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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

Monday, September 30, 2013

No Contract Right to Arbitrate Off-Duty Work

A police officer filed a grievance with a municipality after the City failed to hire the officer to perform off-duty snow removal services for the City.  The officer claimed he had a contractual right under the union contract with the City to the snowplow work.  The City responded that the grievance was invalid because it did not implicate an "express provision" of the union contract and, therefore, under the union contract, the issue was not subject to arbitration.  The union continued to pursue the grievance and the matter eventually was assigned to an arbitrator.  The arbitrator ruled against the City, finding that the snowplow work was an "express provision" of the contract as it fell under that section of the contract that allows the City to make reasonable rules and regulations.  The City filed a complaint with the circuit court asking the court to declare whether the grievance was subject to arbitration.  The court dismissed the City's case, and the City appealed.

On appeal, the appellate court first determined that it is the court, not the arbitrator, who has the authority to determine whether a right to arbitration exists under a contract.  The court then reviewed the union contract and determined that there is "no provision in the CBA that directly states that a police officer may seek to arbitrate the City's failure to hire him to drive a snowplow while he was off duty."  Naperville v. Illinois Fraternal Order of Police, 2013 IL App (2d) 121071.  As a result, the City was not obligated to arbitrate its decision not to hire a police officer to perform off-duty snowplow work.

Friday, September 27, 2013

Illinois Governor Cannot Suspend Legislators' Salaries

The blog previously reported on Illinois Governor Quinn's decision to veto the appropriations bill to effectively suspend the Illinois General Assembly members' salaries.  His rationale at the time of his veto was that legislators should not be paid for not doing their jobs - in this case, failing to pass pension reform.  The legislators brought suit against the Governor, and the circuit court judge issued a ruling yesterday against Governor Quinn finding that Illinois law prohibits any change (increase or decrease) to a legislator's salary during that officer's term of office.  Immediately after the court issued its order, the state comptroller issued checks to the legislators. Governor Quinn has stated he will appeal the ruling, so stay tuned. 

Thursday, September 26, 2013

PSEBA Emergency Must Involve Unforeseen Circumstances

The state courts have been fairly active in deciding what type of injury entitles a public safety officer to PSEBA benefits.  The statute requires a municipality to pay health insurance premiums for the injured employee, spouse, and dependent children if that employee has suffered a "catastrophic injury or is killed in the line of duty."  The statute further provides that the injury or death must have occurred as the result of one of the following: (1) response to fresh pursuit; (2) response to what is reasonably believed to be an emergency; (3) an unlawful act perpetrated by another; or (4) during the investigation of a criminal act. 
In Springborn v. Village of Sugar Grove/Cecala v. Village of Carpentersville, two police officers filed claims for PSEBA benefits with their employer municipalities based on injuries they sustained in clearing roadway obstructions.  Both argued that they incurred their injuries while responding to what they reasonably believed to be emergency situations.  The appellate court focused on the factual circumstances surrounding their injuries and concluded that both incidents fell within the definition of emergency under PSEBA to qualify the officers for benefits.
 In the Sugar Grove incident, the officer encountered a roadway blocked by large chunks of asphalt that, in his opinion, created an unsafe roadway condition during rush hour.  In the Carpentersville incident, a traffic light had fallen into the roadway, and he testified that the pole had to be removed or it would create a hazardous condition for traffic.   The court noted that based on previous cases interpreting "emergency" under the PSEBA statute, an emergency must result from an unforeseen circumstance.  Here, the court found that both of the roadway situations involved unforeseen circumstances that, in the officers' opinions, required an urgent and immediate response. As a result, the appellate court upheld the officers' awards of PSEBA benefits.

Holiday Displays: Can Government Restrict Private Holiday Displays on Public Property?

As we start to approach the "holiday season" (which now officially begins in August according to Hallmark and Wal-Mart), government officials may begin to make plans for seasonal decorations on public property, including Christmas trees, menorahs and other traditional holiday symbols. In the course of making these plans you may have a local resident or community organization apply to erect their own, private, holiday display either alongside or separately from the community’s. Uh oh, alarm bells are ringing in your head – have I just stepped into Constitutional quicksand? Do I have to permit the private holiday display? Should I remove the government-sponsored display? What do I have to do to avoid getting sued, or to win a potential claim?

The questions presented by this issue affect two parts of the First Amendment, the freedom of religion and the establishment clause. If the government denies a private party the opportunity to display religious-oriented symbols has it engaged in an unconstitutional, content-based regulation of religious speech? If the government selectively chooses to display the symbols of only one holiday has it violated the establishment clause, which protects against the government conditioning the receipt or exercise of rights, privileges or benefits on the practice of or affiliation with a particular religion? This article will briefly explain the applicable rules.

The Supreme Court and the Seventh Circuit each have found that publicly-funded holiday displays, unrelated to the provision of any other public service, are not a violation of the establishment clause. For nearly 30 years judicial decisions have held that the publicly-sponsored display of holiday symbols is not necessarily the endorsement of a particular religion or any religion. Rather, this is recognized as "governmental speech." This is not to say it cannot be used as evidence of an unlawful preference when viewed in the totality of the circumstances. Therefore, officers should exercise their discretion with care.

The Government Speech Doctrine acknowledges the ability for governmental entities to make content-based choices and to engage in viewpoint-based funding decisions. The doctrine stands for the principle that when the government itself speaks, rather than making a forum available for private speech, it is constitutionally entitled to make content-based choices. As a result, public holiday displays are permitted where there is no evidence that private sponsors exercised any editorial control and the government bears the ultimate responsibility for the content of the display.

Whether or not the government may restrict a resident from also displaying a private holiday display on public property is a separate question. For this purpose, the courts have identified a three-step framework for analyzing restrictions on private speech on government property, including: 1) whether the speech is protected by the First Amendment; 2) identifying the Government’s ability to limit access based on the nature of the public or non-public forum; and 3) whether justifications for exclusion from the relevant forum satisfy the requisite standard.

In the case of religious displays, the type of expression being exercised is clearly protected by the First Amendment. The protection of political and religious speech strikes at the core of the protections guaranteed by the First Amendment. However, the second two steps in the analysis largely turn on whether the property where the display is erected is considered a traditional public forum.

A traditional public forum, such as a street or a park, is property that by long tradition or by government fiat has been devoted to assembly and debate. A designated, or limited, public forum, in contrast, is a forum created by the government, not through inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for communicative conduct. Courts look to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.

In both a traditional and a designated public forum, reasonable time, place and manner regulations are permissible, but any content-based prohibition is permissible only if it is necessary to serve a compelling state interest and is drawn narrowly to achieve that interest. This standard places a great burden on the government to justify its regulation. In nonpublic forums the government may restrict access to such forums so long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view. This test is much more deferential to a governing body’s legislative decisions.

Based on the foregoing reasoning, the ability for the government to restrict private holiday displays on public property depends on whether the location of the proposed display is a traditional public forum. If so, the government may only enforce content neutral restrictions. The types of permitted conditions include size, duration, registration, and insurance, so long as the application of such rules does not necessarily result in more favorable treatment for any particular point of view. The availability of space for private displays may be limited on a first-come, first-serve basis. Finally, the rules may ensure that the principal purpose of the public property is protected (e.g. limitation of displays interfering with a bike path traversing a community park).

In contrast, a citizen may not demand permission to place a holiday display on any parcel of public property, especially if the location is not a public forum. For example, property owned and used for the operation of public utilities may not be a public forum unless the government has expressly created an area for expressive conduct or communication. In this case, the government may deny the resident the opportunity to erect a private holiday display.

Moving forward, it is important to take an inventory of the public property owned or controlled by the public body to determine which parcels may be considered a traditional or designated public forum. In addition, the establishment of content neutral rules in advance will help you be prepared for when a resident makes the request. It is much more difficult to deny or limit private displays when the decision is made on an ad hoc basis or if the rules are put in place after the application has been filed.

Authored by Adam Simon.  Initially published in Ancel Glink's Local Government News (Fall 2013)

Wednesday, September 25, 2013

Court Upholds Waiver and Release Clause

A waiver and release clause in a fitness club’s membership agreement was proper and enforceable, barring a man who was paralyzed in a freak gym accident from suing for damages, an Illinois Court of Appeals recently held. In Hussein v. L.A. Fitness International, LLC., 2013 IL App (1st) 121426, the plaintiff fell while using an “assisted dip/chin” exercise machine, a piece of fitness equipment with an adjustable bench.  Hussein was severely injured and was rendered a quadriplegic.  He sued, alleging that the fitness club was negligent in that it had failed to appropriately monitor, supervise, or instruct club members who use the equipment.
The trial court, however, granted the defendant’s motion to dismiss because the membership agreement signed by Hussein included a release and waiver of liability and indemnity.  On appeal, Hussein argued that the waiver should not be enforced because it was confusing, it did not reflect the clear format and language required by law, and it was not explained to him by L.A. Fitness representatives when he signed the agreement.
The Court reviewed the case under Minnesota law, which is where the plaintiff entered into the membership agreement, and found that Minnesota and Illinois share “the same perspective” on exculpatory clauses. 
In both states, the public interest in freedom to contract is preserved by recognizing exculpatory clauses as valid, the Court said. And while exculpatory clauses are not favored by the courts and are strictly construed against the drafter, “if a clause lacks clarity or purports to release a party from liability from intentional courts or willful or wanton recklessness, then it will not be enforced,” the Court added.
In this case, the Court found that the waiver and release language was unambiguous and that the fitness services offered to the plaintiff were not essential services offered to him on a “take it or leave it” basis.  The Court found that Hussein’s application for membership was voluntary, did not involve services that were of great public importance or of a practical necessity, and he had agreed to the terms that came with the membership. 
Additionally, the Court did not accept Hussein’s argument that the form was confusing or that L.A. Fitness representatives had a duty to explain the waiver and release to him.  The agreement included language that the person who was signing it “has read and understands the Agreement including the Release and Waiver of Liability and Indemnity on the reverse side”.  The Court ruled that a person who signs a contract cannot invalidate the agreement by claiming that he did not read it, and also found that the form itself was not defective. 
The Court recognized that this was a harsh result, based on the severity of the plaintiff’s injuries, but found that the law dictated a finding that this exculpatory clause was enforceable. 
This case serves as a reminder to park districts and other public bodies who operate fitness facilities that they should continue to require their members and participants to sign waiver and release agreements prior to allowing them to participate in fitness activities, as the courts will uphold a properly drafted waiver.  In addition, the mere existence of a signed waiver and release may discourage a potential plaintiff from considering litigation against the public body.
Authored by Jim Rock.  Initially published in Ancel Glink's Local Government News (Fall 2013)

Tuesday, September 24, 2013

Lessons on Debarring Contractors from Bid Process

A recent case provides good news and bad news on governments that bar contractors from bidding.  In Blackout Seal Coding vs. Terry Peterson, a case involving the Chicago Transit Authority, the Seventh Circuit Court of Appeals provides us with hints about the dangers of "debarring" contractors from bidding on government contracts. The good news is that Blackout Seal Coating did not make the right allegations to win a damage award against the CTA for debarring it from bidding on CTA business for a period of one year.  The bad news is that the court suggested some alternate methods under which a lawsuit might be brought and did not completely invalidate such a cause of action.

Blackout was debarred because it had hired a man who had previously been debarred by the CTA. Although the CTA did not cancel any prior contract of Blackout, it did indicate that the CTA would not allow Blackout to bid on other business for a period of a year.  Blackout brought a civil rights lawsuit against the CTA, alleging that the CTA deprived the two owners of the company of "occupational liberty" without due process of the law.   The trial court judge dismissed the complaint, in part because the judge determined that Blackout did not allege that the decision by the CTA stopped the company’s ability to work for public or private entities other than the CTA.

On appeal, the Seventh Circuit affirmed the dismissal. However, the appellate court also seemed to suggest that Blackout could at least have tried in state court to assert that the action of the CTA constituted a breach of contract because it deprived it of a property interest. The court also suggested that a libel suit could have been brought because the plaintiff insisted that every public announcement of debarment was defamatory. The Seventh Circuit wrote, "repeated failure to get work under circumstances where success is normal could support an inference that debarment by the CTA amounted to blackballing from the industry". The Court went on to say, "plaintiffs might have made up for the lack of personal experience by showing what happened to other contractors that the CTA had debarred, but the complaint does not contain any allegations along those lines".
The opinion does contain some good news and recommendations for the way in which governmental bodies that seek to debar should act. The CTA sent Blackout a "notice of intent to debar." Blackout was entitled to and used its opportunity to respond in writing. The Seventh Circuit decision deals with these facts as follows: "What the due process clause requires is notice and then opportunity to respond – people must be given some kind of notice and afforded some kind of hearing...often an opportunity to comment in writing is all the hearing required. Indeed, that’s all the hearing most litigants in Federal Court receive." Blackout asked the Court to impose an obligation for a more rigorous and lengthy process before it could be debarred. The Appellate Court wrote, "the due process clause requires notice and an opportunity present one’s position; it does not requires an extended to-and-fro in which every internal recommendation kicks off a new round of submissions." The Appellate Court, clearly interested by the facts of this case ends the opinion by raising a question on whether corporations have "occupational liberty". In fact, the Court argues that the two people who owned the stock in Blackout Seal Coating could start a new corporation which would be free from the debarment.

The lesson of the Blackout Seal Coating case is that decisions by governmental bodies to prevent individuals or corporations from bidding on projects should be reviewed by attorneys who have read the cases cited and understand the risks of governmental action.
Post Authored by Stewart Diamond, Ancel Glink


Monday, September 23, 2013

School District Not Liable for Bullying

A student and the student's mother sued the Urbana School District No. 116 for violations of state statute, fraud, retaliation, and emotional distress, claiming that the District failed to respond to bullying incidents against the student.  Hascall v. Williams, 2013 IL App  (4th) 121131 (September 18, 2013).  The mother had contacted the District to request that her daughter be reassigned because of alleged bullying involving her classmates.  The District did not reassign the student, and the mother claims that the bullying continued, including incidents where the other classmates slapped a book in the student's hands, kicked open a restroom stall door, and threatening to kill her.  The mother contacted the police, and requested a meeting with the school superintendent, who declined to meet.  The lawsuit was filed shortly thereafter.
The trial court judge granted the School District's motion to dismiss the complaint, finding that the School District and individual defendants were immune from liability under Section 2-201 and 2-109 of the Tort Immunity Act.  On appeal, the appellate court affirmed the trial court's dismissal of the complaint, finding that the District and individual defendants were immune from liability as their acts or omissions were discretionary acts and policy determinations.  The District had a policy on bullying in compliance with the School Code.  That policy directs the superintendent and principals to implement and maintain a program to enforce the bullying policy.  How the policy is enforced and programs implemented is within the discretion of the superintendent through the individual school principals. The court also rejected the plaintiffs' argument that the defendants' conduct fell under a "willful and wanton misconduct" exception to immunity, finding that no such exception exists in the applicable statutes.  Finally, the court also rejected the plaintiffs' argument that the District had a "special duty" to the student. 

Thursday, September 19, 2013

A Facebook "Like" is First Amendment Speech

Last year about this time, we reported on a case in Virginia where the judge held that clicking "like" on a candidate's Facebook page was not protected speech under the First Amendment.  Bland et al. v. Roberts.  That case involved employees of the local sheriff who supported the sheriff's opponent in the election.  To the employees' misfortune, their supported candidate lost the election, and the sheriff terminated them.  The employees sued, claiming that the sheriff retaliated against them in violation of their First Amendment rights by terminating them for engaging in protected speech activities - in this case, clicking "like" on the candidate's Facebook page.  The district court judge ruled in favor of the sheriff, finding that the mere action of clicking "like" on Facebook was not "speech."  You can read the original blog post here.
The employees appealed to the U.S. Circuit Court of Appeals, Fourth Circuit.  That court issued its opinion today reversing the district court and finding that the employees did engage in protected speech activities in their conduct on the sheriff's opponent's Facebook page. Bland v. Roberts (U.S. Court of Appeals, 4th Cir. September 18, 2013). 

First, the court reviewed the Supreme Court political speech retaliation cases in determining which of the employees were protected and which employees were exempt as occupying a "policymaking or confidential position."  Under the Supreme Court's decisions in Elrod v. Burns and Branti v. Finkel, a public employee who has a confidential, policymaking, or public contact role has substantially less First Amendment protection than a lower level employee.  The purpose of the Elrod-Branti test is to ensure loyalty with employees in certain policymaking or confidential positions.  In this case, the court determined that the plaintiff deputy sheriffs were not in policymaking positions where their political allegiance to the sheriff was a job performance requirement. 

Second, the court looked at the conduct of the employees to determine whether their activities (supporting the sheriff's opponent on the opponent's Facebook page) were a substantial motivation for the sheriff's decision not to reappoint the employees.  The court looked at the sheriff's conduct as well, including his statements to employees that those who openly support his opponent would lose their jobs, and specifically referencing his disapproval of the decision of some employees to support his opponent's candidacy on Facebook. 

Third, the court addressed the question whether the employees' activities were speech.  As noted above, the district court had ruled that merely clicking "like" on Facebook was not speech.  The appellate court disagreed with the district court, stating that "clicking on the 'like' button literally causes to be published the statement that the User 'likes' something, which is itself a substantive statement."  (emphasis added).  Particularly in this context, clicking "like" on a candidate's Facebook page sends a message that the user approves the candidacy.  The court found this to be pure political speech, as well as symbolic expression - a "thumbs up" symbol that the user supports the campaign by associating the user with it.  As the court noted, liking a candidate's campaign page "is the Internet equivalent of displaying a political sign in one's front yard." 

Finally, the court addressed the sheriff's argument that he is entitled to qualified immunity for not reappointing the employees.  The court determined that the sheriff is entitled to qualified immunity concerning the claims of the three sworn deputy sheriffs, because a reasonable sheriff could have believed he had a right to choose not to reappoint his sworn deputies for political reasons, including the deputies' support of his opponent.  However, qualified immunity only applies to the employees' money damages claims, not their reinstatement claims.

One justice issued a concurring/dissenting opinion, disagreeing with the majority's ruling applying qualified immunity to the sheriff's actions.  The dissenting justice stated that the sheriff should be held accountable for political retaliation.

No Immunity for Statements at a Public Meeting

A university professor filed a lawsuit against the former vice president of student affairs alleging that statements made by the defendant at a meeting of the university's faculty council for student affairs were defamatory held to address issues resulting from recent campus protests opposing CIA recruitment on campus.  Capeheart v. Terrell, 2013 IL App (1st) 122517.   At the council meeting, the professor alleged that a student had circulated a flyer accusing her of organizing recent protests.  The defendant responded that the student had filed a stalking complaint against the professor  with campus police. Although the student had filed a statement with police alleging that the professor had chased her down while she was handing out information, no formal stalking complaint had been filed.  That statement served as the basis for the professor's complaint against the defendant.
The defendant filed a motion to dismiss the lawsuit, claiming he was immune under the Illinois Citizen Participation Act (commonly referred to as SLAPP) because the defamation and retaliation claims were filed in response to his exercise of his constitutional rights to free speech and participation in government - in this case, his statements made at a public meeting of the faculty council.  The circuit court granted his motion to dismiss, finding that the defendant's statement was made during a debate over police action on campus and was "genuinely aimed at procuring a government action to resolve the situation."  The court also awarded the defendant a portion of his attorneys' fees as a prevailing party.
On appeal, the appellate court disagreed with the circuit court on the issue of whether the professor's defamation lawsuit constituted a SLAPP suit that would be subject to dismissal.  The appellate court determined first that the defendant was not automatically immune simply because he spoke at a government meeting.  Second, the court held that the professor's lawsuit did not appear to be intended to prevent the defendant from participating in government or interfere with his speech rights, but instead was to seek damages for the personal harm to her reputation. Finally, the court determined that the professor's lawsuit was not meritless because there was no stalking complaint filed against the professor as alleged by the defendant.  As a result, the appellate court reversed the motion to dismiss, sending the case back to the circuit court for the plaintiff to establish her defamation claim.

Wednesday, September 18, 2013

Murder Conviction Vacated After Facebook Communication Between Juror and Witness

From Strategically Social - At the beginning of the murder trial of the defendant, the judge instructed the jury that they should not to talk to any witnesses, the defendant, or attorneys.  Nevertheless, one of the jurors (who knew the medical examiner through work) sent the witness a number of Facebook messages after her testimony.  The messages included the following:
Juror to Witness:  " I thought you did a great job today on the witness stand....I was in the jury...not sure if you recognized me or not!" 
Witness to Juror:  "I was thinking that was you. There is a risk of a mistrial if that gets out."
The witness notified the trial judge of the juror's communications.  Although the judge informed the lawyers of the communications, the judge did not allow the defendant's attorney to question the juror about the communications.  After the defendant was convicted of first degree murder, his attorney moved for a new trial based on the juror's communications and the judge's denial of his request to question the juror.  The appellate court denied the defendant a new trial, characterizing the Facebook communications as "mere interactions" between a juror and a third person. 
The state supreme court disagreed with the lower courts, finding that the judge should have conducted a hearing to determine whether the juror's communications with the witness was prejudicial to the defendant and his right to a fair trial.  The court acknowledges that the majority of cases dealing with juror communications were handed down long before social media and Facebook.  With new technology, and the ease of internet research, jurors are more likely to conduct their own research and investigations, increasing the risk of communications between jurors and third parties.  For that reason, the supreme court held, it is even more critical that judges address these third party communications prior to sending the case to the jury and risking a prejudicial outcome.  In this case, the supreme court determined that the trial judge should have immediately conducted a trial in open court after learning of the misconduct to have the juror and witness testify about their relationship and the effect of the communication on the juror's ability to serve on the jury. 
While the supreme court acknowledged that not every communication between a juror and a third party requires a judge to disqualify the juror, declare a mistrial, or grant a new trial, there was insufficient information in this case to determine whether any of these actions were necessary to ensure a fair trial. As a result, the supreme court remanded the case back to the trial judge to conduct a hearing.

Tuesday, September 17, 2013

Tenant Challenges "Nuisance Property" Ordinance

In Norristown, Pa., landlords are responsible for the disorderly behavior of their tenants, as well as the tenants' family members and guests under a municipal ordinance.  Under the current version of the ordinance, landlords face fines if they fail to evict tenants who have repeated instances of disorderly behavior (a previous version authorized local police to evict the tenants and would revoke a landlord's license after three police responses to a property within a four month period - that ordinance had been previously repealed after the ACLU raised concerns about its constitutionality).
The ACLU filed a lawsuit against the city on behalf of tenant Lakisha Briggs. Ms. Briggs claimed that she avoided calling police to report domestic violence incidents involving her boyfriend for fear she would be evicted.  The lawsuit alleges that the ordinance violates her First Amendment right to petition the police as well as various due process violations.  Although tenants are not automatically evicted by the amended ordinance, the lawsuit claims that landlords are "encouraged" to evict tenants with repeated police calls to avoid increasing fines, violating the tenants' due process rights.
Similar "nuisance property" ordinances have been enacted and enforced in many other communities, although many ordinances expressly exclude domestic violence incidents from the list of nuisance activities that trigger an ordinance violation. 
The case is still ongoing, with a hearing on the preliminary injunction scheduled for later this week. You can read more about the case in a recent article posted on the American Bar Association's website.

Monday, September 16, 2013

Second Amendment Applies Outside the Home

After the U.S. Supreme Court issued its opinion in McDonald v. City of Chicago striking down Chicago's handgun restrictions as violating the Second Amendment right to keep a handgun in the home, one question remained in Illinois - does the Second Amendment extend outside the home?  Last week, the Illinois Supreme Court answered yes to that question in People v. Aguilar, 2013 IL 112116 (September 12, 2013). 

 In People v. Aguilar, a criminal defendant challenged his convictions under the Illinois aggravated unlawful use of weapons (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)), arguing the laws violated his Second Amendment right to keep and bear arms. These statutes categorically prohibit the possession and use of an operable firearm for self-defense outside the home. Many Illinois appellate court panels have upheld the constitutionality of these statutes, finding that the U.S. Supreme Court decisions in Dist. of Columbia v. Heller and McDonald v. City of Chicago did not expressly recognize that the Second Amendment right applies outside the home. This view was rejected by the Seventh Circuit in Moore v. Madigan, but at least one Illinois appellate court concluded that the Moore “decision is not binding on Illinois courts.” People v. Moore, 2013 IL App (1st) 110793 ¶ 17.

In reversing the defendant’s AUUW conviction, the Illinois Supreme Court adopted the Seventh Circuit’s view in Moore v. Madigan, striking down these provisions of the AUUW statute because the Heller and McDonald decisions recognized a Second Amendment right to self-defense, which is “most acute” inside the home, but not necessarily limited to the home.
Next, the Illinois Supreme Court considered the defendant’s unlawful conviction for unlawful possession of a firearm by a minor. (720 ILCS 5/24-3.1(a)(1)). As recognized in Heller, the Second Amendment right is not unlimited, and the Illinois Supreme Court concluded that the possession of firearms by minors falls outside the scope of the Second Amendment right.

The Aguilar decision ends a split of authority between Illinois state courts and the Seventh Circuit. Going forward, Illinois gun regulations will likely be evaluated under the Second Amendment framework developed in federal courts, regardless of whether the challenge takes place in state or federal court.
Post Authored by Dan Bolin, Ancel Glink

Friday, September 13, 2013

Student Can Be Disciplined for Off-Campus Social Media Activities

From Strategically Social - A high school student was suspended from school following a school district hearing because of threatening social media posts and text messages.  The student’s conduct included threatening to shoot people at the school and raping students, along with racist, sexist, and anti-Semitic comments. Friends of the disciplined student had raised concerns about the messages with a high school coach, who brought the allegations to the principal.  After the school district suspended the student for 90 days, the student and his father sued the school, administrators, and county under Section 1983 for violation of the student’s First Amendment rights.  The district court ruled in favor of the county. 
The Ninth Circuit Court of Appeals affirmed the district court, citing the U.S. Supreme Court ruling in Tinker v. Des Moines Indep. Cmty. Sch. Dist.  Wynar v. Douglas County School District, No. 11-17127 (9th Cir. Aug. 29, 2013). Under Tinker, schools can prohibit speech that "might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities or that collides with the rights of other students to be secure and to be let alone."  Here, the court had no trouble finding that it was reasonable for school authorities to foresee a substantial disruption of school activities and act based on the student’s speech.  Specifically, the Court held "[w]hatever the scope of the 'rights of other students to be secure and to be let alone,' without doubt the threat of a school shooting impinges on those rights. [Wynar's] messages threatened the student body as a whole and targeted specific students by name. They represent the quintessential harm to the rights of other students to be secure."

Thursday, September 12, 2013

Chicago Proposes Ordinance to Ban Concealed Carry in Liquor Establishments

Update:  The City Council enacted the ordinance on September 11, 2013.

The state of Illinois' recently enacted concealed carry law already bans firearms in establishments where alcohol sales account for at least 50% of the establishment's revenues.  In an effort to expand the concealed carry ban to all businesses that serve alcohol, the City of Chicago recently introduced an ordinance amending its liquor license regulations. 

Under the proposed ordinance, no liquor license could be issued to an establishment that allows the carrying of concealed firearms. The ordinance would require licensed establishments to post a sign indicating that firearms are prohibited on the property in accordance with the state concealed carry law. Licensed establishments that hold a package liquor license would be exempt from the ordinance.  In addition, the concealed carry ban would not apply to police officers or the owner, lessee, tenant, or operator of the licensed establishment.  Licensed establishments that violate the ordinance could lose their liquor licenses.  The NRA has threatened to challenge the new ordinance, arguing it is preempted by state law.

The ordinance passed the City Council's Finance Committee, and will now go to the full City Council for final approval. You can read the ordinance here.   

Wednesday, September 11, 2013

Meeting Held 26 Miles from District Office Violated OMA

The Illinois Attorney General's Public Access Counselor issued its 14th binding opinion of 2013 last week.  In 2013 PAC 24845, the PAC determined that a fire protection district violated the Open Meetings Act when it held a special meeting at a location that was not "convenient and open" to the public under Section 2.01 of the OMA. 
The fire protection district had noticed up a special meeting to take place at the office of the district's attorney, about 26 miles from the district's regular meeting location.  The purpose of the meeting, according to the district, was for the district members to obtain legal advice.  A complaint was filed with the PAC alleging that the meeting was neither open nor convenient to the public.  The PAC did not address whether the meeting was "open."  Instead, the PAC determined that because the meeting was 26 miles from the regular meeting place and was scheduled at 9:00 a.m. on a weekday, it was likely to have discouraged attendance by persons who might otherwise have attended the district meeting. 
Because no action was taken at the special meeting, the PAC did not order any remedial action to cure the violation.  However, the PAC directed the district to ensure that all future meetings are held at places that are "convenient and open" to the public. 

Tuesday, September 10, 2013

A Failed Motion to Approve is No Longer a Denial?

A firefighter applied for a disability pension with the Chicago pension board.  The pension board held a hearing, took evidence, and then voted on a motion to approve the pension.  Two members of the pension board voted in favor of the application and five members voted against granting the pension.  Therefore, the motion to grant the pension failed, and the pension board issued a written decision denying the pension application.  The firefighter appealed, and the circuit court affirmed the board's decision on its merits.  It's in the appellate court that this case got a little confusing. 
On appeal, the appellate court vacated the decision.  The appellate court did not reach the merits of the action and instead remanded the case back to the pension board with instructions that the board take formal action on the pension application.  Although the pension board clearly voted on a motion to approve the pension (that failed 2-5), the appellate court held that the pension board failed to adopt, by a majority affirmative vote, "any motion whatsoever disposing of the application and approving a written decision as required by the Open Meetings Act."  Howe v. Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago, 2013 IL App (1st) 122446.  In other words, although the pension board assumed that its failure to grant the pension resulted in a denial of the pension application, the appellate court thought otherwise.
The basis for the court's ruling was two-fold.  First, decisions of administrative agencies must be in writing.  Second, final action must be taken by a public vote.  Although the pension board did take final action on a motion to approve the pension application, that motion failed.  It did not, the court noted, take an affirmative vote in public to deny the pension application.  Also significant to the court's ruling is the pension board's failure to take formal action to approve the written decision to deny the pension application.  Instead, the pension board circulated the written final decision to the pension board members.  The decision was signed by the five members who voted against the pension application, and was dated the same date as the meeting at which the vote was taken.  The appellate court also rejected the pension board's argument that the 60 day statute of limitations contained in Section 3 of the Open Meetings Act applied, finding that the limitation only applies to new lawsuits by persons seeking declaratory or injunctive relief for an OMA violation. 
There are a couple of troubling issues with this case. 
The appellate court could have relied on the failure of the pension board to vote on the actual written decision at an open meeting as the basis for its ruling.  However, the court did not stop there and seems to suggest that a failed motion to approve does not result in a formal denial of a particular action.  Instead, the court would appear to expect a public body to either (1) anticipate the outcome of the vote on a particular action item before a motion is initiated so it makes the appropriate motion or (2) take multiple votes on the same action item - i.e., if the initial motion to approve fails, then the public body must go through the machinations of making and voting on a second motion to deny. This is neither practical or legally required.  Here, state law is clear that an affirmative majority vote is required in order to grant a pension.  Thus, it stands to reason that a failed motion to grant the pension is a denial of that pension.
Further, the Open Meetings Act clearly provides a 60 day statute of limitations.  Nothing in the OMA restricts the limitations period to lawsuits to enforce the OMA, as the court suggests.  There is a valid reason for such a limitations period - to provide some certainty to the actions of public bodies. If those actions can be opened up at any time sua sponte (as happened in this case), there will be no certainty or finality to the actions of public bodies.  This is particularly true here, where both the pension board and the plaintiff/firefighter argued that the statute of limitations applied to this case.

Monday, September 9, 2013

No Constitutional Right to Photograph Public Records

Plaintiff was hired to perform a title search in Ward County, Texas.  When inspecting the records in the clerk’s office,  he took photographs of the records on his cell phone.  He was told that if he did not stop taking photographs, he would be arrested. Subsequently, he was terminated from the job, and filed suit against the county and county clerk, claiming that the county's “no photograph policy” violated his due process rights. He also claimed that he was denied equal protection when the county refused to accommodate his physical disability and that he should be awarded damages because he was fired from his job.  The district court ruled in favor of the county, and the Fifth Circuit affirmed, rejecting all of Bonnet's claims. Bonnet v. Ward County, No. 13-50007 (5th Cir. Aug. 30, 2013).
The Circuit first held that there is no protected right to access particular government information or sources of information under U.S. Supreme Court precedent.  Even if such a right existed, the plaintiff was not deprived of it because he had access to the records - he simply could not photograph them. The court held that the county's rationale for the policy – that records that were copied or photographed were often lost or misplaced by the user - was reasonable.

Thursday, September 5, 2013

October 1, 2013 Deadline for Healthcare Notice

The U.S. Department of Labor recently issued a mandate to employers, including local government employers even if they are not otherwise subject to the insurance coverage provisions of the Affordable Care Act (commonly referred to as Obamacare), to provide notice to their employees of available insurance coverage through the employer or through the public exchange option that will be established by the federal government or the states under the Affordable Care Act.

For new employees hired on or after October 1, 2013, employers must provide notice at the time of hiring (or within 14 days of hiring in 2014 and thereafter).

For current employees that were hired before October 1, 2013, employers must provide notice not later than October 1, 2013.

The notices must be provided in writing in a manner calculated to be understood by the average employee. Notice may be provided by first-class mail or electronically if the requirements of the Department of Labor’s electronic disclosure safe harbor are met. The Department of Labor has provided information about the requirement and model notices (one for employers with health plans and another for employers without health plans) on its website. Local governments who have questions about the notice requirement or need assistance in preparing and providing the required notice are encouraged to contact their local government attorney to ensure compliance with this federal law.

Wednesday, September 4, 2013

No Attorneys' Fees in Civil Rights Case Involving a Technical Victory

A plaintiff filed a civil rights lawsuit against the City of Chicago and four police officers alleging that his Fourth Amendment rights were violated when his home was searched for drugs and drug paraphernalia. Although the search was pursuant to a search warrant, the plaintiff claimed that the officers significantly damaged his home, damaging furniture and other personal belongings.  Plaintiff asked for $25,000 in compensatory damages and $100,00 in punitive damages.  The jury found for the plaintiff on only one of his claims, awarding him $100 in compensatory damages. 
After receiving the jury verdict, plaintiff then filed a claim for $116,437.50 in attorneys' fees, arguing that because he succeeded in his case against one of the defendants, he was a prevailing party under Section 1988 and entitled to recover his fees.  The district court judge denied the attorney fee claim, and the plaintiff appealed to the Seventh Circuit Court of Appeals.  Aponte v. Chicago, et al.
The court acknowledged that Section 1988 authorizes a prevailing party in a Section 1983 lawsuit to recover the party's attorneys' fees.  The court cited to U.S. Supreme Court cases holding that even a nominal victor (i.e., a plaintiff awarded only nominal damages, typically defined as $1.00) is considered a prevailing party and eligible for a "reasonable" attorneys' fee.  However, the Supreme Court also held that a reasonable attorneys' fee for a nominal victor is usually zero because a nominal award is significantly less than what the plaintiff requested as relief. 
In this case, the plaintiff argued that the Supreme Court's "nominal victor" analysis should not apply to him, because he was awarded $100 in compensatory damages, rather than the typical $1.00 nominal award.  The Seventh Circuit disagreed, however, ruling that the same analysis applies to "technical victories" such as plaintiffs, where the actual award is significantly less than what the plaintiff sought.  The Seventh Circuit used a mathematical analysis in determining that the damages awarded were minimal in relation to the amount of damages sought - the plaintiff had only a 0.4% success rate ($100 in damages awarded divided by the $25,000 requested = 0.4%) and he lost seven of his eight claims.  As a result, plaintiff was not entitled to an attorneys' fee award for his "insignificant" victory that merely vindicated his own personal rights.
This is a significant ruling for local governments in those situations where a jury awards more than a nominal victory, but far less than the amount of damages a plaintiff seeks in a civil rights case, as attorneys' fees may not be awarded in those cases.   

Tuesday, September 3, 2013

Remember When...Municipal Minute Turns Two!

Two years ago to this day, over a long Labor Day weekend in 2011, I got the fabulous idea that I should start a blog.  Never mind that I wasn't really sure how to create or design a blog or even how to post updates, stories, and articles.  I have a great love of research and writing, so a blog sounded like a fine way to combine these two activities.  Plus, I had a whole weekend to figure it out. 
Step 1.  Write content.  Over the weekend, I wrote up four blog posts to get the blog rolling.  I knew I was in for the long haul when I could think of at least a dozen more topics I couldn't wait to blog about.
Step 2.  Find a host site.  After a bit of research, I decided on Blogger.   
Step 3.  Come up with a URL - you know, the http:// or www. "address."  The original URL was http://localgovernmentlawyer.blogspot.com.  It wasn't super creative, but it was a start.  By the way, you can still reach the blog using this link!
Step 4.  Design it.  Not so easy or fun for me - I'm a lawyer, after all, not a creative type. 
Step 5.  Name it.  This was the hardest step of all.  The name needed to be short and memorable but also informative so people would understand what this blog is all about.  My colleagues and I had a lot of fun throwing out potential names, including a few not-so-serious suggestions such as Village Tattle, Government Gossip, and Village Vice.  After a lot of back-and-forth (and laughter), Municipal Minute made the final cut, although you might be surprised to hear that MM was not the first name of this blog... 
Since September 3, 2011, Municipal Minute has gone through a formal name change (can anyone remember the initial name of the blog which lasted only a few days?) and numerous redesigns. 
From that first blog post "Tweeting into Trouble?" to the blog post with the most hits "Social Media and the City," and 370 posts later, one thing remains constant - Municipal Minute continues to  focus on publishing stories on current and (hopefully) interesting topics of interest to local government officials, employees, and others. 
Thank you to all of my readers for your support and continued reading of Municipal Minute.