Drivers' Records Protected from Attorney Solicitation

In another case issued on June 17, 2013, the U.S. Supreme Court ruled that the federal Drivers’ Privacy Protection Act (DPPA) prohibits attorneys from using protected data from state drivers’ databases to solicit clients.  Maracich v. Spears.
 

In this case, plaintiffs’ attorneys had obtained data from the South Carolina DMV through freedom of information requests in order to identify potential plaintiffs for a class action lawsuit.  The plaintiffs’ attorneys then sent out a mass mailing to the drivers, inviting them to contact the firm to discuss potential representation.  The defendants’ lawyers filed a lawsuit against the plaintiffs’ lawyers for violating the DPPA, which prohibits the use of a driver’s information from a state DMV without prior permission from the driver.  The plaintiffs’ lawyers defended their actions by citing the DPPA’s “litigation exception” which allows the use of driver data in court actions, including any investigation in anticipation of litigation.

 

In a 5-4 opinion, the Court rejected the plaintiffs’ lawyers argument, holding that client solicitation does not fall within the litigation exception.  Although the Court acknowledged that the litigation exception was very broad, it determined that Congress did not intend the exception to include client solicitation. Instead, the litigation exception was intended to apply to work done by an attorney in representing clients rather than in soliciting business. The Court supported its decision by referencing another DPPA exception that allows use of DMV information for advertising and other solicitation, but only if the driver consents to use.
 

Four Justices dissented, arguing that the litigation exception was broad enough to include the lawyers’ use in this case - to sign up clients for a pending or impending lawsuit.

 

Some municipal lawyers have expressed concern that the Court's ruling in this case may foreshadow how it might decide Senne v. Palatine, which is scheduled for conference on June 20th.  This case involves a decision by the 7th Circuit Court of Appeals finding that a police department's practice of placing citations on cars violated drivers' privacy protections under the DPPA.  We reported on that decision on the blog previously, and will will be watching that case closely. 

 

In full disclosure, Ancel Glink filed an amicus brief in the Senne case on behalf of the Association of Governmental Risk Pools (AGRIP).

Suspect Cannot Take Advantage of Right to Remain Silent by Merely Remaining Silent

On June 17, 2013, the U.S. Supreme Court issued an opinion upholding the murder conviction of a suspect, rejecting his claim that the prosecution's use of his silence at trial violated his Fifth Amendment right to remain silent.  Salinas v. Texas. 

 

The police had questioned the petitioner in connection with a murder investigation.  He was not read Miranda warnings and the interview was noncustodial.  For most of the interview, the petitioner voluntarily answered the police officer's questions about the murder.  However, when police asked him whether ballistics testing would match his shotgun to shell casings found at the scene of the crime, he "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up."  After a few minutes of silence, the officer asked additional questions, which petitioner answered.

 

At trial, prosecutors argued that the petitioner's reaction to the officer’s question suggested that he was guilty.  Petitioner claimed that the prosecutor's argument violated the Fifth Amendment, which guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself."  He was convicted, and he  subsequently appealed.

 

The Supreme Court initially took the case to resolve a split in the lower courts over whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief.  The Court did not get to that question, however, instead ruling that the petitioner had failed to affirmatively exercise his Fifth Amendment right. The Court reasoned that a suspect who remains silent during questioning may be silent for reasons other than exercise of the suspect's constitutional rights, and may have done so "because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else."   The Court concluded that a witness who "‘desires the protection of the privilege . . . must claim it’" at the time he relies on it.  This ensures that the government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating. 

 

In effect, the Court said Salinas could not take advantage of his right to remain silent by merely remaining silent.  Justices Thomas and Scalia would go even further, stating in their concurring opinion that even if Salinas had invoked his Fifth Amendment right to silence, the prosecutor’s comments would still be permissible at his trial because they did not compel Salinas to give self-incriminating testimony.

Supreme Court Strikes Down Arizona Voter Registration Law

In a 7-2 opinion issued this morning (Justices Alito and Thomas dissenting), the U.S. Supreme Court found that Arizona's voter registration law violates federal law, specifically the National Voter Registration Act of 1993.  The federal law requires an individual to fill out a federal form to register to vote.  Arizona's law, which was adopted by ballot initiative (Proposition 200), requires voter registration officials to reject any federal form that is not accompanied by documentary proof of citizenship.  The Court found that the Elections Clause preempts states from requiring additional information beyond that required by the federal form.  The Court also rejected Arizona's argument that the Elections Clause provides authority to states to establish the "time, place, and manner" of elections.  The Court acknowledged, however, that states have the right to reject a voter registration based on information possessed by the state that establishes a person's ineligibility. 
 

Justice Thomas, in his dissent, rejects the majority's preemption conclusion and would uphold Arizona's law.  Specifically, he would construe the law as only requiring Arizona to "accept and use the form as part of its voter registration process, leaving the State free to request whatever additional information it determines is necessary to ensure that voters meet the qualifications it has the constitutional authority to establish."  Because Arizona did "accept and use" the federal form, there is no conflict between the Arizona law and federal law, according to Justice Thomas.
 

Justice Alito also dissented, emphasizing the presumption against preemption.  In his view, Arizona was simply enforcing the federal law requirement that voters be citizens by requiring documentary evidence establishing citizenry. 

 

You can read the entire opinion here:  Arizona et al. v. Inter Tribal Council of Arizona, Inc. et al.

Breaking News - PAC Finds Public Body Did Not Violate OMA

Yes, that's right, the PAC issued a binding opinion finding a public body's actions in compliance with the Open Meetings Act.  In its 10th opinion of 2013 (PAC Op. 13-101), the PAC concluded that the Springfield Board of Education for Public School District No. 186 did not take final action in closed session and complied with the OMA by adequately informing the public of the nature of the business being conducted before voting to appoint an interim superintendent.

A newspaper reporter had filed a request for review with the PAC alleging that the Board held a special meeting at which it voted to select an interim superintendent in closed session.  The allegations were based on a press release issued the day after the closed session that stated that the Board had "reached a consensus" but that it "plans to take formal action" at a later meeting.  The Board responded that the Board's closed session did include discussions about selecting an interim superintendent, but that final action on the selection was not made until a future meeting, in open session, and after a "robust public discussion" before voting.  The Board acknowledged that it issued a press release after the closed session but stated that no final action was taken until the later meeting.

 

The PAC first reviewed the verbatim recordings of the closed session and found that the discussions were appropriate for closed session.  Second, the PAC determined that although the press release stated that the Board reached a consensus, the recordings show that the Board did not make a final decision to appoint the interim superintendent, and the Board did not vote, informally or formally, in closed session. Finally, the PAC determined that the Board substantively described and publicly discussed the appointment at the later meeting, before a vote was taken. 

Don’t Get Carried Away: Prohibited Areas Under Illinois’ New Concealed Carry Bill

While Ill. H.B. 183 would allow licensed Illinoisans to carry concealed handguns for the first time, this Act (presently under consideration by the Governor) would prohibit the carrying of any firearm in a number of prohibited areas. Many of these areas are properties owned or operated by units of local government.  Prohibited areas include: 

• schools
• areas within 1,000 feet of school grounds
• day cares
• government buildings
• jails
• hospitals
• public transit vehicles
• establishments primarily serving alcohol
• public gatherings requiring a local permit
• playgrounds
• parks
• universities
• racetracks and casinos
• stadiums
• libraries
• airports
• amusement parks
• zoos
• museums

The proposed Act requires standardized 4’ x 6’ signs approved by the Illinois State Police to be “clearly and conspicuously posted at the entrance” of the prohibited area (except for private residences), but does not identify who is responsible for posting the sign, or whether the failure to post a sign will affect the validity of the prohibition on firearm possession. Since the proposed Act will be immediately effective, units of local government may want to identify the prohibited areas they control, and post their own interim notices prohibiting firearms on the premises, at least until the Illinois State Police adopts rules to produce the required standardized signs.

Additionally, when a municipality issues a permit for a parade, festival, or “any public gathering or special event conducted on property open to the public,” the permittee should be required to prohibit firearms and post the required signs. This “public gathering” prohibition does not apply to persons who must walk through the gathering in order to access his or her residence, place of business, or vehicle.

Finally, municipalities should consider whether the prohibited areas in the proposed Act are the only locations where they would like firearms, other than handguns and assault weapons, to be prohibited.  Although the preemption provisions in the proposed Act generally limit municipalities from adopting restrictions on handguns that would be stricter than those contained in the Act, the Act does not restrict local regulations on other types of firearms. Municipalities may also adopt regulations regarding the possession and ownership of assault weapons, on or before 10 days of the effective date of the law.

 

Post Authored by Daniel J. Bolin, Ancel Glink

What’s Concealed in New Illinois Gun Bill?

On June 5, 2013, the General Assembly sent Illinois’ first legislation authorizing the possession of concealed handguns to the Governor. Ill. H.B. 183 was adopted in response to the 7^th Circuit decision in Moore v. Madigan, which deemed Illinois’ ban on concealed handguns unconstitutional, and gave the legislature until June 9, 2013 to craft a new gun law. The Attorney General requested, and was granted, a final extension of this deadline, to July 9, 2013, to allow Governor Quinn an opportunity to review the legislation.

As the Governor reviews this legislation, Illinois local governments are asking what this legislation will mean for them. Most significantly, the Act contains comprehensive preemption of local regulations imposing restrictions on people licensed to carry concealed handguns.

Section 90. Preemption.

The regulation, licensing, possession, registration, and transportation of handguns and ammunition for handguns by licensees are exclusive powers and functions of the State. Any ordinance or regulation, or portion thereof, enacted on or before the effective date of this Act that purports to impose regulations or restrictions on licensees or handguns and ammunition for handguns in a manner inconsistent with this Act shall be invalid in its application to licensees under this Act on the effective date of this Act. This Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution. (Firearm Concealed Carry Act).

Therefore, a city, village, or other unit of local government may not impose restrictions on licensees that are inconsistent with the Act. For example, the City of Chicago’s gun registration program would be preempted by this legislation.

Bans on assault weapons are also preempted; however, existing bans, and bans enacted within 10 days after the effective date are grandfathered in.

(430 ILCS 65/13.1)

(c)        Notwithstanding subsection (a) of this Section, the regulation of the possession or ownership of assault weapons are exclusive powers and functions of this State. Any ordinance or regulation, or portion of that ordinance or regulation, that purports to regulate the possession or ownership of assault weapons in a manner that is inconsistent with this Act, shall be invalid unless the ordinance or regulation is enacted on, before, or within 10 days after the effective date of this amendatory Act of the 98th General Assembly. Any ordinance or regulation described in this subsection (c) enacted more than 10 days after the effective date of this amendatory Act of the 98th General Assembly is invalid. An ordinance enacted on, before, or within 10 days after the effective date of this amendatory Act of the 98th General Assembly may be amended. [ . . . ] For the purposes of this subsection, "assault weapons" means firearms designated by either make or model or by a test or list of cosmetic features that cumulatively would place the firearm into a definition of "assault weapon" under the ordinance.

 

This legislation is effective upon becoming law, so municipalities that want to enact a ban on assault weapons would have to act quickly if Governor Quinn signs the bill into law. Municipalities, which sometimes meet only once or twice a month, are not relieved from the notice and agenda requirements of the Open Meetings Act. Lt. Gov. Sheila Simon has already called on home rule units to act quickly to ban assault weapons. Some municipalities might choose to exercise their police powers to regulate assault weapons on or before the 10-day statutory deadline.

Governor Quinn recently called a special session beginning June 19, 2013, and there is speculation that an amendatory veto could be in the works.  That could send this legislation back to the General Assembly with the final July 9, 2013 deadline looming on the horizon. Nevertheless, this sweeping preemption could become a part of the final law, and interested municipalities should be prepared to act quickly.

 

Post Authored by Daniel J. Bolin, Ancel Glink (Happy Birthday Dan!)

From RLUIPA Defense - Court Dismisses RLUIPA Claims of Christian Rehabilitiation Center

Check out the post on RLUIPA Defense, the blog written by Dwight Merriam and Evan Seeman, for a great discussion of a recent case that dismisses a RLUIPA lawsuit filed by Candlehouse Teen Challenge, a Christian-based rehabilitation center.  For a detailed discussion of the decision, visit RLUIPA Defense at New York Federal Court Dismisses RLUIPA Suit Involving Faith-Based Rehabilitation Center.  A brief summary of the case follows.

 

Candlehouse had purchased a former church campus property to operate its proposed residential program, which property was zoned in the R-1 district.  The ZBA determined that Candlehouse did not meet the definition of the functional equivalent of a family under the Town’s zoning code, concluding that "(1) the proposed assembly of students does not resemble a traditional family unit; (2) it is anticipated that the group will live and cook together as a single housekeeping unit; (3) Candlehouse students are anticipated to be transient in nature, rather than permanent, entering and leaving as they are either rehabilitated or expelled; and (4) the proposed bedroom would not be a ‘conventional’ bedroom but instead would contain rows of bunks for all students in one large room.”  Candlehouse sued, claiming violations of RLUIPA, the Fair Housing Act, and the ADA. 

 

The District Court found no evidence that the Town's conduct substantially burdened its religious exercise under RLUIPA.  In particular, the Town's zoning ordinance permits Candlehouse to operate a residential facility for up to five unrelated persons.  The court determined that Candlehouse failed to establish how precluding it from housing an additional seven students has “coerce[d] it to change how it operates its program in relation to its religious exercise.” 

 

With respect to its other claims, the District Court declined to grant summary judgment in favor of the Town because there was at least some evidence to show that some of the members of the Board were biased against Candlehouse.  In particular, at least two members of the Board spoke out against Candlehouse’s proposed use of the Property, with one member threatening to rezone the area to prohibit Candlehouse moving to the neighborhood. 

IML Summarizes Bills Affecting Municipalities

The Illinois Municipal League has done a great job summarizing key pieces of legislation that passed both houses in the Illinois General Assembly and that either directly or indirectly affect municipalities.  The following is a "top ten" list of these bills off the IML website, listed in no particular order:

Telecom Rewrite

SB 1664 was approved by both chambers and would rewrite the telecom statute. Municipalities retained their control over public rights-of-way, and local revenues were not diminished in the rewrite of the statutes.

 

PSEBA Transparency
SB 1245 amends PSEBA to establish reporting requirements with respect to the number of beneficiaries, costs, nature of injuries, and available insurance options. The first report would be published no later than June 1, 2014.  The bill was approved by both chambers.

Concealed Carry
HB 183 was approved to allow concealed carry in Illinois, subject to locational restrictions.  The bill would preempt home rule to create a statewide concealed carry permitting process without restricting other gun-related ordinances. The bill also requires 16-hours of training and a 5-year permit fee of $150.

Medical Marijuana
HB 1 was approved by both chambers and would create a statewide medical marijuana pilot program. The bill includes background checks for both patients and caregivers and allows the state to control how much marijuana a patient can possess.

Omnibus Election Bill
HB 2418 was approved by both chambers and makes several changes to election law. Some of these changes include provisions of interest to municipal government. One change includes a standard referendum ballot question regarding the adoption and repeal of home rule status. Another would render a municipal official ineligible to continue service if they are late to pay a debt to the municipality.

 

Hydraulic Fracking
SB 1715 was approved by both chambers and would create a statewide regulatory framework for hydraulic fracking. Fracking is a process that involves drilling and water pressure to extract natural gas. Fracking supporters contend that the legislation will create thousands of new jobs in Illinois while injecting $9.5 billion into the state economy.

Prevailing Wage Certified Payroll Records
HB 922 would require that public bodies retain certified payroll records for five years instead of three. The new five-year requirement would apply to payroll records accrued following the effective date of the legislation. Both chambers approved the legislation.

Workers' Compensation Changes
HB 3390 makes several agreed-upon changes to the workers' compensation law. These include: (1) access to an interpreter paid for by Commission; (2) a clean-up of the arbitrator appointment process; (3) the availability of a handbook on the Commission website; (4) elimination of copying charges for certification by Commission to circuit court; (5) the need for a receipt from the Commission for certification; and (6) transfer of funds to the Injured Workers Fund. The bill was approved by both chambers.

Cell Phone Driving Ban
HB 1247 was approved by both chambers and would prohibit the use of a cell phone while driving, unless hands-free technology is utilized.

Bill of Rights for Homeless
SB 1210 establishes certain rights for homeless persons and provides that in any civil action alleging a violation of the Act, the court may award appropriate injunctive and declaratory relief, actual damages, and reasonable attorney's fees and costs to a prevailing plaintiff. This legislation could make it difficult, if not impossible, for municipal governments to effectively enforce public loitering ordinances.

Strategically Social: Retaining Government Records in the Era of Social Media

Check out today's post on Strategically Social that provides governments with guidance on how they can meet their legal obligations to retain public records in this era of increasing government reliance on social media for their communications -  Strategically Social: Retaining Government Records in the Era of Social Media.

Filing Candidate's Statement of Economic Interest in Wrong County Not Fatal

In Atkinson v. Roddy, candidates for the office of Village Trustee in the Village of Roselle filed their statements of economic interest in Cook County.  Roselle is located in Cook and DuPage Counties but because the municipal office is located in DuPage County, the Election Code requires candidates to file their statements in that county.  Objections were filed against the candidates for failure to comply with the Election Code, which was heard by the municipal electoral board.  The electoral board ruled in favor of the candidates (who lived on the Cook County side of Roselle), finding that they substantially complied with the election statute. 

 

On appeal, the Illinois appellate court dismissed one of the cases as moot because the candidate had lost the election.  With respect to the case involving the candidate who won the election, the appellate court determined that the violation was technical in nature, and that the purpose of the statute was met because the candidate filed the papers, just in the wrong office.   Thus, the court affirmed the ruling that the candidate substantially complied with the Election Code and upheld her candidacy.

 

Post Authored by Julie Tappendorf, Ancel Glink

Press Association Objects to FOIA/OMA Exception in Concealed Carry Law

The Illinois legislature did not accomplish much this session (pension reform anyone?), but it did address guns and pot (the latter was reported on previously on the blog).  With respect to guns, the General Assembly passed HB 183, the concealed carry bill, just shortly before the court-ordered deadline.  We previously reported on the blog about the Seventh Circuit’s ruling that Illinois’ concealed carry ban was unconstitutional and that the legislature had 180 days to adopt a legislative fix. 

 

This bill is nothing if not controversial, and we will be discussing the details in future posts.  The current hubbub comes from the Illinois Press Association, who is objecting to language in the bill that would exempt a newly created licensing board from both FOIA and the Open Meetings Act.  The IPA’s position is that the legislation would effectively seal all records of the new board that is responsible for reviewing concealed-carry permit applications flagged by local police.  The IPA also objects to meetings of the board being off-limits to the public.  The IPA is not, however, objecting to the confidentiality of personal information about gun owners or people who apply for concealed-carry permits.

 

Post Authored by Julie Tappendorf, Ancel Glink

Library District's Closed Session Minutes Violate OMA

The PAC issued another binding opinion finding a public body in violation of the OMA, this time for failing to include a detailed finding in its closed session meeting minutes of the reason for going into closed session. 

 

In PAC Op. 13-008, the PAC considered a complaint alleging that a Library District improperly closed a meeting for imminent or probable litigation.  Specifically, the District had gone into closed session to discuss a payment dispute between the Library District and the Illinois Library Employee Benefit Plan (ILEBP), citing the "probable or imminent" litigation exception of the OMA.  The complainant alleged, however, that there was no threat of litigation sufficient to justify going into closed session.  In defending its actions to the PAC, the District submitted three letters that the ILEBP had sent to the District stating that it would file a lawsuit or pursue legal action unless the District reimbursed the ILEBP for certain claims payments. 

 

The PAC first determined that the District's determination that litigation was probable or imminent was reasonable and a sufficient basis to go into closed session. The three letters from ILEBP threatening litigation against the District was sufficient to trigger the "probable or imminent" litigation exemption.  Further, the recordings of the session disclosed that the discussions related to "strategies, postures, theories, and consequences of the threatened litigation," which were proper discussions in closed session. 

 

The PAC did, however, find the District in violation of the OMA because it failed to record and enter an adequate explanation of the basis for finding that a lawsuit was probable or imminent into the closed session minutes.  Although the complainant apparently had not raised the issue of the closed session minutes in her complaint, the PAC nevertheless determined that the District's minutes were insufficient under the OMA.  The District was directed to amend its closed session meeting minutes accordingly. 

 

Post Authored by Julie Tappendorf, Ancel Glink