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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, August 17, 2017

2 Bills Would Prohibit County "Pop" Taxes

Likely in response to the backlash from Cook County's' "pop tax" (the tax imposed on all sweetened beverages (sugar and artificial sweeteners), two bills were recently introduced in the Illinois House that would prohibit home-rule and non-home rule counties in Illinois from taxing sweetened beverages. 

If House Bill 4083 passes, it would not affect Cook County's tax, which went into effect this month.   However, House Bill 4082 would invalidate any prior tax, which would seem to cover Cook County's pop tax. 

Of course, Cook County's tax is still the subject of a lawsuit, although the previous injunction has been lifted. So, there may be any number of avenues to try to get rid of this tax.

You can read House Bill 4082 here and House Bill 4083 here.

Side note:  you can usually tell if someone grew up in the Chicago area or somewhere else by the terminology they use to describe a soft drink.  Otherwise known as the pop vs. soda wars.

Post Authored by Julie Tappendorf

Tuesday, August 15, 2017

PAC Finds 9-1-1 Tape Collected in an Active Criminal Investigation is Not Exempt

The Public Access Counselor (PAC) just issued its 11th binding opinion for 2017. In PAC Op. 17-011, the PAC found a public body in violation of FOIA for denying a request made by a reporter for a 9-1-1 tape involving the death of a child. 

The public body had denied the request based on a number of FOIA exemptions, including that release of the tape would impede an active investigation into the child's death under section 7(d)(vii). That exemption exempts from release records compiled by a law enforcement agency that, if disclosed, would obstruct an ongoing criminal investigation. Although the public body provided a detailed explanation as to why the release of the 9-1-1 call that was made by a person of interest in the criminal investigation could impede that investigation, the PAC rejected that argument, finding that the public body had failed to provide clear and convincing evidence that the tape should be exempt. Interestingly, the PAC made its own determination that the tape was a "limited" part of the criminal investigation.

The PAC also rejected the public body's use of the "private information" exemption. The public body had argued that the audio recording qualified as "biometric information" that is exempt under section 7(1)(b) of FOIA. The PAC rejected that argument, finding that an audio recording of a voice does not constitute a "voiceprint" that would qualify as biometric information since "voiceprint" is defined under state statute as an analysis or measurement of a person's voice.

In my opinion, the PAC's conclusion on the use of the biometric exemption appears consistent with the definition of biometric information, but the PAC may have gone too far in deciding, on a public body's behalf, what records collected as part of a criminal investigation could, if released, obstruct an active criminal investigation. 

Post Authored by Julie Tappendorf

Monday, August 14, 2017

Illinois Election Day Voter Registration Upheld

On August 4th, 2017, the Seventh Circuit Court of Appeals vacated a preliminary injunction that had been previously granted regarding the same-day voter registration law, finding no evidence that allowing same-day voter registration in large Illinois counties discriminates against voters in small counties. Harlan v. Scholz (7th Cir. 2017)
Harlan, a Republican candidate for Illinois congress, sued the Illinois State Board of Elections in 2016, claiming the state law guaranteeing same day registration for high population counties violated due process by disproportionately benefiting Democrats. The law provided that counties with a population of over 100,000 must allow citizens to register when voting, while smaller counties can decide whether to provide the service. According to the case, there are only 20 Illinois counties that provide same day registration, but these 20 counties account for about 84% of Illinois’ total population.

Harlan argued that the law was unconstitutional because it gave larger counties more options of implementing registration and voting, and that these counties tended to have a disproportionate number of Democrat voters. The District Court for the Northern District of Illinois ruled in Harlan's favor, partly based on Harlan's expert witness testimony about urban voters. 

In reversing the District Court, the Seventh Circuit found that Harlan failed to show that "Election-Day registration in Illinois’ 20 more heavily populated counties is more likely to increase voter participation than centralized Election-Day registration in the smaller counties..." The Seventh Circuit also held that the law “does not force quite as many options on the smaller counties as it does on the 20 largest counties, it permits every county to adopt the default same-day rules, and it provides realistic same-day options even in the smaller places. This, coupled with the lack of any data about which groups are disadvantaged and how, dooms the injunction.”

Post Authored by Jack Takiguchi & Julie Tappendorf, Ancel Glink

Wednesday, August 9, 2017

Law Prohibiting Ballot Selfies Unconstitutional

In Illinois, it is illegal to take a "ballot selfie" - i.e., taking a photo of yourself with your ballot. The statute makes it a Class 4 criminal felony for “any person who knowingly marks his ballot or casts his vote on a voting machine or voting device so that it can be observed by another person.” The purpose of the law is to prevent ballot tampering, exposure, or vote monitoring but it has also been interpreted to prohibit individuals from taking a photograph of their ballot and then publicizing that photograph (usually on social media). Last week, a trial court judge in Madison County declared that law unconstitutional.

The Illinois General Assembly is considering a bill to address "ballot selfies." House Bill 388 has passed the Illinois house and is pending in the senate. If passed, the statute would be amended to expressly allow a person to take a photograph of his or her own ballot during the voting process, so long as they aren't receiving any payment for doing so. The underlined language below is the proposed amendment:
(10 ILCS 5/29-9)  (from Ch. 46, par. 29-9) 
Sec. 29-9. Unlawful observation of voting. Except as  permitted by this Code, any person who knowingly marks his ballot or casts his vote on a voting machine or voting device so that it can be observed by another person, and any person who knowingly observes another person lawfully marking a ballot or lawfully casting his vote on a voting machine or voting  device, shall be guilty of a Class 4 felony. Nothing in this Section shall prohibit a person from photographing his or her own ballot at any time during the voting process or from viewing a photograph of a completed or partially completed ballot; however, a person who gives, promises to give, or receives any money or other valuable consideration in connection with the dissemination or viewing of such a photograph shall be guilty of a Class 4 felony.
Post Authored by Julie Tappendorf

Read more here: http://www.bnd.com/news/local/article165520627.html#storylink=cpy

Tuesday, August 8, 2017

Pension Fund Found to Impair Pensioner's Rights to Benefits

In an 86 page opinion, an Illinois Appellate Court determined that a municipality's pension fund was underfunded to the point of being "on the verge of default or imminent bankruptcy," in violation of the Illinois constitution. The court also held that the municipality's actions in failing to adequately fund the pension fund violated state law and a previous settlement agreement between the municipality and the pension fund, and entitled the pension fund to damages, among other relief. Pension Fund vs. City of Harvey.

The appellate court goes into great detail about the facts leading up to the lawsuit, as well as the testimony of the various experts and others relating to the underfunding claims by the pension fund. According to the opinion, in some years, the municipality did not appropriate any funds for the pension fund. In others, the municipality appropriated some funds. In all years relevant to the lawsuit, the money going out from the pension fund to retirees exceeded the funds going into the fund, both by the participants and the municipality. 

The opinion addresses a variety of arguments and issues relating to funding of a pension fund, but one of the most interesting issues addressed by the court is its interpretation of a fund being "on the verge of default or imminent bankruptcy." That phrase comes from the legislative history of Article 13, Section 5 of the Illinois constitution, the constitutional provision that provides that membership in a pension fund is "an enforceable contractual relationship, the benefits of which shall not be diminished or impaired." Testimony about this particular provision of the Illinois constitution included a discussion of what "impair" means, and included the following discussion:
The word "impair" is meant to imply and to intend that if a pension fund would be on the verge of default or imminent bankruptcy, a group action could be taken to show that these rights should be preserved.
No court had made a determination that a particular pension fund fell within this standard, although the appellate court discussed cases that had referenced this language.

In applying this standard to the pension fund at issue in Harvey, the court first acknowledged that the fund was not in bankruptcy. However, the court noted that the language used in this standard was "on the verge of" rather than requiring an actual bankruptcy proceeding. The appellate court held that Harvey's pension fund met the standard because the evidence submitted at the trial court demonstrated that the pension fund would not be able to pay out benefits in as little as five years and that the fund would likely reach a point where the municipality could not make enough contributions to meet the pension fund obligations. The court acknowledged that pension funds are not entitled to a specific mandatory funding level and that the level of funding is discretionary. However, the evidence submitted at trial showed that Harvey had contributed less than 10% of the annual actuarial requirement in 6 out of 9 years, putting the fund "on the verge of default" and giving rise to a constitutional claim by pensioners that its benefits were being impaired.

In its conclusion, the appellate court upheld the trial court's rulings in favor of the pension fund, including an order that Harvey levy funds adequate to meet its pension obligations.

Post Authored by Julie Tappendorf

Monday, August 7, 2017

Court Upholds Ordinance Restricting Commercial Activity in Neighborhood Park

Recently, a federal appeals court upheld the constitutionality of a municipal ordinance that prohibited commercial activity in a park without a permit against a challenge by a commercial photographer.  Havlak v. Village of Twin Oaks, no. 16-3377 (8th Cir. July 25, 2017).  

The Village Board of Twin Oaks enacted an ordinance to protect a newly dedicated neighborhood park. That ordinance prohibited activities such as obstructing walkways, motorized vehicles, hunting and all commercial activities. After the park was upgraded in 2011, it began to attract significantly more visitors, including commercial photographers who began using the park as a back drop for weddings and other types of photo shoots.  In response to complaints of the increased activity within the park, the Village Board put up signs notifying visitors of the long-established ordinance prohibiting commercial activity within the park.  Subsequently, a commercial photographer filed suit seeking to prevent the enforcement of the ordinance and alleging that the ordinance was a violation of her First Amendment rights.

In response to the lawsuit, the Village Board amended the ordinance to create a permit process for commercial use, which included automatic approval for events with 10 persons or less, lasting less than one hour and with a 48 hour advance notice period.  For larger or longer events, the permit process allowed the Board to consider factors relating to government interests, such as the disruptive impact of the activity, potential damage of the activity and whether the activity will cause congestion in the park.  The permit process also included a $100 fee to pay for police oversight of the activity.  

The appellate court ultimately held that, though the First Amendment applies to municipal ordinances, municipalities still have the authority to “regulate competing uses of a traditional public forum, like a park, by imposing a permit requirement.”  The Court found that the challenged ordinance was content-neutral, narrowly-tailored and met the constitutional standards regarding regulations on time, place and manner.  

The reasoning behind the Court’s decision is largely based on the premise that the ordinance was enacted to serve a significant government interest of maintaining the park and was content neutral since it prohibited all commercial activity, rather that any particular commercial activity or message. The Court found that there were also several other alternatives for the photographer to communicate her message since she hardly used the park before she heard about the Village’s ordinance.  Furthermore, the permit process established did not give “unbridled discretion to the Village to approve or deny permits. Instead, the court found that the ordinance provides “articulated standards” and “objective factors” that the clerk and the Board are to consider when granting permits.” 

Post Authored by Katie O'Grady, Ancel Glink

Thursday, August 3, 2017

Two Recent Cases Address Municipality's Duty in Slip/Trip and Fall Cases

Two recent appellate decisions provide some guidance to Illinois local governments on "slip and fall"  or "trip and fall" lawsuits against public bodies.

In the first case, the Second District ruled in favor of a municipality in a case involving a slip and fall on an allegedly unnatural accumulation of ice. Knuth (the plaintiff) had just started working as a salesman at a car dealership located next to a Village water tower. At the end of his shift, Knuth went to the back of the car dealership property to make sure all the car doors were locked. The dealership property line meets the gravel walkway to the water tower. Knuth claimed he slipped on ice “in or near the area where the asphalt pavement ends and the gravel walkway surface commences.” 

Both parties hired experts to determine if snow on top of the water tower melted and subsequently froze (snow-migration theory) or if the downward slope of the tower to the dealership caused the unnatural accumulation of ice (water-migration theory). The Village argued it had no duty to monitor and remediate accumulations of snow and ice on neighboring properties. The Village alternatively argued it had immunity under sections 2-109 and 2-201 of the Local Governmental and Governmental Employee Tort Immunity Act, which immunize the discretionary actions of government employees. Specifically, the Village argued that any preventative measures to remove snow from the water tower or warning the dealership that snow could blow onto its property would still require a Village employee to exercise discretion in determining whether such a policy is appropriate and if so, the means and methods of carrying out such a program.

Ultimately, the appellate court ruled in favor of the Village, finding that there was insufficient evidence that the Village's actions caused plaintiff's fall.  Knuth v. Village of Antioch, et al., 2017 IL App (2d) 160961-U.

The second case involved another slip and fall - this time on a street. Lewis v. City of Chicago, 2017 IL App (1st) 16-1888-U. This case provides a pretty thorough analysis into the Tort Immunity Act and various exceptions. 

Lewis was exiting a CTA bus when he stepped into pothole, injuring his ankle. According to the case, the bus stopped one foot away from the curb, and Lewis exited the rear exit of the bus as opposed to the exit near the driver. The pothole that Lewis stepped in was not in a crosswalk and was half covered by the bus, so Lewis could not see the pothole until he was on the ground. 

The City argued it was immune under Section 3-102 of the Tort Immunity Act because Lewis was not an intended and permitted user of the street. The appellate court agreed, finding that since Lewis was outside of the crosswalk when he fell into the pothole and injured his ankle, he was not an intended user of the street. Courts have made it clear in numerous cases that streets are intended for vehicular traffic and not by pedestrians, meaning there is no duty owed to pedestrians who attempt to cross streets outside of the crosswalk. In fact, courts have repeatedly held that no duty exists for a municipality when a pedestrian exits a city bus onto a street instead of onto the curb or sidewalk. Thus, the Courts continue providing immunity even when pedestrians, for a variety of reasons, encounter difficulties requiring them to walk on the street outside of the cross walk.

Post Authored by Christy Michaelson, Ancel Glink

Tuesday, August 1, 2017

Elected Official Violated First Amendment in Blocking Person from Facebook

Many elected officials across the country use Facebook, Twitter, and other social media sites to engage with their constituents. Because the majority of these sites are not administered and moderated by government employees and instead are moderated solely by the elected official, many elected officials probably consider their social media sites to be "personal accounts" that would not be subject to First Amendment scrutiny. 

In a recent case out of Virginia, however, a court determined that the Facebook account of the chairman of a county board of supervisors was subject to the First Amendment, and that the chairman's actions in blocking a person from posting on that account violated that person's free speech rights. Davison v. Loudoun County Board of Supervisors. While this district court case case is out of Virginia, it could be persuasive to other courts across the country, including the federal district court that will consider the lawsuit brought against President Trump by persons who were blocked from his Twitter account.

The Loudoun County Board Chairman had established a Facebook page called "Chair Phyllis J. Randall." According to the court order, the chair had "plenary control" over her Facebook page; however, her chief of staff also was named as an administrator of the Facebook account. The account was created outside of the County's official channels, and the chair and her chief of staff posted to the account only from their personal devices. The court noted in its opinion that many of the posts on the Facebook page relate to the defendant's work as chair of the county board, including county board meetings, events, and activities. 

After a town hall meeting at which plaintiff Davison attended and asked a question, Davison posted a comment to the chair's Facebook page, alleging corruption and conflicts of interest of school board members. Shortly thereafter, the chair removed her original post, as well as Davison's comments, and then banned Davison from her Facebook page. The following morning, she reconsidered her decision to ban him and "unbanned" him. Davison sued, claiming that the chair violated his First Amendment free speech rights. 

The district court first analyzed the chair's Facebook page to determine whether (1) the chair was acting in her official capacity and (2) the page was a "forum" that would implicate First Amendment protections.  

First, the court determined that the chair used her Facebook page as a "tool of governance" to keep constituents informed of county activities and to solicit feedback from constituents. Second, the court found that the chair did use county resources to support her page by giving her chief of staff access to post on the page. Third, the court stated that official newsletters from the county promoted the chair's Facebook page. Fourth, the court determined that the Facebook page itself included numerous references to the chair's office, including referencing her title; categorizing the page as that of a government official; referencing official county contact information; linking to the county's website; and that the majority of posts related to county board matters. Fifth, the specific act of banning Davison from the chair's Facebook page arose out of "public, not personal, circumstances." 

The court concluded that the chair was acting in her official capacity and had opened up a public forum on Facebook, although it did not specify what type of forum (i.e., traditional, limited, or non-public forum) because it held that the chair engaged in "viewpoint" discrimination that is prohibited in all forums by banning Davison from her page because of his critical comments. The court noted that the chair had not adopted or applied a neutral comment policy and, instead, had simply removed comments and banned Davison because she was offended by his post, which constituted viewpoint discrimination. 

In conclusion, the court held that the chair violated Davison's free speech rights by removing his comments and banning him. However, because the ban was short-lived, the court noted that the consequences of the ban were fairly minor, and they did not warrant injunctive or other relief. 

Elected officials who operate social media pages to connect with constituents and comment on government activities should be aware of this case, and be on notice that removing critical comments or banning persons from their pages might constitute a First Amendment violation. 

Post Authored by Julie Tappendorf

Monday, July 31, 2017

FOIA Information Can Form the Basis for False Claims Act Lawsuit

A recent decision from an Illinois appellate court clarified when individuals can bring claims under the Illinois False Claims Act. In Lyons Township ex rel. John H. Kielczynskiv. Village of Indian Head Park, a citizen submitted a number of FOIA requests to a municipality regarding a contract for police services that the municipality had entered into with an adjacent township.  

After reviewing the information produced by the municipality in response to his FOIA request, the citizen filed a lawsuit under the Illinois False Claims Act. The False Claims Act allows private parties to bring lawsuits on behalf of public bodies that have allegedly been defrauded.  These private parties are then entitled to a percentage of the settlement or judgment if the lawsuit is successful.  The complaint alleged that the municipality had defrauded the township by submitting bills for services that were never performed and for retaining the revenue from tickets written within the unincorporated areas of the township.

The municipality filed a motion seeking to dismiss the lawsuit because the source of the information that formed the basis of the citizen’s claims was the municipality’s FOIA responses.  Under the False Claims Act, there are a number of exceptions that prohibit a lawsuit from moving forward based on how the citizen discovered the evidence of the alleged fraud.  For example, if the citizen learns of the alleged fraud from a news story or other public report, the citizen cannot proceed with a suit under the False Claims Act.  

Although the trial court had previously ruled in favor of the municipality, the appellate court reversed, finding that the citizen’s claims were not barred simply because the FOIA responses came from the municipality, and not the township.  The court held that only information provided by the public entity that was allegedly defrauded (in this case, the township) could be considered a public report that would bar an action under the False Claims Act. Since the information that formed the basis of the citizen’s claims came from the municipality’s FOIA responses, as opposed to the township, the municipality could not stop the citizen’s claims from moving forward. 

The court also found that the allegedly fraudulent actions of the municipality were not immunized under the Tort Immunity Act. The court noted that the citizen’s claims were based on the contract between the municipality and the township, and that causes of action under a contract theory are not protected by the Tort Immunity Act. The court also held that the Tort Immunity Act only bars claims based on the oral misrepresentations of a municipal employee, but does not bar claims where the alleged fraud is still based on a written contract.  

Post Authored by Kurt Asprooth, Ancel Glink

Friday, July 28, 2017

Upcoming Webcast on the USSCT's Takings Case

The Planning and Law Division of the American Planning Association will be hosting a webcast on the recent "takings" case by the U.S. Supreme Court. Information about the webcast is below:

Webcast— Murr v. Wisconsin: The Supreme Court’s Latest “Take” on Takings

August 14, 2017
1:00 p.m. – 2:30 p.m. EDT

CM | 1.50 | Law
CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Murr v. Wisconsin: The Supreme Court’s Latest “Take” on Takings on Monday, August 14 from 1:00 p.m. to 2:30 p.m. EDT.  Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

In Murr v. Wisconsin, the Court ruled 5-3 that a Wisconsin "lot merger" regulation was not an unconstitutional taking as applied to two contiguous parcels, one of which the owners wanted to sell while retaining the other. Rejecting the competing "bright-line rule" positions offered by the owners and the State of Wisconsin, Justice Kennedy announced a new multi-factor test to determine the extent of the appropriate "denominator" in takings claims involving merger provisions applied to contiguous parcels. This webinar will review the facts and ruling in Murr, discuss the dissenting Justices' criticisms of Kennedy's test, and the implications of the Murr ruling both on how state and local governments regulate contiguous parcels and ways that owners of contiguous parcels may react to the ruling.   

Speakers include Alan Weinstein of Cleveland State University’s Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs; Nancy Stroud of the firm Lewis, Stroud & Deutsch, PL; and John Echeverria of Vermont Law School.

Thursday, July 27, 2017

Contractor Employee Names on Certified Payrolls Releasable Under FOIA

In the 10th binding opinion of 2017, the PAC office of the Attorney General found a municipality in violation of FOIA for redacting employee names from a certified payroll record provided in response to a FOIA request. PAC Op. 17-010

A union representative had filed a FOIA asking for copies of payroll records for a particular construction project. The City provided the records, but redacted the contractor employees' names, addresses, social security numbers, and drivers' license numbers. The union filed a request for review with the PAC contesting the redaction of the employee names. The PAC ruled in favor of the union requester, finding that the municipality should not have redacted the names. The PAC acknowledged that section 2.10 of FOIA authorizes a public body to redact from certified payroll records the contractor employees' addresses, telephone numbers, and social security numbers, but noted that this statute does not allow redaction of the employees' names. The PAC also stated that the contractor employees' names were not likely to qualify as "highly personal information" that would fall under the "personal privacy" exemption of 7(c) of FOIA. 

The PAC also noted that the municipality failed to explain the reasons for redacting the other information when it provided the redacted records to the union.  It is important to remember that redacting a record is considered a partial denial, meaning that a public body is obligated to cite the exemption that authorizes the redaction, provide a detailed factual basis for why the exemption was used, and notify the requester of its right to appeal the partial denial.  

Post Authored by Julie Tappendorf

Wednesday, July 26, 2017

Justice Department’s Fair Housing Suit Against Village Moves Forward

In 2015, a developer submitted plans to the village of Tinley Park proposing to build 47 apartments in a three-story building.  The project was known as the Reserve. The apartment complex would be marketed to people making less than 60 percent of the area median income, and the developer planned to finance the project through the federal Low Income Housing Tax Credit program.    

Originally, the village's planning department determined that the Reserve project met the legal requirements under a special community development plan ordinance alleviating the need for approval by the village board to secure permits. However, shortly after the plans for the Reserve became public, opposition grew from the village residents and the village board sent the project’s plans back to the planning department for review.  The developer eventually sued the village, and the case was resolved when the village agreed to a $2.75 million settlement without any admission of wrongful conduct on the village's part. 

The Justice Department subsequently filed a lawsuit against the village, alleging that the village engaged in a pattern or practice of unlawful discrimination and denied rights to a group of persons on the basis of race and color in violation of the Fair Housing Act in connection with the Reserve project.  Specifically, the federal lawsuit stated that “Community opposition to the Reserve was based on discriminatory attitudes towards African Americans and other groups based on race.”  

The village filed a motion to dismiss, arguing that the Justice Department didn’t have authority to file suit under the Fair Housing Act. The village argued that because the office of the FHA was vacant at the time the suit was filed, the Principal Deputy Attorney General Civil Rights Division had no authority to bring the action. The federal judge rejected the village’s argument and sided with the Justice Department, noting that the suit was brought by the highest ranking official in the Civil Rights Division at the time.  According to the ruling, Congress had never suggested its intent to limit the delegation of authority to subordinates and therefore the functions governed by the statute can be delegated.

We will certainly keep an eye on this case as it moves forward.

Post Authored by Megan Mack, Ancel Glink