September 2025 IICLE FLASHPOINTS

A motion for a directed verdict or a motion to find for the defendant is usually made by the defendant at the close of the plaintiff’s evidence and renewed at the close of all the evidence. If the plaintiff has failed to establish a prima facie case, a motion for a directed verdict could result in cost savings by shortening the trial. It also removes the risk that a statement made during the defendant’s case could supply a missing element of the plaintiff’s prima facie case. A motion for directed verdict is an absolute prerequisite for later filing a motion for entry of judgment notwithstanding the verdict. The standard for granting a directed verdict varies depending on whether it is a jury or bench trial.

Bench Trials — Motion To Find for the Defendant

A motion to find for the defendant in a bench trial is somewhat anomalous. Generally, the court will wish to take the matter under advisement. However, from time to time the evidence seems to warrant such a finding.

In Vitacco v. Eckberg, 271 Ill.App.3d 408, 648 N.E.2d 1010, 208 Ill.Dec. 88 (1st Dist. 1995), the court held that when a motion to find for the defendant at the close of the plaintiff’s case is made, the trial court should consider all evidence adduced by the plaintiff in the case, including evidence favorable to the defendant. The test itself is rather straightforward: (1) whether the plaintiff has made out a prima fascia case; and, if so, (2) whether the weight of the evidence necessary for the plaintiff’s prima facie case has been negated. Accord Dwyer v. Love, 346 Ill.App.3d 734, 805 N.E.2d 719, 282 Ill.Dec. 100 (2d Dist. 2004). The court in Dwyer held that on a motion for a directed finding, a trial court does not view the evidence most favorable to the plaintiff but, rather, (1) determines whether the plaintiff has made out a prima facie case, then (2) weighs the evidence, including that which favors the defendant, and if this weighing process negates some of the evidence necessary to the plaintiff’s prima facie case, the court should grant the defendant’s motion and enter judgment for the defendant. 805 N.E.2d at 723. In contrast, when sufficient evidence establishing the plaintiff’s prima facie case remains after the weighing process, the trial court should deny the motion and proceed as if the motion had not been made.

The appellate court will not reverse a directed finding unless it is contrary to the manifest weight of the evidence. Orbeta v. Gomez, 315 Ill.App.3d 687, 733 N.E.2d 1287, 248 Ill.Dec. 289 (2d Dist. 2000); Anest v. Audino, 332 Ill.App.3d 468, 773 N.E.2d 202, 208, 265 Ill.Dec. 840 (2d Dist. 2004) (“When considering a motion for a directed finding in a bench trial, a trial court determines whether the plaintiff has made out a prima facie case and then weighs the evidence, including that which favors the defendant.”).

Jury Trials — Motion for Directed Verdict

Under 735 ILCS 5/2-1202, if a party moves for a directed verdict at the close of evidence and before the case is submitted to the jury, the court may grant or deny the motion or reserve its ruling on the motion and submit the case to the jury. If the court either denies the motion or reserves ruling, it is essential that the motion be renewed in a posttrial motion or the motion will be waived. Mazurek v. Crossley Construction Co., 220 Ill.App.3d 416, 581 N.E.2d 59, 163 Ill.Dec. 108 (1st Dist. 1991).

The standard to be applied by the court in ruling on a motion for a directed verdict was set out many years ago in Pedrick v. Peoria & Eastern R.R., 37 Ill.2d 494, 229 N.E.2d 504, 513 – 514 (1967):

In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

A directed verdict in favor of a defendant is appropriate when the plaintiff has not established a prima facie case. Nastasi v. United Mine Workers of America Union Hospital, 209 Ill.App.3d 830, 567 N.E.2d 1358, 153 Ill.Dec. 900 (5th Dist. 1991). Error in the denial of a directed verdict is waived if the directed verdict is not raised in the movant’s posttrial motions. However, the opposing party is not required to file a posttrial motion to object to an order granting a directed verdict. Wade v. Rich, 249 Ill.App.3d 581, 618 N.E.2d 1314, 188 Ill.Dec. 744 (5th Dist. 1993).

Richard L. Miller, Miller P.C., Chicago

Richard L. Miller II is a Partner at Miller PC, in Chicago, where he concentrates his practice in commercial litigation, class actions, and labor law. He has litigated disputes involving business contracts, employment law, insurance coverage, trademarks, partnership agreements, and corporate veil piercing claims. Miller is an Adjunct Professor at Northwestern School of Law, where he has served as an instructor for Trial Advocacy since 2005 and Advanced Trial Advocacy since 2013. He has been an arbitrator for the American Arbitration Association (since 2008), FINRA (since 2018), and the Cook County Mandatory Arbitration Program (2003 – 2005). Miller prosecuted approximately 50 jury trials as an Assistant State’s Attorney, including two murder cases. He has been repeatedly recognized as a Leading Lawyer, Super Lawyer, and Rising Star. Miller was named one of the 40 Illinois Attorneys Under Forty To Watch by the Law Bulletin Publishing Company. He is a Past President of the Law Alumni Board for the University of Illinois College of Law. Miller attended the University of Illinois College of Law on a full, merit-based scholarship and graduated cum laude. He graduated magna cum laude from the University of Illinois College of Business.

Note: The author’s firm represented one of the defendants, the museum, in this action. The museum appeared in the appeal solely for monitoring the appeal. It did not participate in filing briefs or arguments in the appeal.

When a condominium declarant signed and caused a special amendment to a condominium declaration to be recorded as part of a sale of two commercial units, the First District affirmed the trial court’s grant of summary judgment voiding the special amendment because it was held not to be a correction of a clerical or scrivener’s error, but rather a substantive change. River North Partners Holdings, LLC v. Museum of Broadcast Communications, 2025 IL App (1st) 241772-U, ¶1. The appellate court stated: “The special amendment was intended to demonstrate that the section of the condominium declaration giving defendant the exclusive right to construct a rooftop deck or rooftop gathering place was also intended to endow defendant with exclusive rights over the full bundle of the building’s air rights.” 2025 IL App (1st) 241772-U at ¶2.

Facts

Adjacent to Marina City in Chicago, the Museum of Broadcast Communications, one of the defendants, converted a parking garage into a four-story commercial condominium building. 2025 IL App (1st) 241772-U at ¶4. In 2012, the museum sold the first-floor unit to a predecessor entity of River North Partners Holdings, LLC, the plaintiff in this action, which leased the unit to a steakhouse. 2025 IL App (1st) 241772-U at ¶5. In 2019, the museum sold the two upper floors of the building, consisting of three units, to Fern Hill Fund Investors I, LLC, which created three limited liability companies, each of which took title to one of the units. 2025 IL App (1st) 241772-U at ¶6.

At the closing, the museum, as developer and declarant of the condominium property, signed a special amendment to the condominium declaration, which purportedly corrected an error in the declaration. 2025 IL App (1st) 241772-U at ¶7. “The Museum included in the special amendment that the declaration contained ‘an error’ because it only expressly reserved for the Museum the right to develop ‘on the Building roof,’ but it was supposed to reserve for the Museum the right to develop the ‘air space on and above the Building roof with no upper boundary.’ ” Id.

Upon learning of the special amendment, the plaintiff demanded that the Fern Hill entities rescind the recorded special amendment because one of the entities, FH Kinzie State IV, LLC, had also been assigned at closing the rooftop development rights under an easement contained in the declaration. 2025 IL App (1st) 241772-U at ¶8. FH Kinzie State IV refused to do so, and the plaintiff sued all the unit owners to obtain declaratory relief that the special amendment was void. Id.

As developer of the condominium project, pursuant to the declaration, the museum was empowered to make a special amendment either (a) to bring the declaration into compliance with the Illinois Condominium Property Act, 765 ILCS 605/1 et seq., or (b) to correct clerical or typographical or similar errors in the declaration. 2025 IL App (1st) 241772-U at ¶10.

The plaintiff argued that the museum lacked the authority to sign and record the special amendment because the air space was owned by all unit owners. The Fern Hill defendants argued that under the terms of the declaration, the museum had the authority to consent to the special amendment on behalf of all unit owners, including the plaintiff, and that therefore no consent was needed from the plaintiff. 2025 IL App (1st) 241772-U at ¶11. The trial court entered summary judgment for the plaintiff, and the Fern Hill defendants appealed. 2025 IL App (1st) 241772-U at ¶12.

Analysis

The Fern Hill defendants argued that the trial court erred in granting summary judgment. 2025 IL App (1st) 241772-U at ¶14. The appellate court began its analysis by observing principles surrounding summary judgments and the construction of condominium declarations with the primary objective being “to ascertain the intent of the parties and give effect to that intent.” 2025 IL App (1st) 241772-U at ¶¶14 – 15.

The declaration granted the museum, as developer, an easement right to construct and develop on the building roof “rooftop deck space, rooftop facilities, rooftop gathering space and other improvements.” 2025 IL App (1st) 241772-U at ¶17. The special amendment revised a portion of one sentence to strike a reference to constructing and developing on the rooftop and to substitute that the developer could construct and develop “within that portion of the Property consisting of air space on and above the Building roof with no upper boundary.” Id. The defendants argued that the special amendment cured a clerical or scrivener’s error in the declaration. 2025 IL App (1st) 241772-U at ¶19. The appellate court summarized:

Defendants argue that the intention of the original declaration was to give the Museum the right to develop the airspace as exemplified by the fact that anything installed on the roof would necessarily require the use of the building’s airspace as well. According to defendants, the use of a special amendment was appropriate to reconcile the inconsistencies in the declaration’s provisions. 2025 IL App (1st) 241772-U at ¶18.

The trial court found this interpretation to be unreasonable. 2025 IL App (1st) 241772-U at ¶19.

The appellate court reviewed Black’s Law Dictionary (7th ed. 1999), in which a clerical error was defined as “[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.” [Emphasis added by Schaffner court.] 2025 IL App (1st) 241772-U at ¶20, quoting Schaffner v. 514 W. Grant Place Condominium Association, Inc., 324 Ill.App.3d 1033, 756 N.E.2d 854, 258 Ill.Dec. 580 (1st Dist. 2001), which cited Black’s Law Dictionary (7th ed. 1999). The court found Schaffner to be “instructive and persuasive.” 2025 IL App (1st) 241772-U at ¶26.

The court held that in this case the “error” was not merely clerical in nature. 2025 IL App (1st) 241772-U at ¶21. The original language was “perfectly consistent with a reasonable interpretation” of the rest of that particular section of the declaration. Id. “It is fitting that the right to construct one of those structures would require the right to build ‘on the Building roof’ as the declaration solely sets forth. The full bundle of air rights for a property is a different matter altogether.” Id.

The appellate court distinguished clerical errors, which are mechanical or technical mistakes, from errors arising from mistakes in professional judgment or a misapprehension of the law or facts. 2025 IL App (1st) 241772-U at ¶22. The appellate court also noted that when the museum recorded the special amendment, it simultaneously recorded a new plat for the property to depict the rights addressed by the special amendment, which showed further that this was not a clerical error. 2025 IL App (1st) 241772-U at ¶23.

The appellate court affirmed summary judgment for plaintiff. 2025 IL App (1st) 241772-U at ¶35.

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. Cummins, 2025 IL App (2d) 230516, the Second District Appellate Court reversed the trial court’s granting of a motion to suppress evidence and held that emergency exception to the Fourth Amendment’s warrant requirement applied.

In Cummins, a police officer responded to a noise complaint coming from a house around 2:30 a.m. The officer arrived and heard extremely loud music and saw the lights were on in the house. The officer was unable to see anyone inside but could hear a dog barking. 2025 IL App (2d) 230516 at ¶5. The officer knocked on the door but did not receive a response. The officer also saw a cabinet that contained firearms in plain view when he approached the door. 2025 IL App (2d) 230516 at ¶9.

The officer and his sergeant later spoke to a neighbor who said that noise from the house was a recurrent issue late at night and that the defendant had lived there since his father passed away. The officer learned that the defendant’s FOID card was revoked after a computer check. 2025 IL App (2d) 230516 at ¶8. Additional officers arrived on scene, and they continued to pound on the door to no avail. The officers decided to enter the house in order to see if anyone was having a medical emergency and also because of the firearm observations. 2025 IL App (2d) 230516 at ¶9.

The officers entered the house around 3:47 a.m., which was around 1 hour and 16 minutes after the initial officer arrived at the house. 2025 IL App (2d) 230516 at ¶15. Officers located the defendant inside, and he was charged with various illegal firearm possession charges.

The trial court granted the defendant’s motion to suppress evidence and ruled that there were no exigent circumstances justifying the warrantless entry into the house. 2025 IL App (2d) 230516 at ¶20. The appellate court reversed.

The emergency exception to the Fourth Amendment’s warrant requirement applies when (1) the police have reasonable grounds to believe that there is an emergency at hand and there is an immediate need for their assistance in the protection of life or property; and (2) there is some reasonable basis, approximating probable cause to associate the emergency with the area or place to be entered and searched. 2025 IL App (2d) 230516 at ¶27, citing People v. Ferral, 397 Ill.App.3d 697, 921 N.E.2d 414, 336 Ill.Dec. 800 (2d Dist. 2009). The reasonableness of an officer’s belief about an emergency existing is determined by the entirety of the circumstances known to the officer as the time of entry. Id.

The appellate court rejected the defendant’s argument that the officers’ delay in entering negated that an emergency was occurring and rejected pre-2009 caselaw, which had held the same. 2025 IL App (2d) 230516 at ¶¶32 – 33. The appellate court noted that the U.S. Supreme Court held in Brigham City, Utah v. Stuart, 547 U.S. 398, 164 L.Ed.2d 650, 126 S.Ct. 1943 (2006), that an officer’s action can be reasonable under the Fourth Amendment regardless of the officer’s state of mind as long as the circumstances viewed objectively justified the emergency action. 2025 IL App (2d) 230516 at ¶35.

The U.S. Supreme Court later held in Michigan v. Fisher, 558 U.S. 45, 175 L.Ed.2d 410, 130 S.Ct. 546 (2009), that a state court erred in finding that the emergency exception did not apply when the trial court ruled that the officer did not summon medical help for the injured defendant. The Fisher Court stated that the proper test was whether there was an objectively reasonable basis for believing that medical assistance was needed or that people were in danger. 2025 IL App (2d) 230516 at ¶35, citing Fisher, supra. The Illinois Supreme Court adopted the holdings of Stuart and Fisher in People v. Aljohani, 2022 IL 127037, 211 N.E.3d 325, 463 Ill.Dec. 764. 2025 IL App (2d) 230516 at ¶36.

The appellate court next concluded that the trial court erred in assuming that that the probable cause needed to enter the residence was whether it was more likely than not that an emergency was occurring. However, probable cause does not require a belief to be correct or more likely true than false. 2025 IL App (2d) 230516 at ¶38.

In the instant case, the officers were justified in entering the house because the known facts supported an inference that the defendant was home. The police were unsuccessful in calling the defendant; however, this could have been the result of the type of emergency that would have justified entry; the defendant’s inaction could have been the result of unconsciousness or another impairment; the defendant’s neighbor believed that the defendant was home noting that his car was in the driveway; and it is common for people to be home in the early morning hours. 2025 IL App (2d) 230516 at ¶39. The officers could also reasonably conclude that the defendant would have turned off his loud music if he had gone elsewhere. Id.

Additionally, the fact that the officers did not receive a response from the defendant after over an hour favored a conclusion that an emergency was at hand. 2025 IL App (2d) 230516 at ¶41. The passage of time is just one of the factors for a court to consider. 2025 IL App (2d) 230516 at ¶43. Therefore, the objective circumstances at the time of the entry were a reasonable conjecture that there was an emergency at hand. Id.

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.

In In re Marriage of Hipes and Lozano, 2025 IL App (1st) 240601, a particularly contentious postjudgment case, the trial court disqualified the husband’s attorney under Rules 3.7 and 1.7 of the Illinois Rules of Professional Conduct of 2010. The attorney was also the husband’s mother and appeared as a fact witness during a prejudgment hearing. The evidence showed that the attorney had also filed a notice of appeal challenging the court’s order restricting the husband’s parenting time, consulted with the husband’s prior attorneys, and guaranteed payment of fees to the husband’s prior counsel. The appellate court affirmed the disqualification based on Rule 3.7, which provides that an attorney shall not act as an advocate at a trial in which the attorney is likely to be a necessary witness. The appellate court noted that, at the time the motion to disqualify was heard, the attorney was not just likely to be a witness but had already been a witness, and disqualification on that basis alone was proper. The court’s opinion also discussed Rule 1.7, which provides that an attorney shall not represent a client if there is a significant risk that the attorney’s personal interests will materially limit representation of the client. The attorney had two personal interests at stake in the case: (1) restrictions on the husband’s parenting time affected how often the attorney got to see the attorney’s granddaughter, and (2) the attorney had guaranteed fees that the husband owed prior counsel. The appellate court affirmed the trial court’s ruling on disqualification, noting that the disqualification was “justified, necessary, and not an abuse of discretion.” 2025 IL App (1st) 240601 at ¶51.

The issue of attorneys’ fees was also significant in the case. The husband appealed the attorneys’ fees issued by the trial court as sanctions under §508(b) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/101, et seq., which were affirmed by the appellate court due to the husband’s attorney’s improper, continued involvement after disqualification. As to fees under §§508(a) and 506(b) of the Act, the appellate court affirmed the fee awards to the extent payable from existing assets such as interest on lawyer trust account (IOLTA) funds, tax refunds, and retirement account distributions, but the court reversed the balance of the awards, concluding that the husband lacked the ability to pay because the husband’s $51,480 in fee obligations exceeded 100 percent of the husband’ s modest $40,811 annual income. 2025 IL App (1st) 240601 at ¶82. In its ruling, the court acknowledged that the resolution was not ideal for the wife’s attorney or the child representative who received only approximately 41 percent of their awarded fees, but it found that undermining the husband’s financial stability was improper. Further, although contempt findings were entered by the trial court, they were purged and deemed moot on appeal.

Fifth District Upholds Trial Court’s Use of Hunt Formula for Retirement Account, Orders Equal Split of 401(k) Funds

In In re Marriage of McLean, 2025 IL App (5th) 250094, the wife appealed the trial court’s marital and nonmarital allocations of two of the husband’s retirement accounts in a dissolution of marriage action. With respect to the first retirement account, the trial court used the Hunt formula (see In re Marriage of Hunt, 78 Ill.App.3d 653, 397 N.E.2d 511, 34 Ill.Dec. 55 (1st Dist. 1979)), to determine the respective marital and nonmarital portions since the husband had worked at the company from which the account derived prior to the date of the marriage. Under the Hunt formula, the trial court determined the account was 44 percent nonmarital and 56 percent marital. The wife argued that the Hunt formula should not apply to a defined contribution plan and that there was no precedent for its application to anything other than defined benefit plans, but the appellate court rejected these arguments, finding no abuse of discretion and no reversible error in the trial court’s application of the Hunt formula. However, the appellate court vacated the trial court’s deduction of $54,880 from the value of husband’s Mastercard 401(k), finding it was error to credit the husband for contributions made during the proceedings on the basis that, according to the trial court, they “ ‘[had] already been considered for support purposes.’ ” 2025 IL App (5th) 250094 at ¶62. The appellate court found that those contributions were, in fact, marital property and the entire account should be divided equally. The court also upheld the trial court’s allocation judgment and rejected the wife’s arguments that joint decision-making and an expanded parenting schedule for the father was an abuse of discretion.

For more information about family law, see ADOPTION LAW (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.

Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago

Michelle A. Lawless, founder of The Law Office of Michelle A. Lawless LLC, has over 20 years of experience in family law. After a distinguished career at a prestigious litigation firm, she started her own practice to offer a more compassionate and resolution-focused approach. Michelle specializes in collaborative law, mediation, and attorney-assisted mediation, helping clients navigate family disputes with minimal conflict. She is recognized for her thought leadership, extensive financial experience, and dedication to creating better outcomes for families.

Hedgepeth v. Britton

In Hedgepeth v. Britton, No. 24-1427, 2025 WL 2447077 (7th Cir. Aug. 26, 2025), the United States Court of Appeals for the Seventh Circuit upheld the termination of a high school teacher, Jeanne Hedgepeth, who posted inflammatory content on her personal social media accounts.

Prior to the incident that resulted in her termination, Hedgepeth had been suspended by the school district for “disruptive behavior” on two separate occasions. The first incident occurred when she “erupted with profanity at her students,” resulting in a one-day unpaid suspension and a written warning. During the second incident, she had another “profane outburst” toward a student and received a four-day unpaid suspension and a notice to remedy. 2025 WL 2447077 at *1.

During the summer of 2020, at the height of the George Floyd protests, Hedgepeth made a series of social media posts commenting on current events. Although Hedgepeth’s account was set to “private” and she didn’t accept friend requests from current students, it was estimated that approximately 80 percent of her 800-person friend list was comprised of school district alumni. 2025 WL 2447077 at *2.

In one post, Hedgepeth stated that she didn’t want to go home from vacation because the “civil war has begun,” and she commented that she “need[ed] a gun and training.” 2025 WL 2447077 at *1. She also posted a viral meme encouraging that septic tank trucks be turned toward protesters to “stop the riots.” Hedgepeth also engaged in an online debate with a former student about race in America, noting that she “find[s] the term ‘white privilege’ as racist as the ‘N’ word.” 2025 WL 2447077 at *2.

Almost immediately after publishing the posts, the school district began receiving complaints from current students, alumni, staff members, and residents of the community. The posts also garnered significant media attention, with press inquiries from local and national media outlets. Following the public outcry, the school district’s administration met with Hedgepeth and informed her that they would be recommending her termination to the school board. This recommendation was supported by Hedgepeth’s past disciplinary actions as well as her “lack of any understanding or appreciation for why many people found her comments objectionable.” Id. The school board ultimately voted in favor of her termination.

Following her termination, Hedgepeth requested a review hearing before the Illinois State Board of Education (ISBE), asserting that her speech was protected under the First Amendment. Relying on the balancing test under Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731 (1968), the hearing officer determined that Hedgepeth’s First Amendment rights were not violated. 2025 WL 2447077 at *3. Hedgepeth also sought relief in federal court, whereby the district court granted summary judgment to the school district, finding she was estopped due to the then-pending review before the ISBE, but that, in any event, her First Amendment claim failed on its merits. Id.

Upon review, the appellate court affirmed the district court’s decision. Citing Harnishfeger v. United States, 943 F.3d 1105, 1112 – 1113 (7th Cir. 2019), the appellate court noted that a successful First Amendment retaliation claim must demonstrate that (1) the employee engaged in constitutionally protected speech; (2) there was a deprivation likely to deter such speech; and (3) the speech was a motivating factor in that employee’s termination. In assessing whether the speech was constitutionally protected, the court must further examine whether the employee was speaking as a citizen on a matter of public concern and, if so, determine whether the employee’s interest in commenting was greater than the employer’s interest in “promoting the efficiency of the public services.” Id.

When examining the facts of the case, the school district provided evidence that it had received 113 emails regarding the social media posts, many of which expressed concerns about Hedgepeth’s fitness to teach. The school district also asserted that the disruption caused by the social media posts extended far beyond the schoolhouse gates and into the community. This public attention resulted in the stifling of district operations, as staff and resources were diverted to addressing the community fallout rather than providing educational services. The appellate court agreed with the school district, finding that Hedgepeth’s “decision to post inflammatory comments to an audience that she herself curated — 80% of whom were part of the PHS community — carried a clear risk of amplification” (2025 WL 2447077 at *6) and that “Hedgepeth did not lose her job because she expressed her views on a matter of public concern” (2025 WL 2447077 at *7) but rather because “she posted a series of vulgar, intemperate, and racially insensitive messages to a large audience of recent [school district] alumni” (id.). Accordingly, the appellate court held that the posts were not entitled to First Amendment protection. Id.

E.D. v. Noblesville School District

In E.D. v. Noblesville School District, No. 24-1608, 2025 WL 2355989 (7th Cir. Aug. 14, 2025), a student established a pro-life club at her high school. The club was permitted to participate in the school’s activity fair, during which time it was permitted to display pro-life signs and its members were permitted to wear pro-life shirts. Sometime thereafter, E.D. requested that the school’s administration allow her to post pro-life flyers with political slogans for display on the school’s walls. The school denied E.D.’s request, informing her that all signs were required to be content neutral in accordance with the school’s rules for student club wall postings. Instead of revising the posters, E.D.’s mother met with administration seeking approval of the posters. The school then suspended the club until the end of the semester on the grounds that it no longer appeared to be student-led. The club was reinstated the following semester. E.D., acting through her parents, sued the school district, asserting that the school district’s actions were “driven by hostility to her pro-life views” in violation of her First Amendment rights. 2025 WL 2355989 at *1. The district court granted summary judgment to the school district based on E.D.’s failure to meet the threshold for municipal liability under Monell grounds (see Monell v. Department of Social Services, 436 U.S. 658, 56 L.Ed.2d 611, 98 S.Ct. 2018 (1978)). 2025 WL 2355989 at *4.

The appellate court addressed the claim on its merits, finding in favor of the school district and affirming that no First Amendment violation occurred. Relying on Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 98 L.Ed.2d 592, 108 S.Ct. 562 (1988), the court recognized that given the school district’s central role in facilitating the placement of the flyers on school property alongside official school-sponsored communications, the flyers could reasonably be viewed as having the school’s endorsement. 2025 WL 2355989 at *5. The appellate court further held that the school district’s restriction on political content in flyers was “reasonably related to legitimate pedagogical concerns” and that the school’s walls were a “limited public forum” for the purpose of allowing clubs to advertise meeting times and locations. 2025 WL 2355989 at *6.

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.

Shearie Harding and Kenneth Turner jointly executed a residential lease with their landlord Meifang Shi for an apartment in Chicago. Harding v. Shi, 2025 IL App (1st) 240317, ¶3. The lease required a $5,000 security deposit, which Turner paid in its entirety. 2025 IL App (1st) 240317 at ¶¶4 – 5. A few months later, Harding, through her attorney, sent a letter to Shi indicating that she had left the apartment due to domestic violence by a household member and declaring that her lease with Shi was terminated. 2025 IL App (1st) 240317 at ¶7. Turner, however, would continue to reside in the apartment and remained obligated to pay rent. Id.

In that same letter, Harding’s attorney demanded return of the $5,000 security deposit plus additional penalties and fees totaling $16,500, arguing various violations of the security deposit provisions of the Chicago Residential Landlord and Tenant Ordinance (RLTO). 2025 IL App (1st) 240317 at ¶8. Specifically, Shi failed to provide information about the bank holding the security deposit or to provide a receipt memorializing the deposit, in violation of RLTO §5-12-080. Id. Harding’s attorney further argued that under the RLTO, the penalty for these violations was two times the deposit amount plus attorneys’ fees (totaling $1,500) and immediate return of the deposit, hence the $16,500 demand. Id.

While Shi had no objection to Harding’s termination of the lease and agreed to release her from further obligation or liability, Shi would not terminate the lease with respect to Turner. 2025 IL App (1st) 240317 at ¶10. At that time, Shi’s attorney also produced a receipt evidencing that the $5,000 payment had been paid by a checking account in Turner’s name. 2025 IL App (1st) 240317 at ¶11. Accordingly, because Turner paid the security deposit and continued to reside in the apartment, Shi’s attorney argued that Harding was not entitled to the return of the security deposit or any other payments. Id.

Subsequently, Harding filed a complaint against Shi, alleging violation of RLTO §5-12-080. 2025 IL App (1st) 240317 at ¶13. Although a copy of the lease was attached to the complaint, Harding made no mention of Turner but, instead, argued that she had paid the security deposit pursuant to the lease terms. Id. In response, Shi moved to dismiss the complaint pursuant to §2-619 of the Code of Civil Procedure, 735 ILCS 5/2-619, arguing that Harding was not entitled to return of the security deposit because Turner was the person who made the payment. 2025 IL App (1st) 240317 at ¶18. Separately, Shi argued that none of the tenants was entitled to the return of the security deposit because Turner remained in possession of the apartment and was subject to the lease. 2025 IL App (1st) 240317 at ¶19. Moreover, Shi argued that Harding was not entitled to any damages under the RLTO because she had not been the tenant who had paid the security deposit. Id.

While Harding acknowledged that Turned had paid the security deposit, she also maintained that she still had a right to seek its return and damages because the RLTO “does not limit a tenant’s rights to only the ones paying the rent or paying the security deposit” and noted that the lease identified her as a tenant and also specified that all persons executing the lease “shall be jointly and severally liable for the performance of each and every agreement” thereunder. 2025 IL App (1st) 240317 at ¶20. Ultimately, after oral argument, the trial court granted Shi’s motion to dismiss because Turner remained in the apartment and suggested that Harding could file another complaint once Turner had moved out. Harding timely filed her notice of appeal. 2025 IL App (1st) 240317 at ¶¶24 – 28.

Appellate Court

On appeal, Harding argued that the lower court had erred in its interpretation of RLTO §5-12-080, maintaining that neither Turner’s payment of the security deposit nor his remaining in the apartment precluded her ability to recover the security deposit or damages under the RLTO. 2025 IL App (1st) 240317 at ¶30. Because she was a tenant under the terms of the lease and under the RLTO’s definition of that term, Harding “essentially argued that any ‘tenant’ under a lease where a security deposit has been paid had a right to seek damages for violations of RLTO section 5-12-080, regardless of whether she is the tenant who paid the deposit or whether another tenant remains in the property.” [Emphasis in original.] 2025 IL App (1st) 240317 at ¶44. In contrast, Shi argued that the RLTO’s language supported its position that only the tenant who paidthe deposit may seek damages for violations. Id.

Fundamentally, the appellate court’s review of the trial court’s decision hinged on the interpretation of RLTO §5-12-080 — a question of law subject to de novo review. 2025 IL App (1st) 240317 at ¶¶45 — 49, citing Landis v. Marc Realty, L.L.C., 235 Ill.2d 1, 919 N.E.2d 300, 303, 335 Ill.Dec. 581 (2009), and Lawrence v. Regent Realty Group, Inc., 197 Ill.2d 1, 752 N.E.2d 334, 339, 257 Ill.Dec. 676 (2001) (applying de novo review to construction of RLTO provisions). After methodically reviewing each of the relevant provisions in §5-12-080 in great detail, the appellate court found that “the plain language of section 5-12-080 supports the proposition that only the tenant making the deposit, rather than any tenant under the lease, may seek damages under subsection (f) for the landlord’s failure to comply with the requirements of subsections (a) through (e).” 2025 IL App (1st) 240317 at ¶51.

Because there was undisputed proof that Turner, and not Harding, had paid the security deposit, the appellate court found that Harding had no basis to assert a claim against Shi under RLTO §5-12-80. As a result, Shi provided an affirmative matter negating Harding’s lawsuit, compelling the appellate court to affirm the lower court’s decision. 2025 IL App (1st) 240317 at ¶69.

While the First District found that the plain language of RLTO §5-12-80 compelled the conclusion that only the tenant who made the security deposit has the right to seek damages under the RLTO, it also noted that “this opinion does not purport to create any new obligation on the part of the landlord to identify which specific tenant actually paid the security deposit.” [Emphasis in original.] 2025 IL App (1st) 240317 at ¶63. Notwithstanding the court’s commentary, it’s hard to see how a landlord can avoid having to make such determinations in the future. Here, because the tenant remaining in possession also had paid the entire security deposit, the factual scenario of Harding was clear and straightforward under the appellate court’s analysis. What is unclear is how a landlord should navigate when two or more tenants each separately contribute part of the funds for a security deposit or when the tenant remaining in possession did not contribute any security deposit funds.

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.

Every year, the General Assembly enacts multiple new laws impacting school districts throughout Illinois, and there are a few highlights from the 2025 legislative session that all attorneys should have on their radar as the 2025 – 2026 school year begins.

First, P.A. 104-430 (eff. Aug. 20, 2025) contains notable changes with regard School Resource Officers (SROs). While the General Assembly has passed several laws in recent years related to the role of law enforcement in schools, including SROs, the policies enacted continue to try to find the balance between school safety and avoiding using law enforcement to enforce school discipline. Under the new law, by July 1, 2026, a memorandum of understanding is required to be in place between a school district and the local law enforcement agency providing an SRO to the school. See 105 ILCS 5/10-20.68(a-5). That memorandum of understanding must now define the role, duties, and responsibilities of the School Resource Officer and must also specify procedures to ensure that the SRO has been trained or has procured a waiver for training, consistent with §10.22 of the Illinois Police Training Act, 50 ILCS 705/1, et seq. This training requirement now includes specific training on working with students with disabilities to ensure appropriate and effective interactions that support their educational and behavioral needs, among other components.

Perhaps the most noteworthy change in P.A. 104-430 is the prohibition on law enforcement, including SROs, issuing tickets or citations for violations of school rules or local ordinances while on school property. And further, §10-22.6 of the Illinois School Code, has been amended to enforce the same as it relates to the regulation of schools. Section 10-22.6 now provides that a student must not be issued a monetary fine, fee, ticket, or citation as a school-based disciplinary consequence or for a municipal code violation on school grounds during school hours or while taking school transportation by any person (whether an SRO or other law enforcement officer), though it does not preclude requiring a student to pay restitution for lost, stolen, or damaged property.

Relevant also to agreements with law enforcement is reporting that will be required beginning in the 2027 – 2028 school year. The Illinois State Board of Education, beginning in 2027 – 2028, will require each school district to report the number of students in kindergarten through grade 12 who were referred to law enforcement, including the SRO, and the number of instances of referrals that a student received. Referral is specifically defined to mean “an action by which a student is reported to a law enforcement agency or official, including a school police unit, for an incident that occurred on school grounds, during school-related events or activities (whether in-person or virtual), or while taking school transportation, regardless of whether official action is taken.” See 105 ILCS 5/2-3.206.

Similarly impactful as to students is P.A. 104-391 (eff. Aug. 15, 2025), which in part reorganized certain sections in the Illinois School Code but made a change that may be impactful to some school districts’ policies and practices. Previously, §10-20.9a(c) of the School Code provided in part: “No public high school of a school district shall withhold a student’s grades, transcripts, or diploma because of an unpaid balance on the student’s school account.” This provision was shifted to §10-20.13 of the Illinois School Code where there is law regarding waivers for students, but there were additions to the law; this provision no longer just impacts grades, diplomas, and transcripts, but now includes more protections:

Regardless of whether a student has obtained a waiver [for school fees], a school board may not discriminate against, punish, or penalize a student in any way because of an unpaid balance on the student’s school account or because the student’s parents or guardians are unable to pay any required fees or fines for the loss of school property. This prohibition includes, but is not limited to, the lowering of grades, exclusion from any curricular or extracurricular program of the school district, or withholding student records, grades, transcripts, or diplomas. Any person who violates his subsection (d) is guilty of a petty offense.

Many schools were aware of the prohibition related to diplomas, grades, and transcripts but had remaining policies regarding attendance at extracurriculars for students with outstanding balances. These policies should be reviewed for consistency with P.A. 104-391.

P.A. 104-198 (eff. Jan. 1, 2026) adds training required for substitute personnel to include training for emergencies. The new law recommends that training be provided in person, when possible, for school evacuation drills and law enforcement lockdown drills. Additionally, there is a requirement for a school district to provide support to substitutes, which includes that maps indicating all school exits are prominently displayed in every classroom and that an information packet for full-time equivalent substitute employees includes district-approved materials for evacuation and lockdown procedures.

Several new laws impact special education procedures, including P.A. 104-47 (eff. Jan. 1, 2026), which clarifies a school district’s obligation to notify parents of their right to bring other individuals with knowledge or special expertise regarding the child to IEP meetings, including advocates, and provide information about the Illinois State Board of Education’s IEP facilitation program. P.A. 104-211 (eff. Aug. 15, 2025) creates parameters for settlement agreements in special education disputes. P.A. 104-232 (eff. Aug. 15, 2025) requires IEPs to more specifically address graduation requirements for students with disabilities by the school year in which the student turns 16. And P.A. 104-368 (eff. Jan. 1, 2026) amends the timelines for school districts to respond to parental requests for independent educational evaluations. See

In the discipline context, the General Assembly addressed the use of Artificial Intelligence by amending the bullying provisions of the School Code to address AI and the use of digital replicas as a form of cyberbullying in P.A. 104-338 (eff. July 1, 2026). Schools in Illinois must amend their policies by the beginning of the 2026 – 2027 school year to address cyberbullying using AI.

Finally, P.A. 104-288 (eff. Jan. 1, 2026) addresses issues related to immigration enforcement. Consistent with the U.S. Supreme Court’s holding in Plyler v. Doe, 457 U.S. 202, 272 L.Ed.2d 786, 102 S.Ct. 238 (1982), the School Code requires schools to “take steps to protect the integrity of school learning environments for all children, so that no parent is discouraged from sending and no child is discouraged from attending school, including from the threat of immigration enforcement or other law enforcement activity on a school campus.” The statute prohibits a school from requesting or maintaining information on a student’s immigration status or citizenship. It also requires a policy and procedures on allowing law enforcement agents attempting to enter a school.

While there were dozens more statutes enacted in Illinois in 2025 that impact education and school districts, these are the new laws that deserve some attention for all practitioners, including those who may not focus on school law.

For more information about school law, see SCHOOL LAW: ORGANIZATION, FINANCE, AND PROPERTY — 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.

Brandon K. Wright, Franczek P.C., Chicago

Brandon K. Wright in a partner in Franczek P.C. and concentrates his practice in K-12 education law. He serves as general counsel to dozens of school districts and special education cooperatives and advises clients on a wide range of matters, including employment matters, student discipline, and due process. Brandon spends a significant amount of time providing professional development and continuing education opportunities across the country. He has trained administrators and teachers on legal issues involving students with disabilities and other school law concerns. He is a highly sought-after presenter, having presented to educational professionals in 26 states (and counting) and given keynote speeches at major educational conferences. Brandon currently serves on the Executive Committee of the Illinois Council of School Attorneys and is a past Chair of the Executive Committee. He is a member of the Illinois State Bar Association and the National School Attorneys Association. He has previously taught as an adjunct faculty member at Southern Illinois University’s Carbondale and Edwardsville campuses, as well as at Eastern Illinois University.

Our September 2025 FLASHPOINTS Author Spotlight recognizes Matthew J. Gardner, who most recently served as a contributing author on CONSTRUCTION LAW: TRANSACTIONAL CONSIDERATIONS (IICLE^®, 2025). He has also written for previous editions of SCHOOL LAW: ORGANIZATION, FINANCE, AND PROPERTY since 2017.

Gardner first encountered IICLE when he was a law clerk for Hon. Sophia H. Hall in the Chancery Division of the Circuit Court of Cook County, where Gardner handled a wide range of legal matters. “If I had a matter I was unfamiliar with, I would often go up to the Law Library in the Daley Center and use IICLE publications to at least get a basic understanding of the applicable legal issues and some cases to get me started on my research.” He found IICLE to be a wonderful resource for a young lawyer and has relied on IICLE publications throughout his career.

Gardner seized the opportunity to become a contributing author as an associate attorney at Robbins Schwartz and has since contributed to numerous IICLE chapters on construction-related matters and school law. He noted that he initially just wanted to get a recognized publication on his resume and website biography, but that the substantive benefits are even more important. “Being an author forced me to give a comprehensive review of updates to caselaw, statutes, and regulatory changes on the topic, and then condense that information into a written product that lawyers could use in an efficient and practical manner.” Now, having served as a contributing author on multiple chapters, Gardner values working with younger coauthors to put out material that benefits both experienced lawyers who have mastered their practice and new lawyers who are just learning a topic, similar to his experience in the Daley Center.

Gardner is a Partner at Robbins Schwartz with a practice focused on representing higher education institutions, school districts, private schools, and other education-related entities on construction, real estate, transactions, procurement, and finance matters. He is a graduate of the University of Utah and holds a JD from the University of Wisconsin Law School.