROLLING DOCUMENTS (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago

Kenneth Michaels, Jr. is a partner at Bauch & Michaels, LLC, with over four decades of experience in commercial litigation, transactions, and corporate governance. He represents a diverse clientele, including banks, insurance companies, and Fortune 500 businesses, specializing in asset sales, property management, and loan agreements. Ken is also a recognized Illinois “Super Lawyer” in real property law and has contributed extensively to legal education and community service. He teaches at the University of Illinois Chicago Law School and has been a public official in Illinois for nearly 30 years.

In People v. Terrell, 2025 IL App (3d) 240567, the defendant was charged with various shooting and driving charges from a January 15, 2022, shooting in Joliet. A detective prepared a search warrant for T-Mobile phone records for phone numbers ending in 17 and 54. The search warrant asked for these records that covered November 1, 2021 to January 19, 2022. The search warrant additionally asked for Truecall/TDOA records covering January 13, 2022 to January 19, 2022. 2025 IL App (3d) 240567 at ¶5.

The detective’s complaint stated that Joliet police responded to a shooting and vehicle crash scene on January 15. One of the shooting victims told police that an Impala pulled up next to them and shot the other victim in her face. The victim stated that they had seen the Impala earlier that day at a Hooters and that the Impala followed them after they left Hooters. Police also learned that one of the victims stated that they had been at a cannabis dispensary before going to Hooters. 2025 IL App (3d) 240567 at ¶6.

Police reviewed videos from a cannabis dispensary which showed the victims’ Tahoe being pursued by a black Impala at high rates of speed before the crash. 2025 IL App (3d) 240567 at ¶8. One of the shooting victims told the police that the passenger in the Impala looked like ”Junior Barfield,” whom she knew through social media. Detectives located Barfield’s Facebook page. 2025 IL App (3d) 240567 at ¶10.

The complaint next stated that the detective conducted a search on Flock cameras for 2016 to 2018 Impala models that had similar characteristics with the suspect Impala. The search revealed that Flock cameras captured the suspect Impala on January 15 in Joliet a few hours before the shooting. 2025 IL App (3d) 240567 at ¶13. A LEADS check revealed that the Impala was registered to the defendant. An open-source search further revealed Facebook accounts for the defendant, along with a Facebook friend named “Junior Barfield.” 2025 IL App (3d) 240567 at ¶14. Another database search also revealed one of the defendant’s phone numbers ended in 54. 2025 IL App (3d) 240567 at ¶14.

The complaint further stated that a confidential informant gave information about Barfield’s other phone number that ended in 17 and said that Barfield recently drove a black Malibu. 2025 IL App (3d) 240567 at ¶15.

The detective also provided details about a 2021 shooting in Plainfield (referred to as the “Ruth Fitzgerald Drive shooting”) in which casings from that scene had a NIBIN link to another 2021 shooting. In that shooting, a Flock camera captured a Ford Escape three miles from the scene. The Escape was registered to a woman who had a child with a Levelle Barfield, Jr. 2025 IL App (3d) 240567 at ¶16.

The trial court granted the defendant’s motion to suppress the search warrant on the basis that it lacked probable cause because the information about the other shootings had nothing do with the defendant and the only connection between the January 15 shooting and the defendant was that he was Facebook friends with Barfield. 2025 IL App (3d) 240567 at ¶28.The appellate court reversed the trial court’s suppression of any evidence derived from the search warrant as it related to the January 15 shooting but affirmed the suppression of any evidence from the search warrant for the Ruth Fitzgerald shooting. 2025 IL App (3d) 240567 at ¶31.

The appellate court first concluded that it was reasonable to conclude that the defendant’s vehicle was the suspect Chevrolet Malibu because the detective conducted a search through Flock images for a black 2016 to 2018 Malibu model with certain characteristics, including a fog light that was only made between 2016 and 2018. The detective only located one image out of the hundreds from the search that were similar to the offending vehicle. Even though the Flock images of the defendant’s Malibu were captured around 2 hours and 30 minutes earlier and 5 to 6 miles from the incident, it was still reasonable to conclude that the defendant’s vehicle was the offending vehicle. 2025 IL App (3d) 240567 at ¶36.

The appellate court rejected the defendant’s contention that it was unreasonable to assume that he was in the vehicle at the time of the shooting because he coowned the Malibu with his girlfriend, and he was not identified as being in the vehicle. The appellate court noted that the affidavit stated that one of the victims stated she observed two males in the offending vehicle, and a commonsense inference is that a vehicle’s owner is its driver. 2025 IL App (3d) 240567 at ¶37.

Additionally, the defendant was Facebook friends with Barfield, who was identified by one of the victims as being a passenger in the offending Malibu. Therefore, it was reasonable to conclude that the defendant was inside his Malibu at the time of the shooting. 2025 IL App (3d) 240567 at ¶37.

The defendant also argued that it was also unreasonable to assume that he had his phone with him at the time of the shooting and to assume that phone records contained evidence of the shooting. The appellate court stated that “it is a reasonable, commonsense inference that defendant was in possession of his cell phone while in his car.” 2025 IL App (3d) 240567 at ¶38. The detective also stated in the affidavit that he had learned through experience that obtaining a person’s phone records and CDR may assist in determining the location of a phone, routes of travel, and communications with other involved people. Id.

The appellate court also rejected the defendant’s argument that the search warrant was too broad and covered too long of a date range. The appellate court noted that the search warrant was restricted to less than three months for CDR and cell-site location and only covered a one-week range for the Truecall/TDOA information in January 2022. The appellate court also emphasized that the Fifth District and the Seventh Circuit Court of Appeals upheld search warrants that authorized searches for “all data within” a phone, or for “any or all ‘things that were used’ in the commission or may constituted evidence of [a specific crime].” 2025 IL App (3d) 240567 at ¶39, citing United States v. Bishop, 910 F.3d 335, 336 (7th Cir. 2018). Search warrants also authorizes authorities “ ‘to look at every file on [the defendant’s] phone’ to search for evidence related to the crimes listed in the warrant” 2025 IL App (3d) 240567 at ¶39, quoting People v. Weis, 2022 IL App (5th) 210076-U, ¶61 – 62.

However, the appellate court affirmed the trial court’s suppression of evidence for the Ruth Fitzgerald shooting because there was no nexus between that shooting and the phone records. 2025 IL App (3d) 240567 at ¶41. The appellate court further held that the Good-Faith exception to the exclusionary rule did not apply because that portion of the affidavit because the affidavit was “bare bones such that it was unreasonable to believe that there was probable cause.” 2025 IL App (3d) 240567 at ¶45.

That portion of the affidavit only established a connection between Barfield and that shooting; therefore, there were no facts connecting evidence from that shooting and the defendant’s phone records. 2025 IL App (3d) 240567 at ¶46.

For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon, IL

Matthew R. Leisten serves as the First Assistant State’s Attorney for the Ogle County State’s Attorney’s Office in Oregon, Illinois. In his role, he provides essential updates on caselaw relevant to search warrants, focusing on issues such as good faith, staleness, and the impact of modern technology on legal procedures. His experience includes handling complex warrants involving advanced technologies like geofences and Triggerfish. Additionally, Leisten contributes to legal education through publications and presentations, ensuring that attorneys stay informed about current legal trends and practices.

For more information, see §5.8 of Jeremy S. Harter, Ch. 5, Illinois Summary Suspension Caselaw and Trial Advocacy, DUI CASELAW (IICLE®, 2025)

A license to drive, once issued, is a property interest that may not be suspended or revoked without due process of law. Rescission of a defendant’s license suspension associated with a prior DUI conviction did not preclude the defendant from being convicted of aggravated DUI in People v. Ciechanowski, 379 Ill.App.3d 506, 884 N.E.2d 714, 318 Ill.Dec. 746 (1st Dist. 2008). In contrast to the crime of DUI, which impacts a defendant’s personal liberty, due process does not require an evidentiary hearing prior to the statutory summary suspension taking effect; the Illinois Vehicle Code affords a driver sufficient due process by allowing them to obtain a limited civil hearing. Criminal DUI charges are separate from the remedial civil sanction of the suspension.

The majority of cases testing the constitutionality of the summary suspension law were based on claims that a failure to afford an evidentiary hearing prior to suspension for a refusal to submit to testing or for submission to a test that reveals a blood alcohol concentration of 0.08 violates due process. This issue was considered in People v. Esposito, 121 Ill.2d 491, 521 N.E.2d 873, 879, 118 Ill.Dec. 396 (1988), in which the court observed, citing Bell v. Burson, 402 U.S. 535, 29 L.Ed.2d 90, 91 S.Ct. 1586 (1971), that a license to drive, once issued, is a property interest that may not be suspended or revoked without due process of law, but also, citing Dixon v. Love, 431 U.S. 105, 52 L.Ed.2d 172, 97 S.Ct. 1723 (1977), that due process does not require a prior evidentiary hearing in every instance in which the government seeks to deprive a person of driving privileges. Accord People v. Gerke, 123 Ill.2d 85, 525 N.E.2d 68, 121 Ill.Dec. 262 (1988). In Esposito, supra, the court noted that the U.S. Supreme Court has identified three factors for courts to consider in determining whether a prior hearing is necessary to satisfy the dictates of due process:

[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 521 N.E.2d at 879, quoting Mathews v. Eldridge, 424 U.S. 319, 47 L.Ed.2d 18, 96 S.Ct. 893, 903 (1976).

Applying the Eldridge balancing test, the Esposito court held that the Illinois summary suspension law satisfies the dictates of due process. Regarding the first stage of the Eldridge inquiry, the court said that, after considering the opportunity for hardship relief, the limited duration of the suspension, and the availability of prompt post-suspension review, due process does not require a prior evidentiary hearing.

Regarding the second stage of the Eldridge balancing process, the Esposito court held that it was not persuaded that the risk of error is so substantial as to require an evidentiary hearing prior to suspension. The court rejected the defendant’s contention that the risk of erroneous deprivation was greater because the suspension was based on a chemical test failure rather than a test refusal. Finally, the Esposito court considered the third stage of the Eldridge inquiry and noted that the state has a compelling interest in protecting persons who travel on public highways from the threat of drunk drivers and that the law promotes this interest by promptly removing these drivers and by deterring others from DUI. However, while due process does not require a pre-suspension hearing, a prompt post-suspension hearing must be available. Esposito, supra, 521 N.E.2d at 879, citing Mackey v. Montrym, 443 U.S. 1, 61 L.Ed.2d 321, 99 S.Ct. 2612 (1979).

In Gerke, supra, the Illinois Supreme Court affirmed its prior holding that a pre-suspension hearing is not required but declined to express an opinion as to how long a post-suspension hearing may be delayed without violating due process. In People v. Schaefer, 154 Ill.2d 250, 609 N.E.2d 329, 182 Ill.Dec. 26 (1993), the Supreme Court again applied the Due Process Clause in interpreting the Illinois summary suspension provisions relating to the motorist’s right to a hearing. The court recognized the legislature’s concern for protecting the constitutional rights of a motorist charged with DUI. Because of this concern, suspension of driving privileges will not commence until 46 days after notice of suspension is given, and an opportunity for a hearing must be given within 30 days of the filing of a written petition in the circuit court of venue. 625 ILCS 5/11-501.1(g), 5/2‑118.1(b).

An arresting officer’s failure to file a sworn report as required by 625 ILCS 5/11-501.1(d) was the basis of a claim of denial of due-process protection in People v. Badoud, 122 Ill.2d 50, 521 N.E.2d 884, 118 Ill.Dec. 407 (1988). In Badoud, police officers from Kankakee and Iroquois Counties used forms labeled “sworn report” that failed to comply with the Oaths and Affirmations Act, 5 ILCS 255/0.01, et seq., or §1-109 of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq., regarding verification by certification, but instead were signed below the “notation: ‘I do solemnly, sincerely, and truly declare and affirm.’ ” 521 N.E.2d at 886. Notwithstanding the language of §11‑501.1(d) of the Illinois Vehicle Code, 625 ILCS 5/11-501.1(d), that an “officer shall immediately submit a sworn report” [emphasis added], the Supreme Court held that the report could be corrected not only before the Secretary of State entered a suspension but even after the suspension had been entered. The court stressed that the summary suspension law should be liberally construed to foster highway safety. The court applied the aforementioned Eldridge balancing test and noted that the suspension did not become effective until 46 days after notice and the defendant is entitled to a hearing within 30 days of this request. 521 N.E.2d at 890. As a result, if a defendant was diligent in seeking a hearing, any prehearing deprivation would be brief. Regarding the risk of erroneous deprivation, the court noted that other safeguards were inherent in the procedure, including the training and experience of the officer and the fact that the officer is liable for civil suit if the officer were to make a false statement.

The U.S. District Court has found that the Wisconsin summary suspension law did not satisfy due-process requirements. The law did not require the appearance of the officer, and it prohibited the driver from use of a subpoena on the arresting officer or the Breathalyzer operator. Thomas v. Fiedler, 700 F.Supp. 1527 (E.D.Wis. 1988), appeal dismissed, 884 F.2d 990 (7th Cir. 1989). On appeal, the matter was remanded with directions to vacate the judgment and to dismiss the class action of suspended drivers without prejudice since the statute was amended following the decision to correct the constitutional problems.

Failure to include a factual basis for an officer’s probable-cause determination on the sworn report does not constitute a due-process violation. People v. Zilio, 191 Ill.App.3d 1078, 548 N.E.2d 558, 139 Ill.Dec. 173 (1st Dist. 1989); People v. Sarver, 262 Ill.App.3d 513, 636 N.E.2d 1031, 201 Ill.Dec. 599 (3d Dist. 1994).

Former §6-208.1(g) of the Illinois Vehicle Code (before amendment by P.A. 99-467 (eff. Jan. 1, 2016), which left subsection (g) blank) provided that if a person was not a “first offender” as that term is defined in 625 ILCS 5/11-500, and the person’s driving privileges had been suspended after refusing to submit to a chemical test, the Secretary of State “may not issue a restricted driving permit.” No other driving relief was available to a driver who was not a first offender and who refused to submit to chemical testing. In People v. Fisher, 184 Ill.2d 441, 705 N.E.2d 67, 235 Ill.Dec. 454 (1998), the trial court held that §6-208.1 was unconstitutional because it denied due process and violated the equal-protection guarantees of the U.S. and Illinois Constitutions. Following a direct appeal to the Illinois Supreme Court, the trial court’s judgment was reversed. The Supreme Court held that §§6-208.1(a)3 and 6-208.1(g) did not violate either the defendant’s substantive or procedural due-process rights. The court noted that S.Ct. Rule 504 was amended to provide that the first appearance date on a Uniform Traffic Ticket must be not less than 14 days but within 60 days after the date of arrest. 705 N.E.2d at 77. Because the summary suspension goes into effect on the 46th day from the date notice is given to the defendant, as many as 14 days may elapse between the time the suspension goes into effect and the time the hearing on the suspension takes place. The court concluded that a 14-day delay between the effective date of the suspension and the date of the hearing did not render the statutory summary scheme unconstitutional on its face.

It should be noted that §6-208.1(a), 625 ILCS 5/6-208.1(a), was amended by P.A. 95-400 (eff. Jan. 1, 2009) to provide for a 12-month suspension for a first offender who refuses or fails to complete a test and by P.A. 90-738 (eff. Jan. 1, 1999) to provide for a three-year suspension for a non-first offender who refuses or fails to complete a test.

Section 11-501.1(a) of the Illinois Vehicle Code, which authorizes an Illinois law enforcement officer to travel to an adjoining state to complete an investigation of a vehicle crash in Illinois and to request that the person involved in the crash submit to a chemical test, does not violate due process. People v. Every, 184 Ill.2d 281, 703 N.E.2d 897, 234 Ill.Dec. 797 (1998). In Every, the court reasoned that the officer’s actions did not involve an exercise of the officer’s official powers in another state but, rather, depended on the defendant’s implied consent to the evidence-gathering procedure set out in the Illinois Vehicle Code.

Section 2-118.1(b) of the Illinois Vehicle Code, which provides, in part, for the use of the officer’s own official reports subject to the motorist’s right to subpoena the officer, comports with due process according to the First District in People v. Ullrich, 328 Ill.App.3d 811, 767 N.E.2d 411, 262 Ill.Dec. 951 (1st Dist. 2002). But the trial record must show that the motorist was informed of the right to subpoena and that the motorist waived the right.

Jeremy S. Harter

Jeremy S. Harter is a Managing Partner at Harter & Schottland P.C., in Round Lake Beach, where he focuses his practice on litigation. Harter has been named to the Super Lawyers list, is a member of the Lawyers of Distinction, and is the Secretary for the Executive Board of the Lake County Bar Association. He earned his B.S. from Knox College and his J.D. from the John Marshall Law School.

As we move toward 2026, Illinois employers need to begin preparing for a number of changes and updates to applicable employment laws, specifically those providing additional rights to parents and nursing mothers. Below is a summary of the changes expanding the workplace rights afforded to parents and nursing mothers in 2026. Illinois employers should closely review these changes and update existing workplace policies and procedures accordingly.

Family Neonatal Intensive Care Leave Act

On August 15, 2025, Governor J.B. Pritzker signed into law P.A. 104-0259, which creates the Family Neonatal Intensive Care Leave Act. Effective June 1, 2026, the Act provides for unpaid neonatal intensive care leave to employees who have a child that is a patient in a neonatal intensive care unit (NICU). The Act defines “child” as an employee’s son or daughter who is a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis. The Act further defines “neonatal intensive care unit” as a special care unit that provides medical treatment to premature and critically ill infants.

For those employers with between 16 and 50 employees, an employee with a child being treated in a NICU is entitled to use a maximum of 10 days of unpaid leave while the employee’s child is a patient in a NICU. For those employers with 51 or more employees, an employee is entitled to use 20 days of unpaid leave. The unpaid leave may be taken continually or intermittently at the employee’s selection. Employers may require that the leave be taken in minimum increments of not less than two hours. Employers may not require that an employee use paid leave instead of leave the employee is entitled to under the Act. However, an employee may elect to substitute paid leave (e.g., sick leave, personal leave) for an equivalent period of unpaid leave provided under the Act. Employees who are entitled to leave under the Family and Medical Leave Act of 1993 (FMLA), Pub.L. No. 103-3, 107 Stat. 6, and takes leave shall be granted, upon completion of and in addition to any leave taken under the FMLA, any leave available under the Act (i.e., leave taken under the Act is in addition to FMLA leave).

After taking neonatal intensive care leave, an employee must be reinstated to their former position or a substantially equivalent one with no loss of benefits held or accrued prior to taking the leave. During the leave, any health insurance benefits shall be maintained as if an employee had not taken leave. Employees may not be required to provide a replacement worker while taking leave. Employers may require “reasonable verification” of the employee’s child’s length of stay in a NICU. However, an employer may not request any confidential information protected by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.L. No. 104-191, 110 Stat. 1936, or other law.

Employers are prohibited from taking adverse actions against an employee because the employee exercises rights under the Act. Employees who believe their rights have been violated under the Act must, within 60 days after the date of the last event constituting the alleged violation, file a complaint with the Illinois Department of Labor (IDOL) or file a civil action. IDOL is responsible for administering and enforcing the Act, including the adoption of administrative rules. If IDOL conducts an investigation and finds cause to believe the Act has been violated, the matter shall be referred to an administrative law judge to schedule a formal hearing. IDOL is authorized to impose civil penalties and bring any legal action necessary to recover unpaid wages, damages, and penalties. Employers that violate the Act are subject to a civil penalty for each affected employee in an amount not to exceed $5,000. Any continuous period of time when any employee’s child is a NICU patient, during which time the employer is found to have violated the Act, shall constitute a single violation.

Paid Break Time for Nursing Mothers

Effective January 1, 2026, the Nursing Mothers in the Workplace Act, 820 ILCS 260/1, et seq., will require employers to compensate employees taking break time to express breast milk for nursing infant children, unless doing so would create an undue hardship as defined by the Illinois Human Rights Act, 775 ILCS 5/1-101, et seq. The law currently guarantees “reasonable break time” to an employee who needs to express breast milk for one year after the birth of the employee’s child. 820 ILCS 260/10. After January 1, 2026, employers will be expressly required to pay the employee during the break time at the employee’s regular rate of compensation. Employers will not be permitted to require an employee to use paid leave during the break time or reduce the employee’s compensation during the break time in any other manner.

For more information about employment and labor law, see LABOR LAW: UNFAIR LABOR PRACTICES (IICLE^®, 2025). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Thomas C. Garretson, Robbins Schwartz, Chicago

Thomas C. Garretson is a partner at Robbins Schwartz in Chicago, focusing on labor and employment law. He counsels public and private sector employers on workplace issues, including investigations, disciplinary actions, and collective bargaining. Tom previously worked as a labor relations attorney for the Cook County Health System and with the U.S. Equal Employment Opportunity Commission. He holds a J.D. from Chicago-Kent College of Law and a B.A. with honors from Michigan State University. Tom is admitted to practice in Illinois and is a member of the Chicago Bar Association.

In DeVore v. McCombie, Case No. 1:25-cv-00323, 2025 WL 2696304 (N.D.Ill. Sept. 22, 2025), the United States District Court for the Northern District of Illinois granted the plaintiff’s motion to dismiss due to the defendant’s failure to set forth an adequate factual basis supporting an alleged First Amendment violation. Relying on the United States Supreme Court’s decision in Lindke v. Freed, 601 U.S. 187, 21 L.Ed.2d 121, 144 S.Ct. 756 (2024), the DeVore court’s decision reaffirms that a public official’s social media posts and engagements, even when on a page dedicated to their position, do not automatically constitute “state action” for purposes of a claim brought under 42 U.S.C. §1983.

Facts

The defendant Tony McCombie, an Illinois State Representative, created a Facebook page titled “Tony McCombie for State Representative 71st District” during her 2015 campaign. Following her election, the page’s name was changed to “Tony McCombie State Representative.” During both the campaign and her tenure as a State Representative, McCombie’s Facebook page was used to interact with other Facebook users regarding government business. 2025 WL 2696304 at *1.

In 2023, McCombie was appointed House Minority Leader. Following her appointment, she continued to use the “Tony McCombie State Representative” Facebook page (State Representative page). In 2024, McCombie created a second Facebook page titled “Illinois House Minority Leader Tony McCombie” (Minority Leader page). However, even after creating the new Minority Leader page, McCombie continued to utilize her original State Representative page to interact with other users about government business.

Sometime after McCombie’s appointment as Minority Leader, the plaintiff Thomas DeVore posted critical comments on McCombie’s State Representative page. McCombie, who served as the State Representative page’s administrator and exercised discretion over the page, deleted DeVore’s comments and blocked his account. Id. In response, DeVore filed suit against McCombie in both her official and personal capacities, alleging that her conduct violated the First Amendment. Specifically, DeVore alleged that the McCombie’s State Representative page amounted to a “public forum” and, accordingly, McCombie’s deletion of DeVore’s comments and blocking his participation on the page constituted an unlawful content-based regulation. Id. DeVore requested monetary damages, a declaratory judgment, and injunctive relief under 42 U.S.C. §1983.

McCombie filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and moved to strike DeVore’s claim for monetary damages. 2025 WL 2696304 at *2. In support of her motion, McCombie asserted that DeVore’s claim should be dismissed against her in her official capacity because §1983 does not authorize suits against state officials in their official capacity and, therefore, the court lacked subject-matter jurisdiction over DeVore’s claims. Id. McCombie also asserted that DeVore failed to state any cause of action against her in either capacity. Id. Moreover, McCombie contended that qualified immunity shielded her from any damages claim under Section 1983. (Pg. 5).

Official Capacity Claim

The court first addressed DeVore’s allegations against McCombie in her official capacity as state representative. It agreed with McCombie insofar as the prohibition of damages claims under §1983. However, the court noted that although damages claims were not allowable, DeVore’s requests for declaratory and injunctive relief were prospective in nature and therefore viable. 2025 WL 2696304 at *3. Notwithstanding the allowability of the prospective relief requested by DeVore, the court found that DeVore’s claim was deficient because DeVore failed to assert any facts that would indicate that a policy or custom of the state was cause for the purported First Amendment violations. 2025 WL 2696304 at *3.

Individual Capacity Claim

Regarding DeVore’s individual capacity claim, McCombie argued that under the standards set forth in Lindke, supra, DeVore failed to adequately allege a state action under §1983. Id. The court agreed with DeVore, noting that “[l]iability under Section 1983 attaches only to persons acting ‘under color of law.’ ” Id. The court acknowledged that state action may be particularly difficult to identify when utilizing social media because “the line between a public official’s personal communications and official communications ‘is often blurred.’ ” Id., quoting Lindke, 144 S.Ct. at 766.

Consequently, the court relied on Lindke’s two-pronged test for determining whether social media activity by a public official could be classified as “state action” for purposes of §1983. 2025 WL 2696304 at *4. Under the first prong of Lindke, the court must examine whether the public official has “actual authority rooted in written law or longstanding custom to speak for the State” that “extend[s] to speech of the sort that caused the alleged rights deprivation.” Id., quoting Lindke, 144 S.Ct. at 768. If there is actual authority, the court then must then determine under the second prong, i.e., “whether the public official ‘purported to exercise that authority when [s]he spoke on social media.’ ” Id., quoting Lindke, 144 S.Ct. at 762.

As applied to the facts of the case, the court determined that the DeVore failed to allege any facts identifying a specific law, regulation, or other grant of authority that would authorize McCombie to speak on the state’s behalf in connection with the speech that purportedly caused the First Amendment violations that DeVore complained of. 2025 WL 2696304 at *4. While acknowledging that McCombie’s role as a state representative and as the House Minority Leader undoubtedly vested McCombie with some authority to engage with the public, citing Lindke, supra, the court maintained that DeVore “must show more than that [Defendant] had some authority” and the “alleged censorship must be connected to speech on a matter within [the Defendant’s] bailiwick.” Id., quoting Lindke, 144 S.Ct. at 767.

Applying the first prong of the Lindke test, the court determined that aside from the broad assertion that McCombie served in an official capacity and spoke regarding government business, DeVore provided no factual basis to demonstrate that the discussions on McCombie’s Facebook page were within an area in which she was vested with speaking authority. 2025 WL 2696304 at *4. The court went on to noted that even had the first prong been satisfied, “[a]n official does not necessarily purport to exercise [her] authority by simply posting about a matter within it” and it is “only when Defendant specifically invokes her actual authority as a state legislator and House Minority Leader do her Facebook posts become state action.” 2025 WL 2696304 at *4, quoting, Lindke, 144 S.Ct. at 770.

In sum, the mere posting by a public official about “government business” on a social media account, even if related to the official’s role as such, is insufficient to bring a claim under 42 U.S.C. §1983 absent a showing that the official was speaking under a specific grant of authority and that official purported to invoke the official’s authority under the power of the office.

For more information about First Amendment rights of public employees, see EMPLOYMENT TERMINATION: EMPLOYER OBLIGATIONS AND WORKPLACE CONSIDERATIONS — 2022 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Laura M. Julien, Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C., Sugar Grove

Laura M. Julien is a partner with Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C. in Sugar Grove, Illinois, where she concentrates her practice in municipal law, school law, corporate law, and real estate matters. She is a member of the Illinois State Bar Association, Kane County Bar Association, State Bar of Wisconsin, National Council of School Attorneys, Illinois Local Government Lawyers Association, and Illinois Council of School Attorneys. She is also a recurrent presenter with the National Business Institute. Julien earned her undergraduate, with honors, from the University of Wisconsin and her J.D. degree from the University of Notre Dame Law School.

Robert Rewerts Sr. and Robert Rewerts Jr. purchased their land from Samuel Waller and Neva Waller. Rewerts v. Schnake, 2025 IL App (4th) 250039-U, ¶5. The transfer was memorialized by a notarized warranty deed that was recorded at the time of acquisition. As part of this transaction, the Rewerts received an easement for vehicular ingress and egress to the real estate they were purchasing. The existence and legitimacy of this easement is not disputed. Id.

Concurrently, with the recording of their acquisition deed, the contract memorializing the real estate sale between the Rewerts and Wallers also was recorded on the parcel they had just purchased. 2025 IL App (4th) 250039-U at ¶6. Schedule A, attached to the recorded contract, gave the Rewerts the option to purchase an additional 75 acres from the Wallers and, in the event the option was not exercised, gave the Rewerts the right to an easement on that second property for ingress and egress for residential and recreational purposes. 2025 IL App (4th) 250039-U at ¶¶7 – 8. The Rewerts never exercised their option to purchase the additional 75 acres from the Wallers, and this parcel eventually was purchased by Kurt Schnake and Tammy Schnake. 2025 IL App (4th) 250039-U at ¶9.

Notwithstanding the Schnakes’ purchase of this second Waller parcel, the Rewerts contended that they had the right to receive the easement referenced in Schedule A. 2025 IL App (4th) 250039-U at ¶¶7 – 8. This easement — the subject of the parties’ dispute — was useful to the Rewerts because flooding made the Rewerts’ undisputed easement route periodically impassable. 2025 IL App (4th) 250039-U at ¶8. The only problem: the disputed easement area went through what was now the Schnakes’ front yard. 2025 IL App (4th) 250039-U at ¶9.

Because the Schnakes disputed the existence and legitimacy of this easement, the Rewerts filed their complaint, seeking a declaratory judgment that an easement for their benefit traversed the Schnakes’ land. 2025 IL App (4th) 250039-U at ¶¶2, 8. As a result, the Rewerts argued that they were entitled to construct a bridge on the disputed easement parcel where it went over a ditch, as well a permanent injunction requiring the Schnakes to allow them to use the claimed easement. Id. Cross-motions for summary judgment were filed with the trial court ultimately agreeing with the Schnakes. 2025 IL App (4th) 250039-U at ¶2. A timely appeal was filed.

Appellate Court

The appellate court, in its de novo review, affirmed the trial court’s decision. 2025 IL App (4th) 250039-U at ¶3. In doing so, the appellate court agreed with the lower court’s finding that the Schnakes were bona fide purchasers who took ownership of their parcel free and clear of the disputed easement. 2025 IL App (4th) 250039-U at ¶¶3, 12 – 13. “[B]ona fide purchasers of land take the land free from a claimed easement if they (1) paid valuable consideration for the land; (2) bought the land without notice, actual or constructive, of the existence of the easement; and (3) exercised good faith in buying the land.” 2025 IL App (4th) 250039-U at ¶13, citing Knobloch v. Mueler, 123 Ill. 554, 17 N.E. 696, 700 (1888). Moreover, in Illinois, “[t]he law charges purchasers with notice of only those conveyances in the direct line of the title they are buying.” 2025 IL App (4th) 250039-U at ¶14, citing Capper v. Poulsen, 321 Ill. 480, 152 N.E. 587, 588 (1926). A party is not required to examine “every record that might possibly affect real estate before he could be protected in taking title to or a lien upon real estate would be to place such a burden upon purchasers of real estate or incumbrances as to practically put an end to all transactions of that kind.” 2025 IL App (4th) 250039-U at ¶14, citing Rohde v. Rohn, 232 Ill. 180, 83 N.E. 465, 467 (1907). Rather, a party is deemed to have constructive knowledge only of conveyances in the direct line of the title being purchased (i.e., in the line of the succession of deeds or other instruments by which title is traced back to its original source). Id.

Here, the Rewerts did not contend that, when buying the Schnake property from the Wallers, the Schnakes had actual notice of an easement created by Schedule A or that their purchase was in bad faith. 2025 IL App (4th) 250039-U at ¶13. Instead, the Rewerts’ claims (and the appellate court’s analysis) centered on whether the recorded Schedule A was sufficient to put the Schnakes on constructive notice of the disputed easement prior to their purchase of the Wallers’ land. Id. Apart from the question of whether Schedule A constituted a document in the line of title, which the appellate court denied, merely recording it on a different parcel other than the one the Schnakes purchased, even if the grantors were the same for both the Rewerts and the Schnakes, was not sufficient to constitute a document in the line of title. 2025 IL App (4th) 250039-U at ¶15. To hold otherwise would put the onus on a purchaser to examine every record that might possibly affect the parcel being purchased before making a purchase — a ridiculous and unattainable burden.

Herren v. Beshears

Patricia Herren and Mary Ann Herren and Brent Beshears owned adjoining property. Herren v. Beshears, 2025 IL App (4th) 250219, ¶3. At issue was the Herrens’ usage of a private road that ran across the Beshears property to the Herren property. Id. The Herren property was landlocked, and for more than 60 years the Herrens and their guests, tenants, and invitees had used the private road for ingress to and egress from their property. 2025 IL App (4th) 250219 at ¶5. Shortly after taking ownership of his property, Beshears sent a letter to the Herrens stating that he intended to install his own locks on the gate that allowed access to the private road and that the Herrens required his permission before using the road. 2025 IL App (4th) 250219 at ¶25. The locks did not stop the Herrens from using the road, as they cut the gate’s chains and locks multiple times and kept using the road as they had done in the past. Id.

The Herrens filed their complaint, seeking declaratory and injunctive relief related to their use of the private road. 2025 IL App (4th) 250219 at ¶4. Essentially, the Herrens claimed a prescriptive easement to use the private road based on their continuous and open use of the road for decades and without the permission from but with the knowledge of the prior owners of the Beshears’ property, to which Beshears wrongfully and intentionally sought to deny them access. 2025 IL App (4th) 250219 at ¶¶5 – 6. The trial court, having granted the Herrens’ request for a temporary restraining order, subsequently conducted lengthy hearings on their request for a preliminary injunction. 2025 IL App (4th) 250219 at ¶¶7 – 48.

Ultimately, the trial court granted the Herrens’ request for preliminary injunction, finding that they had established a fair question about the existence of a prescriptive easement. 2025 IL App (4th) 250219 at ¶49. Specifically, the trial court found that the Herrens had presented evidence that they had used the private road for ingress to and egress from their property, as well as evidence showing that their use of the private road since 1958 had been adverse or hostile, exclusive, open and notorious, and uninterrupted. Id. The court rejected the defendant’s argument that there was a presumption of permissive use of the private road due to evidence of a “neighborly relationship” between the property owners, especially because there was “ample evidence of nonpermissive use” that overcame any presumption of permissive use based on a neighborly relationship. Id. Finally, in granting the Herrens’ request, the trial court noted that they did not seek to expand the size of the easement but rather sought protection to use the private road in a manner that was far less burdensome to the Beshears’ parcel than many of the prior uses established through the testimony of several of the hearing witnesses. 2025 IL App (4th) 250219 at ¶50. Beshears filed a timely interlocutory appeal. 2025 IL App (4th) 250219 at ¶51.

Appellate Court

In reviewing the lower court’s decision under an abuse of discretion standard, the appellate court affirmed the trial court’s granting of a preliminary injunction in favor of the Herrens. 2025 IL App (4th) 250219 at ¶¶58, 92 – 93.

A preliminary injunction is meant to preserve the status quo until a trial court can render a decision on the merits. 2025 IL App (4th) 250219 at ¶56. To obtain a preliminary injunction, a movant must show a right in need of protection, irreparable injury if the status quo is not preserved, no adequate remedy at law, and a likelihood of success on the merits. 2025 IL App (4th) 250219 at ¶57. To succeed, a movant must show a fair question as to all of these elements and that the balance of the equities is in the movant’s favor. Id.

An easement is a right or privilege of one party to use the real estate of another. 2025 IL App (4th) 250219 at ¶60. To establish a prescriptive easement, the use in question must be open, uninterrupted, exclusive, continuous, and under a claim of right (i.e., adverse). Id. Adversity is shown by the use of the property with the knowledge and acquiescence of the owner but without the owner’s permission. 2025 IL App (4th) 250219 at ¶61. Adverse use can be presumed by the “long acquiescence” of a landowner. 2025 IL App (4th) 250219 at ¶¶61, 72.

Although the permissive nature of a use is usually demonstrated by a written or oral license, permission can also be inferred from the neighborly relationship of the parties. 2025 IL App (4th) 250219 at ¶62. Here, there was no evidence of any such written or oral license. While there was testimony regarding the various neighbors’ friendliness with the Herrens, there was no definitive evidence regarding which came first: the friendly relationship that could give rise to permissive use of the private road or the existence of the private road itself. 2025 IL App (4th) 250219 at ¶75. Additionally, the testimony of the one witness that Beshears relied on to demonstrate the permissiveness of the Herrens’ use conflicted with other testimony presented by that same witness. 2025 IL App (4th) 250219 at ¶79.

The vast majority of the witness’s testimony presented to the trial court evidenced that no permission was ever granted to the Herrens. Id. In addition, the evidence presented established that the origin of the private road was unknown, that the road had served as the only access to the land comprising the Herren property for more than 60 years, was exclusive to them (and their tenants, invitees, etc.), and occurred with the knowledge of various owners of the Beshears property. 2025 IL App (4th) 250219 at ¶¶64, 66. Moreover, the Herrens did not seek to increase the size or materially alter the extent and scope of the easement from their historical use or increase the burden to the Beshears’ property. 2025 IL App (4th) 250219 at ¶85.

Ultimately, the appellate court found that the evidence presented was sufficient to sustain the trial court’s finding that the plaintiffs demonstrated a prima facie case that there was a fair question regarding their entitlement to a prescriptive easement over the private road. Concurrently, the appellate court found Beshears’ arguments unpersuasive and his cited caselaw distinguishable. Accordingly, there was no abuse of discretion by the lower court in granting the Herrens’ request for a preliminary injunction. 2025 IL App (4th) 250219 at ¶¶80 – 86.

For more information about real estate law, see MORTGAGE FORECLOSURE: CORRESPONDING ISSUES (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Genevieve M. Daniels, Genevieve M. Daniels, P.C.

Genevieve M. Daniels, a versatile litigator and transactional attorney, specializes in commercial, employment, and real estate law. She offers comprehensive legal services, including real estate transactions, employment law compliance, and dispute resolution. Genevieve's unique experience allows her to provide clients with strategic insights and effective advocacy. She is also an active presenter, arts supporter, and passionate about Persian cooking and adventure travel.

The Illinois Supreme Court issued in Bitner v. City of Pekin, 2025 IL 131039, on September 18, 2025, a finding that the Public Employee Disability Act (PEDA), 5 ILCS 345/0.01, et seq., does not prohibit a city from withholding employment taxes from PEDA benefits.

The plaintiffs in the case were both police officers working for the City of Pekin and who were injured in the line of duty in separate accidents. Both employees received PEDA benefits pursuant to §1(b) of PEDA. Section 1(b) provides:

Whenever an eligible employee suffers any injury in the line of duty which causes him to be unable to perform his duties, he shall continue to be paid by the employing public entity on the same basis as he was paid before the injury, with no deduction from his sick leave credits, compensatory time for overtime accumulations or vacation, or service credits in a public employee pension fund during the time he is unable to perform his duties due to the result of the injury, but not longer than one year in relation to the same injury. [Emphasis added.] 5 ILCS 345/1(b).

During the time that the plaintiffs received PEDA benefits, the City continued to pay the plaintiffs in the same manner as they were paid prior to their injury and withheld employment taxes (Federal, State, Social Security and Medicare). The plaintiffs filed a suit in circuit court of Tazewell County, alleging that, by withholding the employment taxes, the City violated the Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq.

Cross motions for summary judgment were filed. The circuit court ruled in favor the plaintiff and entered a judgment to recoup the withheld taxes from the City. The ruling was appealed to the appellate court. The appellate court determined that, based on the plain language of the statute, §1(b) did not prohibit the City from withholding unemployment taxes. They did not reach a conclusion on whether the only remedy was to seek a refund of the improperly withheld taxes from the IRS. The appellate court reversed and remanded the case.

The Supreme Court allowed leave to appeal. There were multiple issues decided at the circuit court and appellate level. However, the only issue before the Illinois Supreme Court in the case was whether the appellate court erred in its interpretation of §1(b).

Relying on language from prior appellate decisions, including Gibbs v. Madison County Sheriff’s Department, 326 Ill.App.3d 473, 760 N.E.2d 1049, 1052, 260 Ill.Dec. 276 (Fifth Dist. 2001), the plaintiffs argued that §1(b) provides for the “continuation of full pay” and that “full pay” should be interpreted to mean gross pay without employment tax deductions. 2025 IL 131039 at ¶27. The Court noted, however, that the phrase “full pay” appears nowhere in §1(b). The proper starting point for statutory interpretation, it emphasized, is the plain language of the statute itself. Section 1(b) expressly provides that an eligible employee “shall continue to be paid by the employing public entity on the same basis as he was paid before the injury, with no deduction from his sick leave credits, compensatory time for overtime accumulations or vacation.” 5 ILCS 345/1(b).

The Court concluded that the phrase “on the same basis” was unambiguous and required disability payments be processed in the same manner as the employee’s pre-injury wages. 2025 IL 131039 at ¶35. Thus, if the employer routinely withheld employment taxes before the injury, those same deductions must continue post-injury in order to comply with §1(b).

The statutory language in §1(b) also lists specific items that cannot be deducted — sick leave, compensatory time, and vacation credits — but does not mention employment taxes. Applying the interpretive maxim expressio unius est exclusio alterius, the Court held that the legislature’s express inclusion of certain prohibited deductions impliedly excludes others. 2025 IL 131039 at ¶30. Accordingly, the omission of employment tax withholding from the list indicates that such withholdings are permissible.

Plaintiffs argued that this reading produced an absurd or unjust result because, in their view, PEDA benefits are exempt from federal income tax, and therefore the withholding of employment taxes unlawfully reduces the benefit. The Court was unpersuaded by their argument. It observed that plaintiffs had provided no authority — no IRS ruling, federal statute, or regulation — establishing that §1(b) payments are tax-exempt. Even if such payments were ultimately non-taxable, the Court reasoned, any excess withholding would not deprive the employee of funds owed under the Act. Rather, the proper remedy would be for the employee to claim a tax refund from the IRS or adjust his W-4 withholding status.

Additionally, the Court underscored the administrative practicality of its interpretation. They noted that public employers often face operational challenges in administering pay for police officers and firefighters who move in and out of PEDA status, sometimes for short periods. Requiring employers to continually assess taxability and alter withholding practices would create unnecessary complexity and potential compliance issues. Section 1(b), by directing that pay continue “on the same basis” as before the injury, actually simplifies administration and ensures uniformity. The Court noted that other jurisdictions, such as Massachusetts and North Carolina, have adopted similar frameworks requiring payment of “in the same manner” as regular compensation for disability payments. 2025 IL 131039 at ¶34.

The Court held that nothing in §1(b) prohibits public employers from withholding employment taxes from disability payments. The employer, therefore, did not violate the statute by continuing to process payroll in the same manner as pre-injury compensation. The appellate court’s judgment reversing the circuit court was affirmed.

This decision reinforces that PEDA does not create an enhanced or tax-exempt benefit beyond continuation of ordinary salary. Payments should be issued from the regular payroll system and subject to the same withholdings as the employee’s pre-injury compensation.

The decision also reiterates that questions regarding whether disability payments are taxable, or whether withholdings were appropriate, are matters between the employee and the Internal Revenue Service. Per the decision, if an employee believes the payments are exempt from taxation, the appropriate recourse is to adjust tax withholding by submitting a new W-4 form or to seek a refund directly from the IRS. This clarification protects municipalities from unwarranted demands for reimbursement and reinforces that PEDA’s purpose is to ensure income continuity, not to provide a tax-exempt benefit.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE^®, 2023). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visitwww.iicle.com/subscriptions.

Kisa P. Sthankiya

Kisa P. Sthankiya is a Partner at Rusin Law, Ltd., specializing in workers' compensation defense. With extensive experience in litigating workers' compensation claims, she has achieved successful outcomes at various court levels. Recognized as an “Emerging Lawyer” and a “Rising Star,” Kisa has also contributed as an educator and author in her field. She holds a B.S. from Northwestern University and a J.D. from Loyola University Chicago School of Law. Outside of work, Kisa enjoys fitness, traveling, and reading.

Our October 2025 FLASHPOINTS Author Spotlight features Colleen L. Sahlas, a first-time General Editor and author contributor on IICLE’s brand new title PRACTICAL PROBATE (IICLE^®, 2025).

Though this is her first time as a contributor, Sahlas has had a long-time relationship with IICLE that began at the start of her legal career. “For decades, IICLE has been the gold standard for attorneys practicing in Illinois who want to learn to practice any area of law. As a brand-new attorney in 2000, the IICLE ESTATE ADMINISTRATION book was my “Bible” and go-to guide for how to handle probate and trust administration. I used, and still have, my father’s 1989 edition. IICLE’s ESTATE ADMINISTRATION has long been the authority on Illinois probate for trusts and estates attorneys. It covers a lot of ground for decedent’s estates, including not only probate estates and small estates governed by the Illinois Probate Act, but also trust administration which is governed primarily by the Illinois Trust Code.”

Then, in the summer of 2024 Sahlas came to IICLE with the idea to expand our library and create the PRACTICAL PROBATE handbook. “It was my desire for the IICLE PRACTICAL PROBATE manual to dovetail nicely with IICLE’s ESTATE ADMINISTRATION book, taking a deeper dive and focusing solely on probate and probate alternatives while offering a variety of practical resources, such as answers to frequently asked questions and step-by-step guides on what to do, what to draft and how to draft it. Attorneys who are new to probate will find fundamentals such as probate terminology and the anatomy of a will, identifying heirs and legatees, drafting a narrative affidavit of heirship, understanding per stirpes v. per capita, identifying which assets pass into an estate and which avoid probate, and probate alternatives. Attorneys who are well-versed in probate will find answers to nuanced matters and the finer points, such as how to comply with notice requirements with the Attorney General’s Office for a charitable legatee; what is required if a trust is a legatee; handling insolvent estates, abatement, lapsed legacies, or ademption; how to notify an omitted heir or legatee; and what happens at the death of an heir or legatee or at the death of a representative.”

Colleen L. Sahlas is the Managing Partner at the Law Offices of Hoy & Sahlas, LLC, in Oak Brook. Since 2000, she has concentrated her practice in estate planning, probate, decedent’s estates, trust administration, real estate, and business.Sahlas is Former Chair of the Illinois State Bar Association Trusts and Estates Section Council (2024 – 2025), served on the ISBA Standing Committee on Legislation for the 2024 – 2025 term, and received a 5 Year Service Award as the Newsletter Editor of the ISBA Trusts and Estates Section Council. In 2022, she was hand-selected to serve on a small legislative committee with the Illinois Real Estate Lawyers Association that successfully amended the Illinois Residential Real Property Disclosure Act. She was also the recipient of the 2025 IICLE^® Outstanding Achievement in Estate Planning Award. Sahlas earned a B.A. from Bethel University (formerly known as Bethel College) and a J.D. from The John Marshall Law School (now known as the University of Illinois at Chicago Law School).