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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

Thursday, June 14, 2018

TRO Issued Against Village's Assault Weapon Ban

The issue of gun control has been a topic of extensive conversation across the country, and recently in Illinois when the Village of Deerfield enacted an assault weapons ban by local ordinance. That ban is currently the subject of a legal challenge in multiple lawsuits, including one brought by the Illinois State Rifle Association and the Second Amendment Foundation, and another lawsuit filed by Guns Save Life, Inc. Both cases claim the Village had no authority to adopt its assault weapons ban because it was preempted by state law. Other arguments include "takings" and eminent domain claims and both complaints ask the court to issue a temporary restraining order (TRO) to prohibit the Village from enforcing the ban while the case moves forward.

On June 12th, a Lake County Circuit Court judge issued a preliminary ruling in both cases granting a TRO to plaintiffs and barring the Village from enforcing its assault weapons ban. The court determined that the Village ordinance was not enforceable because it is preempted by state law, specifically provisions of the Firearm Owner's Identification Card Act and Firearm Concealed Carry Act that were enacted in 2013. The court also found that the Village's 2018 ordinance that amended a 2013 ordinance adopted by the Village within the limited preemption exclusion time-frame was a "new" ordinance and not an amendment of the 2013 ordinance. The court rejected plaintiffs' takings and eminent domain claims. 

This ruling is not the final decision in this case, but grants temporary relief to plaintiffs while the case proceeds.

You can read the court's ruling here.

Monday, June 11, 2018

Quorum Forum Podcast Discusses Employment Law Issues

Ancel Glink just released Episode 3 of its podcast, Quorum Forum. In this episode, Ancel Glink's labor and employment attorneys provide updates on new employment laws that affect government employers and engage in a discussion about sexual harassment in the workplace. 

You can find this Episode 3 here and our previous podcast episodes on Quorum Forum's website here

Don't forget to send us your questions and show ideas to podcast@ancelglink.com!

Thursday, June 7, 2018

Zoning Lawsuit Bill Passes Both Illinois Houses

Illinois House Bill 4711, if passed, proposes to amend the Zoning Enabling Acts for municipalities, counties, and townships to address lawsuits against these government entities. That bill recently passed both houses and has been sent to the Governor.

If passed, the zoning statutes will be amended to provide that the statute commonly referred to as the Adjoining Landowner Act does not authorize a lawsuit against the municipality, county, or township in which the property in question is located unless the government entity is the owner of that property. The Adjoining Landowner Act authorizes a municipality or property owners within 1200 feet of a property allegedly in violation of buildings or zoning codes to sue the property owner to enforce the building or zoning code. 

The specific language that would be added to the municipal Adjoining Landowner Act is as follows:
Except in relation to municipality-owned property, this Section does not authorize any suit against a municipality or its officials for any act relating to the administration, enforcement, or implementation of this Division or any ordinance, resolution, or other regulation adopted pursuant to this Division.  
Similar language would be added to the township and county statutes. 

The bill is consistent with numerous Illinois cases that have dismissed lawsuits filed against government entities under the Adjoining Landowner Act. Those cases clearly state that the Adjoining Landowner Act does not provide a cause of action against the government entity unless the entity is the owner of the property that is allegedly in violation of building or zoning codes.

Post Authored by Julie Tappendorf

Wednesday, June 6, 2018

Illinois Supreme Court Takes Appeal in Food Truck Case

The Illinois Supreme Court granted an appeal in a case challenging the City of Chicago's food truck ordinance.  We wrote about the appellate court ruling here and the trial court ruling here.  Both courts ruled in favor of the City of Chicago, rejecting the plaintiffs' claim that the ordinance violated the food truck operators' equal protection rights because it treated food trucks differently than restaurants. It also rejected their argument that the 200 foot distance requirement from brick and mortar restaurants violated the food truck operators' due process rights, finding no protected property right to operate a food truck.  We will update you once the Illinois Supreme Court issues its ruling in this appeal.

Tuesday, June 5, 2018

County Did Not Violate Due Process in Ordinance Prohibiting Alcohol in Adult Businesses

In an unpublished appellate court ruling, a court ruled in favor of the county in a lawsuit filed by an adult entertainment establishment challenging a county ordinance prohibiting alcohol in adult entertainment establishments. County v. Wilhoit.

Wilhoit operated an adult entertainment establishment in Douglas County which allowed patrons to bring in and consume their own alcoholic beverages. In 2015, the County adopted an ordinance prohibiting the consumption of alcoholic beverages in adult entertainment establishments. After the county filed an ordinance violation action against Wilhoit's business to enforce the ordinance, Wilhoit filed a lawsuit against the county alleging that the ordinance was unconstitutional because the county failed to provide Wilhoit with notice of the meeting at which the ordinance was adopted.

The appellate court first noted that plaintiff did not argue that the County failed to follow the required notice procedures. Instead, plaintiff was arguing that she deserved additional notice because she had a "property interest" in operating her business. The court disagreed, finding that the County did not violate Wilhoit's procedural due process rights because (1) Wilhoit had no protected property interest  in having patrons consume alcoholic beverages at her adult entertainment establishment; and (2) Wilhoit was not entitled to any special notice beyond what was provided to the general public.

Post Authored by Julie Tappendorf

Monday, June 4, 2018

U.S. Supreme Court Expands 4th Amendment Protection to Vehicles in Driveways

In Collins v. Virginia, the U.S. Supreme Court addressed a challenge to a police search of a motorcycle located in a partially enclosed carport on a driveway adjacent to the defendant’s home. 

In the course of investigating the ownership and location of a motorcycle seen excessively speeding, Officer Rhodes went to the address where a similar motorcycle was known to be present. At the house, Rhodes observed a white tarp covering a motorcycle.  Without a warrant, the officer  walked up the driveway to where the motorcycle was parked and uncovered the tarp.  The officer discovered the same motorcycle involved in the speeding incident.  After running a search of the license plate and vehicle identification number, he confirmed that the motorcycle was stolen and photographed the motorcycle before replacing the tarp. Collins was later charged and convicted of stealing a motorcycle. 

The Virginia state courts rejected Collins’ claim that the officer’s search violated his 4th Amendment rights,finding that the search fell under the automobile exception of the 4th Amendment.  That exception recognizes that a vehicle has the opportunity to leave during the time period that an officer would have to obtain a search warrant.  In addition, vehicles that travel on public highways are generally subject to regulation while being operated.  When an officer has probable cause to find a motor vehicle was used to commit a violation on a public way, a search of an automobile is justified without a warrant.

On appeal, the U.S. Supreme Court found, in an 8-1 ruling, that Collins had greater constitutional protections because of where the motorcycle was parked.  The area outside of a home where an owner still has a right to privacy is described as the “curtilage” of a person's property.  Courts have held that because the curtilage is intimately linked to the home, physically and psychologically, it is entitled to greater privacy expectations. The Supreme Court found that the driveway where Collins’ motorcycle was parked qualified as curtilage. As a result, Collins’ had a greater 4th Amendment right when his motorcycle was parked there than if it had been parked on the street. 

The Court then looked to see if the automobile exception applied to the officer’s warrantless search.  However, the Court found that there is nothing about the automobile exception that gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. 

Local attorneys and code enforcement officers should closely examine the case to determine how to investigate and issue citations against motor vehicles located on private driveways.

Post Authored by Megan Mack & Adam Simon, Ancel Glink

Friday, June 1, 2018

Mayor Sued for Blocking Critic From Facebook Page

We reported last week about the federal district court decision that held that President Trump's blocking of critical speakers on his @realDonaldTrump Twitter account violated the speakers' First Amendment rights. A new case was recently filed in California by an individual making similar claims against a National City Mayor.

According to news sources, the mayor blocked a union organizer who was a vocal critic of the mayor from his Facebook account. The plaintiff claims that because the mayor uses his Facebook account for city business, he cannot block critics from posting on his page. The case was just filed, so there have been no rulings yet, but it's likely the parties' arguments and the court's analysis will be similar to that found in the Trump Twitter case.  We will keep you posted.

You can read the complaint here.

Post Authored by Julie Tappendorf

Thursday, May 31, 2018

New Law Allows Website Posting for Prevailing Wage Rates

Last year we reported on a new law that authorizes public bodies to "publish" their prevailing wage rates by posting notice on their websites rather than in the newspaper. Public bodies that adopt the Department of Labor's wage schedule for the county (or counties) in which the public body is located are eligible to take advantage of this alternative method of publishing their prevailing wage rates. P.A. 100-0154.

If a public body qualifies for the alternative method of publication, it must post a notice of the determination of prevailing wages on the public body's website with a hyperlink to the prevailing wage schedule for the locality that is published on the Department of Labor's website.  The following link will direct you to the list of counties where you can find the proper link to post on your website:   

You can read our previous blog post here.

Post Authored by Julie Tappendorf

Wednesday, May 30, 2018

Court Dismissed Challenge to Chicago's Tax on Internet Streaming Services Such as Netflix

Last week, a Cook County Circuit Court Judge issued a ruling in favor of the City of Chicago in a challenge that its 9% amusement tax violated federal law and the constitution. Labell v. City of Chicago. Plaintiffs had filed a lawsuit against the City of Chicago alleging that the City's imposition of the amusement tax on Internet-based streaming services such as Netflix, violated the federal Internet Tax Freedom Act, the U.S. Commerce Clause, the Illinois constitution, and exceeded the City's home rule taxing powers. Plaintiffs were customers of Internet services who had been charged the amusement tax. 

The court addressed each allegation, finding no merit to plaintiffs' challenge to the City's tax. The court determined that the City had adequate authority under its home rule powers. The court also found no validity to plaintiffs' argument that the City's imposition of a different tax on live amusements than it does on Internet-based amusements discriminates against them. The court also rejected plaintiffs' argument that the tax violates the uniformity clause because it treats residents differently than non-residents. 

Post Authored by Julie Tappendorf

Tuesday, May 29, 2018

Law Making Licensee Complaints Confidential Not Retroactive

In a recent case decided by the Illinois Supreme Court, the Court determined that a new law that provided that complaints filed with the Department of Financial and Professional Regulations (Department) against licensees are confidential and protected from disclosure should not be retroactively applied to a FOIA request. Perry v. Department of Financial and Professional Regulations, 2018 IL 122349

Plaintiffs filed requests with the Department for copies of complaints filed with the Department against licensees. The Department denied the FOIA requests, citing various exceptions including P.A. 98-911 which protects from release complaints filed against certain licensees. Plaintiffs sued, claiming that their requests were filed before the new law became effective, and the law should not be applied retroactively. The circuit court agreed with plaintiffs, but the appellate court reversed. On appeal to the Illinois Supreme Court, the Court reversed the appellate court, finding that the new law that would protect the requested records from release should not be retroactively applied. The Court then remanded the case back to the circuit court to make a determination on an award of attorneys fees and to hold a hearing on civil penalties.

Post Authored by Julie Tappendorf

Thursday, May 24, 2018

President's Blocking of Twitter Users Found Unconstitutional

Last summer, we reported on the federal lawsuit filed against President Trump by individuals who had been blocked from the President's @realDonaldTrump Twitter account. You can read our post here. Yesterday, the federal district court issued a ruling in this case declaring that the blocking of users from the President's Twitter account violated the users' First Amendment free speech rights. Knight First Amendment Institute et al. v. Trump.

The court's analysis is interesting because there are very few cases that discuss the interaction of the First Amendment with social media. It's also lengthy (75 pages), so I've condensed what I believe are the important points of the court's analysis in the following summary. 

Twitter Users Engaged in Protected Speech

First, the court considered whether the plaintiffs (the blocked users) had engaged in speech protected by the First Amendment. The court concluded that they had because the users sought to engage in political speech critical of the President, and speech on "matters of public concern" is protected by the First Amendment.

@realDonaldTrump Account is Controlled by the Government

Second, the court looked at whether the space where the users were preventing from engaging in protected speech was a public forum for purposes of the First Amendment. That issue turned on whether the space in question is "owned or controlled by the government." The court acknowledged that Twitter is a private company that is not government-owned, the control exercised by President Trump over the @realDonaldTrump account was governmental in nature, based on the following factors:
  • The account is presented as being "registered to Donald J. Trump, 45th President of the United States of America." 
  • The President's tweets are official records that must be preserved under the Presidential Records Act.
  • The account has been used in the course of a number of official acts, including the appointment of officers, the removal of officers, and the conduct of foreign policy.
  • The President presents the account as being a presidential account rather than a personal account.
  • The President has used the account to communicate and interact with the public about his administration.
  • White House aides, including co-defendant Daniel Scavino, White House Social Media Director and Assistant to the President, had access to the account and drafted, posted, and assisted the President with content for tweets on the account.

Public Official's Purely Personal Account Treated Differently

The court acknowledged the distinction between a personal Twitter account and governmental official account, noting that a public official's blocking of a user from a purely personal Twitter Account would not implicate a First Amendment forum analysis. But, in this case, the court determined that the nature of the control over the @realDonaldTrump account by the President and his staff was governmental in nature. 

Interactive Space of President's Twitter Account is a Designated Public Forum

Third, the court examined whether the public forum was a traditional, designated, or non-public forum under the First Amendment. The court rejected any argument that it was traditional, finding no basis for finding the interactive space of the President's Twitter account to be historically used for public speech and debate. However, the court did find the forum to be a designated public forum, meaning that "viewpoint discrimination" is presumed to be impermissible. Based on the facts (which were agreed to by all parties), the court determined that the plaintiffs (the blocked users) were "indisputably blocked as a result of viewpoint discrimination." Specifically, the court found that they were blocked because they criticized the President or his policies, an allegation that was not contested by the President. 

President's First Amendment Rights Not Implicated

Finally, the court rejected the President's argument that his First Amendment rights would be violated if he could not choose the people he associates with on Twitter. Although the court acknowledged that public officials do not lose their First Amendment rights when they take office, they do not have the right to exclude critical speakers from expressing their opinions - in this case, by blocking those users from his Twitter account. The court did seem to suggest that a public official could "mute" a Twitter user, comparing that to "ignoring" a speaker who the official does not want to engage with. However, the act by a public official of "blocking" users as a result of the political views they have expressed is not allowed under the First Amendment where the speech is protected and the area in which the speech takes place is a public forum protected by the First Amendment.

In short, the court found that the President's blocking of Twitter users violated their First Amendment rights. The court did not order the President to "unblock" the users, instead choosing to simply declare the conduct as unconstitutional and leaving it to the President to "remedy the blocking we have held to be unconstitutional."

So, what is the takeaway for public officials?  Your personal social media accounts should not be subject to First Amendment protections so long as they are used solely for personal, and not governmental, communications. However, to the extent that your social media account is used to communicate about your government position and activities and/or holds itself out as being an official account, it might be subject to the same analysis as President Trump's Twitter account. That means you should be cautious about engaging in viewpoint discrimination (i.e., blocking, deleting, or otherwise censoring or punishing other users based on the content of their message).

Post Authored by Julie Tappendorf

Wednesday, May 23, 2018

PAC Annual Report for 2017

Each year, the Public Access Counselor's office of the Illinois Attorney General (PAC) releases an annual report summarizing the PAC's activities over the past year. The Annual Report includes a summary of some of the binding and non-binding opinions issued by the PAC office, as well as information about the PAC's informal resolutions. The Report also reports on the number of requests for review filed with the PAC office. You can access the full Report for 2017 on the PAC website here.  

It is important to point out that the PAC's Annual Report for 2017 is heavily skewed towards reporting solely on opinions finding public bodies in violation of FOIA or OMA. In fact, the Annual Report completely fails to report on any of the opinions that find in favor of public bodies on FOIA and OMA complaints. The one-sided nature of the Annual Report is somewhat misleading to the public as it suggests that every complaint filed with the PAC has merit. To the contrary, we have read and reported on many PAC opinions that find in favor of public bodies, albeit in non-binding opinions. Frankly, it would not be that difficult for the Annual Report to summarize a few of these opinions or at least report on the percentage of opinions finding in favor of, or against, public bodies. In my opinion, a more balanced approach to reporting on the PAC activities would provide the public with a more accurate reporting on the PAC's activities and how public bodies are complying (or not complying) with FOIA and OMA. 

The Annual Report includes the following statistics for 2017:
  • 3,515 requests for review were filed with the PAC relating to FOIA complaints
  • 373 requests for review were filed with the PAC relating to OMA complaints
  • 15 binding opinions were issued in 2017 (you can find summaries of these opinions on this blog)
  • 43 training sessions were conducted by the PAC
  • 92% of the 35,000 requests for review filed with the PAC since 2010 have been closed
Post Authored by Julie Tappendorf