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Friday, May 30, 2014

$50 Citation for Facebook Post Rescinded

From Strategically Social:  On May 20th, a Will County Forest Preserve District officer issued a $50 citation to a woman who had posted the following on Facebook:
I was feeling bad that I haven’t bought a pass and been bringing Ginger there but I’m pretty glad I haven’t. So not going to worry about it until later. I hope all the doggies get better soon.
The comment was posted in response to concerns some dog owners had posted about kennel cough among some dogs at a dog park in Will County.  A county employee noticed the comment and forwarded it to an officer, who interpreted the comment to mean the woman was using the dog park without a permit and issued her the citation.

After receiving the citation, the woman posted on the dog park Facebook page that she had not been to the dog park since 2013.  Shortly thereafter, the county rescinded her citation and stated that the county does not monitor social media in search of potential law breakers nor is it county policy to issue tickets for social media posts.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, May 29, 2014

Alderman Entitled to Absolute Immunity for Statements at City Council Meeting

A city and a city council member were sued by a resident for defamation, false light, negligent infliction of emotional distress, and various civil rights violations relating to statements made by an alderman at a city council meeting about the plaintiff.  In his statement, the alderman stated that he was disappointed in the activities of a resident (plaintiff) in trying to delay construction activities on land adjacent to hers. Specifically, the alderman called her conduct 'righteous, self serving...and not in character with Lake Forest" and that her activities "cost the new homeowner months of delays and tens of thousands of dollars in legal bills."

Plaintiff alleged that these statements by the alderman were defamatory because they were intentionally designed to denigrate her character and injured her reputation, and were malicious in nature. She also alleged that the City and alderman exposed her to "public ridicule."  She also claimed that the City permitted and encouraged the alderman's statement. She sought $500,000 in compensatory damages, and $2 million in punitive damages. 

The City and named alderman filed a motion to dismiss based on absolute legislative privilege, among other defenses, and the trial court granted the City's motion.  

On appeal, the appellate court first noted that an action can be dismissed where the claim is barred by an affirmative defense, including absolute immunity.  Illinois courts uniformly recognize a privilege for statements made by members of city councils and village boards at their meetings.  That privilege or immunity applies to nearly all common law torts, including defamation and false light as alleged in this case.  The court rejected the plaintiff's request that the court create an exception to the absolute immunity rule, holding that it was irrelevant that the topic about which the alderman spoke was not part of the meeting agenda. The court also found the City immune from liability under the Tort Immunity Act, which expressly protects public entities for libelous or slanderous actions of its employees.  Friedman v. Moore, 2014 IL (2d) 130671-U (unpublished)

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, May 28, 2014

Responsible Bidder Bill Still Alive

The IML recently reported about an amendment to the "Responsible Bidder" bill (HB 924) that has given new life to this proposed legislation.  Public bodies should be aware of the bill because it could significantly increase the cost of public projects if it is ultimately approved.

HB 924, as amended, would require that all local government public works projects use contractors and sub-contractors that are "responsible bidders," as defined in the law.  A "responsible bidder" would have to meet certain criteria in the statute, including that the bidder and each subcontractor participate in apprentice and training programs approved by and registered with the U.S. Department of Labor, among other requirements.  

The IML remains opposed to the legislation, even as amended, because the requirements necessary to qualify as a "responsible bidder" would impose higher costs on smaller contractors and render them unable to afford to bid on public works projects. 

The implementation of the new requirement would be phased so that certain projects would be exempt, as follows: 

Projects less than $100,000 are exempt from July 1, 2015 through June 30, 2016

Projects less than $50,000 are exempt from July 1, 2016 through June 30, 2017

Projects less than $20,000 are exempt from July 1, 2017 and onward.

You can read more about the amended legislation on the IML website here.

Tuesday, May 27, 2014

Liquor Revocation Did Not Violate Due Process

The Liquor Commissioner of the City of Peoria revoked the liquor license for Sheridan Liquors, a local liquor store after the City discovered that the owner and one of the managers were indicted under the Money Laundering Control Act.  According to the indictment, the owner and manager operated a check cashing business at the liquor store.  They structured the necessary withdrawals from the liquor store bank account to cover the cash needed for the check cashing business in order to avoid federal reporting requirements.  

After the  owner was guilty of all counts in the federal indictment, the City sent notice of a violation of the local liquor regulations that prohibit a liquor licensee from engaging in any activity prohibited by federal law. A revocation hearing was conducted by the local liquor commissioner, and evidence of the criminal trial was introduced into the record of the hearing, over the objection of the owner's counsel.  The owner and City presented evidence to support their cases before the liquor commissioner, and at the conclusion of the hearing, the commissioner revoked the liquor license.  He also issued a written order, with findings of fact based on the evidence submitted at the hearing.  

Sheridan Liquors appealed to the state liquor commission, which confirmed the revocation. The local and state commission decisions were upheld on administrative review appeal to the circuit court, and again at the appellate court.

The Illinois Supreme Court considered three issues on appeal:  (1) whether the local commissioner denied the licensee due process; (2) whether the local commissioner's findings were supported by substantial evidence and (3) whether the local commissioner's decision to revoke the license was supported by the record.  

The Supreme Court concluded that the revocation procedure did not violate Sheridan Liquors' due process rights.  Wisam 1, Inc. v. Illinois Liquor Control Commission, 2014 IL 116173 (May 22, 2014).  First, the Court held that due process did not require the liquor commissioner to allow the owner to "relitigate" the owner's criminal conviction.  Furthermore, the liquor statute clearly states that a licensee can be held responsible for the conduct of its officers, managers, and other agents - in this case, the convicted individual was an employee/manager and agent of the business. Second, although the Court did find that the City improperly sought to admit the entire transcript (inadmissible heresay evidence), there was sufficient competent evidence elsewhere in the hearing to support the liquor commissioner's decision, and the admission did not rise to the level of prejudicial error.  

Post Authored by Julie Tappendorf, Ancel Glink

Friday, May 23, 2014

"In the Zone" E-News Released, Spring 2014 Edition

Ancel Glink's land use group just published the Spring, 2014 edition of its "In the Zone" e-newsletter.   This edition includes the following articles:
  • Will Koontz "Chill" Negotiations Between Governments and Developers?  
  • Proposed Medical Cannabis Rules Would Limit Local Zoning Authority
  • Bill Would Clarify Municipal Zoning Authority Over Schools
  • Elected Officials Immune from Liability in Discrimination Suit Brought by the American Islamic Center
You can download the full newsletter in the Resource Center of Ancel Glink's website, under "Newsletters" or download it here.

Thursday, May 22, 2014

County State's Attorney is a "Public Body" Under FOIA

In 2010, a reporter submitted a number of FOIA requests to Kendall County asking for various records held by the State's Attorney's office.  The State's Attorney's office denied the request on the grounds that the State's Attorney's office is part of the judicial branch of government and are, therefore, exempt from FOIA. The trial and appellate courts agreed, both holding that State's Attorneys are exempt from FOIA.  

On appeal, the Illinois Supreme Court reversed the trial and appellate courts, holding that a State's Attorneys office is a "public body" under FOIA.  Nelson v. Kendall County, 2014 IL 116303 (May 22, 2014). Although the Supreme Court acknowledged that FOIA does not include the judicial branch or judiciary, the Supreme Court determined that a State's Attorney's office is not part of the judiciary or the judicial branch of government.  Instead, the Court concluded that the office of State's Attorney is part of the executive branch of state government, which falls squarely within the definition of "public body" under FOIA.

We previously posted about the Second District decision here.

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, May 21, 2014

Takings Claim is Ripe Because Final Decision Would be Futile

The U.S. Supreme Court has established a "ripeness" test for takings claims.  Before a property owner can proceed with a takings claim against a regulatory agency, it must show that he or she has (1) obtained a final decision from the local regulatory agency and (2) sought just compensation under available state procedures. 

There is an exception to the Williamson County ripeness requirement, however, where a property owner can show that seeking a final decision from the local agency would be futile or where the government imposes repetitive or unfair land use procedures in order to avoid a final decision.  In this case, that is what happened to the property owner in Sherman v. Town of Chester (2d Cir., May 16, 2014).  Based on these exceptions to the ripeness test, the Second Circuit Court of Appeals allowed Sherman's takings claim to proceed, even without the local final decision.

Steven Sherman purchased 400 acres of property for $2.7 million in 2000.  He applied for subdivision approval, but the Town put in place a moratorium that prevented him from developing.  After the moratorium expired, the Town  enacted a new zoning ordinance that required him to revise and resubmit his development plan.  He did so, and resubmitted his application, only to have the Town again amend its zoning regulations.  The cycle continued for years - each time he resubmitted a plan based on an amended zoning ordinance, the Town would amend its zoning ordinance again.  Until 2010, when he filed suit against the Town.  At that point, he had spent $5.5 million on top of the initial $2.7 million for the land.  At the time the lawsuit was filed, he was facing foreclosure and personal bankruptcy.  

The federal district court ruled against Sherman, finding that his takings claim was not ripe under Williamson County.  He appealed to the Second Circuit Court of Appeals, which reversed, concluding that Sherman was not required to obtain a final decision from the Town because it would have been futile, based on the Town's use of repetitive and unfair procedures over a 10 year period to avoid making a final decision on Sherman's land development proposal.  The court also rejected the Town's argument that Sherman failed to meet the second prong of the ripeness test by bringing a just compensation claim in state court, finding that it was the Town, not Sherman, who removed the case to federal court.  

After finding the case ripe for adjudication, the Court then addressed the merits of Sherman's takings claim. Applying the Penn Central analysis of a non-categorical taking, the Court determined that Sherman had stated a takings claim against the Town, finding the Town's actions in this case to be  "unfair, unreasonable, and in bad faith."  Thus, the district court's dismissal of his claim was improper, and the Court  remanded the case back to the district court for further proceedings.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, May 20, 2014

Court Dismisses Section 1981 Discrimination Claim Against Forest Preserve District

An employee of the Cook County Forest Preserve District sued the District (his former employer) after he was fired for having sex with a co-worker in the FPD's Aquatic Center.  His complaint alleged claims under Section 1983 of the Civil Rights Act for race discrimination and due process violations and Section 1981 for race discrimination in the making and enforcement of contracts.  The district court dismissed his 1983 claims because they were not brought within the 2 year statute of limitations.  The court also dismissed his Section 1981 claims because Section 1981 does not provide a remedy against government entities.  

The employee appealed to the Seventh Circuit, arguing that Section 1981 does provide a remedy for claims against government entities.  He further argued that his case should be allowed to proceed under Section 1981 because his Section 1983 claims were barred under the 2 year statute of limitations.  The Seventh Circuit disagreed, and dismissed his case in FPD in Campbell v. Cook County Forest Preserve District, (7th Cir. May 15, 2014), holding that Section 1981 does not create a private right of action against state actors. 

Post Authored by Julie Tappendorf, Ancel Glink

Monday, May 19, 2014

City Can Enforce Administrative Adjudication Order in Court

The Illinois Municipal Code authorizes home rule municipalities to establish administrative adjudication hearing programs to adjudication ordinance violations.  The Village of Lake in the Hills used its program to find the defendant in violation of a variety of municipal ordinances and assessed fines.  The Village also sought to enforce the hearing officer's orders in the circuit court. The court denied the Village's petitions, however, finding no statutory authority for a Village to enforce a hearing officer's order in circuit court.  

On appeal, the appellate court ruled in favor of the Village in Village of Lake in the Hills v. Dennis Niklaus (May 15, 2014).  The court determined that Division 2.1 of the Illinois Municipal Code provides that the order of a hearing officer "may be enforced in the same manner as a judgment entered by a court of competent jurisdiction." The process that the Village used to enforce the hearing officer's orders in this case (filing petitions to enforce the hearing officer's orders with the circuit court, accompanied by certified copies of the administrative orders) was proper. As a result, the court reversed the circuit court's decision, finding that a home rule municipality has authority to enforce hearing officer decisions in the circuit court.

Post Authored by Julie Tappendorf, Ancel Glink

Friday, May 16, 2014

City's Demolition Tax is a Tax, Not a Fee or Fine

The City of Evanston, Illinois imposes a demolition tax in the amount of $10,000 per residential building, or $3,000 per residential unit, whichever is greater.  The tax proceeds are used to fund the City's Affordable Housing Fund, which helps low and moderate income residents find and keep affordable housing.  The owners of a single family residence in the City claim that the sale of their home fell through when the potential buyer became aware of the $10,000 demolition tax.  

Plaintiffs filed their initial lawsuit against the City, its mayor and nine aldermen, claiming that the demolition tax violated their civil rights through the 5th and 14th Amendments to the U.S. Constitution, among other claims. The district court dismissed that first lawsuit, holding that the Tax Injunction Act prohibits federal courts from interfering with the imposition or collection of a tax.  The Seventh Circuit reversed the district court's decision on the TIA, finding that based on a multi-factor test, the demolition tax was not a tax, but a regulatory device, because it provided an effective deterrent against the demolition of residential buildings.  Kathrein v. City of Evanston, 636 F.3d 906 (7th Cir. 2011) (Kathrein I) The case was then remanded back to the district court.

While the district court proceedings were pending, the City filed another motion to dismiss based on a more recent decision by the Seventh Circuit that rejected the multi-factor approach to identifying a tax that it used in the 2011 decision.  The district court agreed with the City's arguments that the demolition tax was an "exaction designed to generate revenue," as opposed to a fine that was "designed...to punish" or a fee that compensates "for a service that the state provides to the persons or firms on whom...the exaction falls."  

The case again made its way back to the Seventh Circuit on appeal of the district court's dismissal of the plaintiffs claims against the City.  Kathrein v. City of Evanston, (7th Cir. May 15, 2014) (Kathrein II). This time, the Seventh Circuit ruled in favor of the City that the demolition tax was, in fact, a tax.  The Court applied its new "test" for determining whether a particular exaction is a tax, fine, or fee, finding that the demolition tax was not designed to punish owners for demolishing buildings nor does the tax compensate for a service to the owners who are taxed.  Instead, the demolition tax is imposed in order to generate revenue to fund the City's affordable housing program. 

Because the demolition tax is, in fact, a tax, the Court next determined that the TIA bars the plaintiffs' challenge in federal court. The Court rejected the plaintiffs' argument that the TIA is unconstitutional, finding that they had no standing to pursue that claim and waived the claim. 

The Court's analysis on whether a particular exaction is a tax, fee, or fine is worth reading as it provides some guidance to municipalities when they draft exaction ordinances to ensure they include the appropriate recitals and findings to support their establishment of a new exaction.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, May 15, 2014

Developer Entitled to Letter of Credit Proceeds

An appellate court recently required a municipality to refund a $43,000 escrow posted by a developer to secure the construction of public improvements that were required to be constructed under an annexation agreement. Squires Landing, LLC v. City of Rochelle, 2014 IL App (2d) 130818-U (May 9, 2014).

In 2005, Squires Landing, LLC entered into a 20 year annexation agreement with the City of Rochelle.  As part of the agreement, Squires was required to post a cash escrow in the amount of $43,000 to secure the construction of intersection improvements required for development of the property.  The agreement provided that if the $43,000 were not used before the agreement expired, it would be refunded to Squires or its successor.  In 2008, the parties agreed that Squires could post a letter of credit in lieu of the cash escrow. The letter of credit provided that if Squires refused or failed to renew the letter of credit, the City could draw on the letter of credit.  

In 2009, Squires sold the property to AKCK, LLC, and demanded the City release the letter of credit. The City refused to release the letter of credit, and it was renewed until October of 2012.  The City then sent a draw to the bank in the full amount of the letter of credit, on the basis that Squires failed to renew the letter of credit in violation of the terms of the annexation agreement.

Squires then filed suit, alleging that the City's draw on the letter of credit was improper.  The City responded by bringing in the successor property owner, AKCK, alleging that it would be obligated to post an escrow if Squires failed to do so as a successor in interest under the annexation agreement.  AKCK responded that Squires did not disclose the escrow requirement when it sold the property to AKCK.  

The City filed a motion for summary judgment, alleging that Squires had a continuing obligation to post the escrow, even after the sale to AKCK.  Squires responded that its obligation to post the escrow terminated when it sold the property to AKCK.  The trial court ruled in favor of the City, and Squires appealed.

On appeal, the appellate court reviewed the language of the annexation agreement to determine whether Squires' obligation to post an escrow continued after its sale to AKCK.  Based on the language in the annexation agreement that provided that upon assignment of the agreement, Squires would have no further obligations under the agreement, the appellate court reversed the trial court's ruling in favor of the City and ordered the City to refund the $43,000 to Squires.

The result is interesting for a few reasons.  First, requiring the City to turn over the $43,000 draw proceeds from the letter of credit would seem to result in a windfall to Squires, since Squires didn't post the $43,000 in cash but through a letter of credit.  Second, the court doesn't really discuss AKCK's obligation to post an escrow as the successor in interest under the annexation agreement - the clear language of the annexation agreement would seem to require that. Third, the agreement provided for a refund of the escrow only if (1) the property was not developed within the 20 year time frame or (2) a substitute escrow was posted by a successor in interest.  Here, agreement does not expire until 2025 and AKCK, the successor in interest, had not posted a substitute escrow with the City.  The result of this decision is to leave the City without any security for the public improvements required by the annexation agreement.

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, May 14, 2014

U.S. Supreme Court Declines to Hear RLUIPA Appeal

Previously, we reported on the case filed against the Town of Woodboro and County of Oneida after they denied Eagle Cove Camp & Conference Center's zoning request to allow it to operate a year-round bible camp on land it owned on Squash Lake.  Both the district court and U.S. Court of Appeals for the Seventh Circuit ruled in favor of the Town and County. Eagle Cove Camp & Conference Center v. Town of Woodboro, (7th Cir. October 30, 2013). 

Following its loss at the 7th Circuit, Eagle Cove filed a petition for certiorari to the U.S. Supreme Court. The U.S. Supreme Court has not considered a RLUIPA case in the land use context, so many were watching to see what the Court would do.  Well, last week the Supreme Court denied Eagle Cove Camp & Conference Center, Inc.’s petition, meaning that the 7th Circuit's ruling that the Town and County did not violate RLUIPA in denying zoning relief to Eagle Cove will stand.

Hat tip to RLUIPA Defense for reporting on the Supreme Court's decision.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, May 12, 2014

PAC Finds in Favor of Public Body in 3rd Binding Opinion of 2014

In its third binding opinion for 2014, the PAC ruled in favor of the public body.

In PAC Op. 14-003, issued on May 5, 2014, the PAC determined that the St. Clair Township Board did not violate the Open Meetings Act when it amended its agenda less than 48 hours prior to the Board meeting.  The Board had posted its agenda for a regular Board meeting at least 48 hours before the meeting; however, the Board posted an amended agenda on the same day of the Board meeting.  The amended agenda relocated two agenda items relating to a collective bargaining agreement and personnel matters to place the items under executive session, but for discussion only.  A complaint was filed alleging that the amendment of the agenda to add these  "new" agenda items violated the OMA requirement that agendas be posted at least 48 hours before the meeting.  The PAC disagreed, finding in favor of the Township Board. Specifically, the PAC found that a public body is under no obligation to take final action on a matter listed on the agenda because the agenda is an "informational guideline of what the public body anticipates considering at a meeting."  Moreover, a public body is not obligated to formally amend an agenda to delete items it no longer will take action on - in this case, the Township's decision to post an amended agenda actually provided greater transparency for members of the public.

Post Authored By Julie Tappendorf, Ancel Glink

Friday, May 9, 2014

Lawyers Should Not "Friend" Jurors But Can View Public Social Media Sites

From Strategically Social:   The American Bar Association recently issued Formal Opinion 466 concerning potential ethical problems with lawyers communicating with potential jurors through social media.  The opinion provides the following advice to lawyers:
  • A "passive review" of a juror's public social media site is not improper ex parte conduct, similar to driving down a juror's street to gather information about the juror.
  • Asking a juror for access to his or her social media account (i.e., "friending" a juror) is improper, much like stopping the car to ask the juror's permission to look inside his or her home.
  • The fact that a juror may become aware that the lawyer reviewed his public social media account does not constitute a communication from the lawyer. 
The opinion also recommends that judges and lawyers discuss the court's expectations concerning lawyer review of juror social media information, and suggests that courts issue an order or have standing rules in place to provide guidance to lawyers.

The opinion also recommends that jurors be instructed not to use social media to communicate about their jury service or a pending case.  If a lawyer becomes aware of juror misconduct, the lawyer may be obligated to take some remedial action, including reporting the juror's conduct to the court, depending on the nature of the communication.  For example, the opinion noted that a juror complaining about the qualify of the food at lunch is not likely to justify criminal contempt, but substantive communications about the trial could go to the integrity of the trial.

Thursday, May 8, 2014

Farmers Insurance Sues 100's of Municipalities For Flooding Claims

Update 6/3/2014:  Farmers voluntarily dismissed its Cook County lawsuit today and it appears it may be dismissing all of its lawsuits.  

On April 17, 2014, Farmers Insurance filed class action lawsuits against nearly 100 municipalities, townships, and other governmental entities in the Cook County, Illinois area seeking to recover millions of dollars paid in claims the insurance company paid out after the heavy rains on April 18, 2013 and April 19, 2013. The lawsuits were filed on behalf of insurers and property owners.

The first count in the complaint filed in Cook County Circuit Court alleges that the municipalities negligently maintained their storm water systems by failing to utilize temporary storm water protection systems. The second count alleges a failure to remedy a known dangerous condition where the storm water invasions had occurred before. The third count states that the plaintiffs were subject to an unlawful taking where the local governments had appropriated the property of others for use as retention basins, detention basins, or other storage structures.

Citing the 2008 adoption of the Chicago Climate Action Plan, the dominant argument of the complaint is that local governments mismanaged their storm water systems when they knew the systems were undersized for increased rainfall brought about by climate change, and that the governments allegedly knew that that they needed to increase their storm water system’s capacity because of prior flooding incidents and investigations. 

We will provide updates on the status of this litigation, including any responses filed by the defendant municipalities and other governmental entities.

You can find the 143-page complaint here.  

Post Authored by Julie Tappendorf and Caitlyn Sharrow, Ancel Glink

Wednesday, May 7, 2014

Koontz on Remand in Florida Court - Still a Taking

From the Inverse Condemnation blog:  Fla App In Koontz VIII: We Were Right Before, Koontz Wins Again.

After the U.S. Supreme Court decided Koontz last year, the case went back to the Florida state court on remand for application of the Nollan/Dolan test to determine whether the St. Johns River Management District's actions on Coy Koontz's permit application were an unconstitutional taking of Koontz's property.  In a very short (3 page) opinion, the Florida court of appeals adopted its previous opinion in Koontz IV and the U.S. Supreme Court's analysis that even in the absence of a compelled dedication of land and even when the conditions are refused and the permit denied, an unconstitutional taking can occur.  The court of appeals determined that its previous decision (ruling in favor of Koontz that the District's actions were a taking) was "entirely consistent with the decision of the United States Supreme Court."  

The dissent objects to the majority's decision to summarily dispose of the case in favor of Koontz, and would rule in favor of the District on the basis that nothing was taken by the District or given up by Koontz. In the dissent's opinion, no damages should be available where no property has been taken.  

You can read more about Koontz in previous blog posts here and here.

The author of the Inverse Condemnation blog poses the following question:  "Will there be a Koontz IX?" The district certainly can't be happy with this outcome.   Stay tuned.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, May 6, 2014

Court Upholds County Board's Public Comment Rules

Orange County, California had adopted and implemented rules for public comment at its Board of Supervisor meetings that, among other things, prohibit "personal, impertinent, slanderous or profane remarks."  After a member of the public was cut off during public comment while speaking at a Board meeting, he sued the County claiming that the County's "Speaker Guidelines" violated his First Amendment free speech rights, both on facial grounds and "as applied" to him.

The Ninth Circuit Court of Appeals ruled in favor of the County, and determined that the Speaker Guidelines were constitutional.  Fitzgerald v. Orange County (9th Cir. April 17, 2014)

First, the Court noted that public meetings of the Board of Supervisors are "limited public forums," meaning the government can only place reasonable time, place, and manner restrictions on the speech, or regulate the content of speech utilizing viewpoint-neutral rules. In this case, although the County's Speaker Guidelines could be interpreted as a violation of the First Amendment, because the County attorney had stated that the County would only limit speech in the forum when it disturbed or impeded the meeting, the Speaker Guidelines were constitutional. The Court relied on a U.S. Supreme Court case that "relied on the representations of the town's counsel as to the town's interpretation of the statute."  As a result, the Speaker Guidelines were not facially unconstitutional.  The Court also rejected the plaintiff's "as applied" challenge because he had left the speaker podium of his own accord and, therefore, suffered no injury as a result of the Board's interruption of his speech.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, May 5, 2014

Hot Off the Presses - Supreme Court Upholds Prayer at Town Meetings

This morning, the U.S. Supreme Court ruled in favor of the Town of Greece that opening its city council meetings with a prayer does not violate the First Amendment's Establishment of Religion Clause.  Town of Greece N.Y. v. Calloway.  Justice Kennedy wrote the majority opinion (except Part II.B).  Justice Breyer dissented, with Justices Kagan, Ginsburg, and Sotomeyer dissenting in a separate opinion.

We've written about this case previously on the blog, after the Supreme Court granted the Town's appeal and heard oral argument last year.  This opinion is of interest to many municipalities who have, like the Town of Greece, opened their board meetings with a prayer.  There was some question whether the Court would extend its previous opinion in Marsh v. Chambers (that upheld the Nebraska state legislature's opening of its session with prayer).  That question has been answered.

The Town of Greece, NY had opened its board meetings with a prayer since 1999. The Town relied on a "volunteer" list of clergy members in the Town to select prayer givers at a given meeting.  From 1999 to 2007, all of the prayer givers were Christian.  Plaintiffs Galloway and Stephens objected to the opening prayer, claiming that the Christian prayers excluded citizens who don't share that belief.  In response, the Town invited a Jewish layperson and the chairman of the local Baha'i temple to deliver prayers. A Wiccan priestess was also provided an opportunity to give the invocation.  Nevertheless, the plaintiffs sued, claiming that the Town violated the First Amendment's Establishment Clause by preferring Christians over other prayer givers.  

The district court upheld the prayer practice as consistent with the First Amendment, holding that although most of the prayer givers were Christian, that reflected the predominantly Christian identity of the town residents. The court also rejected the plaintiffs argument that prayer must be "nonsectarian", relying on the U.S. Supreme Court's decision in Marsh v. Chambers.  On appeal, however, the Second Circuit Court of Appeals reversed, finding that the Town's practice "endorsed" Christianity, particularly where the Town Board members bowed their heads and made the sign of the cross during and after the prayers.

The U.S. Supreme Court disagreed with the Court of Appeals on the plaintiff's Endorsement Clause claim. The Court summarized the question in the case as follows:  Whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures that was upheld in Marsh v. Chambers.  The court rejected the plaintiff's argument that prayer must be nonsectarian and not identified with any particular religion, finding that the Marsh case never suggested that the constitutionality of legislative prayer turns on the neutrality of its content.  In fact, if the Court held as such, it would require courts to act as "supervisors and censors of religious speech," further involving government in religious matters.  In short, Marsh permits chaplains to ask their own God (whether Jesus, Allah, or Jehovah or other) for blessings of peace, justice and freedom. Moreover, the Court did not find the Town's practice of inviting mostly Christian clergy to lead the prayer problematic, based on the Town's predominant Christian tradition.  

The Court notes that the principal audience for the invocations is not the public, but the lawmakers themselves, "who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing."  The Court pointed out that the Board did not direct or force the public to participate in the prayers.  The Court concluded that the purpose of the prayer was ceremonial, not policymaking, and was not an unconstitutional establishment of religion.

Justice Kagan, joined by Justice Ginsburg, Breyer, and Sotomeyer, dissented.  In the dissent's opinion, the Town of Greece's prayer practices violated the Establishment Clause.  The dissent questioned the Town's almost exclusive practice of providing Christian prayers at its board meetings.  The dissent also posited a number of "hypothetical" situations where prayer would be unconstitutional - during trial, at the polling booth, and at a naturalization ceremony. 

The dissent distinguished the town board meeting setting from the legislative session at issue in Marsh because "ordinary citizens" come to town meetings to engage with and petition the government. The dissent found the Town of Greece's prayer practice more sectarian and less inclusive than Nebraska's practice.The dissent rejected the majority's finding that the prayer was not directed at the audience based on the clergy member's practice of facing the audience when giving the prayer. 

It is interesting to note that the dissent would not have the court overturn Marsh nor would it reject any prayer at a municipal board meeting.  The dissent would have the Town Board direct the clergy to speak in "nonsectarian terms, common to diverse religious groups."  Alternatively, the Board could invite clergy of many faiths to serve as prayer givers so the Town does not identify itself with one religion to the exclusion of others.  In the dissent's view, the "content of Greece's prayers is a big deal" and its prayer practice a clear violation of the Establishment Clause.

Post Authored by Julie Tappendorf, Ancel Glink

Policy Banning Use of Schools for Worship Upheld

A federal court of appeals court recently upheld a policy prohibiting the use of public schools in New York City for religious worship. Bronx Household of Faith v. Board of Education, No. 12-2730-cv (2d Cir. Apr. 3, 2014). 

Regulation I.Q. was adopted in 2007 and bans organizations from using school property to perform religious worship services. Applying that rule, a New York school denied a permit to Bronx Household that would have allowed the group to use school facilities on Sunday for "Christian worship services."  The organization sued, claiming that the rule violated the Free Exercise Clause of the First Amendment.  The district court ruled in favor of the organization, but the Second Circuit Court of Appeals reversed, finding that the Board of Education could refuse to allow organizations to use school facilities for worship services.  

First, the Court held that the Free Exercise Clause only bars the government from prohibiting citizen's free exercise, it does not require the government to "finance a subject's exercise of religion."  Second, the Court held that the New York City policy was not aimed at suppressing any specific religion and was a uniform and content-neutral rule because it treats all religions identically.  Finally, the Court rejected the organization's argument that the Board's act of determining whether the Bronx Household activities were worship services itself violated the Establishment Clause, excessively entangling the Board with religion.  

Post Authored by Julie Tappendorf, Ancel Glink

Friday, May 2, 2014

Chicago Council Adopts Plastic Bag Ban

On April 30, 2014, the Chicago City Council approved an ordinance banning the use of plastic bags to carry goods away from certain types of stores.  The ban applies to retail establishments in the City “that sell perishable or non-perishable goods, including, but not limited to, clothing, food and personal items, directly to the customer.”  The ban does not apply to restaurants and non-chain store organizations.  Franchises and organizations of three or more stores are considered chain stores.

The ordinance also requires that all covered stores that provide bags also sell or give customers reusable bags, recyclable paper bags, or commercially compostable plastic bags. Stores larger than 10,000 square feet have to comply with the ban by August 1, 2015.  Smaller stores have one year longer to comply with the requirements.  Retailers could be fined $300 to $500 for each violation of the ban.

The store exemptions and staggered deadlines were presented in a meeting of the Committee on Health and Environmental Protection as a compromise for opponents of a plastic bag ban. The ordinance passed the City Council with a vote of 36-10. However, some aldermen and the Illinois Retail Merchants Association expressed concerns with the potential impact increased costs associated with paper bags may have on the ability to attract grocery stores, maintain jobs, and prevent price increases.

You can read the ordinance here.

Post Authored by Julie Tappendorf and Caitlyn Sharrow, Ancel Glink

Thursday, May 1, 2014

Gone with the Wind: Bill Would Eliminate Local Control over Wind Turbines

The U.S. Department of Energy indicates that wind turbines produced over 3,500 megawatts of energy in Illinois last year.  Ten years ago, Illinois produced only 50 megawatts.  The recent increased popularity of wind energy – the state’s output has increased 70 fold in the last decade – has caused regulators in Springfield to take notice.  Senator John Sullivan has proposed a bill that seeks to fundamentally alter how wind turbines are regulated.  Currently, many county zoning codes specify where wind turbines can be located.  Senate Bill 3263 would eliminate local control over siting decisions and transfer it to the Illinois Department of Agriculture.  SB 3263 would also require turbine developers to fund decommissioning old turbines and comply with several other precautionary measures, but the biggest change (by far) is the loss of local authority to determine where wind turbines may locate.  The bill is currently in committee, but may move forward this year.  Local officials, administrators and zoning practitioners should stay tuned.

Post Authored by Greg Jones, Ancel Glink