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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Monday, November 22, 2021

Village's Assault Weapon Ban Upheld By Illinois Supreme Court

We previously reported on Municipal Minute about an Illinois appellate court decision involving a challenge to the Village of Deerfield, Illinois assault weapon ban. The appellate court had ruled in favor of the Village, upholding the Village's assault weapon ban ordinance. That decision was appealed to the Illinois Supreme Court, which issued its ruling last week. As a result of a divided Illinois Supreme Court, the appellate court's ruling in favor of the Village was affirmed. 

The Illinois Supreme Court opinion is set out in full below:

In this case, one Justice of this court has recused himself, and the remaining members of the court are divided so that it is not possible to secure the constitutionally required concurrence of four judges for a decision (see Ill. Const. 1970, art. VI, § 3). Accordingly, the appeal is dismissed. The effect of this dismissal is the same as an affirmance by an equally divided court of the decision under review but is of no precedential value. See Perlman v. First National Bank of Chicago, 60 Ill. 2d 529, 530 (1975). 

Tuesday, November 16, 2021

Court Rules in Favor of Federal Agencies in Federal FOIA Lawsuit

Over several years, a prisoner submitted hundreds of FOIA requests under the federal Freedom of Information Act to the Federal Bureau of Investigation, the United States Marshals Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Federal Bureau of Prisons. The prisoner's FOIA requests centered around a conspiracy theory that a movement he had joined that had white supremacy ties was an elaborate governmental sting operation. After the agencies either provided responsive redacted records, withheld exempt records, or highlighted that their searches failed to identify responsive records, the prisoner filed a lawsuit alleging that the agencies conducted inadequate searches. The district court ruled in favor of the government agencies, finding that each agency submitted an affidavit from agency personnel detailing the FOIA process and how their searches were reasonably calculated to locate responsive records.

On appeal, the 7th Circuit Court of Appeals in White v. United States Department of Justice also ruled in favor of the government agencies. The Court of Appeals found that the agency affidavits had a presumption of good faith, and in order to overcome this presumption of good faith, the requester had to to provide evidence that the agencies unreasonably overlooked records that would have been responsive to his FOIA requests. Here, the Court of Appeals determined that White’s speculative, conspiracy-based claims of bad faith searches failed to overcome that presumption because FOIA requires more than just speculation that additional documents exist to overcome the good faith presumption in the agency affidavits.

Although this case discusses the obligations of federal agencies to conduct reasonably diligent searches under the federal FOIA statute and the presumption of good faith given to detailed affidavits from agency officials, this case is relevant for Illinois public bodies, because the Illinois FOIA statute is modeled after its federal counterpart, so Illinois courts often look to federal cases as persuasive authority.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, November 15, 2021

Court Rules in Favor of County Board in Case Challenging Appointment Authority

Recently, an Illinois Appellate Court ruled in favor of a County Board in a case deciding who has the authority to appoint officials to fill County elected office vacancies. Kloeppel v. Champaign County.

After the voters approved a change in the government structure of Champaign County, the voters elected the County's first County Executive. When the new County Executive took office, there were vacancies on the County Board and in other election positions that needed to be filled. Consistent with past practice, the County Chairman and County Board took action to fill these vacancies. Shortly thereafter, the County Executive filed suit against the County Board claiming that the County Executive and not the County Board had the authority to fill these elected office vacancies.

The case involved an interpretation of two different statutes regarding appointments in County government. The County Executive argued that the Counties Code gave the Executive the authority to appoint all County officers. The County Board argued that the Election Code gave the County Board the authority to fill vacancies in elected positions such as on the County Board. The trial court ruled in the County Executive's favor and the County Board appealed.

The Appellate Court reviewed the two statutes and ruled in favor of the County Board, reversing the trial court. While the Appellate Court acknowledged that the County Executive has the authority under the Counties Code to make appointments in certain County offices (i.e., boards and commissions), that authority does not extend to appointments to elected office, which the Appellate Court determined was reserved to the County Board Chairman and Board under the Election Code. In sum, the Appellate Court found that the Chairman of the County Board, with the advice and consent of the County Board, has the authority to fill vacancies in County elected offices, not the County Executive.

Disclaimer: Ancel Glink represented the Champaign County Board in this appeal.

Friday, November 12, 2021

Two More Veto Session Bills Sent to the Governor

We reported on a few veto session bills yesterday, and today we report on a bill that, if signed by the Governor, could provide relief to businesses in tax increment financing (TIF) districts that were adversely affected by the COVID-19 pandemic and also provides for an exemption from the State’s parking excise tax for parking facilities operated or owned by municipalities. 

SB 217 amends the Illinois Municipal Code to authorize local governments to provide relief to businesses located within redevelopment areas that have experienced business interruptions or other adverse conditions directly or indirectly attributable to the COVID-19 pandemic and experienced during a statewide disaster declaration regarding COVID-19. These costs can be reimbursed in the form of grants, subsidies, or loans distributed prior to December 31, 2022. 

Municipalities can also establish, by ordinance or resolution, procedures for the payment of the funds, including application procedures, grants or loan agreements, certifications, payment methods and other accountability measures that may be imposed upon participating businesses. 

The bill defines eligible costs of business interruption as decreases in revenue caused by closing or limiting access to the business establishment to prevent the spread of COVID-19 or decreases in revenue caused by decreased customer demand as a result of the COVID-19 public health emergency. 

In addition, the bill also includes an exemption from the State’s parking excise tax for parking garages and areas operated or owned by units of local government – the exemption does not apply if the parking facility is operated by a third party. This amendment will address concerns that were raised by municipalities when the parking excise tax was enacted by the State as to whether this tax applied to commuter lots and other public parking lots owned and operated by government entities. The bill also exempts the purchase of a parking space by a unit of local government for use by its employees, provided that the purchase price is paid directly by the municipality. 

Post authored by Rain Montero, Ancel Glink

Thursday, November 11, 2021

Update on Veto Session Bills Sent to the Governor

After a much-needed vacation, Municipal Minute is back. We have a few recent bills to report on today and tomorrow.

General Assembly Passes Several Bills During Fall Veto Session

The Illinois General Assembly met for its annual Fall Veto Session last month. Despite its name, there were no vetoed bills for the General Assembly to attempt to override—instead, members considered and passed several new bills which will be sent to Governor Pritzker for consideration.

SB 1169 Would Amend the Health Care Right of Conscience Act

SB 1169, which started as a bill to provide a technical amendment to the Pyrotechnic Use Act, was passed by both houses of the General Assembly as a completely different bill. The bill passed both houses on October 28th as an amendment to the Health Care Right of Conscience Act (HCRCA), which generally protects an individual’s right to refuse to obtain, receive, or accept medical treatment without facing discrimination based on their medical decisions. The amendment provides an explicit exception to the Act by stating that any person, public official, employer, institution, or other entity may impose requirements that are intended to prevent the contraction or transmission of COVID-19 or “its subsequent iterations." The bill has been formulated as a “declaration of existing law."

HB 3136 Would Create Gaming Omnibus Law

The General Assembly passed HB 3136, the omnibus gaming legislation, on October 28th. While the bill is long and incorporates several different changes to the Illinois Horse Racing Act of 1975, the Illinois Gambling Act, the Raffles and Poker Runs Act, and the Video Gaming Act, we want to provide an update of the legislative changes to video gaming that most greatly impact local government and municipalities’ regulatory authority.

The bill allows non-home-rule units of local government to impose an annual video gaming terminal fee of $250 (previous cap was $25). The bill does not restrict the authority of home rule municipalities to charge terminal fees in excess of the statutory cap, which was previously upheld by an Illinois Appellate Court. The fees imposed by home-rule and non-home-rule units of local government must be shared equally between the gaming terminal operator and the licensed establishment where the terminal is being operated. The bill also curtails the taxing power of units of local government with regard to video gaming—municipalities may not impose taxes on the following entities or persons:

  • manufacturers, distributors, terminal operators, licensed technicians, licensed terminal handlers, licensed establishments, licensed veterans establishments, licensed truck stop establishments, licensed fraternal establishments, or their authorized activities under the Video Gaming Act; 
  • video gaming terminals;
  • users or players of video gaming terminals; or
  • other uses, play, or operations of video gaming terminals by any person or entity.

Municipalities that have already adopted an ordinance to impose an amusement tax on any of the above entities can continue to impose those taxes, so long as the ordinance was adopted prior to November 1, 2021. However, a municipality that has adopted that type of tax cannot increase, expand, or extend the tax or enact a new tax on persons participating in video gaming.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Friday, November 5, 2021

Quorum Forum - New Episode 58: Taxes

Ancel Glink's Quorum Forum Podcast has just released a new episode - Episode 58: Taxes 

There is nothing certain in this life but Quorum Forum podcast and taxes! Ancel Glink’s Keri-Lyn Krafthefer, Adam Simon, and Jim Rock join us to discuss budget and levy process, tax objections, tax assessment appeals, and more! 

Email your questions to podcast@ancelglink.com!

Friday, October 29, 2021

HB 220 Could Expand Fire Bargaining Units

This week, the Illinois Senate passed HB 220, which has now been sent to the Governor for signature. If he signs the bill, it would amend provisions of state law that define who is a supervisor or a company officer for purposes of determining who can be included in a bargaining unit for a fire department. Specifically, the bill proposes to define a company officer to include an officer who "may be responsible for multiple companies or apparatus on a shift, multiple stations, or an entire shift..." Fire unions have argued this could expand which fire officers are included in bargaining units. 

Thursday, October 28, 2021

9th Annual IICLE Local Government Law Institute

In just about a month, IICLE will present the 9th Annual Local Government Law Institute. This conference is offered every December and provides local government lawyers with practical guidance on a variety of local government legal topics. This year, the conference will be "virtual" for all attendees (sadly, no lunch or cocktails) but the faculty will be presenting "live," which will be a treat for returning attendees who may have missed the faculty interaction. 

More details about individual sessions and speakers will be released as we get closer to the conference date, but here's a sneak peak at conference topics:

  • Police Reform
  • Legislative/Case Law Update
  • Liars, Tyrants & Thieves
  • Zoning Disputes
  • Labor & Employment Issues with COVID-19
  • Economic Incentives & Tools
  • Tort Immunity
  • COVID-19 & Attorney Burnout
9th Annual Local Government Law Institute
December 3, 2021 (Friday)
8:30 to 5:00 p.m.

You can find more information and register here.

Tuesday, October 26, 2021

Illinois Supreme Court Finds Cook County Firearm and Ammunition Taxes Unconstitutional

The Illinois Supreme Court recently issued an opinion in Guns Save Life, Inc., et al. v. Ali, et al., ruling in favor of a group of plaintiffs that challenged the constitutionality of the Cook County Firearm and Firearm Ammunition Tax Ordinance. 

The County's Firearm Tax Ordinance (passed in 2012) imposed a $25 tax on the retail purchase of individual firearms in Cook County. A 2015 amendment imposed a new tax on firearm ammunition with different rates for centerfire and rimfire ammunition. The ordinances cited the need to ameliorate the high economic and social costs of gun violence within the County. While the ammunition taxes were raised with the explicit intention of directing revenue to the Public Safety Fund, the firearm taxes were not directed to any specific fund or program specifically related to curbing the cost of gun violence.

gun advocacy group, an Illinois resident, and a gun retailer (plaintiffs) filed a lawsuit against the County arguing that its ordinance violated the United States Constitution and the Illinois Constitution and were preempted by the Illinois FOID Card Act and the Concealed Carry Act.

The lower courts held that the taxes were a proper exercise of Cook County’s home-rule taxing authority and did not meaningfully impede the plaintiffs’ right to bear arms—rather, the taxes were no more than a minimal restraint on rights protected by the United States and Illinois Constitutions. The appellate court further held that the ordinances were not preempted by the FOID Card Act or Concealed Carry Act, as these two statutes only preempt local authorities from regulating guns, not taxing them.

On appeal, however, the Illinois Supreme Court agreed with plaintiffs and held that the ordinances violated the Illinois Constitution—specifically, the taxes violated the uniformity clause, which provides that classes for non-property taxes must be reasonable and that “objects within each class shall be taxed uniformly.” In coming to this decision, the Illinois Supreme Court created a new test: when a tax classification directly bears on a fundamental right (such as the right to bear arms), the government must show that the tax classification is substantially related to the stated purpose for the legislation. Because the taxes in this case were not sufficiently tied to the legislative purpose of reducing the costs of gun violence in Cook County, the Illinois Supreme Court held that the County failed to meet its burden to show that the taxes were substantially related to the purported purpose of the tax.

Post Authored by Erin Monforti & Dan Bolin, Ancel Glink 

Monday, October 25, 2021

Court Upholds Dismissal of FOIA Lawsuit

In August 2018, an inmate submitted a FOIA request to the Illinois State Police (ISP) seeking certain lab reports containing fingerprints that were inventoried as evidence. The ISP denied the FOIA request. The inmate then filed a lawsuit, alleging that ISP violated FOIA and asking the court to order ISP to release responsive records. In response, ISP filed a motion to dismiss the case arguing that its denial was proper because the request was a repeated request since ISP had previously provided the inmate with all lab case files in response to prior FOIA requests and ISP had no additional records in its possession and custody. The court ruled in favor of ISP and dismissed the case. The inmate appealed the dismissal and claimed that ISP failed to produce an index of records in violation of FOIA.

In Love v. Illinois State Police, the appellate court upheld the ruling in favor of ISP, finding that the trial court properly dismissed plaintiff's complaint. The appellate court noted that there was no evidence in the record that the inmate was denied access to any records. Although FOIA section 11(e) allows the court, on plaintiff’s motion, to order a public body to provide an index of the records to which access has been denied," based on ISP's affidavit in this case, the inmate "had already been provided with the case files, and that there were no additional records to provide."

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, October 19, 2021

Court Upholds City’s Partial Delegation of Clerk’s Duties

Recently, an Appellate Court issued an opinion in a case testing the limits of home-rule authority under the Illinois Constitution. In Fazekas v. City of DeKalb, the court upheld the dismissal of a case brought by a City Clerk against the City, holding that the City had the authority to create a new position to supplement the efforts of the Clerk to fulfill her duties.

In October 2019, the City enacted an ordinance that created the office of executive assistant, appointed by the City Manager. The City Council justified the new position by noting that the City Clerk was a part-time position and that City residents would benefit from full-time availability of clerical assistance that would be provided by this new executive assistant position. The Clerk sued the City, arguing that the new ordinance violated Article VII, Section 6(f) of the Illinois Constitution that provides as follows:

“A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law.” 

The court held that the Clerk did not meet her burden in establishing that there was a clear constitutional violation because  the creation of the new office did not alter the “manner of selection” or “terms of office” for the position of City Clerk and so it did not violate the Section 6(f) exception to home-rule authority.

The court rejected the Clerk's argument that the position basically eliminated the City Clerk's position, finding no evidence that the Clerk's duties were completely supplanted by the executive assistant position.

The court also rejected the Clerk’s argument that the ordinance violated the Illinois Municipal Code. The Clerk claimed the ordinance violated the statute that provides that the mayor and city council can appoint new officers “necessary to carry into effect the powers conferred upon municipalities,” because the new executive assistant role was unnecessary given the duplicate duties between it and the City Clerk position. The court disagreed, finding that the City's justification for creating the new position — that the public would benefit from the availability of clerical assistance during all regular business hours — was sound legislative judgment that a court would not disturb.

The court only commented briefly on the Clerk’s last argument that the ordinance violated the voting rights of DeKalb residents. Because the court had already concluded that the position of City Clerk had not been eliminated or altered by the ordinance, it held that there clearly was no adverse impact on the electorate’s right to vote for that office.

Post Authored by Erin Monforti and Julie Tappendorf, Ancel Glink

Monday, October 18, 2021

PAC Issues 10th Binding PAC Opinion of 2021

A reporter submitted a FOIA request to the City of Chicago’s Office of Emergency Management and Communications (OEMC) seeking records relating to a letter where an Alderman expressed concerns about allegations of discrimination, harassment, and a hostile work environment at OEMC. The OEMC provided certain responsive records, but redacted the names of two employees who were alleged or found to have engaged in misconduct. The reporter submitted a Request for Review with the PAC alleging that the OEMC’s redactions violated FOIA.

In PAC Op. 21-010, the PAC determined that the OEMC violated FOIA by redacting the names of its employees who were alleged or found to have engaged in misconduct. Specifically, the PAC rejected OEMC’s argument that the names of these City employees were exempt from disclosure under FOIA’s private information exemption 7(1)(b), because a person’s name is a basic identifier, rather than a unique identifier, and disclosing these employee names would not reveal any “private information."

In addition, the PAC determined that the responsive records concerned a complaint of workplace violence against a City employee and a finding that another City employee violated OEMC’s social media policy by posting a disparaging comment about the complainant on Facebook. As a result, the PAC determined that the records relate to the public duties of public employees are do not, therefore, constitute a clearly unwarranted invasion of personal privacy under section 7(1)(c)  of FOIA.

The PAC also rejected OEMC’s argument that the redacted records could have been withheld in their entirety under FOIA exemption 7(1)(n), which allows withholding certain records relating to a public body’s adjudication of employee grievances or disciplinary cases. Instead, because the records at issue merely documented complaints and investigations of complaints against City employees and were informally resolved and not part of a hearing, proceeding, or other formal agency proceeding that would constitute an “adjudication," the PAC concluded that OEMC failed to demonstrate that the redacted names of the City employes were exempt under FOIA exemption 7(1)(n). 

Post Authored by Eugene Bolotnikov, Ancel Glink