Friday, February 12, 2016

See you at the Illinois Local Government Lawyers Association Conference!

On Monday, February 15, 2016, local government lawyers from around Illinois will convene at the NIU Naperville Campus for the 23rd Annual Illinois Local Government Association Conference

Ancel Glink’s Ellen K. Emery and Daniel J. Bolin will be there to provide an overview of the Police and Community Relations Improvement Act, and a package police reform laws adopted by the General Assembly last year. Many of these laws became effective on January 1, 2016, and as previously discussed on this blog, these laws will cause local police departments to consider new policies governing officer-involved deaths, officer-worn body cameras, FOIA, use of force, and more. We look forward to seeing everyone at the conference!

Post Authored by Dan Bolin, Ancel Glink

Bill Would Authorize Recall of Mayors

It's been a busy week in Springfield, with dozens of new bills introduced on all sorts of topics. Next week, we will report on some proposed changes to notice requirements. Today, we report on a bill that would authorize voter "recall" of mayor or village president.

HB 5993, introduced yesterday, would amend the Illinois Municipal Code to establish a procedure for an election to recall mayors and village presidents. That process would require the following steps:

  • The filing of a referendum petition by voters equal to 15% of the total votes cast for that office in the preceding election. (in Chicago, at least 50 signatures must come from each ward)
  • At least 150 days prior to filing the petition, a "notice of intent" must be filed with the local election official (usually the village or city clerk) evidencing the intent to circulate petitions. That notice of intent must be by affidavit and can be filed no sooner than 6 months after the president or mayor's term of office commenced. (In Chicago, the affidavit must be signed by at least 2 aldermen in addition to the recall proponent).
  • If properly filed, a special recall election must be called by the clerk (or in Chicago, the board of election commissioners) to occur not more than 100 days after certification of the recall petition. 
  • If the recall referendum passes, a special successor primary election must be held 60 days after the special recall election. If triggered, a special runoff election may also be required.
  • During the interim between the passage of the recall referendum and the election of the successor president or mayor, the vice mayor or other individual selected by the city council/village board will serve as the acting mayor/president.
The bill requires quite a few "special" elections, all of which will incur costs for municipalities and counties, although that is not addressed in the legislation. This bill seems to be more of a political rather than legal maneuver, in light of recent developments in Chicago. We'll keep you posted.

Post Authored by Julie Tappendorf

Thursday, February 11, 2016

Regulation of Short-Term Rentals

As AirBNB, HomeAway, and VRBO (Vacation Rentals by Owner) become as popular as Uber and Lyft, municipalities are starting to encounter a whole host of new legal issues, particularly in the zoning and building regulatory arena. Neighbor complaints are forcing municipalities to review their current zoning and building regulations to determine (1) whether these uses are allowed, and if so, (2) how they are regulated. Some communities are finding that existing ordinances may not provide simple answers to these questions, leading many to consider amendments to specifically address these short-term rentals. 

If you haven't used one of these short-term rental sites, you may be interested in how they work. AirBNB, VRBO, and HomeAway operate websites that allow guests to reserve a private home, condo, or apartment on a nightly, weekly, or weekend basis. The websites charge a fee or percentage of the rental amount to the property owners who list their private homes, condos, or apartments on their websites. It's sort of like a dating site for property owners and potential guests.

The Village of Lincolnwood, Illinois is considering enacting an ordinance to regulate short-term rentals.  Lincolnwood had received a couple of complaints from residents that neighboring homes had been rented out on a nightly or weekend basis through these websites. The neighbors raised concerns about the business nature of the use in principally residential areas, a variety of safety concerns, and that one of the homes had been rented out to host a large Super Bowl party. 

Other Illinois communities have adopted different approaches to regulating these short-term rentals. For example, the Village of Lincolnshire adopted an ordinance allowing these uses, provided rentals in the residential districts are no less than 3 months in duration and limiting the number of rentals in a 12 month period to no more than 2.  The City of Evanston requires the owner to apply for and obtain a license to rent out a home on a short-term rental basis. The City of Chicago is also considering a licensing ordinance.

Post Authored by Julie Tappendorf

Wednesday, February 10, 2016

Illinois Bill Would Make it Illegal to Post Fighting Video on Social Media

We previously posted about a Kentucky bill that would, if passed, make it illegal to post about serious traffic accidents on social media for at least one hour. The sponsor of the Kentucky bill subsequently withdrew the bill after objectors raised First Amendment concerns with the proposed legislation. 

Now, an Illinois legislator has proposed similar legislation that would make it illegal to post videos of fights on social media. Representative Terri Bryant of Murphysboro sponsored the bill after being made aware of a video on Facebook that showed a 12-year-old on the ground while another boy tried to stomp him, with classmates standing by, circling the two and recording the fight on their phones. Critics of the bill raise concerns about the effect of the bill on First Amendment speech rights, similar to those raised in Kentucky. For example, a representative of the American Civil Liberties Union of Illinois said "We think this proposal is overly broad and unconstitutional." 

Under the proposed legislation, a person would commit disorder conduct if he or she knowingly:
Uploads a video of a crime being committed, a gang-related fight, a battery committed with the intent to cause a person to be made unconscious, or other display of violence to a social media website or social networking website with the intent to promote or condone that activity or refuses to provide a law enforcement agency or peace officer with that uploaded video upon request of that agency or officer.  
You can read House Bill 4419 here.

Post Authored by Julie Tappendorf

Friday, February 5, 2016

Chicago Public Nudity Ban Survives Federal Court Challenge

On Monday, a court upheld a Chicago ordinance banning public nudity in a challenge that the ban violated First Amendment and Equal Protection protections in Tagami v. City of Chicago et al.  

In August 2014, Sonoko Tagami participated in a “Go Topless Day” protest organized by an organization that advocates for the right of women to appear bare-chested in public. Tagami was cited in violation of Chicago’s public nudity ordinance, which provides that:

Any person who shall appear, bathe, sunbathe, walk or be in any public park, playground, beach or the waters adjacent thereto, or any school facility and the area adjacent thereto, or any municipal building and the areas adjacent thereto, or any public way within the City of Chicago in such a manner that the genitals, vulva, pubis, pubic hair, buttocks, perineum, anus, anal region, or pubic hair region of any person, or any portion of the breast at or below the upper edge of the areola thereof of any female person, is exposed to public view or is not covered by an opaque covering, shall be fined not less than $100.00 nor more than $500.00 for each offense. Municipal Code of Chicago § 8-8-080.
           
In October 2014, Tagami appeared before an Administrative Law Judge and was found liable for violating the Ordinance. Tagami filed a lawsuit in federal court. The case alleged, among other things, that the City Ordinance violated her First Amendment right to freedom of expression and her equal protection rights by creating a sex-based classification. The Court dismissed both of Tagami’s constitutional claims. 

First, the court dismissed her freedom of expression claim because Tagami failed to provide any message through her act of public nudity. The Court noted that public nudity is not inherently expressive and, and found a lack of facts showing that “in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”

Second, the court dismissed her equal protection claim because Tagami did not show that the Ordinance created any sort of “artificial restraint” or that it “perpetuated an assumption of inferiority: that the sight of a female’s breast is offensive in a way that the sight of a male’s breast is not.” 

Although the case provides support for municipal authority to regulate public nudity, municipalities should take care to ensure their ordinances serve other important government interests and are not solely designed to prohibit possibly expressive conduct.


Post authored by Daniel J. Bolin and Douglas E. Spale

Thursday, February 4, 2016

Selective Enforcement of City Code Not an Equal Protection Violation

The City of Rockford cited a property owner for 14 housing code violations. The City conducted an administrative hearing, which was continued from time-to-time at the request of the owner. After nearly a year, the hearing officer denied any further continuances, and found the owner in violation. He imposed a fine of $15,000, or $50 per violation per day. The owner then appealed to the court, which upheld his conviction. Kavonius v. City of Rockford, 2016 IL App(2d) 150188-U.

First, the owner argued that the City violated his equal protection rights by "selectively enforcing" the the City's housing code requirements. He alleged that the City had taken no action against neighboring property owners whose properties were in similar conditions to his. In rejecting his argument, the court held that proof of selective enforcement, on its own, does not constitute an equal protection claim without evidence that the selective enforcement was due to some personal animosity or vindictive conduct by the City. Here, plaintiff had provided no evidence of personal animosity against plaintiff. While the court acknowledged plaintiff's frustration that he was prosecuted and not his neighbors, it concluded that a "routine case of selective enforcement" was not actionable as a violation of equal protection.

Second, the owner argued that the City violated his due process rights by denying his requests for continuance. The court also rejected this argument, finding that the hearing officer had continued the hearing numerous times to allow the plaintiff to complete the work. There was also no evidence that the plaintiff was not able to participate in the hearings.

Post Authored by Julie Tappendorf

Tuesday, February 2, 2016

PAC Dives into First Amendment Again in Public Comment Opinion

A reader contacted me recently about an advisory opinion from the Public Access Counselor regarding public comment at meetings. Although not binding, the opinion does offer public bodies additional guidance on how the PAC interprets the public comment provision of the OMA.

In 2015 PAC 37391, a member of the public filed a complaint with the PAC alleging that the Cahokia Village Board violated the OMA when the Mayor refused to allow a member of the public to speak because she had not submitted her request 7 hours in advance of the meeting as required by the Board's ordinance. The complaint also alleged that the individual was improperly removed from the meeting.

First, the PAC rejected the Board's argument that the individual filing the complaint had no standing since she was not the individual removed from the meeting. The PAC noted that anyone who believes a public body has violated the OMA can file a complaint against a public body.

The PAC then reviewed the Board's public comment rules that require an individual to fill out a form and submit it by noon the day of the meeting in order to speak at the meeting. The form required the person to identify themselves and their address and phone number, as well as the subject or list of questions. Although the PAC acknowledged other courts that had upheld advance sign up rules, it struck down Cahokia's practice because it "may create a chilling effect on speech at public meetings." The PAC seemed most concerned about the requirement that speakers identify the subject of their comments in advance and provide their addresses and telephone numbers, finding these requirements to be unreasonable restrictions under 2.06(g) of the OMA.

Finally, the PAC determined that removal of the individual from the meeting was an "unreasonable rule to infringe on the woman's statutory right to address the Board," in violation of the OMA.  The PAC did acknowledge a public body's right to curtail public comment "if a speaker acts in an insulting or unruly manner that disrupts the order and decorum of a meeting." That right does not, however, allow a public body to curtail the public's right to express criticism according to the PAC.

The PAC again acknowledged that the OMA does not require a public body to conduct question and answer sessions or answer any questions for that matter since 2.06(g) of the OMA only deals with public comment. Because of that, the PAC did not have an issue with the requirement that questions be submitted in advance of a meeting. 

The opinion, while only advisory, offers some additional insight into how the PAC interprets the public comment provision of the OMA.  
  • Requiring an individual to sign a form in advance of a meeting in order to speak during public comment will like not be tolerated. 
  • Requiring an individual to provide personal information as a condition to speak at a meeting is also not allowed. 
  • Requiring an individual to disclose the content of their comments cannot be a prerequisite to speaking to a public body. 
  • 2.06(g) does not require a public body to answer questions, so a requirement that questions be submitted in advance does not violate the OMA.
  • The PAC will continue to weigh in on constitutional matters even though the PAC's authority under state statute does not include the authority to decide violations of the First Amendment or any other constitutional provision. 
Post Authored by Julie Tappendorf

Monday, February 1, 2016

Illinois Supreme Court Abolishes Public Duty Rule

Last week, the Illinois Supreme Court issued an opinion that will affect how local governments defend lawsuits involving the provision of governmental services. In Coleman v. East Joliet Fire Protection Dist., 2016 IL 117952, the Illinois Supreme Court abolished the long established common-law "public duty rule." That rule provided that a local government entity and its employees owe no duty of care to individual members of the public to provide governmental services (including police and fire protection services). 

In 2008, a 911 call came into the Will County 911 operator from Coretta Coleman who claimed she could not breathe and needed an ambulance. Will County dispatch transferred the call to Orland Central Dispatch, and hung up the phone as soon as Orland responded. The Orland dispatcher received no response to questions to the caller, and called an ambulance to go to the address. An East Joliet Fire Protection District ambulance arrived at the residence, but there was no response to knocks on the door. Neighbors explained that an elderly couple lived in the home, and the woman would be unlikely to answer the phone. The responders determined that a forced entry could not be made, and left after reporting to dispatch that there was no patient. Neighbors then called 911 and a second ambulance was dispatched. Shortly after the second ambulance arrived, Coretta's husband came home and let the responders into the home. Coretta was found unresponsive, and later died of cardiac arrest.

The husband filed a wrongful death lawsuit against the District, the County, and the dispatchers. The defendants filed a motion for summary judgment, arguing they owed no duty to Coretta under the public duty rule and, even if they did owe a duty, they were immune from liability under the Emergency Medical Services (EMS) Systems Act because their conduct was not willful and wanton. The defendants also asserted absolute liability. The trial court and appellate court ruled in favor of the defendants under the public duty rule. Coleman appealed to the Illinois Supreme Court.

The Illinois Supreme Court first reviewed the origins of the common law "public duty rule." The court found the rule was grounded in the principal that local government owes a duty to the community as a whole, and not to individual members of the community. The court acknowledged the rule was long-standing and widely accepted. However, the court noted that over time, a number of exceptions to that rule had been developed by courts, including the "special duty exception." The court also noted that the Illinois legislature had enacted a comprehensive scheme of immunity to protect local governments.

The court concluded that "the time has come to abandon the public duty rule and its special duty exception."  The court gave 3 reasons for abolishing the public duty rule:

First, the court held that case law had been inconsistent in applying the rule and its exceptions. In many cases, courts had skipped the duty analysis altogether and gone right to addressing the issue of whether the questioned government actions were protected by statutory immunity.

Second, the court held that the public duty rule was incompatible with the statutory grant of limited immunity in cases of willful and wanton conduct. The court acknowledged that in some cases, courts have precluded a plaintiff from pursuing a case of action for willful and wanton misconduct because the plaintiff could not first establish that the government had a duty to plaintiff.

Third, the court determined that the legislature's enactment of statutory immunity protection had rendered the public duty rule unnecessary. 

This ruling will certainly impact how future Illinois courts consider and decide cases involving claims against local government in its provision of governmental services.

Post Authored by Julie Tappendorf




Friday, January 29, 2016

USSCT Hears Government Employee Speech Case

The U.S. Supreme Court will consider a First Amendment case involving a government employee who claims he was demoted for political reasons.  The Court heard oral arguments last week, and will issue an opinion this term.  The question before the Court is whether a public employee can establish a violation of his right to political association where he was demoted for holding a campaign sign for his employer's (mayor) opponent. Heffernan v. City of Paterson.

According to Scotusblog, the Justices grappled with a variety of issues and questions, including whether merely holding a campaign sign was "associating" with someone that would be protected by the First Amendment.  Much of the questioning centered on whether a court should find a First Amendment violation for a "perceived" exercise of First Amendment rights (i.e., the government's wrong doing ) or whether the speaker must show that he was, in fact, exercising his First Amendment protected rights. 

This is an interesting case for government to watch. It reminds me of the "Facebook Like" case where deputies were fired for "liking" their employer's opponent in the election. In that case, the appellate court ruled that a "like" was First Amended protected "speech," and overturned the sheriff's termination of the deputies for exercising their political speech rights.  You may recall this case on the blog here.

Post Authored by Julie Tappendorf

Wednesday, January 27, 2016

Bill Would Affect Use of FOIA Exemptions for Police Recordings

The Illinois Senate recently introduced a bill that would amend the Freedom of Information Act (FOIA). Senate Bill 2210 provides that video captured by an in-car camera or police worn body-camera of (1) an officer discharging a firearm or (2) an officer-involved death will not be exempt from a FOIA request unless the public body obtains a court order authorizing use of the exemption. The amendment would require a court to conduct an expedited hearing on the applicability of the exemption.  The bill does not address whether the time-frame for response is "stayed" while the court order request is pending.  Nor does the bill provide any guidance on the process for how a public body initiates the court proceeding to request an order authorizing use of a FOIA exemption.

The introduction of the amendment was in response to the Laquan McDonald shooting. You can read about Senator Van Pelt’s (the sponsor of the bill) position regarding the amendment here.

Post Authored by Douglas Spale & Julie Tappendorf, Ancel Glink

Tuesday, January 26, 2016

Ancel Glink Q of the Month - Limits on Public Comment

Can we limit the total time for public comment at our city council meetings to 30 minutes, and each commenter to 3 minutes?

Yes, so long as the city council has adopted rules for public comment. In a number of advisory opinions, the Public Access Counselor of the Attorney General's Office upheld similar time limitations on public comment. The PAC cautioned, however, that in order to restrict public comment in any way, the public body must have approved public comment rules.  Having a long-standing practice of limiting the time frame for public comment is not sufficient to satisfy the requirement of approved rules, according to the PAC.  So, if your public body has routinely placed restrictions on public comment (time limits, sign-ins, etc), it should adopt rules for public comment to incorporate those practices.  

Post Authored by Julie Tappendorf

Monday, January 25, 2016

Tax Levy Extension Update

Despite legislators widely supporting a property tax freeze as part of a possible budget compromise, the economy is doing just fine virtually freezing taxes on its own without any legislative assistance. The Illinois Department of Revenue recently released the extension limitation that will apply to 2016 tax levies:  0.7%.  

Based on this number, if an Illinois local government's tax extension for 2015 was $100, the government's taxes for 2016 (excluding taxes from new construction, annexations and expiring TIF increment) would be allowed to increase by $0.70.  Combined with the 2015 extension limitation (0.8%), taxes for non-home rule governments are eligible to increase by just 1.5% over two years.

Post Authored by Adam Simon, Ancel Glink