Wednesday, July 30, 2014

Court Dismisses Religious Meditation House Lawsuit

RLUIPA Defense recently reported on a case decided by the Northern District of Illinois dismissing a lawsuit filed by a meditation center against Lake County, Illinois.  MAUM Meditation House of Truth claims that the county violated its First Amendment right to free exercise, its equal protection and due process rights, as well as the Illinois RFRA by mandating certain building code improvements for MAUM's proposed conversion of a portion of a home into a meditation center.

The county had filed a motion to dismiss the case, arguing that MAUM failed to exhaust its administrative remedies under state law before filing the federal lawsuit.  The District Court agreed, and dismissed the case for failure to exhaust administrative remedies and for inadequate pleading. The court also rejected MAUM's argument that the county's application of the building code was a "content-based" regulation, characterizing it as "nonsensical."  

You can read more about the case on RLUIPA Defense here.

Tuesday, July 29, 2014

Washington D.C.'s Gun Carry Ban Struck Down

Over the weekend, a district court judge struck down Washington D.C.'s ban on carrying a handgun in public, the last surviving ban in the country.  Palmer v. Washington D.C.  Municipal Minute readers may recall that the Seventh Circuit Court of Appeals had struck down Illinois' handgun ban (the last surviving statewide ban) in late 2012 in Moore v. Madigan, which we reported on here.  

In Saturday’s ruling, the district court ruled that the Second Amendment right does reach beyond the home, finding that to be a natural outgrowth of the fundamental right the U.S. Supreme Court had created six years ago in District of Columbia v. Heller.  In his ruling, Judge Scullin declared that the Second Amendment right to carry a gun outside the home applies not only to residents of Washington, D.C., but also to visitors to the city.  One of the individuals who sued was not a resident.  The ruling applies both to open and concealed carrying of handguns in public.

It is unclear when a new case testing Second Amendment rights outside the home might be pursued at the Supreme Court.  The Seventh Circuit's ruling in Moore v. Madigan ended without appeal after the Illinois General Assembly adopted a new concealed carry law, which repealed the statewide ban on public carrying of guns at issue in Moore.  A similar decision in the Ninth Circuit against San Diego County's carrying ban is in limbo over pleas by California and others for reconsideration of the case before the en banc Ninth Circuit.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, July 28, 2014

Village Cannot Challenge PSEBA Benefits

Another Illinois appellate court affirms the Illinois Supreme Court's Krohe decision that being awarded a line of duty disability satisfies the "catastrophic injury" requirement for purposes of determining eligibility for PSEBA benefits.  Village of Vernon Hills v. Heelan, 2014 IL App (2d) 130823 (July 23, 2014).

The Public Safety Employee Benefits Act (PSEBA) requires a municipality to pay the health insurance benefits of an officer and the officer's family if the officer sustains a catastrophic injury in responding to what the officer believes is an emergency.  In 2003, the Illinois Supreme Court interpreted "catastrophic injury" to be synonymous with an injury resulting from a line of duty disability awarded under the Pension Code.  

In this case, Officer Heelan was injured responding to a call, and applied for and was awarded a line of duty disability.  However, the Village challenged his right to also receive PSEBA benefits by filing a lawsuit.  The trial court ruled in favor of Heelan, based on the Krohe decision.  The appellate court affirmed, determining that the Village was barred from bringing a "collateral attack" on the Pension Board's decision to award the line of duty disability.  The appellate court rejected the Village's argument that its due process rights were violated where it was denied the opportunity to challenge the Pension Board's decision because it was neither a party nor in privity with a party in that Board's proceeding.  The appellate court also refused to question or refuse to follow Krohe, holding that it was bound to follow the supreme court's ruling.  

The dissent takes a different position on the majority's view that Krohe held that a pension board's award of a line-of-duty pension is "irrefutable proof of a catastrophic injury" under PSEBA.  In the dissent's view, the Village was not collaterally attacking the Pension Board's decision, which it was not challenging, but rather was seeking to avoid liability for PSEBA benefits.  Because the Village was not a party to the Pension Board's proceeding, and did not participate in that proceeding, its due process rights are violated by not allowing the Village "its day in court."

Post Authored by Julie Tappendorf, Ancel Glink 

Friday, July 25, 2014

School Impact Fees Can Be Used for Technological Infrastructure

Section 11-12-5 of the Illinois Municipal Code authorizes municipalities to impose impact fees or developer donations for school grounds, among other purposes, so long as the imposed fees or donations are "specifically and uniquely attributed to the development or subdivision in question."   "School grounds" is defined under the statute to include land or site improvements, school buildings, and other infrastructure.  The law was recently amended by P.A. 98-0741 to expand the definition of "school grounds" to also include "technological infrastructure."  The law becomes effective January 1, 2015.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, July 24, 2014

Update on Arrest Booking Fee Case

You may remember that the Village of Woodridge had an ordinance that imposed a $30 booking fee on anyone arrested in the Village.  A civil rights lawsuit was filed to challenge the constitutionality of the fee.  In January of this year, the 7th Circuit dismissed the case. We previously reported on the court's decision that upheld the Village's $30 arrest booking fee here

The case recently made its way back to the 7th Circuit on rehearing.  On July 21, 2014, the Seventh Circuit issued its second opinion in this case.  The opinion was divided and there was no majority for any position; as a result, the effect of the divided Court was to affirm the district court's dismissal, again.

Even though the outcome didn't change from the initial opinion, this second opinion is still worth reading as it contains some interesting analysis and guidance from the 7th Circuit on local fees that are not tied to the provision of any service (all of the Judges agree on one point - an arrest fee is not paid for the privilege or "service" of being arrested).  The dissenting opinion would strike down the fee as unconstitutional, as violating an individual's due process rights.  

Although the decision did not strike down Woodridge's arrest fee, Woodridge did that itself in repealing the ordinance.  Municipalities with similar arrest fees, however, would be well-advised to carefully read this second opinion, because even though there was no majority position to find Woodridge's fee unconstitutional based on the specific facts presented, another challenge to a municipal fee could very well be decided differently.

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, July 23, 2014

Disclosure of Audit Report and Management Letters

Governor Quinn recently signed into law P.A. 98-0738 amending the Illinois Municipal Code to establish certain disclosure requirements for municipal audits.  The new law requires the auditor conducting the municipal audit to provide a copy of any management letter and audited financial statements to each member of the corporate authorities within 60 days of the close of the audit. Municipality with websites must post this information on their websites.  The auditor is also required to present the audit information to the corporate authorities either in person or electronically at a public meeting.  The new law also applies to counties.  The law becomes effective January 1, 2015.

Post Authored by Julie Tappendorf

Tuesday, July 22, 2014

Cities Must Refund AT&T Telecommunication Taxes

In June of 2011, a federal judge approved a $1 billion class action settlement against AT&T. That lawsuit claimed that AT&T inappropriately collected telecommunications taxes from its customers between 2005 and 2010 for internet services, which is prohibited under Internet Tax Freedom Act. Under the settlement, AT&T agreed to refund these overcharges to its customers.  The problem? AT&T had already turned over the tax revenue to state and local governments, including Illinois municipalities.  That means that the state (and ultimately, local governments) are on the hook for returning these taxes to AT&T, who will then refund them to customers.  

So, why are we talking about this case more than 3 years later?  Because recently, Illinois municipalities started receiving notices from the Illinois Department of Revenue (IDOR) that they are responsible for the overcharged taxes.  For example, the City of Champaign received a notice that it received $340,000 in overcharged taxes over the five year period in question. The Village of Roselle received about $70,000.  In total, Illinois municipalities are on the hook for about $16.7 million of the $1 billion settlement.  

Under state law, the IDOR has the authority to offset future tax receipts due to the municipalities until the overcharged taxes are repaid. For many municipalities, the IDOR has put in place a "payment plan" to collect the overcharged taxes over a period of time.  For example, one municipality was notified that the IDOR would collect the overcharged revenue of $89,000 from the municipality by reducing the monthly tax distributions over a six month period, beginning in August, 2014.  Once the overcharges are collected by the IDOR, it will then remit the collected revenues to AT&T, who will refund customers who paid the taxes.

Fortunately, AT&T stopped overcharging customers in 2010, so current revenues coming in are not subject to the lawsuit.  

Post Authored by Julie Tappendorf, Ancel Glink

Monday, July 21, 2014

Temporary Use Articles Published in Planning & Environmental Law

The American Planning Association (APA) publishes a monthly magazine called Planning & Environmental Law where it reports on recent land use and planning cases and other legal matters. In the July 2014 edition of PEL, the APA published two articles written by Ancel Glink attorneys, which may be of interest to land use and planning officials and employees. 

Julie Tappendorf authored the article "Common Zoning Definitions Found Unconstitutional in TLC v. Elgin."  In her article, Julie summarizes the TLC v. Elgin case, where a federal district court ruled that a municipality could not require a faith-based organization to obtain a temporary use permit to operate its mobile pregnancy counseling services.  The court found that the city's zoning definitions of "land use" and "structure" were unconstitutionally vague and overbroad because these regulations could prevent people from exercising their First Amended protected rights.  The case was settled recently, and TLC was allowed to offer its mobile pregnancy counseling services, but the ruling that these commonly used zoning definitions were unconstitutional should cause some concern to municipal land use professionals.

David Silverman authored the article "The Temporary Use and Economic Development."  In his article, David explains temporary use regulations, and discusses ways temporary uses can be used effectively to promote economic development and provide unique cultural, artistic, and entrepreneurial experiences within communities. David provides a number of examples of these temporary uses such as farmers markets, mobile food operations, art and culture "temporiums," and urban farming initiatives.

Post Authored by Julie Tappendorf, Ancel Glink

Friday, July 18, 2014

Government Bodies Can Seek Equitable Relief when Counties Incorrectly Reduce Taxes

On July 9, 2014, the Appellate Court for the Third District decided the case of The Board of Trustees of Illinois Valley Community College District NO. 513 v. Putnam County. This case involved a reduction in real estate taxes granted by the treasurer and collector of Putnam County to a company that constructed an ethanol facility within an enterprise zone within the Village of Hennepin.  The Community College District had approved a resolution abating property taxes for the property; however, the resolution had certain restrictions and limitations based upon the timing of the construction of improvements on that property.  County officials concluded that the resolution of the Community College required a tax abatement for the facility.  The Community College District disagreed and filed a complaint seeking a writ of mandamus to require the county to stop abating the taxes and to re-issue tax bills for three previously abated tax years.  The company filed a motion to dismiss arguing that, under the property tax code, only it had the right to protest the taxation of its property.  The trial court ruled against company, and the case was appealed.  

The appellate court reviewed the tax objection provisions of the property tax code and concluded that those provisions are only intended to be used by and applied to a property tax payer who feels that a tax has not been appropriately calculated.  However, the court determined that government bodies that believe that their taxes have not been properly calculated by county officials have a completely independent right to file a lawsuit.  

Although the arguments suggested by the utility company were quite exotic and may have been proposed as a delaying tactic, this appellate court decision should prevent similar arguments being made in the future.  That decision strengthens the rights of governmental bodies to question acts taken by the county in the tax collection process even if the effect of the lawsuit would be to require a taxpayer to come up with additional funds.  The Community College correctly named not only the county, the treasurer and collector in the lawsuit, but also the energy company, which would have to pay more taxes.

Post Authored by Stewart Diamond, Ancel Glink

Thursday, July 17, 2014

Pension Board Has No Contract Right to a Specific Level of Municipal Funding

An Illinois appellate court recently held that a municipality was not liable for failing to fully fund its police pension fund, and that the Pension Board was not statutorily and contractually entitled to a specific level of funding by the Village.  Board of Trustees of the Riverdale Police Pension Fund v. Village of Riverdale.

The Board of Trustees of the Riverdale Police Pension Fund filed a lawsuit against the Village claiming that the Village violated its statutory obligations under the Illinois Pension Code to properly and fully fund the police pension by not levying the appropriate taxes for pension contributions for about 10 years.  The Pension Fund also asked the court to order the Village to turn over all pension contributions in its possession, which the Village admitted to collecting and inadvertently not remitting.  The circuit court granted summary judgment to the Village, finding that the Pension Code did not contain any right to enforce certain funding levels and that the “legislature could not have intended to remove all discretion from the municipality in determining the amount of tax levies and contributions to the pension funds in any particular year.” 

The Pension Fund appealed the decision to the appellate court.  That court first looked at Sections 3-125 and 3-127 of the Illinois Pension Code, and determined that although these provisions require a municipality to levy taxes sufficient to cover the cost of the pension fund of the given year and any unfunded accrued liabilities, the law does not require that taxes be levied in strict compliance with the recommended funding levels.  As a result, the court found that the Pension Board was not able to demonstrate that the Pension Code created a contractual right to a specific level of funding. The court did, however, determine that the Village was required to forward all monies actually received as a result of the pension tax levies to the Pension Board.

Post Authored by Tiffany Nelson-Jaworski, Ancel Glink

Wednesday, July 16, 2014

NYC Soda Ban Struck Down Again

Chicago bans plastic bags and microbeads in personal care products.  San Francisco bans the sale of plastic water bottles on public property.  New York City banned large sodas (or pop, if you are around here) by enacting the "Sugary Drinks Portion Cap Rule," which would become effective in 2013.  That rule prohibits food service establishments from selling any sugary drink in a cup or container larger than 16 ounces.  The new rule was immediately challenged by labor groups and other organizations who claimed that the rule was "arbitrary and capricious" and exceeded the Board of Health's regulatory authority.  

The case made its way to the state's high court, which issued a ruling last week invalidating the rule.  In the Matter of New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health & Hygiene.  The court of appeals determined that the Board of Health exceeded its regulatory authority by enacting the soda ban.  Specifically, the court found that the ban was in the nature of legislative policy-making rather than the carrying out of preexisting legislative policy.  As a result, the soda ban rule was found invalid, and the Department of Health was enjoined from enforcing it.

The opinion contains a lengthy dissenting opinion that would have upheld the soda ban rule based on the Department's inherent authority to regulate the public health in the City.  The dissent acknowledged that in enacting the ban, the Board identified a "complicated threat to the health of City residents with any interrelated causes; i.e., obesity" that required the Department to enact regulations that would "combat this threat."  

The rationale for the court invalidating the soda ban had nothing to do with the legitimacy or appropriateness of the ban itself, but with the agency's authority to enact it.  It is entirely possible that the outcome of this case would have been different had the New York City Council enacted an ordinance adopting the soda ban (i.e., legislative action) rather than one of its agencies establishing the ban through an administrative policy.   

Post Authored by Julie Tappendorf, Ancel Glink 

Tuesday, July 15, 2014

Attorney General's Challenge to Former Chicago Police Supervisor's Pension Benefits Dismissed

Former Chicago police supervisor Jon Burge was convicted of committing perjury in a civil lawsuit after he denied having any knowledge of suspects being tortured by police under his command. Following his conviction, the police pension board held a hearing and voted 4-4 to terminate his pension benefits.  Because there was no majority vote in favor of terminating his benefits, Burge continued to receive his pension benefits.

The Attorney General, on behalf of the State of Illinois, filed a complaint in circuit court alleging that the pension board was violating the Pension Code by continuing to pay pension benefits to Burge following his felony convictions.  Burge, the pension board, and the pension board trustees were all named as defendants in the case.  The Attorney General asked the court to order the pension board to stop all pension payments and require Burge to repay benefits.  The defendants argued that the circuit court did not have jurisdiction to consider the Attorney General's complaint. The circuit court agreed, and dismissed the Attorney General's complaint on the basis that the pension board has exclusive jurisdiction to decide whether pension benefits should be terminated. The appellate court reversed, finding that both the pension board and circuit court have jurisdiction to decide pension benefits. 

On appeal, the supreme court agreed with the circuit court that the Attorney General's complaint should be dismissed for lack of jurisdiction.  Although section 1-115 of the pension code does provide the Attorney General with some authority to bring a civil action, that authority does not the include the power to decide whether pension benefits should be terminated.  The power to grant or terminate pension benefits is exclusively the pension board's, not the Attorney General's and not the circuit court's.  The pension board's decision was subject to appeal only through the administrative review process, not through a separate new proceeding in the circuit court.  As a result, the Supreme Court upheld the circuit court's dismissal of the Attorney General's complaint.

The dissent argues that the Attorney General did have authority to bring a separate action against the pension board to challenge the pension board trustees' fiduciary duties.  In the dissent's view, allowing a convicted felon to continue to draw pension benefits violates the trustees' duties to the fund and its beneficiaries.

You can read the case here:  Madigan v. Burge, 2014 IL 115635 (July 3, 2014).

Post Authored by Julie Tappendorf, Ancel Glink