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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

Friday, July 19, 2019

APA Webinar: Supreme Court Takings Decision in Knick


Planners, lawyers, and land use professionals won't want to miss this upcoming webinar hosted by the American Planning Association's Planning & Law Division on the recent Supreme Court's takings decision in Knick.  See below for details:

What the Supreme Court's Knick Decision Did and Did Not Change

Tuesday, July 30, 2019 
1 p.m. - 2:30 p.m. Eastern Time
noon - 1:30 p.m. Central Time

CM I 1.50 I Law
CLE 1.50 through Illinois State Bar

In June, a divided Supreme Court overturned part of a longstanding precedent that generally required plaintiffs alleging unconstitutional takings to first try and fail to obtain compensation under state law before pursuing a federal takings claim. Property rights activists celebrated their one-vote win, but as a practical matter does the decision really change things for planners? John Baker and Deborah Rosenthal will discuss the case and its impact on municipalities and property owners/developers.

Register Here


Monday, July 15, 2019

Miscellaneous New Laws Signed Into Law


A few miscellaneous new Illinois laws were signed into law last Friday that may affect units of local government, including the following:

P.A. 101-0041 amends the Fire Protection District Act to require a fire protection district to post on its website notices of any proposal to award any contract for work that will exceed $20,000. The amendment also removes a requirement that other notices be published in a daily newspaper.

P.A. 101-0047 amends the non-home rule municipal sales tax statute to extend the time period for non-home rule municipalities to use the local sales tax revenues for municipal operations to July 1, 2030. The previous deadline was December 31, 2020.  

P.A. 101-0058 amends the Park District statute to add new language regarding the staggering of terms of office for members of 7 member park district boards that have approved a change to the term of office from six years to four years. The new statutory language is below:
  (2) On a 7-member board under Section 2-10a, if the terms of only 2 commissioners are scheduled to expire in the year of the second election at which commissioners are elected after the first regular park district election at least 60 days after the date on which the proposition for 4-year terms was approved at referendum or by resolution, then:
  (A) if 3 commissioners are elected at the first regular election, 2 of the commissioners elected shall serve a 2-year term and one shall serve a 4-year term to be determined by lot between persons elected within 30 days after the first election; or 
  (B) if 2 commissioners are elected at the first regular election, those 2 commissioners elected shall serve a 2-year term. 

Thursday, July 11, 2019

Public Body Cannot Assess Fee for Late FOIA Response


Public bodies should be aware of an unreported appellate court case holding that a public body could not impose fees in response to a FOIA request where the public body did not respond to the request in a timely manner.  Varan v. White.

Varan had filed a FOIA request with the Secretary of State's office for various records. The state did not respond to the request until six months later, and informed Varan that he had to pay $19,711.55 for the requested records, which was calculated based on a $25 charge per record. Varan sued, and both the trial and appellate courts ruled in Varan's favor, finding that section 3(d) of FOIA expressly prohibits a public body from imposing a fee when it fails to respond to a FOIA request within the statutory time frames. 

Wednesday, July 10, 2019

Supreme Court Strikes Down 30 Plus Years of Takings Law Precedent and Gives Aggrieved Property Owners an Open Invitation to Federal Courts




You may recall that we briefly reported on this case the day it was issued, with the promise that we would provide more details on the ruling in a future blog post.  So, here it is!

In a dispute that arose over a cemetery, the U.S. Supreme Court recently buried longstanding precedent and held that takings-claim plaintiffs may now sue directly in federal court. The controversial ruling came down in Knickv. Township of Scott, where a cemetery owner claimed that a township ordinance requiring her to keep her land “open and accessible to the general public during daylight hours” constituted an unlawful taking under the Fifth Amendment.

Two lower federal courts struck down the plaintiff’s claim following the precedent of Williamson Cty. Reg’l Planning Com. v. Hamilton Bank of Johnson City. The Court in Williamson County held that property owners first had to “exhaust” all available remedies and litigate in state court before the claim could be brought in federal court. Additionally, the Williamson County Court reasoned that the “Fifth Amendment proscribes takings without just compensation,” and thus, no constitutional violation occurs until the compensation is denied to the plaintiff. The Williamson County Court relied heavily on earlier 19th Century precedent where governments may avoid paying compensation at the time of the property deprivation so long as they make a “reasonable, certain, and adequate” mechanism for recovering compensation available. Critics of the Williamson County stated that “Williamson County [has] essentially demoted the Takings Clause to a second-class citizen among the Bill of Rights,” because “no other constitutional right is subjected to a such a legal labyrinth.”

The majority in Knick overruled Williamson County, and reasoned that the “state-litigation requirement imposes an unjustifiable burden on takings plaintiffs.” Further, following the precedent set forth in Jacobs v. United States and First English Evangelical Lutheran Church v. Cty. of L.A., the Court concluded that a constitutional violation originates from the property deprivation itself, not so much from the denial of compensation that arises in state court later down the line. The majority provides some—perhaps cold—assurance that the government will not be hamstrung by injunctions from taking property in the future, when it states “as long as just compensation remedies are available…injunctive relief will be foreclosed.” Lastly, the majority addressed the concerns raised by the dissenters over its break with longstanding precedent, by reasoning that the quality, workability of the current rule established, and its consistency with other decisions.

In summary, the Court’s decision in Knick is a huge break with past precedent and will now allow takings-claim plaintiffs to bring a §1983 civil rights action directly in federal court. In addition, the decision may create an increase in takings-claim litigation over existing land use regulations. If it was not as obvious before, the Knick decision warrants governments carefully considering how existing and new land use regulation potentially create a taking. The further implications on local governments are not yet clear; however, local governments will still most likely be able to move forward in taking property without the hindrance of injunctions, so long as they are prepared to litigate the claim in federal court.

Post Authored by David Silverman and Rain Montero, Ancel Glink

Tuesday, July 9, 2019

BREAKING: Second Circuit Decides Trump Twitter Appeal


We have previously reported on the lawsuit filed against President Trump to challenge his blocking of users from his Twitter account, which the users argued violated their First Amendment rights. The federal district court ruled in their favor, finding (1) that President Trump's @realDonaldTrump account was a public forum subject to the First Amendment and (2) that his actions in blocking users from that account violated the First Amendment rights of those blocked users. 

The President appealed that ruling to the Second Circuit Court of Appeals. This morning, the Second Circuit issued its opinion in this appeal, upholding the district court's ruling that the President's actions in blocking critics from his @realDonaldTrump Twitter account violated the First Amendment. Specifically, the Second Circuit stated as follows:
The President contends that the Account is exclusively a vehicle for his own speech to which the Individual Plaintiffs have no right of access and to which the First Amendment does not apply. Secondarily, he argues that, in any event, the Account is not a public forum and that even if the Account were a public forum blocking the Individual Plaintiffs did not prevent them from accessing the forum. The President further argues that, to the extent the Account is government- controlled, posts on it are government speech to which the First Amendment does not apply. We are not persuaded. We conclude that the evidence of the official nature of the Account is overwhelming. We also conclude that once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.
This opinion, like the Fourth Circuit Court of Appeals ruling last year finding a County Commissioner's personal Facebook page to be subject to the First Amendment, is an important one for local government officials who use their personal social media sites to communicate about government business. In certain circumstances, those personal pages and accounts may be so intertwined with government business that they are considered a "public forum," meaning that the government official must be careful not to censor the speech of those who  post on these pages and accounts.

You can read the Second Circuit's decision Knight First Amendment Institute v. Donald J. Trump here.

Social Media Database Catalogs Police Social Media Activities


Coming on the heels of stories in Philadelphia that 76 police officers were placed on leave for allegedly racial social media activities, Dallas announced last week that it was investigating 25 police officers who had allegedly posted or shared racist or other objectionable material on social media. 

News reports cite to a database published by an action group that catalogs thousands of racist or violent posts made by police officers in several states. Reportedly, five states are investigating police officers following release of this database. More than a thousand of the cataloged public posts were made by people identified as current and former Dallas police officers. 

Examples of a few of the following public posts by police officers that were cataloged by the action group:
It's a good day for a choke hold
Death to Islam
If the Confederate flag is racist, then so is Black History Month
Statistics show that criminals commit less crimes after they've been shot
I'm proud to be white
Employee social media activities are increasingly coming under scrutiny, and as we have reported in the past, these activities do not need to be at the workplace or while on duty to subject an employee to discipline, and even termination.

Monday, July 8, 2019

Claims Against School District For Construction Payments Can Move Forward


Restoration Construction Company filed a lawsuit against a school district claiming the district refused to pay for construction and restoration services provided by Restoration after a school building was damaged by fire. The work had been performed under a contract signed by the school district's superintendent. The value of the work under the initial agreement was over $331,000. The contract was not presented to the school district board for approval. Subsequently, the school district board president signed an amended contract with Restore Construction to repair the school. That contract valued the work at over $6.9 million and was also not presented to the school district board for approval.

Restoration moved forward with the work, and the school district made progress payments to Restoration in an amount of approximately $5.8 million, with a balance of approximately $1.4 million under the contracts when the school district ceased payment. At that point, Restoration sued for breach of contract and later added equitable claims. 

The trial court dismissed the case, finding that the two contracts were "void ab initio" because they were not approved by the school district board and because they were not subject to the competitive bidding process. As a result,Restoration could not recover under these void contracts. The court also dismissed the equitable claims, and Restoration appealed.

On appeal, Restoration argued that the trial court should not have dismissed its equitable claims because even if the contracts were void, Restoration should still be able to recover for the work they performed under a "quantum meruit" argument, which argues that there was a contract "implied by law." Although the appellate court agreed that the two contracts were void, the appellate court rejected the trial court's dismissal of Restoration's quantum meruit claim, finding that Restoration should have been able to proceed on that argument. The court specifically found that there was no case that holds that a quantum meruit claim is barred if a contract was determined to be void. 

In short, the appellate court sent the case back to the trial court for further proceedings on Restorations quantum meruit claim that the school district must pay them for the value of the work they provided to the district. Restore Construction Co. v. Board of Ed of Proviso Township HS Dist. 209, et al., 2019 IL App (1st) 181580

Monday, July 1, 2019

Quorum Forum Episode 26: Local Gov Legislation Update



After an historic legislative session, Ancel Glink Partner and State Rep. Chris Welch joins Kurt Asprooth for a special meeting of Ancel Glink's podcast, Quorum Forum, to discuss a capital bill bringing new casinos, sports betting, and more video gaming terminals to Illinois communities. We also discuss “Tobacco 21,” a new Open Meetings Act exception, and more important legislation affecting local governments. 

You can access this Podcast Episode 26 here.

Questions about new #localgov legislation? Email us at podcast@ancelglink.com!

Wednesday, June 26, 2019

Illinois Parking Excise Tax Act & Municipal Parking Garages and Lots


The Illinois legislature slipped a little-known provision into House Amendment 3 of Senate Bill 690 (part of the "Leveling the Playing Field for Illinois Retail Act) that would establish a parking excise tax. Beginning January 1, 2020, the Parking Excise Tax Act would impose a state excise tax on the privilege of using a parking space in a parking garage or area at the rate of 6% for hourly, daily, or weekly parking and 9% for parking paid on a monthly or annual basis. The tax would be collected by the "operator" of any parking area or garage, as defined in the proposed legislation. The bill (which also includes changes to the internet sales tax, gaming expansion, and increases to the gas and cigarette taxes, among other provisions) has been approved by the Illinois legislature and has been sent to the Governor. 

The question many local governments have asked is whether parking spaces in a parking garage or lot operated by a municipality or other unit of local government (including a commuter parking lot or garage) would be subject to this new tax. 

The answer to that question may turn on the definitions of "operator" and "person" under the proposed legislation. 

"Operator" is defined as any person who engages in the business of operating a parking area or garage..." 

"Person" is defined as "any natural individual, firm, trust, estate, partnership, association, joint stock company, joint venture, corporation, limited liability company, or a receiver, trustee, guardian, or other representative appointed by order of any court." 

It is relevant that the definition of person in the proposed legislation does not include any reference to municipalities or other units of local government. Where the state legislature has enacted an excise tax and has defined "person" for purposes of interpreting that tax, it has expressly included in the definition of person a reference to governmental entities where applicable. For example, the Motor Fuel Tax Act includes in the definition of person the following "or any city, town, county, or other political subdivision in this State.” Similar language is also included in the Simplified Municipal Telecommunications Tax Act, the Electricity Excise Tax, and other excise tax statutes. Here, no such language is included, which suggests that the legislature did not intend the tax to apply to parking garages or lots operated by municipalities or other units of local government. Perhaps it would have been clearer if the legislature had expressly exempted municipal and other local government parking areas and garages from the tax as the legislature did for the federal government.

We have reached out to various organizations and agencies to confirm our interpretation, and will update our readers when we have more information. We certainly hope to have more information prior to the proposed legislation being enacted. 

Monday, June 24, 2019

"Ongoing Investigation" Does Not Provide Blanket Exemption to FOIA Request


The Illinois appellate courts don't often decide FOIA cases, so it's always an interesting read when they do (most of our FOIA posts deal with PAC opinions). 

In Kelly v. Village of Kenilworth, et al., 2019 IL App (1st) 170780, an appellate court considered the appeal of a denial of a FOIA request for records relating to a 50 year old investigation into the murder of a 21 year old in her Kenilworth home. Kelly had filed various FOIA requests with the Village, the state police, the Cook County states attorneys office, among other government entities seeking all records pertaining to the murder investigation. The Village and other public bodies denied the request on the basis that the records were for law enforcement purposes and disclosure would interfere with an active or ongoing criminal investigation. 

Subsequently, Kelly filed a lawsuit against the Village and other defendants. After the trial court reviewed some of the requested records "in camera," the court ruled in favor of the Village and other defendants, finding that disclosure could interfere with an ongoing investigation.

On appeal, the appellate court first held that the Village could assert a FOIA exception over records held by the other defendants, including Cook County and the state police. Second, the appellate court held that trial court correctly determined that there was an ongoing investigation into the murder for purposes of the FOIA exemptions contained in 7(1)(d).  

However, the appellate court expressed concerns about the trial court's application of a blanket exemption over the requested records relating to the ongoing investigation. The appellate court determined that section 7(1)(d) requires a public body to redact and release that portion of the investigative records where release would not interfere with an ongoing investigation or obstruct an ongoing criminal investigation. The appellate court did, however, acknowledge that the scope of the requested records was extensive, and that the Village and other defendants may have properly asserted the "unduly burdensome" exception in response to the FOIA request. Although that exception had not been raised in the initial denial, the appellate court remanded the case to provide the defendants with the opportunity to raise that exemption, and work with Kelly to narrow his request to a more manageable proportion, as allowed by the FOIA statute.

Although the appellate court did not preclude the defendants from asserting the "unduly burdensome" exception on remand, this case is still a reminder of the importance of asserting any potential exception at the outset, in the initial response. 

Friday, June 21, 2019

US Supreme Court Overrules Williamson County "State Litigation" Requirement


In a 5-4 decision, the U.S. Supreme Court overruled longstanding precedent in Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985), that required property owners to pursue their claims against government in state court before they could bring a federal lawsuit alleging a "taking" in violation of the Fifth Amendment of the U.S. Constitution. See Knick v. Township of Scott (USSCT, June 21, 2019). The Williamson County ripeness doctrine allowed government bodies to defend these property and land use cases in state court, where state court remedies were available. The U.S. Supreme Court's decision in Knick overruling Williamson County's "state-litigation" requirement will certainly affect local governments across the country, including Illinois, as litigants can now initiate their land use and property claims in federal court in a civil rights 1983 action. 

We will report on this case in more detail next week.

Thursday, June 20, 2019

Ancel Glink talks “Law in Plain English” on GovLove Podcast




Check out Ancel Glink partner David Silverman’s appearance on ELGL’s GovLove podcast discussing “Law in Plain English,” as part of their #GovLoveLegal series. A description of the podcast is below and you can listen to the podcast here. 
Writing legalese for residents. GovLove Legal returns with a discussion of how to write about complex legal topics in a way that is understandable for residents and elected officials. Jenny Kosek, Communications Strategist in West Allis, WI, and David Silverman, Partner at Ancel Glink Law Firm, share their perspectives and tips for taking complex legal topics and communicating them clearly.
Post Authored by Dan Bolin, Ancel Glink