HB1458ham001 101ST GENERAL ASSEMBLY

Rep. Emanuel Chris Welch

Filed: 3/29/2019

10100HB1458ham001 LRB101 06902 LNS 58236 a

AMENDMENT TO HOUSE BILL 1458

AMENDMENT NO. ______. Amend House Bill 1458 by replacing everything after the enacting clause with the following:

"Section 5. The Code of Civil Procedure is amended by adding Section 8-804.5 as follows:

"(735 ILCS 5/8-804.5 new)

Sec. 8-804.5. Parties to restorative justice practice.

(a) This Section is intended to encourage the use of restorative justice practices by providing a privilege for such participation and ensuring that anything communicated during the practice is strictly confidential, and will not be used against the parties in any future court proceedings without their informed consent. This Section further intends to codify that the privilege within a restorative justice practice shall only be waived by informed consent of the party or parties about whom the participation or communication concerns. The General Assembly affords this privilege in recognition of restorative justice as a powerful tool in addressing the needs of victims, offenders, and the larger community in the process of repairing the fabric of community peace. The General Assembly further encourages residents of this State to employ restorative justice practices, not only in justiciable matters, but in all aspects of life and law.

(b) As used in this Section:

"Communication" means any information received by a party in preparation for, during, or received after a restorative justice practice.

"Facilitator" means a person who facilitates a restorative justice practice.

"Restorative justice practice" means a convening, such as victim-offender mediation, peace circle, or other conflict resolution sessions, in which parties who have caused harm, parties who have been harmed, or community stakeholders collectively gather to identify harm, repair harm to the extent possible, address trauma, reduce the likelihood of further harm, or strengthen community ties by focusing on the needs and obligations of all parties involved through a participatory process.

"Party" means a person, including a facilitator, an individual who has caused harm, an individual who has been harmed, a community member, or any other participant, who is approved by the facilitator and participates in a restorative justice practice.

(c) This Section applies to a restorative justice practice in which:

(1) at least one party is participating in a restorative justice practice pursuant to statute or court or administrative agency rule or referred to participate in a restorative justice practice by a court, administrative agency, mediator, or arbitrator;

(2) the restorative justice practice is convened or facilitated by a school;

(3) the restorative justice practice is convened or facilitated by a law enforcement agency; or

(4) the restorative justice practice is convened or facilitated by a restorative justice facilitator.

(d) The legitimacy of the restorative justice practice, if challenged in any civil, juvenile, criminal, or administrative proceeding, shall be determined by the judge. The judge, in a hearing conducted pursuant to this subsection, may consider information that would otherwise be privileged to the extent that the information is probative of the issue.

(e) If a restorative justice practice is convened, neither the fact that it has been convened, nor anything said or done within the practice, is admissible in any court, unless this privilege is:

(1) waived, in court or in writing, by the party or parties about whom the information relates;

(2) subject to one or more of the exemptions in subsection (g); or

(3) used in furtherance of a criminal act.

Any waiver is limited to the participation and communication of that party only, and the participation or communications of any other participants remain confidential and privileged unless waived by the other parties. This information is not subject to discovery or disclosure in any judicial or extra-judicial proceedings.

(f) Evidence that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely because it was discussed or used in a restorative justice practice.

(g) No party to a restorative justice practice shall reveal information relating to the practice unless the party or parties about whom the information relates waives this privilege in court or in writing, or the disclosure is otherwise permitted by this Section.

(1) Nothing with respect to this privilege shall preclude a party to a restorative justice practice from revealing information:

(i) if that person reasonably believes it is necessary to prevent death or great bodily harm;

(ii) to comply with other law;

(iii) to report on a restorative justice practice as described under paragraph (1) of subsection (c); however, this report shall be limited to the fact that a practice has taken place, the terms of any agreement reached between the parties, an opinion regarding the success of the practice, and if further proceedings are to follow. The specific communications elicited in the practice shall not be reported to the court unless waived by the appropriate parties; or

(iv) to comply with a court order following a hearing that considers the following factors:

(A) the ease of obtaining the information through other methods;

(B) the need for the information; and

(C) the interest in protecting the privacy of restorative justice practices.

(2) A party may reveal information relating to the practice to the extent that the person reasonably believes disclosure is necessary to prevent a participant from committing a crime in circumstances other than those specified in subparagraph (i) of paragraph (1).

(3) Any party to a restorative justice practice who, by reason of his or her employment or profession, is legally required to report information shall not be relieved of that duty based on this privilege.".