Friday, May 22, 2015

Court Upholds Ban on Non-attended Displays in Public Parks


In 1994, the City of Santa Monica banned unattended displays in all its parks. That ordinance was later amended to include an exception for "winter displays.”  After it was flooded with requests for winter displays and there wasn’t enough space in the park to accommodate all of the applications, the City implemented a lottery system to divvy up the display space.  As a result of the lottery, most of the spaces were used for atheist group displays, and the City decided to go back to its original policy of banning all unattended displays. 

After the City adopted the ban, the Santa Monica Nativity Scenes Committee sued, claiming the ban violated its right to free speech by amounting to a prohibited "heckler's veto." The district court disagreed, and dismissed the Committee’s lawsuit. On appeal, the Ninth Circuit Court of Appeals upheld the ban, finding that the heckler's veto doctrine was inapplicable and the ordinance was a content-neutral time, place, and manner restriction that was narrowly-tailored to its legitimate purpose and left open alternative channels of communication. Santa Monica Nativity Scenes Committee v. City of Santa Monica, No. 13-55011 (9th Cir. Apr. 30, 2015). 

First, the Court held that the Committee's claim might have had merit if the city had banned all religious displays based on the atheists’ complaints, but it did not do so.  The Court also evaluated whether the regulation was a neutral time, place, and manner restriction. The important government interests were protecting the park for aesthetic purposes and conserving the government's resources. The Court also found the ordinance was narrowly tailored, and that it left open alternative channels of communication, including that the Committee could "erect its unattended nativity scenes on private property, and it [could] speak in many other ways in Palisades Park, including erecting one-day, attended displays, leafleting, preaching, holding signs, and caroling." 

Post Authored by Julie Tappendorf

Thursday, May 21, 2015

Case Against City for Injuries Sustained While Walking Dog Continues

An appellate court recently addressed the "recreational purposes" provision of the Tort Immunity Act in Fennerty v. City of Chicago, 2015 IL App (1st) 140679 (May 18, 2015).

Fennerty was injured after she tripped and fell over a metal electrical box in a grassy area while walking her dog one summer evening. The electrical box provided service to the nearby lights along the grassy area where she was walking. She first argued that the city carelessly and negligently (1) constructed and maintained the metal box so that it was a tripping hazard; (2) failed to maintain the surrounding grassy area; (3) failed to provide sufficient lighting; (4) failed to warn of a dangerous and defective condition; and, (5) failed to maintain the surrounding ground to ensure a level surface. She next argued that the city was willful and wanton because it had knowledge of the allegedly defective and dangerous conditions. 

The city filed a motion for summary judgment arguing that it was immune from liability because the area where Fennerty fell was "recreational" in nature. Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) states that:

Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury. 745 ILCS 10/3-106. 

The court granted the city’s motion for summary judgment, and Fennerty appealed. 

The appellate court found there was conflicting testimony as to whether the tree-lined grassy area that is bordered by traffic lanes was used for recreational purposes to fall within section 3-106’s immunity. The court reasoned that the testimony showed that the grassy area could either be a median between the traffic lanes or a parkway and that because of the conflicting testimony, the court remanded the case back to the trial court to determine if the grassy area falls within public property that is intended or permitted to be used for recreational purposes. 

The appellate court did agree with the trial court's rejection of Fennerty's "willful and wanton" argument. Although the city’s conduct might be characterized as negligent, there was no support for Fennerty's claim that the city had actual or constructive knowledge of the allegedly dangerous and defective conditions. 

Post Authored by Christy Michaelson, Ancel Glink

Wednesday, May 20, 2015

Non-Home Rule Unit May Buy Land in Foreclosure Sale


Sometimes courts have to answer a question that nobody thought was a question.  In this case, the question arose from an unusual challenge to the authority of the Cook County Forest Preserve District (“FPD”) to acquire title to real estate.

In the case of Baker, et al. v. Forest Preserve District of Cook County, et al., 2015 IL App. (1st) 141157, decided May 18, 2015, the Illinois Appellate Court held that the Forest Preserve District, a non-home rule unit, has authority to acquire property in a foreclosure sale.

Plaintiffs had guaranteed a mortgage loan to purchase “Horizon Farms.”  The borrowers defaulted on the loan and the property went into foreclosure.  FPD purchased the borrowers’ note from the mortgage lender for $14 million, made the highest bid at the foreclosure sale and acquired fee simple title to the property by sheriff’s deed. 

Plaintiffs, who had lost title to the property when they defaulted on the mortgage, filed a “taxpayers’ suit” claiming that FPD had no authority to acquire Horizon Farms by purchase of the note and bidding in the foreclosure sale.  Plaintiffs’ arguments included the claims that FPD does not have statutory authority to expend public funds in private foreclosure litigation, purchase commercial paper (the borrowers’ note), or to act as a speculative investor, and violated its own policies in acquiring the property.  Plaintiffs asked the court to declare the purchase void and order the lender to return the public funds paid by FPD.  The circuit court granted FPD’s motion for summary judgment and the appellate court affirmed. 

The appellate court began its analysis of the merits of the arguments by noting that FPD, as a non-home rule governmental unit, has only the powers granted to it by statute.  The Cook County Forest Preserve District Act (“Act”) authorizes FPD to acquire property by purchase.  The court disagreed with plaintiffs’ contention that FPD exceeded its authority to “purchase” property when it bought the mortgage note, because it did not receive a deed for fee simple title in exchange for the public funds paid.  The court declined to interpret the Act to require the simultaneous exchange of money and title in order to constitute a purchase.  The court disagreed with plaintiffs’ argument that purchase of land in a private foreclosure sale is not acquisition for a “public purpose,” for which the expenditure of public funds is authorized.  The court also rejected plaintiffs’ position that FPD’s acquisition of Horizon Farms conflicts with the Eminent Domain Act.  Finally, the court refused to overturn FPD’s acquisition on the grounds that FPD had not followed its own code in purchasing the property, holding that, “[C]ourts may not adjudicate actions brought to overrule decisions of a legislative body based upon that legislative body’s alleged failure to follow self-imposed requirements.”  

Post Authored by Paul Keller, Ancel Glink

Tuesday, May 19, 2015

Luxury Tree House Spurs Municipalities and Owners to Review Regulations for Tree Houses and Short-Term Rentals

A nearly 200 square-foot Schaumburg luxury tree house available for rent on Airbnb for $195/night (complete with a fireplace, air conditioning, full size bed and twin sleeping loft, kitchenette with sink, microwave, fridge, wifi, and HDTV (with HBO, Showtime, Cinemax, etc.)) recently made headlines and reminded communities and property owners to review local regulations governing tree houses and short-term rentals. The owner’s Airbnb listing reports that he is permitted to rent a room in his home, and grant guests use of the tree house, in accordance with local zoning laws; however, going forward, the Village of Schaumburg is now considering new zoning regulations pertaining to setbacks, size, location, and height of tree houses in the rear yard.

While renting a room in your house might be allowed in Schaumburg, such activity might be prohibited in other communities’ home occupation restrictions for commercial activity in residential neighborhoods. Other regulations targeting transients may limit uses in residential districts to “permanent resident purposes.” Communities should review their local zoning regulations to consider the impact that sometimes extravagant tree houses might have in a residential area. Additionally, as sites like Airbnb increase in popularity, local regulations for short-term rentals may be increasingly appropriate where regular commercial transient activity might erode the residential character of a neighborhood.

In addition to zoning regulations, there may be tax implications for short-term rentals to consider. The Cook County Assessor’s office, which is in the midst of reclassifying bed-and-breakfasts from residential to commercial property, is reportedly evaluating the property tax implications of the Schaumburg luxury tree house. Additionally, the Illinois Hotel Operators’ Occupation Tax imposes a tax on the occupation of renting, leasing, or renting rooms to person for living quarters for periods of less than 30 days. This state tax is imposed in addition to whatever local hotel taxes are imposed. Anecdotally, Airbnb users simply are not paying the required taxes, but short-term lessors should be cautioned to review their local regulations because the Airbnb terms of service squarely place responsibility for compliance with zoning and tax laws on the user creating the listing. As Airbnb increases in popularity, local governments will need to develop strategies to ensure they are recovering the hotel taxes that are due, at least so local hotels are not put at an unfair disadvantage.

Post authored by Daniel J. Bolin, Ancel Glink

Monday, May 18, 2015

Candidate Convicted of “Infamous Crimes” Was Ineligible for Office

Late last year, the Cook County State’s Attorney prevailed in a case against a member of the Board of Education for Thornton Township High School District 205 (in Illinois), when a trial court found the board member ineligible to hold the office based on his conviction for an “infamous crime.” The board member had been convicted of felony forgery in the state of Indiana. Alvarez v. Williams, 2014 IL App (1st) 133443

On appeal, the board member argued that his due process rights were violated because the term “infamous crime” was vague. Under Section 29-15 of the Illinois Election Code: 
any person convicted of an infamous crime as such term is defined in Section 124-1 of the Code of Criminal Procedure of 1963, as amended, shall thereafter be prohibited from holding any office of honor, trust, or profit, unless such person is again restored to such rights by the terms of a pardon for the offense or otherwise according to law.
Under Section 124-1 of the Illinois Code of Criminal Procedure of 1963, an “infamous crime” was defined as: 
the offenses of arson, bigamy, bribery, burglary, deviate sexual assault, forgery, incest or aggravated incest, indecent liberties with a child, kidnapping or aggravated kidnapping, murder, perjury, rape, robbery, sale of narcotic drugs, subornation of perjury, and theft if the punishment imposed is imprisonment in the penitentiary.” Ill.Rev.Stat.1983, ch. 38, ¶ 124–1 (repealed by Pub. Act 84–1047, § 2 (eff. July 1, 1986)). 
The board member argued that when Section 124-1 of the Code of Criminal Procedure was repealed, Section 29-15 of the Election Code was no longer effective.  The court disagreed, finding that the legislature intended to keep individuals convicted of infamous crimes from holding office, and applied the list of “infamous crimes” from the repealed Section 124-1 of the Code of Criminal Procedure to disqualify the board member from holding office based on his forgery conviction.


Months later, the State of Indiana expunged the former board member forgery conviction, and former board member filed nomination papers to be a candidate for his former position on the school board. Objections were filed against the candidate’s nomination papers based on the candidate’s prior forgery conviction. The Cook County Officers Electoral Board struck the candidate from the ballot, and the circuit court denied the candidate’s appeal.

Last week, the Illinois First District Appellate Court affirmed the trial court’s decision. Williams v. Cook Cnty. Officers Electoral Bd., et al., 2015 IL App (1st) 150568. On appeal, the candidate argued that because of his forgery conviction was expunged, he is now statutorily qualified to seek and hold public office.  The court disagreed, however, because the candidate failed to show the State of Indiana’s expungement had the same effect as a pardon for the offense, which would have restored the candidate’s eligibility under Section 29-15 of the Election Code. 

Post authored by Dan Bolin & Sam Singer, Ancel Glink

Friday, May 15, 2015

Ancel Glink's 2015 Newly Elected Officials Handbook Just Released

Ancel Glink just released the 2015 edition of its Newly Elected Officials Handbook. You can download the handbook for free from the Resource Center of our website.

The handbook is designed for elected officials serving in all types of local government, including cities, villages, counties, townships, park districts, school districts, libraries, and others. Whether you have just taken the oath of office, or would like a refresher on some of the common issues faced by government officials, you will find something of interest.

The following is a list of just a few of the topics you will find addressed in this handbook:
  • The Open Meetings Act: Don’t Leave Home Without It
  • The Freedom of Information Act: Ignore at Your Peril
  • The Rules Are the Game
  • Taxing and Spending
  • Understanding and Avoiding Conflicts of Interest
  • The Gift Ban Act and Prohibited Political Activities
  • You’re The Boss Now! Labor and Employment Issues
  • An Outline of the Governmental Construction Process
  • Suing, Being Sued and How to Avoid Being Sued
  • Working Together—The Intergovernmental Cooperation Act
  • Technology: What a Tangled Web-Page We Weave...
  • Cooperating on Economic Development
  • Hard Times for Real Estate Developers and the Impact on Municipalities

Thursday, May 14, 2015

Another Example of Employees Behaving Badly

In yet another example of "employees behaving badly" on social media, a recently hired employee was terminated before she even started her job after her new employer learned that she had posted the following on Facebook:
I start my new job today, but I absolutely hate working at day care.
Yep, her employer was a day care center.

Post Authored by Julie Tappendorf

Wednesday, May 13, 2015

Court Interprets Dangerous Animal Defense of Provocation

The City of Chicago sent a "letter of determination" to Wortham that her three Rottweilers were deemed to be "dangerous animals" under the City Code.  The notice came after the three dogs broke away from their leash and attacked another dog, resulting in significant injuries to the other dog. 

At the hearing, Wortham argued "provocation" in defense of her dogs - i.e., that the injured dog was the aggressor.  However, the administrative judge rejected that argument, finding that the provocation defense only applies when a dog is provoked by a person, not another dog, under the clear language of the city code. The court agreed with the administrative judge and upheld the City's determination that the dogs were "dangerous animals" under the city's ordinance. Wortham v. City of Chicago, 2015 IL App (1st) 131735

Post Authored by Julie Tappendorf

Tuesday, May 12, 2015

Illinois Attorney General Limits Local Government Powers

The Illinois Attorney General has been quiet on the FOIA/OMA front, having issued only 3 binding opinions in 2015.  The Attorney General has, however, issued a couple of other opinions that restrict the authority of local governments, including home rule units.  

The Illinois Attorney General issued an opinion that units of local government, whether home rule or non-home rule, have no power to establish local "right-to-work" zones.  In the Attorney General's view, these local regulations are preempted by the federal National Labor Relations Act. Ill. Att'y Gen. Op. 15-001.

The Illinois Attorney General also issued an opinion that units of local government, whether home rule or non-home rule, cannot "opt out" of the requirements of the Prevailing Wage Act.  Ill. Att'y Gen. Op. 15-002.

Post Authored by Julie Tappendorf

Monday, May 11, 2015

What is a Censure?

Recently, a city council member was censured for a shoplifting incident from about a year and a half ago.  The city council voted on a resolution at a council meeting that publicly "censured" her for her past conduct.  So, what is a censure and what does it mean to the censured?

The authority of a municipality to censure one of its own members is not set out in the Illinois Municipal Code or elsewhere in state statute.  Nor is it usually established by local ordinance, although it could incorporated into a government body's rules of procedure or code of conduct. 

Robert's Rules of Order includes a few references to motions to censure members - for example, a motion to censure is deemed a "main motion" that is subject to debate.  However, Robert's Rules does not contain any details about the type of conduct or activity that justifies its use or the process for employing this procedural motion. 

A censure is defined in Merriam-Webster dictionary as follows:

1.  a judgment involving condemnation
2.  archaic: opinion, judgment
3.  the act of blaming or condemning sternly
4.  an official reprimand

Since it is not authorized by state statute, and there is little reference in Robert's Rules of Order, what does the act of censure mean?  The act of censuring a member is an expression of the government body's displeasure in one of its members.  A censure does not, however, have any legal effect on the member's ability to continue to serve on a particular government body. It does not recall, remove, or impeach a member from office.  It does not involve the imposition of any monetary or other penalties on the censured member.  It is simply a public reprimand by the government body against one of its members.  In short, while it can certainly have political overtones, it has very little, if any, legal impact at least not in the State of Illinois.

Post Authored by Julie Tappendorf

Friday, May 8, 2015

Illinois Pension Reform Law Unconstitutional

The Illinois Supreme Court issued an opinion today finding the state's pension reform law unconstitutional.  In Re Pension Reform Litigation v. Pat Quinn, 2015 IL 118585.  We had written about the challenges to the legality of this law in previous posts, including this one,  

The Supreme Court's ruling is worth a read, especially for its historical analysis of the Illinois constitution's pension protection clause, and the decades-long (almost a full century) failure by the state to fund its state pension systems.  The Court's references to the debates on the pension reform bill are also interesting, as it sheds some light on the legislators' views of alternative methods for funding the state pensions.  

The Court considered the following three issues in finding the law unconstitutional.

First, the Court considered whether the law violated the pension protection clause of the Illinois constitution.  The Court noted that this issue was easily resolved.  The language of that clause states that public pensions are an "enforceable contractual relationship, the benefits of which shall not be diminished or impaired."  In the Court's view, the pension reform legislation clearly diminished the pension benefits by reducing retirement annuity benefits.

Second, the Court considered the state's argument that even if the law did violate the constitution, it could still be upheld as a proper exercise of the state's police power. The state made this argument as an "affirmative defense" to the challenge to the constitutionality of the law, arguing that state finances had become so dire, that the state legislature was "compelled" to override the constitutional protections for the "greater public good."  The Court rejected the state's arguments, finding that the economy is always subject to fluctuations, which the state should have taken into account and avoided had it adequately funded its pension funds. Moreover, the Court determined that there were less drastic measures available to deal with the pension crisis, including amortizing unfunded liabilities or raising taxes.  While the Court did not minimize the "gravity of the State's problems or the magnitude of the difficulty facing our elected representatives," it was bound to uphold the law.

Third, if portions of the law were held invalid, the Court considered whether these invalid provisions  (the annuity reduction provisions of the law) could be severed from the remainder of the statute. Although the statute did contain severability provisions, the Court found that severing the retirement annuity provisions from the remainder of the law was unworkable because those provisions were not only central to the law, but the "very reason for being." As a result, the Court concluded that the entire statute was void and unenforceable.

Post Authored by Julie Tappendorf  

Use of Photos Without Permission Costs $8,000

From Strategically Social: Use of Photos Without Permission Costs Lawyer $8,000

Now, here's an interesting (and maybe a little ironic) case out of D.C. involving use of stock photos without permission.  The plaintiff company claims that the defendant used two of the company's photos on the defendant's website without the company's permission.  The suit sought $150,000 for each instance.  The irony is that the defendant happens to be a patent lawyer.  Upon notice of the alleged infringement, the lawyer removed the photos, but didn't respond to the company's efforts to settle so the company filed the complaint.  The case eventually did settle, to the tune of $8,000.

Lesson?  You can't just copy or upload photos on your own site without permission - just because they are already on the internet does not necessarily make them fair game to everyone.

Post Authored by Julie Tappendorf