HB5091 102ND GENERAL ASSEMBLY

LRB102 26002 LNS 35411 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB5091

Introduced 1/27/2022, by Rep. Kelly M. Cassidy

SYNOPSIS AS INTRODUCED:

410 ILCS 535/21	from Ch. 111 1/2, par. 73-21
755 ILCS 65/5
755 ILCS 65/50
765 ILCS 835/2	from Ch. 21, par. 16

Amends the Vital Records Act. Provides that an injunction enjoining the issuance of a permit to disinter human remains shall issue only when the person seeking the injunction has rights superior to the person seeking the permit to disinter. Provides that if a person seeking an injunction does not have rights superior to the person seeking the permit to disinter, a court of competent may award costs to the person seeking the permit to disinter, if the court makes a finding that the action seeking the injunction was brought in bad faith. Amends the Disposition of Remains Act. Provides that if a court finds that a person has filed or opposed an action relating to the person's right to control disposition, the court may award costs against the person it finds has acted in bad faith. Amends the Cemetery Protection Act. Provides that any bylaws, rules, and regulations made by the cemetery authority for the government thereof are effective if made publicly available through continuous publication on the cemetery authority's website or on the cemetery authority's social media page. Requires a cemetery authority that does not maintain a website or social media page to provide a copy of the bylaws, rules, and regulations to each person prior to or contemporaneous with the cemetery authority's presentment of any contract or legal agreement for services in relation to the cemetery. Provides that the amendatory Act may be referred to as the Michael Bauer Memorial Act.

A BILL FOR

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. References to Act. This Act may be referred to as the Michael Bauer Memorial Act.

Section 5. The Vital Records Act is amended by changing Section 21 as follows:

(410 ILCS 535/21) (from Ch. 111 1/2, par. 73-21)

Sec. 21. (1) The funeral director or person acting as such who first assumes custody of a dead body or fetus shall make a written report to the registrar of the district in which death occurred or in which the body or fetus was found within 24 hours after taking custody of the body or fetus on a form prescribed and furnished by the State Registrar and in accordance with the rules promulgated by the State Registrar. Except as specified in paragraph (2) of this Section, the written report shall serve as a permit to transport, bury, or entomb the body or fetus within this State, provided that the funeral director or person acting as such shall certify that the certifying health care professional who, within 12 months prior to the date of the patient's death, was treating or managing treatment of the patient's illness or condition which resulted in death has been contacted and has affirmatively stated that he or she will sign the medical certificate of death or the fetal death certificate. If a funeral director fails to file written reports under this Section in a timely manner, the local registrar may suspend the funeral director's privilege of filing written reports by mail. In a county with a population greater than 3,000,000, if a funeral director or person acting as such inters or entombs a dead body without having previously certified that the certifying health care professional who, within 12 months prior to the date of the patient's death, was treating or managing treatment of the patient's illness or condition that resulted in death has been contacted and has affirmatively stated that he or she will sign the medical certificate of death, then that funeral director or person acting as such is responsible for payment of the specific costs incurred by the county medical examiner in disinterring and reinterring or reentombing the dead body.

(2) The written report as specified in paragraph (1) of this Section shall not serve as a permit to:

(a) Remove body or fetus from this State;

(b) Cremate the body or fetus; or

(c) Make disposal of any body or fetus in any manner when death is subject to the coroner's or medical examiner's investigation.

(3) In accordance with the provisions of paragraph (2) of this Section the funeral director or person acting as such who first assumes custody of a dead body or fetus shall obtain a permit for disposition of such dead human body prior to final disposition or removal from the State of the body or fetus. Such permit shall be issued by the registrar of the district where death occurred or the body or fetus was found. No such permit shall be issued until a properly completed certificate of death has been filed with the registrar. The registrar shall insure the issuance of a permit for disposition within an expedited period of time to accommodate Sunday or holiday burials of decedents whose time of death and religious tenets or beliefs necessitate Sunday or holiday burials.

(4) A permit which accompanies a dead body or fetus brought into this State shall be authority for final disposition of the body or fetus in this State, except in municipalities where local ordinance requires the issuance of a local permit prior to disposition.

(5) A permit for disposition of a dead human body shall be required prior to disinterment of a dead body or fetus, and when the disinterred body is to be shipped by a common carrier. Such permit shall be issued to a licensed funeral director or person acting as such, upon proper application, by the local registrar of the district in which disinterment is to be made. In the case of disinterment, proper application shall include a statement providing the name and address of any surviving spouse of the deceased, or, if none, any surviving children of the deceased, or if no surviving spouse or children, a parent, brother, or sister of the deceased. The application shall indicate whether the applicant is one of these parties and, if so, whether the applicant is a surviving spouse or a surviving child. Prior to the issuance of a permit for disinterment, the local registrar shall, by certified mail, notify the surviving spouse, unless he or she is the applicant, or if there is no surviving spouse, all surviving children except for the applicant, of the application for the permit. The person or persons notified shall have 30 days from the mailing of the notice to object by obtaining an injunction enjoining the issuance of the permit. After the 30-day period has expired, the local registrar shall issue the permit unless he or she has been enjoined from doing so or there are other statutory grounds for refusal. The notice to the spouse or surviving children shall inform the person or persons being notified of the right to seek an injunction within 30 days. An injunction enjoining the issuance of a permit to disinter shall issue only when the person seeking the injunction has rights superior, according to Section 5 of the Disposition of Remains Act, to the person seeking the permit to disinter. If a person seeking an injunction does not have rights superior, according to Section 5 of the Disposition of Remains Act, to the person seeking the permit to disinter, a court of competent jurisdiction may award costs, including reasonable attorney's fees, to the person seeking the permit to disinter, if the court makes a finding that the action seeking the injunction was brought in bad faith. Notwithstanding any other provision of this subsection (5), a court may order issuance of a permit for disinterment without notice or prior to the expiration of the 30-day period where the petition is made by an agency of any governmental unit and good cause is shown for disinterment without notice or for the early order. Nothing in this subsection (5) limits the authority of the City of Chicago to acquire property or otherwise exercise its powers under the O'Hare Modernization Act or requires that City, or any person acting on behalf of that City, to obtain a permit under this subsection (5) when exercising powers under the O'Hare Modernization Act. The Illinois Department of Transportation, and any person acting on its behalf under a public-private agreement entered into in accordance with the Public-Private Agreements for the South Suburban Airport Act, is exempt from this subsection (5), provided that the Illinois Department of Transportation, or any such person, takes reasonable steps to comply with the provisions of this subsection (5) so long as compliance does not interfere with the design, development, operation, or maintenance of the South Suburban Airport or the exercise of their powers under the Public-Private Agreements for the South Suburban Airport Act.

(Source: P.A. 102-257, eff. 1-1-22.)

Section 10. The Disposition of Remains Act is amended by changing Sections 5 and 50 as follows:

(755 ILCS 65/5)

Sec. 5. Right to control disposition; priority. Unless a decedent has left directions in writing for the disposition or designated an agent to direct the disposition of the decedent's remains as provided in Section 65 of the Crematory Regulation Act or in subsection (a) of Section 40 of this Act, the following persons, in the priority listed, have the right to control the disposition, including cremation or disinterment, of the decedent's remains and are liable for the reasonable costs of the disposition:

(1) the person designated in a written instrument that satisfies the provisions of Sections 10 and 15 of this Act;

(2) any person serving as executor or legal representative of the decedent's estate and acting according to the decedent's written instructions contained in the decedent's will;

(3) the individual who was the spouse of the decedent at the time of the decedent's death;

(4) the sole surviving competent adult child of the decedent, or if there is more than one surviving competent adult child of the decedent, the majority of the surviving competent adult children; however, less than one-half of the surviving adult children shall be vested with the rights and duties of this Section if they have used reasonable efforts to notify all other surviving competent adult children of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving competent adult children;

(5) the surviving competent parents of the decedent; if one of the surviving competent parents is absent, the remaining competent parent shall be vested with the rights and duties of this Act after reasonable efforts have been unsuccessful in locating the absent surviving competent parent;

(6) the surviving competent adult person or persons respectively in the next degrees of kindred or, if there is more than one surviving competent adult person of the same degree of kindred, the majority of those persons; less than the majority of surviving competent adult persons of the same degree of kindred shall be vested with the rights and duties of this Act if those persons have used reasonable efforts to notify all other surviving competent adult persons of the same degree of kindred of their instructions and are not aware of any opposition to those instructions on the part of one-half or more of all surviving competent adult persons of the same degree of kindred;

(6.5) any recognized religious, civic, community, or fraternal organization willing to assume legal and financial responsibility;

(7) in the case of indigents or any other individuals whose final disposition is the responsibility of the State or any of its instrumentalities, a public administrator, medical examiner, coroner, State appointed guardian, or any other public official charged with arranging the final disposition of the decedent;

(8) in the case of individuals who have donated their bodies to science, or whose death occurred in a nursing home or other private institution and the institution is charged with making arrangements for the final disposition of the decedent, a representative of the institution; or

(9) any other person or organization that is willing to assume legal and financial responsibility.

As used in Section, "adult" means any individual who has reached his or her eighteenth birthday.

Notwithstanding provisions to the contrary, in the case of decedents who die while serving as members of the United States Armed Forces, the Illinois National Guard, or the United States Reserve Forces, as defined in Section 1481 of Title 10 of the United States Code, and who have executed the required U.S. Department of Defense Record of Emergency Data Form (DD Form 93), or successor form, the person designated in such form to direct disposition of the decedent's remains shall have the right to control the disposition, including cremation, of the decedent's remains.

(Source: P.A. 100-526, eff. 6-1-18.)

(755 ILCS 65/50)

Sec. 50. Disputes. Any dispute among any of the persons listed in Section 5 concerning their right to control the disposition, including cremation or disinterment, of a decedent's remains shall be resolved by a court of competent jurisdiction within 30 days of the dispute being filed with the court. A cemetery organization or funeral establishment shall not be liable for refusing to accept the decedent's remains, or to inter, disinter, or otherwise dispose of the decedent's remains, until it receives a court order or other suitable confirmation that the dispute has been resolved or settled. If a court of competent jurisdiction finds that a person listed in Section 5 has, in bad faith, filed or opposed an action relating to the person's right to control disposition, including cremation or disinterment, the court may award costs, including reasonable attorney's fees, against the person it finds has acted in bad faith.

(Source: P.A. 101-381, eff. 1-1-20.)

Section 15. The Cemetery Protection Act is amended by changing Section 2 as follows:

(765 ILCS 835/2) (from Ch. 21, par. 16)

Sec. 2. The cemetery authority is hereby authorized to make bylaws by-laws or rules and regulations for the government thereof, and to make rules regarding the driving of cars, motorcycles, carriages, processions, teams, and the speed thereof, the use of avenues, lots, walks, ponds, water courses, vaults, buildings, or other places within such cemetery, the operations and good management in such cemetery, the protection of visitors, the protection of employees, and for the maintenance of good order and quiet in such cemetery, all such rules to be subject to the rights to control the disposition of a decedent's remains in accordance with the Disposition of Remains Act of interment, entombment, or inurnment right owners, or others, owning any interest in such cemetery; and all persons found guilty of a violation of such rules shall be guilty of a petty offense and shall be punished by a fine of not less than $100, nor more than $500 for each offense. No judge shall be disqualified from hearing any cause that may be brought before him under the provisions of this Act, nor shall any person be disqualified from acting as a juror in such cause, by reason of any interest or ownership they or either of them may have in the interment, entombment, or inurnment rights of such cemetery. Any bylaws, rules, and regulations made by the cemetery authority for the government thereof are effective if made publicly available through continuous publication on the cemetery authority's website or on the cemetery authority's social media page with a reference to and notice of the bylaws, rules, and regulations set forth in every contract or legal agreement with any person for services in relation to the cemetery. However, if the cemetery authority does not maintain a website or social media page, the cemetery authority shall provide a copy of the bylaws, rules, and regulations to each person prior to or contemporaneous with the cemetery authority's or its representative's presentment of any contract or legal agreement for services in relation to the cemetery.

(Source: P.A. 94-44, eff. 6-17-05.)