Monday, May 4, 2015

Court Upholds Practice of Placing Parking Tickets on Windshield


We previously reported on the 2012 case of Senne v Village of Palatine, 695 F.3d 597 (7th Cir. 2012) where the court held that placing a parking ticket on the windshield of a car is a “disclosure” of private information within the meaning of the Driver’s Privacy Protection Act, 18 U.S.C. 2721.  The court remanded the case to determine if private information on a ticket placed face down on a windshield constituted a permissible use under the Act.

In Senne v Village of Palatine, No. 13-3671 decided April 28, 2015 the 7th Circuit affirmed the longstanding practice of placing parking tickets on vehicle windshields.  The court said that even though the ticket contained private information as defined under the Act, the disclosure of this private information was allowed because the information is for use in connection with an administrative proceeding and for use by a law enforcement agency in carrying out its functions.  Both of these uses are permitted under the Act 18 U.S.C. 2721(b)(1) and (b)(4).

Relying on the deposition testimony of the Palatine Police Chief, the court identified numerous lawful uses for the private information contained on the parking ticket.  Personal information such as name, address, height and weight increases the likelihood that the person will pay the ticket because the police know the person’s identity and address and will have no difficulty locating the person.  The information also supports the Village policy of voiding tickets for out of town visitors.  The information may also be used to help a person with limited English proficiency to communicate with a police officer if subsequently stopped.  The person can just show the police officer the ticket to communicate identity.  Finally the information on the ticket enables drivers to correct errors in the state motor vehicle records.

The court concluded by saying that this limited disclosure of personal information has not resulted in any known harm, such as stalking, identity theft or invasion of privacy to the persons receiving a parking ticket.

Municipalities may continue to issue windshield parking tickets based on this case, but should continue to exercise caution when gathering or disclosing private information subject to the Driver’s Privacy Protection Act.  

Post Authored by Steve Mahrt, Ancel Glink

Friday, May 1, 2015

Coach "Benched" for Tweet

From Strategically Social:  Coach Fired for Tweet 

A high school softball coach was fired for posting the following "tweet" on her personal Twitter account:

The tweet was apparently a response to earlier statements made by restaurant owners to the press that "If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no."  Although the coach has since deleted the tweet, it lives on in "screen caps" as well as the many replies and forwards of her tweet.

The Indiana coach had been serving a suspension since April 1st, but the school district superintendent confirmed that she was officially terminated earlier this week.

Post Authored by Julie Tappendorf

Thursday, April 30, 2015

City Owed No Duty to Pedestrian Crossing Mid-Block

A pedestrian was struck by a car and sued the driver, the City of Quincy, and Ameren (electric company), seeking damages for her injuries.  Her claims against the City and Ameren were based on allegations that the streetlights were not functioning which created an unreasonably unsafe condition.  The circuit court dismissed the City and Ameren from the case, and she appealed.  In Peters v. Joyce Riggs, 2015 IL App (4th) 140043, the appellate court affirmed the dismissal of her case against the City and Ameren.  

With respect to her case against the City, the City argued that it was protected by the Tort Immunity Act.  Specifically, the City cited section 3-102 that protects public entities from liability if the individual was not an intended user of the street.  In this case, the City argued that it owed no duty because the pedestrian crossed the street mid-block and outside of the crosswalk.  

Ameren's also argued it owed the plaintiff no duty because she crossed the street outside of the established crosswalk. 

The appellate court found that plaintiff was not an intended pedestrian user of the street at the location of the accident.  As a result, neither the City nor Ameren owed the pedestrian a duty, and their case was dismissed.  In addition, the appellate court also dismissed the counterclaim filed by the driver against Ameren and the City for contribution.  The court rejected the driver's argument that Ameren "breached" its contract with drivers to maintain streetlights in a reasonably safe condition.  It also rejected her argument that the City owed any duty to maintain its property in a reasonably safe condition.  

Post Authored by Julie Tappendorf

Wednesday, April 29, 2015

An Electoral Board May Require an Objector to Testify


Recently, an Illinois court upheld an electoral board's dismissal of a "shot-gun" style objection to a candidate's nomination papers based, in part, on the objector's failure to appear at the hearing to answer questions about how the objections were formulated. Erik Daniel v. John Daly, et al.,

On December 11, 2014, John Daly filed nomination papers with 262 signatures to run for the office of trustee of South Suburban College of Cook County District 510. During the objection filing period, Erik Daniel filed a verified objector’s petition objecting to Daly’s nominating petitions.  The objection challenged the validity of 240 signatures. Only 22 signatures were not objected to and the statutory minimum was 50 signatures.

After the objections were filed, the electoral board convened a hearing. At its first meeting, the electoral board adopted rules of procedure, as required by the Election Code.  These rules provided that, among other things, the electoral board could require the objector to make a preliminary showing of the factual basis for grounds stated in the objector’s petition to determine if the allegations were made in good faith based on knowledge, information, and/or belief formed after reasonable inquiry.  The rules also provided that a failure to adhere to the rules could be grounds for striking and/or dismissing some or all of the objector’s petition.

The candidate subpoenaed the records of the Cook County Clerk’s office to see who accessed the voter registration records.  After learning that the objector had not viewed the records, the candidate filed a motion to dismiss the objection. At the hearing on the candidate's motion to dismiss, the objector failed to appear.  His attorney was present, and argued that the objector's appearance was not necessary.  The electoral board disagreed, granting Daly’s motion to strike and dismiss on the basis that they were improper and not made in good faith.  

On appeal to the appellate court, Daniels argued that he was not required to testify at the hearing and that the Board’s decision was arbitrary and contrary to the law because the Election Code does not require him to personally conduct a records examination prior to filing his objections.  Daly argued that the objection itself was arbitrary and it was a shot-gun petition that must be dismissed.  The appellate court held that the electoral board had the authority to require the objector to appear and answer questions about whether his objection was based upon actual knowledge.  As a result, the court upheld the dismissal of the objection.

Post Authored by Tiffany Jaworski, Ancel Glink

Tuesday, April 28, 2015

7th Circuit Upholds City's Assault Weapon Ban

Hot off the virtual presses is the Seventh Circuit's decision upholding the City of Highland Park's assault weapon ban in Friedman v. Highland Park, (7th Cir. April 27, 2015).  

The City of Highland Park, Illinois adopted an ordinance prohibiting the possession of assault weapons or large capacity magazines (those that can accept more than 10 rounds). A City resident who owned a banned rifle and several large-capacity magazines before the ordinance took effect sued the City, along with the Illinois State Rifle Association, claiming that the ordinance violated the Second Amendment, as interpreted by the U.S. Supreme Court in District of Columbia v. Heller and McDonald v. City of Chicago.  The City defended its ordinance by arguing that weapons with large-capacity magazines are "dangerous and unusual" under Heller.  

The Seventh Circuit first held that Heller does not purport to define the full scope of the Second Amendment, nor does it "imperil every law regulating firearms." Second, the Seventh Circuit posed the question as follows:  
Whether a regulation bans weapons that were common at the time of ratification or those that have some reasonable relationship to the preservation or efficiency of a well regulated militia.
The guns and magazines banned by Highland Park were not common in 1791.  Moreover, although some of the weapons prohibited by the ordinance are commonly used for military and police functions, the Court held that states (and local governments) should be allowed to decide when civilians can possess military grade weapons.  Since Highland Park did not ban other types of weapons (i.e., handguns and most long guns), the ordinance still leaves residents with adequate means of self-defense.  The Court also found persuasive studies submitted by Highland Park that a ban on assault weapons reduces the overall dangerousness of crime, and could increase the public's sense of safety.  Based on these factors, the Court upheld Highland Park's ordinance.

The Court’s opinion leaves the door open for future experimentation with local firearms regulations. In McDonald, the Supreme Court advised that “‘[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment.’” Accordingly, the Seventh Circuit concluded in this case that “McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation.”

Judge Manion dissented.  In his view, assault rifles and large capacity magazines, while admittedly dangerous, are also an effective method of defending one's home and family. Based on his reading of Heller and McDonald, and application of strict scrutiny to the ordinance, the City's ban violates the Second Amendment.

Post Authored by Julie Tappendorf and Dan Bolin, Ancel Glink

Monday, April 27, 2015

Case Claims Facebook "Tag" Program Violates Illinois Privacy Laws

From Strategically Social: Case Claims Facebook "Tag" Program Violates Illinois Privacy Laws:

On April 1, 2015, Carlo Licata filed a class action complaint in Cook County, Illinois, against Facebook, Inc. alleging that the company violated the Biometric Information Privacy Act (an Illinois statute) when it launched "Tag Suggestions" that recognizes and identifies friends in photos uploaded by users so the users can "tag" them in the photo.  Licata v. Facebook, Inc. (Cook County)

The Biometric Information Privacy Act (BIPA) was enacted in 2008, and makes it unlawful for a company to "collect, capture, purchase, receive through trade, or otherwise obtain a person's biometric identifiers or information unless the company provides advance notice and receives a written release for the use.  

Licata alleges that the "Tag Suggestions" program uses facial recognition technology to scan faces in photos to determine identities based on stored photos in user profiles.  In the complaint, Licata argues that the data stored by Facebook is derived, in part, from biometric identifiers collected from the image of a person's face.  The storage and use of this stored biometric data (which Licata alleges is millions of user faceprints) is done without prior notice and written consent in violation of BIPA.

Licata defines the "class" for the class action as all Illinois residents who had their faceprints collected, captured, received, or otherwise obtained by Facebook while residing in Illinois.

This will be an interesting case to watch.

Disclosure:  The author is an Illinois resident with a Facebook profile, so a potential plaintiff if the class is certified.

Friday, April 24, 2015

Illinois House Passes Bill Repealing Red Light Camera Law

In yet another move to restrict local government control that could impact community safety and will affect local government revenues, the Illinois House just approved House Bill 173, making it illegal to install red light cameras in non-home rule municipalities.  The ban would not apply to Chicago or other home-rule communities (those communities with 25,000 population or that have elected by referendum to become home rule).  If approved by the Senate and signed by the Governor, the ban on red light cameras in non-home rule municipalities would become effective January 1, 2017. 

Communities that have entered into agreements with outside consultants to install and monitor red light cameras in their communities may need to review the terms of those agreements to determine how the law, if passed, will affect those agreements. 

Post Authored by Julie Tappendorf

Thursday, April 23, 2015

Traffic Stop Delay Violates 4th Amendment Without Reasonable Suspicion

This week, the U.S. Supreme Court held that police who use drug-sniffing dogs in conjunction with traffic stops can’t keep the motorist waiting after the ticket is written when they have no reasonable suspicion justifying the extra time.  Rodriguez v. United States

The case involved a K-9 officer who stopped Rodriguez for driving on a highway shoulder in violation of Nebraska law.  After the officer processed Rodriguez license and issued a warning, he asked Rodriguez for permission to walk his dog around the vehicle.  When Rodriguez refused, he was detained until a second officer arrived.  At that time, the police dog alerted the officers to the presence of drugs in the vehicle.  A subsequent search found methamphetamine, and Rodriguez was indicted on federal drug charges.  He moved to suppress the drug evidence, arguing that the officer prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff.  The trial court denied his motion, and he plead guilty and was sentenced to five years in prison. The Eight Circuit Court of Appeals affirmed, finding that the 7-8 minute delay was an acceptable "de minimis" intrusion on Rodriguez's personal liberty.

Rodriguez appealed to the U.S. Supreme Court.  On Tuesday, the Court reversed the court of appeals. Although a routine traffic stop is not an arrest, the extension of that routine traffic stop beyond the time needed to handle the traffic violation (in this case, to issue the warning ticket) would violate the Constitution’s shield against unreasonable seizures, if there is no reasonable suspicion justifying the delay. The Supreme Court sent it back to the court of appeals to consider whether the police officer had a reasonable suspicion of criminal activity that justified detaining the motorist for 7-8 minutes after the traffic stop was complete. 

Post Authored by Julie Tappendorf


Wednesday, April 22, 2015

Federal Government Issues Guidelines on Employee Use of Social Media

From Strategically Social: Federal Government Issues Guidelines on Employee Use of Social Media:

On April 9, 2015, the U.S. Office of Government Ethics issued a legal advisory titled "The Standards of Conduct as Applied to Personal Social Media Use" that apply to executive branch employees of the federal government.  You can read the legal advisory here.  

The introduction to the legal advisory states that the standards of conduct are not intended to prohibit executive branch employees from establishing and maintaining personal social media accounts but to serve as guidelines for these employees in engaging in personal social media activities.  

Here's a preview of the standards of conduct:

1.  Use of Government Time and Property

When employees are on-duty, they must make an "honest effort to perform official duties."  That means that access and use of personal social media accounts should be limited while on duty.  Further, government property must be used only to perform official duties unless an employee is authorized to use the property for other purposes.  Finally, employees must follow their agency policies on social media use, including any 'limited use" policies.

2.  Reference to Government Title or Position & Appearance of Official Sanction

As a general rule, employees are prohibited from using their official titles, positions, or any authority associated with their public offices for private gain or in any manner that could be interpreted as government endorsement of their activities. However, the standards do not prohibit an employee from identifying his or her official title or position on the site's biographical information area.  The standards set out 7 factors for agency ethics officers to consider in determining whether an employee has violated this standard, including whether an employee states that he or she is "acting on behalf of the government" or "refers to his or her connection to the government as support for the employee's statements."  Employees are not required to post disclaimers disavowing government endorsement, although they are encouraged to clarify that their communications reflect only their personal views and not the views of the federal government or agency.

3.   Recommending and Endorsing Others on Social Media

Employees are permitted to make recommendations or endorsements of others in their personal capacity, such as on LinkedIn.

4.  Seeking Employment Through Social Media

Employees must be cautious in using social media to seek employment to ensure that their conduct complies with other federal regulations, including applicable disqualification requirements and any additional agency regulations.  Posting a resume or summary of professional experience will not violate the standards.

5.  Disclosing Nonpublic Information

Employees are prohibited from disclosing nonpublic information to further their private interests or the private interests of others.

6.  Personal Fundraising

Employees may use personal social media accounts to fundraise for nonprofit charitable organizations in a personal capacity, so long as the employee does not personally solicit funds from a subordinate or a known prohibited source.  Employees may not use their official titles, positions, or authority to further fundraising efforts.

7.  Official Social Media Accounts

Employees who use official government accounts must apply with the agency directives, regulations, and policies and all conduct and activities must be for official purposes.

Post Authored by Julie Tappendorf

Tuesday, April 21, 2015

Zoning Commission Update on Bleacher Case

As regular readers know, we have posted in the past about the dispute between the Crystal Lake South High School, the City of Crystal Lake, and neighboring residential property owners involving the High School's installation of 50-foot tall bleachers without City zoning approval. The High School's appeal of the appellate court's previous ruling against it is still pending at the Illinois Supreme Court.  

After both the trial and appellate courts ruled against the School, the School did file an application with the City for after-the-fact zoning approvals, including a request for a special use permit and height variations. Last week, the City's planning and zoning commission recommended that the School's zoning applications be denied.  The School's offer to lower the bleachers from 50 feet to 38 feet, and add more landscaping did not appease the commission or the neighbors who showed up at the zoning hearing to express their concerns and objections to the School's application.  

The planning and zoning commission's recommendation to deny the zoning application will now go to the City Council for final action in May.

As a side note regarding the Supreme Court appeal, the Illinois Municipal League filed an amicus brief in support of the argument that schools are subject to local zoning, which you can read here.

Post Authored by Julie Tappendorf

Monday, April 20, 2015

IHSA Not a Public Body Under FOIA

Last year, the Better Government Association filed a lawsuit against the Illinois High School Association (IHSA) in Cook County after the IHSA declined to release records pursuant to a FOIA request.  The IHSA had supported its denial of the FOIA request by arguing that it is not subject to FOIA because as a private, non-profit organization, it does not fall within the definition of "public body."  Last week, a circuit court judge agreed with the IHSA, and granted its motion to dismiss the case.  The court noted that the organization and supervision of interscholastic athletics and activities are not functions exclusively performed by the government, and the fact that the association was comprised of members who are all public employees did not, on its own, turn a private association into a public body under FOIA.  

Post Authored by Julie Tappendorf

Friday, April 17, 2015

Upcoming Local Government Training in Lake County

On April 23rd, the Lake County Bar Association will host an afternoon seminar for local government officials and employees called "Laws Every Local Government Official Needs to Know." Two Ancel Glink attorneys will be presenting sessions at the seminar: Adam Simon will present the session on economic development tools and John Christensen will discuss public improvements and contract issues.

Here are details about the seminar:

Laws every Local Government Official Needs to Know
Thursday, April 23, 2015
12:30 - registration
1:00-4:15 p.m. - sessions
College of Lake County, Building C, Auditorium C-005

Topics:

  • An Overview of FOIA
  • A Review of PAC Decisions
  • The Pros & Cons of Mediation & Arbitration
  • Economic Development: Learn the Basics for a Variety of Economic Development Tools
  • Getting Your Public Improvement Project Up & Running
  • Litigation Update
  • Open Meetings Act

You can register on the LCBA's website here.