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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

Wednesday, July 31, 2013

Illinois Governor Sued by Legislators Over Salary Veto


9/27/13 Update:  On September 26, 2013, a Cook County circuit court judge ruled against Governor Quinn, holding that the Governor's veto violated Illinois law by "changing" a legislator's salary during the term of office.  Governor Quinn has stated that he will appeal the ruling. 

A few weeks ago, I reported on Illinois Governor Quinn's line item veto of that portion of the appropriations bill containing the salaries of Illinois  legislators.  At the time of his veto, the Governor stated that he didn't think members of the General Assembly should get paid until they do their jobs - specifically, pass pension reform legislation.  As I noted in that blog post, I was skeptical that the Governor's action was legal based on language in the Illinois constitution that prohibits a decrease in a legislator's salary during his or her term of office.  I also did concluded that I didn't think this dispute would end up in court.  I thought legislators would be reluctant to sue to get paid because taxpayers/voters wouldn't be very sympathetic to legislators' plight since most voters agree that they didn't get the job done with respect to pension reform. 
 
Well,  I was wrong.  Today, Senate leader John Cullerton and House leader Michael Madigan teamed up as plaintiffs to sue the Governor and State Comptroller Judy Baar Topinka, seeking an injunction to force the State to pay the members' salaries. 
 
The complaint gets off to a rousing start, with the following introductory sentence:  "Not since Governor Blagojevich attempted to reduce the salaries of Illinois judges in 2003 have the actions of the Executive Branch so threatened the independence of a co-equal branch of government."  That accusation is probably not going over well at the Governor's mansion. 
 
The crux of the plaintiffs' argument is that the Illinois constitution prevents the Executive Branch of state government (the Governor) from unilaterally modifying the salaries of the Legislative Branch of state government (the General Assembly).  The plaintiffs seek a court declaration that the Governor's veto did not eliminate the legislative salaries so that the Comptroller can cut the paychecks.  Alternatively, the plaintiffs argue that if the Governor's veto did eliminate the legislators' salaries, that action was unconstitutional, and the plaintiffs ask the court to order the Comptroller to pay the legislators' salaries.
 
Just another installment in "As the State of Illinois Turns..."   Stay tuned.

Tuesday, July 30, 2013

City's Ban on Soft Drinks Held Unconstitutional


Last year, the City of New York enacted a ban on the sale of soft drinks (larger than 16 ounces) in restaurants, movie theaters, sports arenas, and other public places.  Other places such as convenience stores and grocers were exempt from the ban.  The lower court had struck down the ban, and the City appealed.
 
Today, an appellate court ruled that the New York soft drink ban is unconstitutional.  First, the court held that City's Board of Health "failed to act within the bounds of its lawfully delegated authority" in enacting the ban.  The court further found that the Board of Health encroached on the City Council's authority in acting too much like a legislature when it created the limit, and violated the state's principle of separation of powers. The court also stated that the rules were aimed at political or economic considerations, rather than health concerns, and that similar policies had been considered, and rejected, by both the City Council and the state legislature.  Even if the Board of Health had adequate authority, it failed to conduct adequate studies to justify imposing the portion control rules on soft drinks. 
 
As more and more municipalities enact health-related policies and regulations such as New York's soft drink ban and restrictions on the sale of junk food and fast food restaurants, it's likely that more courts will have to weigh in on the authority and constitutionality of these type of policies. Municipalities will need to consider first whether they have the authority to adopt a particular policy, second, whether there is sufficient studies to support the particular restriction (similar to "secondary effects" studies for adult business regulations) and third, whether the policy is even-handed in scope so similar activities, conduct, or businesses are treated in a like manner.
 

City Violated FOIA by Failing to Issue Written Denial


In the 13th binding opinion of 2013, the Public Access Counselor of the Illinois Attorney General's office (PAC) issued a fairly routine opinion finding the City of Harvey in violation of FOIA because it did not release all of the responsive records within the statutory time period or deny the request in writing.  PAC Op. 13-013.  No breaking news with this ruling.
 
A Chicago Tribune reporter filed five FOIA requests with the City seeking various records related to a development project.  The requested records included requests for proposals, financial statements, audits, budgets, insurance policies, liens, loans, contracts, mortgages, bills, payments, tax records, building permit applications, permits, inspection records, bond documents, and a variety of other records.  Because the City only provided some of the requested records to the reporter, he filed a request for review with the PAC office.  The City responded to the appeal in writing to the PAC, explaining that City employees were continuing to search for records and intended to respond to the request.  The City explained that the City Clerk had verbally informed the reporter that it was working on the request, but needed additional time to gather all of the records.
 
The PAC determined that the City's failure to provide all of the requested documents within the five day time frame required by FOIA constituted a denial of the request.  Because the City failed to issue a written denial as required by FOIA, the City was in violation of that statute.  The penalty?  The City must "immediately" provide the reporter with copies of all non-exempt records responsive to his request, and provide a written explanation of the reasons for any exemption or redaction. 
 
Based on the new appellate court decision in Champaign v. Madigan, the reporter, a prevailing party in this case, will not be entitled to recover his attorneys' fees since attorneys' fees are only recoverable when a requester brings an action in court to enforce FOIA, not when the requester files a request for review with the PAC. 

Monday, July 29, 2013

Governor Signs Omnibus Election Bill


We previously reported on HB 2418, legislation that would amend various provisions of the Illinois Election Code.  The Governor signed the bill into law today, P.A. 98-115.  There are a number of changes that will affect local governments, local officials, and candidates for local office, in addition to the sweeping changes the law makes to the administration of elections in Lake County and the establishment of online voter registration. 
 
The following is a summary of a few provisions contained in this new law:
 
1.  Candidates for Public Office & Municipal Debt
 
P.A. 98-115 modifies Section 3.1-10-5(b) of the Illinois Municipal Code to allow candidates with a delinquent municipal debt to run for office but if they win, they would have to pay their delinquent debt prior to being sworn in.  This is a change from current law that has been interpreted to prohibit candidates from being on the ballot if they aren't current on their municipal obligations.  

2.   Public Officials & Municipal Debt

P.A. 98-115 would add a new subsection (b-5) to Section 3.1-10-5 of the Illinois Municipal Code that would provide that current municipal officers are not eligible to hold office if they are in arrears to the municipality at any time during their term of office.  As noted in the previous blog post about this bill, the bill is silent as to who would make a determination of ineligibility.  If a municipal officer is ineligible because of a felony conviction, it is a court that makes the determination.  But in the case of ineligibility based on delinquent debt, are the corporate authorities authorized to determine the current officer's eligibility to continue to hold office?  The municipal clerk, treasurer, collector?  Must a quo warranto action be brought?  The bill also fails to amend the vacancy statute to add this particular disqualification to the list of events upon which a vacancy is created.  Finally, the language could encourage political games playing.  Let’s say that a village trustee was a few days late paying for her vehicle sticker – under the local ordinance, this could be an arrearage to the municipality.  Because of the language “at any time,” is she now ineligible to continue as trustee even if she cured the delinquency?  For split boards and councils, this provision is certain to be used as a hammer against officials on opposing sides. 

3.  Lake County Board of Election Commissioners

The law also adds a new provision mandating "any county with a population of more than 700,000 as of the 2010 census that borders another state and borders no more than 2 other Illinois counties to establish a county board of election commissioners.  That new requirement applies only to Lake County, and will take away much of the power that Lake County Clerk Willard Helander currently holds over elections in that county.  Elections would be managed by a five-member panel appointed by the chief judge of the Lake County circuit court.  This particular change has been controversial in Lake County, with the Lake County Board Chairman reported as saying the county has not closed the door on a legal challenge. 

4.  Home Rule Referendum Language

The new law provides specific language for municipalities considering a referendum question on whether to become a home rule unit of local government, an initiative of the Illinois Municipal League.

The bill makes a variety of other changes, including modification of the PAC contribution amounts, authorizing online voter registration, and changes to the school code concerning filing of petitions and election administration.
 

Tuesday, July 23, 2013

Ordinance Prohibiting Illegal Aliens From Renting Unconstitutional


The City of Farmers Branch, Texas adopted an ordinance requiring individuals to obtain a license before renting an apartment or home. The ordinance required proof of citizenship or other evidence that the licensee is lawfully present in the U.S. The ordinance provides criminal penalties for violations of the license requirement and for making any false statement on a license application.  Landlords can also be prosecuted for knowingly permitting an occupant to rent without a license. 
 
A group of landlords and tenants sued the City to challenge the ordinance.  The district court ruled in their favor, holding that the ordinance was preempted under the U.S. Constitution's Supremacy Clause, as an improper regulation of immigration. The City appealed to the Fifth Circuit Court of Appeals, which affirmed the ruling against the City.  Villas at Parkside Partners, et al. v. City of Farmers Branch
 
The opinion is 122 pages long, with multiple opinions, including a majority opinion, three concurring opinions, one concurring/dissenting opinion, and a dissenting opinion.  To make the opinion even more convoluted, the author of the majority opinion files a separate concurring opinion.
 
The appellate court first acknowledged the U.S. Supreme Court's recent decision in U.S. v. Arizona that struck down provisions in an Arizona law that required legal immigrants to carry registration documents at all times, allowed state police to arrest any individual for suspicion of being an illegal immigrant, and made it a crime for an illegal immigrant to be employed in the state.  In that case, the U.S. Supreme Court determined that the Arizona law was preempted by the Supremacy Clause of the U.S. Constitution because it conflicted with federal immigration laws and policies.  Similarly, the Fifth Circuit determined that enforcement of the Farmers Branch ordinance also conflicts with federal law because the establishment of criminal penalties based on the housing of non-citizens disrupts the federal immigration framework, allowing state police to hold aliens in custody for unlawful presence without any federal direction or supervision. 
 
The concurrence agreed with the majority's decision, but would go a step further and hold that the ordinance was not only preempted by federal law, but was also not a valid exercise of the City's police power in "effectively removing illegal immigrants from the City" by singling out illegal immigrants for adverse treatment "reminiscent of the anti-Japanese fever that existed in the 1940s." 
 
The dissent would uphold the ordinance as a valid exercise of the City's police power, stating that the police power "no doubt empowers Farmers Branch to enact a licensing regime to exclude child predators from living in multifamily apartment complexes" and, therefore, would seem to follow that the City could deter illegal aliens from renting through the same police powers, so long as no invidious discrimination occurs. 

Monday, July 22, 2013

NJ Police Must Obtain Warrant to Track Cellphone


The New Jersey Supreme Court issued a recent decision holding that police must obtain a search warrant before it can obtain and use tracking information from a person's cellphone service provider. State v. Earls.  
 
The case involved a police investigation into a string of burglaries in Middletown, New Jersey. A judge-issued order traced a cellphone that had been stolen from one of the homes to a man who told police he had bought the phone from his cousin. The police used data from the suspect's cellphone provider to track the suspect's movements, eventually finding him in a motel room with the stolen goods.
 
In a unanimous decision, the State Supreme Court said that when people entered cellphone contracts, "they can reasonably expect that their personal information will remain private." The court relied in part on the U.S. Supreme Court case from last year, U.S. v. Jones, that held that police could not attach GPS to a suspect's car without a warrant.   The New Jersey court further held that its ruling would not be applied retroactively (except in this case), and held that the new warrant requirement would begin 30 days after its ruling.
 
Because this issue has been decided differently in courts across the country, this case or one like it may eventually end up at the U.S. Supreme Court.

Friday, July 19, 2013

Detroit's Bankruptcy Filing Rare Use of Chapter 9


The United States Courts website posted an interesting story about municipal bankruptcies in the U.S., following yesterday's decision by the City of Detroit's to declare bankruptcy. Detroit filed under Chapter 9 of the Bankruptcy Code. That section provides for reorganization of municipalities, which includes cities and towns, as well as villages, counties, taxing districts, municipal utilities, and school districts.
 
Chapter 9 filings are pretty rare. From 1991-2012 there were 217 Chapter 9 bankruptcies filed nationwide, with 20 filed in 2012. The majority of these cases involved utility districts and not municipalities. This map indicates generally where these Chapter 9 bankruptcies were filed from 1991 to 2012.

The purpose of Chapter 9 is to provide a financially distressed municipality protection from its creditors while it develops and negotiates a plan for adjusting its debts. Reorganization of the debts of a municipality is typically accomplished either by extending debt maturities, reducing the amount of principal or interest, or refinancing the debt by obtaining a new loan.
 
Chapter 9 is significantly different from other chapters in the Bankruptcy Code in that there is no provision in the law for liquidation of the assets of the municipality and distribution of the proceeds to creditors.
 
You can learn more about Chapter 9 and bankruptcy basics on the uscourts.gov website, and I'm sure we are going to hear a lot more about municipal bankruptcy in the coming months.

 

 


Thursday, July 18, 2013

Author's Choice - Case Dismissed Against Elton John


Full disclosure - today's case has absolutely nothing to do with municipal law, social media, or land use.  Instead, I offer today's case under the long-standing blogger rule of "author's choice."  Yep, I just made that up.
 
Yesterday, the Seventh Circuit Court of Appeals issued an opinion in the case Hobbs v. Elton John, involving a copyright infringement lawsuit filed by a Russian cruise ship photographer against the famous singer.  Guy Hobbs claims that he composed a song called "Natasha," after he met a Russian waitress while working on a cruise ship in 1982.  He registered his copyright in the UK in 1983, and sent the song to a number of music publishers, including Big Pig Music, Ltd., a company that published a number of songs composed by Elton John.  He was unsuccessful in finding a publisher for his song.
 
In 1985, Elton John released a song called "Nikita" and copyrighted the song with his publisher, Big Pig. Nearly two decades later, Hobbs contacted Elton John claiming that "Nikita" infringed his copyright of "Natasha," and seeking compensation.  He followed up with a copyright lawsuit in 2012.  Elton John and the other named defendants filed a motion to dismiss the complaint for failing to state a valid cause of action.  The district court ruled in favor of the defendants and dismissed the case. 
 
On appeal, the court compared the lyrics of the two songs and considered Hobbs' argument that although the lyrics of the two songs were not similar, there was a "unique combination" of elements in the copyrighted song that were protected. The court did not address Hobbs' theory, however, instead applying a standard that looked at whether the two songs were "substantially similar, thereby supporting an inference that the defendants did copy his song."  In applying the standard, the court determined that the two songs were not substantially similar because they "tell different stories," and do not share enough unique features to rise to the level of copyright infringement. 

You can read the entire lyrics to both songs in the Seventh Circuit decision.  I wonder if the court had as much fun deciding this case as I did reading it? 

Wednesday, July 17, 2013

Appellate Court Rules Text Messages are Subject to FOIA


In a previous blog post, we reported on a 2011 Illinois Attorney General PAC opinion determining that text messages sent between public officials and transmitted over privately owned cell phones are subject to release under FOIA.  We also reported that the PAC's ruling was upheld last June by the Sangamon Circuit court.  Yesterday, an Illinois appellate court again upheld these rulings that city communications on privately owned communication devices are subject to release under FOIA.  City of Champaign v. Madigan
 
In coming to its conclusion, the appellate court fashioned a two-part test in determining whether electronic communications qualify as public records.  The threshold question is whether communication relates to “public business,” which the court defined using the Merriam-Webster Dictionary definition as “business or community interests as opposed to private affairs.”
 
The second question, which the court spent a considerable time analyzing, defined the term “public body” for the purposes of FOIA.  Here, the court agreed with the city that individual public officials are not in themselves a “public body” because a single person on their own cannot carry out official business.  Instead, the court’s analysis turned on the simultaneous nature of the communication, whether the exchange of messages mimics an actual meeting. 
 
The court opined that electronic communications forwarded to the requisite number of members to constitute a quorum is in “the possession of the public body” and is a part of the public record.  Alternatively, messages sent to and received during an official meeting or study session, regardless if on private or public devices, are also owned by the public body and subject to public record laws.  Moreover, messages received on a private device but then forwarded to the public device become an official part of the public record.
 
In this case, the reporter’s request satisfied the court’s test.  The requested information was related to public business and was sent “during the time city council meetings (and study sessions) were convened.”  Thus, the court found the city should turn over the requested information to the city’s FOIA officer.
 
Finally, the Fourth District strongly emphasized the need for legislative action regarding electronic communications and public record laws.  The court “[encouraged] local municipalities to consider promulgating their own rules prohibiting city council members from using their personal electronic devices during city council meetings.”
 
Post Authored by Julie Tappendorf and Joy Austria, Ancel Glink.

 

Monday, July 15, 2013

Rules of the Game: A Framework for Fair and Effective Zoning Hearings


Ancel Glink attorneys David Silverman and Dan Bolin co-authored an article published in the APA's The Commissioner (Spring 2013), a newsletter for plan commission members.  "In Rules of the Game: A Framework for Fair and Effective Zoning Public Hearings," David and Dan provide plan commissioners with a number of guidelines for developing rules for administering zoning hearings, including the following:
  • Develop a set of rules that apply generally to all zoning hearings, but build in flexibility for special circumstances that may require more (or less) formality.
  • Require prior registration for public comments, testimony, or cross-examination to assist in managing contested and complex public hearings.
  • Tailor cross-examination, if allowed, to assist the public body in making its decision and should be relevant to the factors required to support the requested relief.
  • Remind participants that rules of evidence and rules of civil procedure are just guidelines; zoning hearings are not court proceedings.
  • Consider using a hearing officer to assist in the administration of the public hearing.
The most important tip for plan commissions and other zoning hearing bodies is to develop a set of rules before you are faced with a complex zoning application and hearing.

You can access a copy of the article on Ancel Glink's website:  Fair and Effective Zoning Public Hearings

Friday, July 12, 2013

Sex, Guns and God! Upcoming Seminar on 1st and 2nd Amendment Regulation


Adam Simon and Dan Bolin (both of Ancel Glink) will present a session titled “Sex, Guns, and God! The 1st and 2nd Amendments and Local Regulation" on July 23, 2013, at the American Planning Association's "Tuesdays at APA" program.   A summary of the program is set out below.  You can also learn more about the session, and register for this free program, by visiting the APA's website.

Sex, Guns, and God! The 1st and 2nd Amendments and Local Regulation
Tuesday, July 23, 2013 at 5:30 p.m.
Burnham Conference Center
APA's Chicago Office
205 N. Michigan Ave.
Suite 1200
Chicago, IL 60601


The U.S. Constitution guarantees freedom of expression, freedom of religion, and the right to bear arms. Nevertheless, land uses that are dependent on these guarantees continue to court controversy in many communities. Whether sparked by chronic concerns over threats to community character or more acute debates related to public safety, many planners find themselves on the front lines of battles over contentious uses that have some claim on being constitutionally protected.
 
Drawing from practice-based experience and lessons from case law, Adam Simon and Dan Bolin from Ancel, Glink will discuss local regulatory issues related to strip clubs, churches, guns shops and other land uses entangled with rights flowing from the First and Second Amendments of the U.S. Constitution. 

Thursday, July 11, 2013

Can a Governor Suspend Legislators' Salaries?


9/27/13 Update:  On September 26, 2013, a Cook County circuit court judge ruled against Governor Quinn, holding that the Governor's veto violated Illinois law by "changing" a legislator's salary during the term of office.  Governor Quinn has stated that he will appeal the ruling. 

Illinois Governor Pat Quinn and state legislators have been engaged in a number of battles recently, the most public of which concern concealed carry and public pensions. The first battle was resolved when both houses of the Illinois General Assembly voted to override the Governor's veto of the concealed carry bill that would address the Seventh Circuit Court of Appeals' ruling that the state's concealed carry ban was unconstitutional.  The second battle is ongoing, and involves the state's unresolved public pension crisis.  On one side is the Governor, who is urging the legislature to resolve it.  On the other side is the General Assembly, having introduced two separate pieces of legislation (one in the House, the other in the Senate), neither of which has moved forward because there aren't enough votes in both houses to pass either pension option.
 
With no compromise in sight, what's a state to do?  In an effort to "encourage" the legislature to do something or anything with public pensions, the Governor has taken the unusual action of exercising his line-item veto power on legislators' salaries.  He has been quite vocal that members of the General Assembly shouldn't be paid until they do their jobs - in this case, solve the pension crisis. 
 
The question is, is it legal?
 
While there is no question that the Governor has the power to exercise a line-item veto on state expenditures, that authority must still be exercised in accordance with other state laws and constitutional provisions.  One of those provisions relates to elected officials' salaries. Specifically, Section 11 of Article IV of the Illinois Constitution (the constitutional article that relates to the state legislature) states that "changes in the salary of a member shall not take effect during the term for which he has been elected."  While the purpose of this provision was to prevent legislators from giving themselves raises during their terms, it seems reasonable to interpret "changes in the salary of a member" to include a decrease (or in this case a suspension) of members' salaries during their term. There are no court decisions involving this situation - the cases that have interpreted this constitutional provision relate mostly to legislative enactments that had the effective of increasing their own compensation.
  
The Governor's actions present a novel and interesting legal issue that has not yet been considered or decided by a court.  In my opinion, it's not going to either.  This is a political "hot potato" for the Governor, Attorney General, and the General Assembly.  The Governor would likely lose in court if his actions were challenged.  The Attorney General, who is rumored to be considering a run for Governor, isn't going to want to defend a losing case nor would she want to be seen as defending the inactions of the state legislature on pensions.  The legislators aren't going to make any "friends" with taxpayers if they sue the state to get paid, while leaving the pension issue unresolved. 
 
This issue is turning into one long "stare contest" - who will blink first?

City Must Establish Ownership to Enforce Vacant Property Ordinance


In City of Virginia v. Mitchell, the City of Virginia had brought an ordinance enforcement action against defendant for failure to register his property under the vacant property ordinance and for violations of the City's nuisance and property maintenance ordinance.  The defendant challenged the lawsuit, claiming that he was not the owner during the time period of the alleged code violations.  The trial court found the defendant in violation of the City ordinances, but the appellate court reversed, ruling that the City failed to prove by a "clear preponderance of the evidence" that the defendant owned the property. 
 
The appellate court emphasized that because municipal building code violations are quasi-criminal proceedings, the City must prove by a preponderance of the evidence that a property owner violated the relevant ordinance.  In this case, the defendant established that he had conveyed the property by quitclaim deed to another individual immediately after receiving notices of violation from the City, but before the City actually filed its complaint.  Because the owner did not own the property at the time the code enforcement lawsuit was filed, he was not liable for the code violations.  

Wednesday, July 10, 2013

Mayor Waived FOIA Exemption by Publicly Citing Study in Press Conference


The First District Appellate Court recently issued an opinion ruling that the City of Chicago could not withhold a 2009 assessment of police department operations conducted by an outside consultant that had been requested under FOIA.  Dumke v. Chicago
 
Plaintiff had filed a FOIA request for various documents, including the 2009 study, after former Mayor Daley referenced the study in a press conference about police officer reassignments.  The police department had denied plaintiff's initial request as "unduly burdensome" and plaintiff subsequently narrowed the request to the final report.  The City denied the request again, this time citing the exemption that protects draft documents.  The plaintiff appealed the denial, arguing that the City had waived the draft exemption when the Mayor publicly cited the report at a press conference.  The City responded that the police superintendent was the head of the applicable public body (the police department) and, therefore, the Mayor had no authority to waive the draft record exemption. 
 
The appellate court rejected the City's argument. The court first determined  that the police superintendent was not the only "head of a public body" that could waive the draft documents exemption in this case.  The Mayor, as the CEO of the City, was also the head of the public body for purposes of interpreting the draft document exemption.  Second, the court reviewed a YouTube video of the press conference, as well as a written press release issued by the Mayor's office, and determined that the Mayor did publicly cite and identify the 2009 study, and the consultant firm that prepared the study, in his press conference.  As a result, the City waived the applicable FOIA exemption.

Tuesday, July 9, 2013

Veto Override Starts the Clock for Adoption of Local Assault Weapon Regulations


On July 9, 2013, the stay of the decision in Moore v. Madigan expired, striking down Illinois’ last-in-the-nation total ban on concealed guns. That same day, both houses of the General Assembly adopted a new gun law by overriding Governor Quinn’s amendatory veto of Ill. H.B. 183. In addition to establishing Illinois’ first law authorizing the possession of concealed handguns, this new law sets a July 19, 2013 deadline for local governments to adopt regulations regarding the possession or ownership of assault weapons. Regulations adopted after the 10-day deadline are preempted, and State or Federal law would exclusively regulate assault weapons. Regulations adopted before the deadline would be grandfathered in, and may be amended after the expiration of the deadline.
 
If a unit of local government wants to regulate the possession or ownership of assault weapons, whether it be an outright ban, a possession ban in locations not already prohibited by the Act, or a placeholder just to survive the 10-day deadline, the regulation must be adopted before July 19, 2013.
As the law is implemented, units of government that control prohibited areas, including schools, government buildings, and parks, will be required to post signs prohibiting concealed firearms. Additionally, local law enforcement objections to a concealed handgun license application on the grounds that an applicant is a danger to himself or herself or others, or a threat to public safety, must be made within 30 days after the applicant’s information is entered in to an Illinois State Police database. Local law enforcement wishing to make objections must monitor the database because the new law does not provide for notice that an application has been entered in to the database. Illinois State Police has a “Frequently Asked Questions” page about the new law available here.
 
Authored by Daniel J. Bolin, Ancel Glink

Rare 3rd Amendment Claim Filed Against City


The Third Amendment to the U.S. Constitution provides as follows: 
 
"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."
 
A family in Henderson, Nevada, has filed a lawsuit against the City and its police department alleging, among other claims, that police officers violated the family's Third Amendment rights by "quartering" police officers in their private home during a stakeout of a neighbor's domestic violence situation.  According to the complaint, police officers from the Henderson Police Department responded to a domestic violence call at a neighbor's residence.  Plaintiffs claim that the police officers forced their way into their home without a warrant, forcibly removed the plaintiffs, searched the home, and then helped themselves to water and food from the plaintiffs' kitchen.  Although plaintiffs were initially arrested for obstructing police and held for nine hours, the charges were later dropped.
 
The plaintiffs seek punitive damages for violations of the Third, Fourth, and 14th Amendments, assault and battery, conspiracy, defamation, abuse of process, malicious prosecution, negligence and emotional distress.  The burden will be on the plaintiffs to demonstrate that the police officers were "soldiers" for purposes of proving their Third Amendment claim. 

You can read the complaint here.
 
 

Monday, July 8, 2013

APA Presents Webinar on Koontz Takings Case


On July 17, 2013, the American Planning Association will present an audio/web conference about the Supreme Court's recent decision in Koontz v. St. Johns River Water Management District.  Julie Tappendorf from Ancel Glink will be one of the panelists.
 
You can learn more about the webinar and register on the APA's website here. Below is a description of the webinar from the website:
 
Lessons from Koontz v. St. Johns River Water Management District: Game Changer or Just a Little Rule Refinement?
 
July 17, 2013, 4:00 p.m. to 5:30 p.m. Eastern Time 

The U.S. Supreme Court ended its term with a decision that will change planning and regulation — but by how much, and will the change be for better or worse? Koontz v. St. Johns River Water Management District is the most important planning law case in nearly a decade, and already there is widespread disagreement about what it means. 

A diverse panel of land use lawyers will examine this ruling and its impact on exactions, property rights, and governmental actions in the context of the landmark cases before it. You — planner, property owner, developer, advocate or neighbor — will take away practical advice on how to comply with the Court’s mandate and make it work to your benefit.

Wednesday, July 3, 2013

GPS Tracking Can Be Used in Employee Investigation Unless Use is Excessively Intrusive


Earlier this week, a New York Court appellate court ruled that a government employer can attach a GPS device to an employee's private car without a warrant in certain circumstances and use the findings to justify termination of that employee, but such use must not be "excessively intrusive" as presented in this particular case.

In Cunningham v. New York State Dept. of Labor, the State of New York Department of Labor (employer) attached a GPS device to an employee's car based on suspicions that the employee was submitting false time reports.  The state began an investigation relating to the employee's alleged unauthorized absences from duty and the falsification of records to conceal those absences. That investigation led to a disciplinary proceeding that resulted in a two-month suspension; it also led to a second investigation, because after petitioner eluded an investigator who was following his car, the Department referred petitioner's conduct to the Office of the State Inspector General. The Inspector General's investigation resulted in a second disciplinary proceeding.  That second investigation was the subject of the court case.
 
The GPS device was attached the employee's car without his knowledge, while the car was parked in a lot near the Department of Labor offices. This device and two later replacements recorded all of the car's movements for a month, including evenings, weekends and several days when the employee was on vacation in Massachusetts.  The employer also engaged in other avenues of investigation: surveillance of an apartment building petitioner was suspected of visiting during working hours, subpoenas for E-ZPass records and interviews of petitioner and his secretary.

Based on the GPS findings, as well as the other investigation findings, the employee was terminated.  Petitioner challenged his termination in court.

The appellate court first determined that based on U.S. Supreme Court precedent, a workplace search based on a reasonable suspicion of employee misconduct is "justified at its inception." The search in this case clearly met that test, according to the NY court because the employer had ample grounds to suspect the employee of submitting false time records.  However, the court did not find that the particular search was reasonable in its scope, finding it "excessively intrusive" because it examined activity with which the State had no legitimate concern — i.e., it tracked petitioner on all evenings, on all weekends and on vacation. Because the termination was based on the GPS findings which should have been suppressed, the court reversed the trial court's ruling and remanded it for further proceedings

Tuesday, July 2, 2013

Governor Sends Amendatory Veto of Illinois Concealed Carry Law


Just seven days before a court-ordered July 9, 2013 deadline for the adoption of a law to allow the possession of concealed handguns in Illinois, Governor Quinn used his amendatory veto power on Ill. H.B. 183, sending the proposed concealed carry law back to the General Assembly to consider his suggested changes. The Governor’s veto message is available here. The Governor’s suggested changes include:

1.   Alcohol.  The bill would have allowed firearms in to a place that has certain percentage of alcohol sales; the amendatory veto would prohibit firearms in any place where alcohol is consumed, except for private residences and clubs.

2.   Home Rule. The bill would have preempted the authority of home and non-home rule units to regulate the possession and ownership of assault weapons; the amendatory veto restores local authority to regulate these weapons.

3.   Signs. The bill would require owners of areas where firearms are prohibited to post a sign; the amendatory veto will instead require private property owners wishing to allow the carrying of concealed firearms to post a sign indicating their permission, unless the property is a private residence.

4.   Employer’s Rights. The amendatory veto adds provisions allowing an employer to prohibit the carrying of a concealed firearm during any part of the employee’s employment, or on the employer’s property.

5.   Limiting Number of Guns and Ammunition. The amendatory veto will only allow licensees to carry one firearm and one ammunition clip with up to 10 rounds.

6.   Mental Health Reporting. The amendatory veto clarifies that physicians and other health professionals report to the Department of Human Services, and law enforcement and school administrators report to the Department of State police, upon a determination that a person poses a clear and present danger to himself, herself, or to others.

7.   Definition of “Concealed.” The original bill included partially concealed handguns as “concealed firearms,” but the amendatory veto will require concealed firearms to remain completely concealed.

8.   OMA. The meetings and records of the Concealed Carry Licensing Review Board would have been exempt from the Open Meetings Act. The amendatory veto would only allow deliberations regarding applicants to take place in closed session.

9.   Informing Law Enforcement of Carrying. The amendatory veto adds that licensees must “immediately” inform law enforcement that they are carrying a concealed firearm during an investigative stop.
 
Under the bill approved by the General Assembly on May 31, units of local government would have just 10 days following the effective date of the law to adopt regulations regarding the possession or ownership of assault weapons. Timely adopted regulations would survive the 10-day deadline, but otherwise State of Federal law would exclusively regulate assault weapons. The amendatory veto would restore local authority to adopt regulations for the possession and ownership of assault weapons. Additionally, units of government that controlled prohibited areas would have been required to post signs prohibiting concealed firearms; however, the amendatory veto eliminates that requirement.
 
Even though these provisions were removed in Governor’s amendatory veto, the original bill passed with enough votes to override the veto in both houses. The General Assembly is expected to take up the amendatory veto in a special session before the court ordered July 9, 2013 deadline. Accordingly, it would be prudent for municipalities interested in regulating the possession or ownership of assault weapons to prepare to take action, because their authority to adopt such regulations would be preempted within 10 days following a veto override by the General Assembly.

Post Authored by  Daniel J. Bolin, Ancel Glink

Monday, July 1, 2013

Quinn Signs Workers Comp Bill Into Law


On May 20, 2013, we reported on House Bill 3390, a workers' compensation bill which would provide some sweeping changes to the Illinois Workers' Compensation Act and result in higher costs for local governments. 
 
After passing both the Illinois Senate and House, Governor Quinn signed the bill into law on June 28, 2013.   The law will mean higher costs for local governments as it increases the scope of penalties that may be awarded to a claimant and increases the minimum interest to be accrued while a case is pending on appeal.  You can read more about the changes in our March blog post.

Post Authored by Erin Baker, Ancel Glink