Friday, April 18, 2014

Banana Lady Loses Copyright Lawsuit

From Strategically Social comes this fun Friday case:  Banana Lady Loses Copyright Lawsuit

I wish this case had been decided before April 1st, because it sounds like a bad April Fools joke. 

The self-described "Banana Lady" (a singer and performer) was hired to perform a singing telegram at a credit union trade association event. After the event, she filed suit against the credit union association claiming they violated her intellectual property rights when employees and other audience members posted photos and videos of her performance on their personal Facebook pages. She claims that she made it clear to the arrangers of the event that audience members were not to take photos or videos and that they failed to inform the audience of these limitations until her performance had ended.

Judge Posner wasted no time in finding that the plaintiff's claims had no merit, and rejecting her argument that her version of the "banana dance" was copyright protected.  The rest of the court's opinion includes a summary of the plaintiff's many other lawsuits relating to her "Banana Lady" persona, including at least 8 federal lawsuits and 9 state lawsuits with similar allegations as the one before the 7th Circuit. The court concludes by suggesting that the district court consider enjoining the plaintiff from filing further lawsuits until she pays her litigation debts, which are well into six figures.

I wanted to post a photo of the Banana Lady [here] but restrained myself.  You can see a full-color photograph on page 2 of the 7th Circuit's opinion at Conrad v. AM Community Credit Union (7th Cir. April 14, 2014)

Thursday, April 17, 2014

Fee for Electronic Records Excessive Under FOIA

A couple of years ago, we reported on a 5th District Illinois Appellate Court case holding that a fee charged for production of real estate records violated Section 6 of the Illinois Freedom of Information Act (FOIA). Sage Information Services v. Humm. The Second District recently decided a similar issue, and citing Humm, found the Winnebago County Assessor in violation of FOIA for charging a requester $6,290.45 (five cents per parcel) to provide an electronic copy of the current real property assessment file for the entire county. Sage Information Services v. Suhr (2d Dist. April 14, 2014)

The Assessor had argued that it was expressly authorized under the Property Tax Code to charge a reasonable fee to provide assessment records.  The requester countered that FOIA "trumped" the Tax Code with respect to electronic records.  The appellate court agreed, holding that Section 6 of FOIA prohibits a fee for reproduction of electronic records in excess of the cost of the electronic medium.  In this case, the Assessor could only charge for the cost of the CD/DVD, nothing more.


Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, April 16, 2014

Loitering is in the Air

As the weather grows warmer, municipalities can expect to see an age-old problem re-emerge - loitering. Concerns about crime, public order, and property rights have prompted municipalities throughout the country to pass ordinances taking action against loitering. Many of these ordinances, however, have not passed constitutional muster, as courts have found them to violate constitutional rights. An ordinance passed in Winter Park, Florida, met such a fate. 

The Winter Park City Council passed an ordinance in 2012 to address picketing targeted specifically against an individual residing in a single family home. The City noted that this targeted picketing had become an increasing problem. This ordinance allowed residents to post a “no loitering” sign on their property that prevented anyone from remaining in a “public area,” which included a park, sidewalk, street, or public right-of-way, within fifty feet of that residence. The ordinance also gave property owners the right to call the police to order people to leave the fifty foot zone around their property.

In Bell v. City of Winter Park, the 11th Circuit Court of Appeals found that this part of the ordinance violated the First Amendment. The court explained that citizens have a right to free speech in “traditional public fora,” public spaces like parks, streets, sidewalks, etc. While this speech can be regulated by content-neutral restrictions that pertain to the time, place, and manner that speech may occur, these laws must be applied equally to each person. Speech cannot be arbitrarily regulated for no articulated purpose. The court noted that the ordinance permitted private citizens to control the speech of other private citizens by calling the police to disperse anyone “loitering” on public property within fifty feet of their residence. No justification needed to be provided for this dispersal. In fact, the ordinance did not even define how long a person needed to remain in one place to be considered loitering. “Five minutes? One minute?” the court asked. “Citizens are left to wonder.” 

The court did uphold a second part of the ordinance that banned picketing or protesting within fifty feet of any residence, and made it illegal to picket or protest in any public space if this activity interfered with the rights of others to travel safely in these areas. The court found it served a significant government interest, the right of a property owner to be secure in his residence, and was narrowly tailored to achieve that interest. The court pointed to a Supreme Court decision that upheld an ordinance prohibiting picketing in front of someone’s residence because the government has a significant interest in “protecting the well-being, tranquility, and privacy of a home.” The government is allowed to prohibit picketing if it is not targeted at disseminating a message, but instead harasses and intrudes upon a particular individual’s rights. The ordinance must not discriminate against a particular viewpoint, and must leave open alternative channels of communication.  Here, picketers had alternative means to disseminate their message; they could do so standing fifty-one feet from a property. The ordinance did not favor a particular point-of-view, and it applied equally to everyone. Its primary purpose was to protect a resident from harassment, a significant interest worth protecting.  Therefore, at least that portion of the ordinance was constitutional.

Municipalities can take away a few lessons from Winter Park’s experience. First, while municipalities must tread lightly when passing anti-loitering ordinances, they can do so if they have a good reason for the ordinance. Ordinances seeking to uphold property rights and public order are purposes favored by courts. Second, anti-loitering ordinances must not be enforced arbitrarily. In Winter Park, the court took exception to the fact that private citizens could choose when to enforce the anti-loitering ordinance without providing any justification for doing so. Third, the terms of an anti-loitering ordinance must be clearly defined. The vague definition of “loitering” made Winter Park’s ordinance unconstitutionally broad. Any anti-loitering ordinance must define all potentially ambiguous terms. 

As the weather warms up and people return to the streets, municipalities need not fear loiterers. With clear goals and a well-drafted anti-loitering ordinance, a municipality can still keep control of its streets.

Post Authored by Matt DiCianni, Ancel Glink

Tuesday, April 15, 2014

Senior Facility Not Exempt From Property Taxes

A tax case on tax day - enjoy!

Certain charitable and religious uses are exempt from property taxes in Illinois.  A senior housing facility, Meridian Village Association, applied for a charitable and religious property tax exemption, but was denied an exemption by the Department of Revenue. On appeal, the appellate court first applied the "charitable use" exemption standards for senior housing, and agreed with the Department of Revenue that the senior housing facility did not qualify for an exemption. Although senior housing facilities have qualified for exemptions in the past, they must meet very specific standards, including that the charity benefits an unlimited number of people and that the charity is dispensed to all who need it.  Here, the Meridian Village Association's bylaws allowed it to deny care if necessary to operate in a financial manner.  It also only provided charitable care to its residents, not all in need.  The association also operated for-profit.  Meridian Village Assoc. v. Hamer (Mar. 28, 2014).

As to the senior facility's religious exemption claim, the court determined that the primary use of the facility was to care for the elderly, not as a religious institution.  

Post Authored by Julie Tappendorf, Ancel Glink

Monday, April 14, 2014

Procedural Errors Doom Administrative Adjudication Hearing

The Illinois Appellate Court recently invalidated a fine imposed by a City of Chicago administrative hearing officer regarding building code violations, because the process used by the City was, in the words of one judge, “a civil-procedure disaster.”  Stone Street Partners v. City of Chicago, 2014 IL App (1st) 123654 (March 31, 2014).  The opinion was authored by Justice Delort, a former municipal attorney, and is instructive for all attorneys involved in municipal administrative adjudication proceedings.

In 1999, a city inspector found several building code violations in plaintiff’s building. Plaintiff is a corporation. The city mailed a “notice of violation and summons” for an administrative hearing to the street address of the building.  The city code (and State law) requires that notice and summons be mailed to the registered agent of a corporation, but the city failed to do so.  The corporation had no knowledge of the code violations or the administrative hearing.  However, someone did receive the notice, because at the scheduled hearing a non-attorney friend of a managerial employee of the corporation (the employee was seriously ill), appeared and presented evidence to the hearing officer.  The hearing officer found the corporate owner liable for the code violations and fined it $1,050.  In 2004 the city “registered” the fine in court.  In 2009 the city filed a lien against the property for the amount of the fine and costs and in 2012 turned the original administrative fine into a “judgment” of the circuit court.  

In 2011, the corporation discovered the lien.  It attempted to get the original administrative fine vacated on the grounds that the city had failed to notify the registered agent of the corporation.  In the meantime, the city had destroyed most of the records of the original hearing, even though it was still attempting to collect the fine.  The hearing officer ruled that, for procedural reasons, the 1999 fine could not be vacated.  The corporation then filed suit in circuit court, raising several arguments.  The circuit court dismissed the complaint and the corporation appealed. 

The appellate court made a careful analysis of the sometimes obscure procedures involved in municipal administrative adjudication proceedings and ruled in favor of the corporation on two points which are key in all such proceedings.  First, the court held that because the city had failed to properly notify the owner of the building, service of process was invalid.  Service of process on a corporation must be made on the registered agent.  Second, the court held that a non-attorney may not represent a corporation in administrative adjudication proceedings.  Representation of a corporation in administrative proceedings constitutes the practice of law and must be made by a licensed attorney.  The appellate court allowed the corporation to nullify the original fine twelve years after it was imposed. 

While most administrative adjudications involve relatively small amounts of money, procedural rules must be followed in every case, or the process could be a waste of time. 

Post Authored by Paul Keller, Ancel Glink

Friday, April 11, 2014

The Wait is Over - PAC Issues 1st Opinion of 2014

As I reported on the blog previously, the PAC has been pretty quiet this year in issuing binding opinions - so quiet, in fact, that it had not issued one binding opinion until April 10th in PAC 14-001.  It will come as no surprise to loyal readers of this blog that the PAC ruled against the public body.

This particular opinion has some history at the PAC.  In 2013, a reporter filed a complaint with the PAC alleging that the Springfield Board of Education had violated the Open Meetings Act when it approved a separation agreement with the former superintendent.  The PAC issued binding opinion PAC 13-007 finding the School District in violation of the OMA because it signed the agreement in executive session.  

The Board appealed to the circuit court, and the court overturned the PAC, finding that the act of signing the agreement in closed session was not a violation of the OMA since the Board had formally acted on the agreement in open session.  The court then remanded back to the PAC the issue of whether the Board's actual vote on the separation agreement was preceded by an adequate "public recital."  You can read about the 2013 PAC ruling and court decision on the blog here.

The PAC reviewed a video recording of the following Board President's recitation of the item before it was voted on:
Item 9.1, approval of a resolution regarding the separation agreement. The Board President recommends that the Board of Education in Springfield School District No. 186 vote to approve the separation agreement and release between Dr. Walter Milton, Jr. and the Board of Education. Do I have a motion?
Although there was also some discussion about the separation agreement by individual Board members before the vote, and the agreement itself was posted on the District's website as part of the meeting agenda, the PAC still determined the Board violated the OMA because it did not publicly discuss or summarize the terms of the agreement, including the amount of the lump sum payment to the superintendent or the reasons leading to the decision to terminate the supervisor. 

The PAC based its decision on Section 2(e) of the OMA requiring a public body to (1) publicly recite the nature of its action; and (2) provide such other information as will inform the public of the business being conducted before taking final action.  In the PAC's opinion, the Board President's statement about the nature of the separation agreement, the individual Board members' discussions about the agreement, and releasing a copy of the agreement to the public in advance, were not an adequate "public recital" before the vote.  

As we noted previously, this interpretation of the OMA by the PAC is problematic for public bodies for a couple of reasons.  

First, the PAC has provided little to no guidance as to what constitutes a "public recital" under the OMA - must a public body publicly summarize each section of an agreement or ordinance before voting on it?  Read an entire document into the record before acting on it?  If providing a full copy of the document in advance is not enough to notify the public of the nature of an item that will be voted on, what will satisfy the PAC?  

Second, does this rule out the ability to use a consent or omnibus agenda to approve multiple agenda items?  

Third, what precedent is the PAC relying on for its interpretation of Section 2(e) of the OMA?  The only case cited in this opinion is directly contrary to the PAC's opinion, and involves a federal district court in Illinois holding that providing a copy of a resolution as part of a meeting agenda was a sufficient "public recital."  The PAC cites no case in support of its opinion that a detailed summary of an item is required before it can be voted on.

It is certainly possible that the School District may appeal this second PAC opinion to the court, particularly where the PAC cites no case law in support of its broad and unprecedented interpretation of "public recital." 

Post Authored by Julie Tappendorf, Ancel Glink 

Thursday, April 10, 2014

Bill Requires Governments to Post Officials' E-Mail Addresses

The Illinois Senate recently passed SB 3106, that would amend the Local Records Act to require all units of local government and school districts that maintain "Internet websites" (but excluding social media sites) to post electronic contact information (presumably e-mail addresses) for all elected and appointed officials on their websites.  The bill would preempt home-rule authority.

It's not clear how this particular piece of legislation has anything to do with the Local Records Act, which deals with the retention of government records, not the creation of new government records for communication purposes.  We will continue to monitor this bill and report back after the Illinois House takes action.

Post Authored by Julie Tappendorf, Ancel Glink


Wednesday, April 9, 2014

Ca Court Says Texts Sent from Private Device Not Subject to Release

A California court recently held that the state's public records law requiring release of public records does not apply to communications transmitted on privately owned devices.  City of San Jose v. Superior Court (Cal. Ct. App. Mar. 27, 2014), 

In this case, a requester filed a public records request with the City asking for "voicemails, emails or text messages sent or received on private electronic devices" used by the Mayor and City Council members.  The City denied the request, and the requester filed a lawsuit. The trial court ordered the Mayor and City Council members to turn over the electronic communications.  

On appeal to the California Court of Appeals, the City argued that the electronic communications were not "public records" under the definition of California's public record law because the messages and devices are not "prepared, owned, used, or retained" by the City.  The appellate court agreed, finding that because the City cannot access or control messages on private devices, the messages are not public records under the law.  The court acknowledged that its ruling could result in public officials using private devices to conduct public business, but left the issue to the legislature to address.  The court also acknowledged the privacy concerns, as well as practicality, of requiring the disclosure of communications sent and received on privately owned devices.

You may recall that we reported on an Illinois case on this very same issue last year - in fact, the California court cites this case in its opinion.  In City of Champaign v. Madigan, the Second District Illinois appellate court ordered the City of Champaign to turn over text messages sent and received during a City Council meeting by City Council members on their private devices.  However, the court's ruling was limited to messages sent and received during the City Council meeting, when the council members were acting as a "public body."  The court did not extend this interpretation and analysis to all messages on private devices, however, stating that messages “pertaining to the transaction of public business received at home by an individual city council member on his personal electronic device would not be subject to FOIA."

Both the California and Illinois court rulings distinguish between the "public body" that is subject to public records disclosure laws and an individual member of that public body, holding that individual council members are not subject to these laws.  However, when an individual member is communicating as part of the public body (i.e., attending a meeting, communicating with the requisite number of public body members to constitute a meeting), then the individual member's communications could be subject to disclosure as a public record.  

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, April 8, 2014

Court Approves PSEBA Administrative Process But Not Denial of Benefits

Under the Public Safety Employee Benefits Act (PSEBA), a police officer or firefighter can be entitled to health benefits for the officer and his or her family if he or she suffers a catastrophic injury in responding to an emergency situation.   A firefighter who had been awarded a line-of-duty pension for hearing damage applied for PSEBA benefits from the Village of Hoffman Estates.  The Village had enacted a local administrative process for hearing and deciding applications for PSEBA benefits, which required a hearing before the village manager.  At the conclusion of the hearing, the manager denied PSEBA benefits, and the firefighter appealed.  The trial court ruled in favor of the Village.

On appeal, the firefighter argued that the Village's administrative hearing procedure was illegal and unauthorized under Section 20 of PSEBA which expressly limits home rule authority.  The Village argued that this limitation related to the award of benefits, not the procedures for deciding applications.  The appellate court agreed, finding that a home rule municipality has authority to establish an administrative procedure for determining PSEBA claims.  However, the court found that the Village's denial of PSEBA benefits in this case was clearly erroneous because there was sufficient evidence that the hearing damage was caused by circumstances where the firefighter reasonably believed he was responding to an emergency.  Pederson v. Village of Hoffman Estates (Mar. 31, 2014).

For home rule municipalities, this is a good decision because it restricts the home rule preemption language in PSEBA and allows home rule municipalities to adopt local procedures for administering and determining PSEBA claims.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, April 7, 2014

Food Truck Loses Equal Protection Lawsuit

The City of Monroe, Michigan had enacted an ordinance in 2009 that required street vendors, including food trucks, to obtain permission from the City Council to operate within certain areas, including downtown Monroe.  The ordinance also restricted vendors from operating in any one place for more than 10 minutes.  The Dog Pound, a hot dog vendor, applied for and was denied a license and sued the City, claiming that the ordinance violated its constitutional due process and equal protection rights. Specifically, the Dog Pound argued that the ordinance treated food truck merchants different from traditional restaurants. 

While the lawsuit was proceeding, the City amended its ordinance to eliminate the 10 minute restriction.  The district court ruled in favor of the City, and the Sixth Circuit Court of Appeals affirmed.  First, the court held that the Dog Pound failed to show that food trucks and restaurants were "similarly situated" to meet the equal protection test.  The court also rejected the Dog Pound's due process claim, finding it had waived that argument. The Dog Pound LLC v. City of Monroe, No 12-2692 (6th Cir. Mar. 10, 2014). 

Friday, April 4, 2014

Hatch Act Change Benefits City Workers Running for Office

Since its enactment more than 70 years ago, the Hatch Act prohibited municipal employees from running for elective office in the city in which the employee works if the employment was funded in whole or in part with federal funds.  That law has prevented many local employees from running for elected office, because the broad language of the Act covered a significant number of employment positions, including police officers (where federal grant funding is common). 

Last year, the law was amended to narrow its scope - now, the ban applies only to employees whose salaries are paid "completely, directly or indirectly, by loans or grants made by the United States or a Federal Agency."   That change has not gotten a lot of press, but it is a significant one for municipal employees who are interested in running for office in the municipality where they work.  Before ordering all those campaign signs, however, employees should sure that there isn't a state or local law that might prohibit that activity (i.e., conflict of interest law).

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, April 3, 2014

Minimum Manning Bill Passes Illinois House

Under current law, decisions on how to manage and staff local fire departments are made by local government officials who appropriate the money necessary to fund the fire departments. The issue of minimum manning has generally been a permissive, not mandatory, subject of collective bargaining. However, House Bill 5485 would change that by amending the Illinois Public Labor Relations Act to provide that minimum manning requirements become a mandatory subject of bargaining that could ultimately be decided by an arbitrator.  This afternoon, the Illinois House took the first step by passing HB 5485 by a vote of 63-44. 

The IML has taken a strong position against this bill, and has written a position paper on how this bill would adversely affect local governments.  There is still time for municipalities to express their opinions on this legislation, as no vote has yet been taken in the Senate.

Post Authored by Julie Tappendorf, Ancel Glink