Wednesday, October 1, 2014

Gaming Board Did Not Violate Due Process in Denying License

In a recent case, the Illinois Gaming Board Board denied a gaming license to C. Capp's LLC. The Board relied on its rules that provide that it may not grant a license unless the Board is satisfied that the applicants is "of good character, honesty and integrity" and whose background "is not injurious to the public health, safety, morals, good order and general welfare" or "does not discredit or tend to discredit the Illinois gaming industry."  C.Capp's LLC v. Jaffe, 2014 IL app (1st) 132696 (Sept. 23, 2014).  

The applicant sued the Board, claiming that the denial of the license without a hearing violated its due process rights.  The court ruled in favor of the Board.  First, the court found that there is no protectable property interest in a video gaming terminal operator's license.  Second, there is no hearing requirement under the video Gaming Act. Third, the Board has wide discretion to issue or deny a terminal operator's license.  In this case, one of the principals in the LLC was associated with a convicted felon and worked with a company that was the subject of federal and state investigations involving gambling.  The court concluded that the decision to deny Capps the license without a hearing was not clearly erroneous.

Post Authored by Julie Tappendorf

Tuesday, September 30, 2014

Deadline Approaching to Change Elected Official's Salary

As most public officials know, an elected official’s compensation cannot be changed during the official’s term of office.  With the 2015 local elections rapidly approaching, public bodies that want to increase or decrease the salaries of the officials who will be elected at the April 7, 2015 election must do so at least 180 days prior to the date when the elected officials would take office.    

State statute says that the compensation of elected officers “shall be fixed at least 180 days before the beginning of the terms of the officers whose compensation is to be fixed.”  50 ILCS 145/2. The challenge with this requirement is that the date that elected officials take office following the election varies depends on the form of government and, at times, upon the public body’s receipt of the election results.  For example, the Illinois Municipal Code specifies that terms commence “at the first regular or special meeting of the corporate authorities after receipt of the official election results from the county clerk…unless as otherwise provided by ordinance,” but then that ordinance cannot fix the date later than the first regular or special meeting in the month of June after the election.  65 ILCS 5/3.1-10-15.  

So, if a government body wants to modify the salaries of its elected officials, it will have have to compute the applicable date based on an estimated time for receipt of the official election results from the county clerk and the meeting date on which newly elected officials will be sworn in. Usually, the swearing in meeting happens in May, following an April election.  As an example, if your board receives the election results in late April and holds its first meeting after receipt on May 4, 2015, the local elected officials need to be sworn in on that day and any ordinance increasing or decreasing the salaries of elected officials must have been passed by November 5, 2014.  

Because the date on which newly elected officials take office is different in various communities, some careful effort should be taken to make sure the date of any salary change is early enough so that no challenge can be made to the action.  Government bodies may want to contact their attorney if they are considering any compensation changes for their elected officials.


Monday, September 29, 2014

7th Circuit Upholds Springfield's Panhandling Ordinance

The City of Springfield, Illinois has an ordinance that prohibits panhandling in its downtown historic district.  That district comprises about 2% of the City.  The ordinance defines panhandling as an oral request for an immediate donation of money.  The ordinance permits, however, signs requesting money and oral pleas to send money later.  Individuals who were cited under this ordinance filed suit against the City, claiming that the ordinance violated their First amendment rights.  The 7th Circuit recently ruled in favor of the City, finding the ordinance content-neutral and constitutional.  Norton v. Springfield (7th Cir. Sept. 25, 2014).

The Seventh Circuit first reviewed decisions from five other courts of appeals, finding that three circuits found similar ordinances content-based (9th, 4th and 6th), while two circuits found anti-panhandling ordinances content-neutral (D.C and 1st).  Although the various panhandling ordinances were different in some respects, they all prohibit requests for money or valuables to be handed over immediately.  The U.S. Supreme Court addressed anti-panhandling ordinances in three cases, finding that a state fair could prohibit panhandling, a Postal Service could prohibit fundraising, and an airport authority could prohibit solicitation.  

The Seventh Circuit held that the ordinance was indifferent as to the requester's reason for seeking money, and, therefore, "Springfield has not meddled with the marketplace of ideas" in enacting the restriction. The court also noted that panhandlers are free to ask for money anywhere else in Springfield.  The court acknowledged the conflict between the circuits, recognizing that it is difficult to determine the line between content-based and content-neutral regulations.  The court concluded, however, that Springfield's ordinance was content-neutral and within the City's power.

The dissent, on the other hand, thought the ordinance was content-based and that the court should follow the decisions of the 9th, 4th, and 6th circuits finding these panhandling ordinances unconstitutional. Because the ordinance exempts requests for money (i.e., by use of a sign or a "deferred request"), in the dissent's view, the ordinance restricts the speaker's message based on what he or she says.  Because the ordinance is content-based, the dissent would have found it unconstitutional under the First Amendment's strict scrutiny standard. 

Municipalities may want to review their current anti-panhandling regulations to ensure that they are consistent with the Seventh Circuit's analysis and ruling in this case. 

Post Authored by Julie Tappendorf

Friday, September 26, 2014

IL-APA Planning Conference in Evanston

Don't miss the Illinois American Planning Association's annual conference that will take place in Evanston next week, October 1-3, 2014.  IL-APA will present dozens of sessions and workshops to educate planners, attorneys, and other land use professionals. Topics include law, ethics, economic development, housing, and zoning issues. 

Attorneys from Ancel Glink's land use group will participate in the following two sessions at the conference:

Ethics 360
Thursday, October 2nd - 3:15-4:45 p.m.
Presenters: Julie Tappendorf, Ancel Glink, Lee Brown, Teska Associates, Philip Kiraly, Village of Glencoe
This panel will bring the perspective of a planner, lawyer, and city manager to engage the audience in the evaluation of what to do to avoid ethical dilemmas and ethics violations

LawLawPalooza
Friday, October 3rd - 8:30-10:00 a.m. 
Presenters: David Silverman and Greg Jones, Ancel Glink
Stay up to date on the most recent changes in Illinois planning and zoning law in a lively, interactive discussion about how to plan (and cope) in today's modern age.

You can find out more and register on the IL-APA website.

Thursday, September 25, 2014

No Unconstitutional “Taking” When Sheriff Seized Medical Marijuana

Our friends at the Inverse Condemnation blog recently reported on an interesting takings case involving medical marijuana.  In Young v. Larimer County Sheriff's Office, No. 13CA1338 (Sep. 11, 2014), the plaintiff filed a lawsuit against the county sheriff after the sheriff seized forty-two marijuana plants of Mr. Young's by cutting them off just above the roots.  Mr. Young claimed that the plants were “medicine” under the Colorado medical marijuana statute and not evidence of a crime as argued by the sheriff.  Consequently, he argued that the destruction of the plants was a taking under the state and federal constitutions and he was due just compensation. 

Both the trial court and the court of appeals agreed there was no unconstitutional taking under the U.S. Constitution because Mr. Young’s marijuana plants were not “property” deserving of protection, particularly where marijuana is still illegal under federal law.

As for Mr. Young's state takings claim, the court first determined the alleged taking (i.e., destruction of the plants) was not a taking because it was the seizure of evidence for a criminal prosecution.  The court noted that an exercise of the police power cannot be a taking, relying on previous takings cases. 

You can read more about this case here.  

Wednesday, September 24, 2014

OMA Claims Must Be Brought Within 60 Days

The School Facility Occupation Tax Law authorizes a county board in Illinois to impose a sales tax for school facility purposes if the voters approve the tax by referendum.  In this unreported case, Williamson County passed an ordinance imposing a countywide sales tax after the voters approved a referendum authorizing the tax.  P and S Grain, LLC v. Williamson County, 2014 IL App (5th) 130507-U.  The ordinance was voted on at a regular county board meeting, pursuant to an agenda item that referred to the action item as "Superintendent of Schools Resolution."  The ordinance was subsequently corrected and approved at a later meeting, pursuant to an agenda that listed the item as "Amend Ordinance 08-02-29-02, An Ordinance Imposing School Facility Retailers' Occupation and Service Occupation Taxes-Section 6."  

Shortly after approval of the amended ordinance, the state began collecting the tax.  From 2008 through 2012, about $23 million in taxes were distributed to county area school districts.  Two retailers subject to the tax filed a lawsuit claiming that the ordinance imposing the tax violated the Open Meetings Act because the agenda was not specific enough to notify the public that the county board would be adopting an ordinance to impose the tax.  The complaint also alleged a variety of other claims, including that the ordinance exceeded the county's authority.

The trial court ruled against the plaintiffs, finding that the claim that the first ordinance violated the OMA was time-barred because it was not brought within 60 days of the alleged violation.  As for the claim that the second ordinance violated the OMA, the trial court held that the agenda was adequate to meet the requirement of the OMA that the agenda "set forth the general subject matter of any resolution or ordinance that will be the subject of final action at that meeting" as required by section 2.02(c) of the OMA.  The trial court also rejected the plaintiff's authority argument.

On appeal, the appellate court agreed with the trial court that the plaintiff's first OMA claim was barred by the 60-day statute of limitations.  The appellate court also upheld the trial court's ruling that the county board's approval of the second ordinance did not violate the OMA, finding that the agenda was "specific enough to put the public on notice that action would be taken on a resolution imposing the sales tax."  

Although the court did not get into the substance of the plaintiff's allegations on the agenda description for the first ordinance, had the plaintiff's claim been timely, it is entirely possible that the agenda description "Superintendent of Schools Resolution" would not have met the OMA requirements of section 2.02.  Local governments should be mindful when they describe ordinances and resolutions that will be voted on at meetings to be sure that their agendas don't run afoul of section 2.02.  

Post Authored by Julie Tappendorf

Tuesday, September 23, 2014

IML Conference Materials

Last week, thousands of municipal officials from across the state were in Chicago to attend the Illinois Municipal League's annual conference.  There were hundreds of educational sessions, along with a number of networking events and activities.  Many of you may have stopped by one of Ancel Glink's sessions to listen in, or just to say hello - we appreciate that!  For those of you who missed the conference, we wanted to make sure you had an opportunity to download our session materials, which are linked below:

Session
Day/Time
AG Attorneys
Handout Materials
Attorneys' Session

Thurs, 8:15 a.m. to 4:00 p.m
Steven Mahrt, Moderator
Various program materials are available on the IML's website here
2014 Year in Review: Illinois Tort Immunity Update (Attorneys' Session)
Thurs, 8:30 a.m.
Steven Mahrt
Darcy Proctor
Finance: Lessons from Detroit and Pension Cases
Thurs, 2:45 p.m.
Derke Price

Second Amendment and Zoning: The Other Side of Concealed Carry
Sat, 9:15 a.m.
Adam Simon
Dan Bolin
How Much Process is Due Process?
Sat, 10:30 a.m.
David Silverman
Julie Tappendorf
Clerks- Legislative and Legal Update
Sat, 10:55 a.m.
Keri-Lyn Krafthefer
Adam Lasker
Council Wars
Sat, 1:30 p.m.
Robert Bush
Stewart Diamond
Keri-Lyn Krafthefer
Derke Price
Julie Tappendorf
Steven Mahrt

Monday, September 22, 2014

Highland Park's Assault Weapon Ban Upheld

The Northern District of Illinois issued an opinion last week upholding the City of Highland Park's ban on assault weapons and large capacity magazines against a Second Amendment challenge. Friedman v. City of Highland Park (N.D. Ill. 9/18/14).  

The City had enacted an ordinance in June of 2013 prohibiting the possession, sale, or manufacture of certain types of assault-type weapons and any magazine that holds more than ten rounds of ammunition.  Right before the ban was to become effective, a City resident and the Illinois NRA filed a lawsuit alleging that the ordinance violated the Second Amendment.  

In analyzing whether the City's ordinance violated the constitution, the court first looked at a variety of U.S. Supreme Court and 7th Circuit decisions interpreting the Second Amendment which provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed."  The court first noted that although the U.S. Supreme Court has recognized a a Second Amendment right to "possess and carry weapons in case of confrontation," there are limitations on this right.  Specifically, the court noted that the Second Amendment does not create "a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."  Heller I.

The court then discussed the two-part test established by these cases for determining whether a gun law is constitutional.  First, the court must determine whether the regulated activity falls outside of the scope of the Second Amendment.  Second, if the City cannot show that the regulated activity is outside the Second Amendment's scope, then the City has to demonstrate that the restriction is justified.  If it cannot meet this burden, the ordinance is unconstitutional.

With respect to the first element, because the ordinance regulates a particular class of weapons, the question for the court was whether the weapons are commonly used for lawful purposes.  In the court's opinion, the evidence submitted by the parties did not resolve this question.  Although the NRA had argued that many individuals use assault weapons at firing ranges (a lawful use), the City countered that these type of weapons fall within the "dangerous and unusual weapons" exception from Second Amendment protection.  Because this particular issue was far from settled, the court determined that the City did not meet its burden of showing that the ordinance was outside of the Second Amendment's scope.

On the second element, however, the court agreed with the City that there was a close fit between the ordinance and its stated objective of protecting the safety of its residents.  The court determined that assault weapons had a "decidedly offensive purpose" like military weapons, rather than the self-defense purpose that the Supreme Court has found in handguns.  Applying a "not quite strict scrutiny" standard, the court determined that the ban did not violate the plaintiffs' Second Amendment rights. The court also acknowledged that City residents can still keep other types of weapons (including handguns) as well as an unlimited number of magazines holding 10 rounds or less, for self-defense.

It is very likely that the state NRA will appeal this ruling to the Seventh Circuit, and we will keep you advised of any future ruling in this case.

Post Authored by Julie Tappendorf 

Friday, September 19, 2014

Investigation Into Teachers' Facebook Activities Dropped

A school district decided to drop its investigation of 17 teachers who “liked” a Facebook post about contract negotiations that included a picture of an ax through a windshield.  The high school teachers’ association had posted a link to a news article on its Facebook page, and through a “glitch,” the post included the ax picture.  After union representatives objected to the investigation, the school board president said the investigation would not move forward.  You can read more about this here.

Post Authored by Julie Tappendorf

Thursday, September 18, 2014

Medical Cannabis Applications Due Next Week

With applications for cannabis facilities due no later than next week (the filing period is September 8-22, 2014), local zoning boards and city councils in Illinois have been busy considering zoning applications to allow these facilities within their jurisdiction.  Illinois medical cannabis law is arguably the strictest of the 24 laws that have been enacted across the country, allowing licenses for only 22 marijuana cultivation sites and 60 dispensaries, that have to be distributed among specified geographic regions throughout the state through a competitive licensing process.
One of the requirements in the state licensing application is a certification that the proposed cultivation facility or dispensary complies with all local building and zoning codes.  While municipalities cannot ban cannabis facilities outright, they can restrict them to specific districts or impose reasonable conditions on their permits.  Some municipalities have amended their zoning codes to require special use permits for the facilities; others have restricted them to particular zoning districts, such as the agricultural or industrial districts.
Although it was assumed that these facilities would be hotly contested, in reality many communities are coming around in favor of the facilities because of the potential economic benefits medical cannabis can bring.  Some communities have been actively negotiating with cannabis companies to provide financial and other benefits to the community if the facilities are approved.
Wherever Illinois' 60 medical marijuana dispensaries and 22 cultivation facilities are eventually located, it looks like patients will not be the only ones to benefit. Medical cannabis will be a boon to business in Illinois—not to mention a boon to government. The non-refundable state application fee for a cultivation facility license is $25,000; operating fees for successful licensees will total in the hundreds of thousands annually. And due to a little local clout in the decision-making process, counties and municipalities may end up benefiting as well.
Post Authored by Julie Tappendorf

Wednesday, September 17, 2014

States Attorney is a Public Official for Defamation Claim

An Assistant State's Attorney filed a lawsuit against an individual for statements he made in a letter to the editor of the local newspaper.  The letter expressed the defendant's displeasure with the ASA, and his "perceived" bullying of his son who had been cited for a traffic violation.  The defendant argued the case should be dismissed because the ASA is a public official and she failed to show that defendant's statements amounted to malice in her defamation claim.  Vicars-Duncan v. Tactikos, 2014 IL App (4th) 131064 (2014).

The trial court dismissed the ASA's lawsuit, finding that an ASA is a public official because her duties are "governmental in character and highly charged with the public interest." Because the ASA had not plead malice in her lawsuit against the letter writer, her defamation claim could not proceed. The appellate court agreed with the trial court, and discussed what a plaintiff has to prove in a defamation claim:

(1)    the defendant made a false statement about the plaintiff;
(2)    the defendant made an unprivileged publication of that statement to a third party; and 
(3)    that publication caused damages.

If the plaintiff is a public official, the plaintiff must also prove that the "statement was made with actual malice" - or with knowledge that the statement was false or reckless disregard of whether it was false or not.  This additional element makes it harder for a public official to prove a defamation case, which the court acknowledges is because public officials occupy important positions about which  the public has great interest.  The court acknowledged cases that had discussed whether an individual was a public official, including a police officer and a city attorney (public officials), and a school principal and a jailer (not public officials).  

Because the ASA was a public official, she was required to plead malice - which she failed to do.  As a result, her defamation case against the letter writer was properly dismissed.

Post Authored by Julie Tappendorf


Monday, September 15, 2014

10 Website Posting Requirements for Municipalities

Various laws have been enacted or amended over the past few years to require municipalities and other local governments to post certain notices or other public records on the municipal or government website.  It can be difficult to keep up with these new requirements and changes as the laws change quickly.  I have summarized some of these "website posting" requirements for Illinois municipalities (some also apply to other government entities):

1.  Annual Meeting Schedule.  A public body that has a website maintained by full-time staff of the public body must post on its website the annual schedule of regular meetings for the governing body (i.e., city council or village board).  That annual schedule must remain on the website until a new schedule is approved. 5 ILCS 120/2.02(b).

2.  Meeting Notices.  A public body must also post notice of the regular meetings of the governing body on its website (if maintained by full-time staff).  The meeting notice must remain on the website until the regular meeting is concluded.5 ILCS 120/2.02(b).

3.  Meeting Agendas.  A public body must also post on its website (if maintained by full-time staff) the agenda of any regular meetings of the governing body.  That notice must remain until the regular meeting is concluded.  5 ILCS 120/2.02(a).

4.  Meeting Minutes.  A public body must post on its website (if maintained by full-time staff) minutes of a regular meeting of its governing body open to the public within 10 days after the approval of the minutes by the public body.  The minutes must remain on the website for at least 60 days after their initial posting.  5 ILCS 120/2.06(b).

5.  Employee Compensation Package.  6 days after approving the annual budget, a municipality that participates in the IMRF must post on its website the total compensation package for each employee having a total compensation package that exceeds $75,000.  Also, at least 6 days prior to approving an employee compensation package that equals or exceeds $150,000, the municipality must post the total compensation package information on its website. Alternatively, a municipality can choose to post a notice on its website where compensation package information can be obtained.  For municipalities without a website, the information must be posted at village or city hall. 5 ILCS 120/7.3.

6.  Information About the Public Body.  A public body must post on its website, if it maintains one, information about the public body including (1) short summary of its purpose; (2) block diagram of its subdivisions; (3) total amount of its operating budget; (4) number and location of all offices; (5) number of full and part time employees; (6) list of advisory boards, commissions, and committees; (7) the process for requesting public records under FOIA; (8) name of FOIA officer; (9) address where requests should be directed; and (10) FOIA fees.  5 ILCS 140/4.  

7.  Audit Reports.  [NEW - Effective January 1, 2015).  A municipality must post on its website a copy of the audit management letter and audited financial statements submitted by the auditor.  65 ILCS 5/8-8-10.5.

8.  ADA Notice.  A municipality that maintains a website must post the name, office, address, and telephone number of the ADA coordinator, if any and the grievance procedures, if any, adopted by the municipality to resolve ADA complaints.  65 ILCS 5/1-1-12.

9.  Foreclosure Notices and Orders.  A municipality must post on its website the address where foreclosure notices and final confirmation sale orders should be sent.  735 ILCS 5/15-1503 & 1508. 

10.  Miscellaneous Website Posting Requirements [Chicago only].  Municipalities of 1,000,000 population or more (Chicago) must post a variety of other documents on its website relating to TIF projects.  This law does not apply to other municipalities.  65 ILCS 5/11-74.4-8d.  

This list is not meant to be exhaustive, and it is likely that new website posting requirements will be established as more governments utilize their websites to disseminate information.  

Post Authored by Julie Tappendorf