Thursday, October 30, 2014

Supreme Court Will Hear Facebook Threat Case in December

In a little over a month, the Supreme Court will hear the case of a man who threatened to kill his wife on Facebook.  U.S. v. Elonis.  After Anthony Elonis lost his wife and job in 2010, he expressed his frustrations on social media.  Specifically, Elonis made repeated threats on Facebook to his ex-wife, law enforcement, and others. 

One of his Facebook posts is as follows:
Did you know that it's illegal for me to say I want to kill my wife?
It's illegal.
It's indirect criminal contempt.
It's one of the only sentences that I'm not allowed to say.
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife.
He also posted the following : 
If I only knew then what I know now, I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek, and made it look like a rape and murder.
After receiving a complaint, the FBI began monitoring his Facebook postings, and Elonis was subsequently arrested and charged with transmitting to interstate commerce communications containing a threat to injure the person of another, a violation of federal law.  He was convicted by a jury and sentenced to 44 months in prison. 

Elonis appealed his conviction.  He argued that the lower courts erroneously applied an objective, rather than subjective, test in determining whether his Facebook postings were protected under the First Amendment.   Under that test, if his statements are considered a "true threat," then the postings are not protected speech under the First Amendment and his conviction would stand.  If they were not a “true threat” (Elonis’ argument), then they are protected speech, and his conviction would be overturned.  

Elonis argues that because he did not subjectively intend his Facebook posts to be threatening, he should not have been convicted.  The trial court and the 3rd Circuit Court of Appeals, however, used an “objective” standard to determine whether his postings to be “true threats,” finding that his Facebook posts were speech that is so clearly objectionable, any objective listener could be scared.  The issue before the U.S. Supreme Court is whether the true threats exception to speech protection under the First Amendment applied in this case, and whether the lower courts applied the proper test.

Post Authored by Julie Tappendorf

Wednesday, October 29, 2014

Sheriff Sued Over Social Media Policy

We've reported on a number of NLRB decisions striking down social media policies for being too broad because they regulate protected employee conduct.  Although the NLRB doesn't apply to local government employees, public employees are still entitled to certain protections for their social media activities.  

When a government goes too far in regulating the social media activities of its employees, there are constitutional implications in addition to labor rights.  The former is the subject of a case filed against the Harris County Sheriff (HCSO), where employees allege that a social media policy violated their First Amendment right to free speech.  

The following are a few examples of policy provisions that have been challenged:
  • An employee's actions must never bring the HCSO in disrepute
  • Personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of the HCSO
  • Personnel shall not post any information pertaining to any other member of the HCSO
  • Employees cannot engage in negative speech about the HCSO

It will be worth watching this case to see how a court deals with a government social media policy - there are a lot of NLRB decisions on private employers, but very little guidance for government employers (the few cases that have been filed have mostly settled).

You can read the complaint here:  Pittman v. Garcia (S. Dist. Texas, 2014).  

Post Authored by Julie Tappendorf

Tuesday, October 28, 2014

Update on Medical Marijuana Applications

Last year, the Illinois General Assembly enacted the Medical Cannabis Pilot Program Act.  That Act authorizes 22 cultivation centers (marijuana growing facilities) and 60 medical marijuana dispensaries throughout the state of Illinois.  The deadline for applying for either of these licenses was September 22nd.  Based on numbers reported by the state, there are significantly more applicants than licenses.  You can read the report here.

Cultivation Center License Applications

The Illinois Department of Agriculture (the agency responsible for licensing cultivation centers) received 159 applications for the 22 available cultivation center licenses.  Each state of Illinois police district is allowed one cultivation center, and each of the districts received multiple applications.  For example, District 2, made up of DeKalb, DuPage, Kane, Lake, and McHenry counties received 9 applications for its one cultivation center license.  Police district 5, made up of Grundy, Kendall, and Will counties received 14, while police district 6, encompassing DeWitt, Livingston, and McLean counties received 10 applications.  Cook County received 9 applications, but gets 2 licenses because, well, it's Cook County (ok, it's really because Cook County has 2 police districts).

Dispensary Applications

The Illinois Department of Financial and Professional Regulation received 214 dispensary applications for the 60 available dispensary licenses.  Only three districts received no applications for a dispensary - a second application round will be held in these three counties.  The highest number of applications were submitted in DuPage County (23 applications).  

Neither agency has provided a definitive date for issuing licenses.  

Patient Applications

The Illinois Department of Health is already accepting patient applications for anyone whose last name begins with A to L.  Applications for those with names starting with M to Z can submit applications beginning on November 1st.

Post Authored by Julie Tappendorf

Monday, October 27, 2014

Neighbors Can Bring Private Nuisance Action Against Wind Farm

From our friends at the Law of the Land blog comes a case out of Vermont:  Brouha v Vermont Wind, LLC, 2014 WL 4748221 (DC Vt. 9/23/2014)

A neighboring property owner next to the Sheffield Wind Project filed a lawsuit against the defendants claiming that their wind facilities created an unreasonable noise impact that prevented the plaintiff from gardening, eating outside, walking and other outdoor activities, resulting in stress, pain and suffering and loss of the use of the neighboring owner's property.  The defendants argued that the private nuisance claim was barred because the property owner had previously sued and lost a challenge to the issuance of the permit to allow the wind farm.  

The district court disagreed with the defendants, finding that the property owner's private nuisance claim could continue because it was not the same type of claim as the general public nuisance claim that was previously dismissed.  Specifically, the court determined that the standard that applies to a private nuisance action (i.e., interference with the use and enjoyment of another's property that is unreasonable and understanding) is not the same as the standard applied in the previous case that focused more on the impact on the community.

Post Authored by Julie Tappendorf

Friday, October 24, 2014

Court Upholds Part of Chicago's Amended Firing Range Ordinance

After its blanket firing range ban was held unconstitutional, Chicago adopted new zoning restrictions, construction requirements, and business regulations for firing ranges in the City. In a new Second Amendment challenge, the plaintiffs in Ezell v. City of Chicago argued that the regulations violated their right to acquire and maintain proficiency in the use of firearms. The City argued that the laws are constitutional because they regulate rather than restrict constitutional rights and, in a recent decision, the District Court for the Northern District of Illinois upheld many of Chicago’s firing range regulations.

Since the zoning restrictions, construction requirements, and business operation regulations clearly implicated the plaintiffs’ Second Amendment rights, the court analyzed each individual regulation by weighing the burden it placed on plaintiffs’ Second Amendment rights against the evidence the City relied on to justify it.

a    Zoning Restrictions

The first zoning restriction the court examined limited the location of firing ranges to manufacturing districts with special use approval. The court held that this regulation was unconstitutional because the restrictions were too burdensome in light of the public interest being served by the regulation.

The second zoning restriction required firing ranges to be at least 500 feet from residential zones, schools, day-care facilities, places of worship, museums, libraries, or hospitals and at least 100 feet from any other firing range. The court upheld this requirement because it seeks to protect important interests and is not a substantial burden on Second Amendment rights.

b    Construction Requirements

Next, the court evaluated the requirements that firing ranges have ballistic-proof walls and doors, separate interlocked ventilation systems, and sound limits. The court found that these requirements were constitutional because the regulations are reasonable, directly advance the safety of citizens, and are supported by substantial evidence. Further, the court stated that these requirements “merely regulate” and impose only a minor burden on Second Amendment rights.

c    Business Operations

Finally, the court considered the constitutionality of the regulations restricting the business operations of firing ranges. The court held that the regulations that no person under the age of 18 be permitted in a shooting range facility, that all managers, range masters, and employees possess FOID cards, and that a range master be present during all operating hours were constitutional because the City’s rationale is sufficient to justify the small burden each regulation places on the plaintiffs’ Second Amendment rights.

In contrast, the restriction permitting ranges to operate only between 9:00 am and 8:00 pm was not constitutional. The City failed to provide evidence “tending to show that a range has a greater impact on traffic or police inquiries than any other business or location” or that “criminal activity involving a firing range can be expected to increase after 8 p.m.” 

Post Authored by Dan Bolin & Caitlyn Sharrow, Ancel Glink

Thursday, October 23, 2014

San Francisco's Rental Ordinance Unconstitutional

Our friends at recently posted about a case striking down San Francisco's rental ordinance as violating the Takings Clause of the U.S. Constitution: Federal Court: San Francisco's Housing ExactionViolates Nollan-Dolan-Koontz

San Francisco had enacted an ordinance that required property owners who rent their properties to get a permit before they could stop renting their property out to tenants.  The ordinance also required the owners to pay cash to any displaced tenant in the amount of 24 times the difference between the tenant's current rent and the fair market value of a comparable unit in San Francisco. The plaintiffs, property owners who wanted out of the rental business were subject to "relocation payments" amounting to $118,000 for one owner and more than $1 million for another property owner, sued the City to challenge the rental ordinance as unconstitutional.

The district court agreed with the owners, finding San Francisco's ordinance unconstitutional because the relocation payments did not meet either the "essential nexus" or the "rough proportionality" test established by the U.S. Supreme Court in Nollan-Dolan-Koontz.  You can read more about the case and a more detailed summary of the rationale behind the district court's decision here.

Post Authored by Julie Tappendorf

Wednesday, October 22, 2014

School District Ordered to Tear Down Bleachers

You may recall that we previously posted about a lawsuit filed by neighboring property owners against a school district challenging the high school's installment of bleachers without obtaining the proper zoning approvals.  You can read about the trial court ruling here and the appellate court ruling here.  Both the trial court and the appellate court had ruled in favor of the neighbors and against the school district, finding that the school district was obligated to comply with municipal zoning regulations.   We have two updates on this case:

First, the school district has filed an appeal asking the Illinois Supreme Court to hear the case and reverse the lower court rulings.  The Supreme Court has not yet decided whether it will hear the case but we will keep you posted.

Second, the trial court judge recently ordered that the school district remove the bleachers to comply with the trial and appellate court rulings.  According to the order, the school district has until December 1st to comply (that allows the school to finish out the current football season), although it is likely the school district will appeal that ruling as well.  

Post Authored by Julie Tappendorf

Tuesday, October 21, 2014

Public Construction Bond Act Protects Village from Subcontractor Claim

The Illinois Supreme Court recently ruled in favor of the Village of Antioch in Lake County Grading Company LLC v. Village of Antioch, 2014 Il 115805 (October17, 2014). This case involved an interpretation of the Public Construction Bond Act (30 ILCS 550/1). The Village had entered into a contract with Neumann Homes for the construction of public improvements within subdivisions developed by Neumann. Lake County Grading performed work for Neumann on the public improvements.  Neumann failed to pay Lake County Grading and then Neumann filed for bankruptcy.  Lake County Grading sued the Village seeking payment for work performed.

You may remember that we had previously reported on the appellate court decision in this case that was decided last year.  In its decision, the appellate court had ruled in favor of Lake County Grading, finding that because the Village had failed to obtain a payment bond as required under the Public Construction Bond Act, Lake County Grading could assert a third party beneficiary claim against the Village.

The Village appealed the adverse ruling to the Illinois Supreme Court.  Fortunately, the Supreme Court interpreted the Public Construction Bond Act more favorably to the Village, finding that the Village's requirement that Neumann Homes post a performance bond satisfied the Public Construction Bond Act because the statute deems payment to be part of a bond for public improvements under the Act.  As a result, Lake County Grading’s only recourse is against the bond company, not the Village.  Unfortunately for Lake County Grading, the six (6) month period to file claims under the bond passed so Lake County Grading is left without a remedy.

The Supreme Court's ruling provides protection to municipalities that fail to obtain both a payment and performance bond in connection with public improvement contracts.  However, it is important to note that municipalities that fail to obtain any bond, either performance or payment, could be faced with a third party beneficiary claims for payment. 

Post Authored by Steve Mahrt, Ancel Glink

Monday, October 20, 2014

Supreme Court Takes on Hotel Ordinance Case

The U.S. Supreme Court is taking new cases that it will hear and decide in the future, some of which may be of interest to local governments, including a case the Court accepted today.  In City of Los Angeles v. Patel, the 9th Circuit Court of Appeals struck down a City ordinance that required hotels to allow police to inspect hotel guest records, including the guest's name, address, make, model and license plate number of the guest's vehicle, and the guest's room number. The court of appeals held that the ordinance violated the Fourth Amendment as an unlawful warrantless search because it authorized inspections of these records without giving hotel owners any ability to challenge the reasonableness of the inspection in court before penalties would be imposed under the ordinance.

The Supreme Court will consider the following two issues in the case: 

(1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and 

(2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

You can

Post Authored by Julie Tappendorf

Thursday, October 16, 2014

ILA Conference Materials

This week, Ancel Glink attended the Illinois Library Association's annual conference in Springfield. Our attorneys presented at three of the conference sessions on topics of interest to library officials and employees.  For those of you who could not attend the conference or our sessions (or if you are interested in FOIA, meeting procedures, and workers' compensation issues), we have provided links to the handout materials below:

Library Board Wars and Power Plays:  How to Resolve Them and How to Avoid Them
Speakers:  Julie Tappendorf & Britt Isaly
Handout Materials:

Workers' Compensation Claims by Library Employees and Common Defenses
Speaker:  Britt Isaly
Handout Materials:
Keep Calm and Carry On - Responding to FOIA Requests
Speakers:   Julie Tappendorf (Ancel Glink), Peggy Danhof, George H. Scheetz, Holly Sorenson, Lynn Elam, and Tim Jarzemsky
Handout Materials:

It was a pleasure visiting with all of our library friends this week, and we hope you enjoyed the conference!

Post Authored by Julie Tappendorf

Wednesday, October 15, 2014

Prisoner Not Entitled to Copies under FOIA

A little known FOIA provision exempts from disclosure "records requested by persons committed to the Department of Corrections if those materials are available in the library of the correctional facility where the inmate is confined."  5 ILCS 140/7(1)(e-5).  That exemption is the subject of PAC opinion 13 for 2014.   
In PAC Op. 14-013, the PAC determined that IDOC did not violate FOIA by refusing to make copies of Administrative Directives for a prisoner where those documents were available for inspection in the prison library.  The PAC relied on legislative history demonstrating that the purpose of this exemption was to preclude inmates from using FOIA to obtain records that were already available to them in the library.
So, no public body violation in this opinion, although the opinion is pretty limited in its application, since the cited exemption only applies to the Department of Corrections.  Still, it's a nice change from "public body violates..."
Post Authored by Julie Tappendorf

Tuesday, October 14, 2014

Clerk Properly Refused to Certify Referendum

Petitioners filed petitions for a referendum to prohibit the sale of liquor in a Chicago precinct.  The City Clerk refused to certify the petition, however.  The petitioners filed a lawsuit asking the court to order the Clerk to certify the petitions, arguing that the petitions were in apparent conformity with state law.  The trial court and appellate courts denied the petitioners any relief, finding that the petitions were not in apparent conformity due to a number of deficiencies.  Mabwa v. Mendoza, 2014 IL App (1st) 142771 (Oct. 7, 2014).

The Illinois Liquor Control Act grants citizens the right to restrict or prohibit the sale of liquor in their own precinct, but only after a referendum vote on the question.  To initiate that question, a petition must be filed in proper form with the city clerk.  Under Illinois election law, a city clerk can refuse to certify a referendum (placing the question on the ballot) if a petition do not 'on its face" comply with state law.  The Liquor Act requires the petition to be in a particular form under that statue and to comply with the Election Code requirements.  These requirements include a circulator's statement that the signatures were not signed more than 4 months before the filing of the petition, among many other requirements.  In this case, the clerk determined that some of the signatures were undated, certain petitions did not include the required circulator statement, and at least one voter appeared to sign the petition outside of the four month filing period.  As a result, the clerk had no obligation to certify the deficient referendum question.

Post Authored by Julie Tappendorf