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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

Thursday, March 31, 2016

Officer Did Not Prove "Emergency" for PSEBA Benefits

The Public Safety Employee Benefits Act (PSEBA) provides health insurance benefits to public safety employees who (1) suffer a catastrophic injury that occurs as the result of the officer's response to fresh pursuit; response to what is reasonably believed to be an emergency; an unlawful act perpetrated by another; or during the investigation of a criminal act.  In Vaughn v. City of Carbondale, 2016 IL 119181, the Illinois Supreme Court examined the second part of this test and held that a police officer was not entitled to PSEBA benefits for an injury that resulted when the officer answered a call from dispatch. 

Officer Vaughn hit his head on his squad car when he was reaching into his vehicle to answer a dispatch call. He applied for, and received disability pension benefits for the injury. He also received PSEBA benefits.  Five years after the injury event, the City notified Vaughn that they were no longer providing him with PSEBA benefits based on a medical examination that found him fit for duty. He sued, claiming that because he continued to be entitled to on-duty disability pension benefits, he was also entitled to PSEBA benefits.

Although the Illinois Supreme Court agreed with Vaughn that an award of on-duty disability benefits qualified the injury as "catastrophic," the Court held that Vaughn did not establish that the injury was incurred in response to an emergency, the second prong of the PSEBA test. The Court noted that not every call from dispatch is an emergency, and Vaughn was not able to show his injury was incurred in response to what he reasonably believed to be an emergency. As a result, Vaughn was no longer entitled to PSEBA benefits.

Post Authored by Julie Tappendorf

Wednesday, March 30, 2016

Supreme Court Affirms Use of "Fair Share" Fees for Non Union Members

The U.S. Supreme Court decided (or didn't decide, depending on how you look at it) the case involving a challenge to "fair share" payments to unions by a teachers group. In Friedrichs v. California Teachers Association, the high Court heard the appeal from the Ninth Circuit Court of Appeals upholding the requirement that non-union teachers pay a fee equal to union dues, commonly known as "fair share fees." 

Oral argument was held before the Court in December. Based on questioning during oral argument, many thought the Court was poised to strike down the fair share fees. But, that didn't happen. Instead, the Court deadlocked by a vote of four to four. That means that the lower court's ruling that upheld a requirement that non-union members pay fair share fees was affirmed.  

Post Authored by Julie Tappendorf

Tuesday, March 29, 2016

Nothing New in 3rd PAC Opinion of 2016

I got a little excited when I checked the Attorney General's website and saw a new binding opinion - it's been 6 weeks since we have seen any action out of the PAC office, so I was looking forward to reading what new guidance the PAC is providing local governments.  Unfortunately, there is nothing novel or new about the 3rd binding opinion of 2016. Once again, the PAC took the easy road and issued a binding opinion to find a public body in violation of FOIA for not responding to a FOIA request.

In PAC Op. 16-003, a requester filed a FOIA request with a school district asking for various emails and text messages of certain district employees, as well as employment interview records. The district responded that it would be extending the time frame for an additional 5 days. However, when the requester had not received the records 4 weeks later, she filed an appeal with the PAC. The PAC found the district in violation for (1) not extending the time period for response properly; (2) improperly calculating the time for response with the extension; and (3) not providing the documents to the requester.

So, the lesson from this PAC opinion?  You have to respond to FOIA requests.  

Nothing new here. 

Post Authored by Julie Tappendorf

Monday, March 28, 2016

Illinois Supreme Court Finds Pension Law Unconstitutional

We reported previously on an appellate court decision that declared unconstitutional certain legislation amending the Illinois Pension Code as it relates to City of Chicago employee pensions. That case was appealed to the Illinois Supreme Court, which just last week issued a ruling agreeing with the appellate court that the law was unconstitutional because it "diminished pension benefits in violation of the pension protection clause" of the Illinois constitution. Jones v. Municipal Employees' Annuity and Benefit Fund of Chicago, 2016 IL 119618.  The Illinois Supreme Court also rejected the City's argument that the legislation should survive because it was the product of years of negotiations between the City and the unions representing the funds' participants, finding that the individual members of the funds did nothing to "bargain away" their constitutional rights.  

Post Authored by Julie Tappendorf

Thursday, March 24, 2016

Budgeting with a Blindfold: Preparing for FLSA Changes

The following is an important summary of new FLSA standards for "exempt" employees that was recently published on Ancel Glink's labor and employment blog, The WorkplaceReport:

As we have previously advised you, the U.S. Department of Labor (“the DOL”) has published proposed rules that are expected to increase the minimum salary necessary to qualify for one of the “white collar” exemptions from the overtime requirements of the Fair Labor Standards Act (“FLSA”).  Under current rules, established in 2004, an employee must be paid at least $455 per week ($23,660 per week) in order to qualify for exempt status.  The DOL is now proposing to increase the minimum salary for exempt status to $970 per week, or $50,440 per year for 2016, with a cost-of-living escalator for years after 2016.

The new rules are expected to go into effect sometime this summer – perhaps as early as June.  Whether they will be effective immediately or whether employers will be given time to comply is not yet known.  Almost certainly, however, they will be effective before President Obama leaves office in January of 2017.

Many public employers have exempt-level positions paying less than $50,440 per year.  For those positions, the employer either will have to increase salaries or reclassify the positions as non-exempt and pay overtime to the incumbents for hours worked in excess of 40 per week.  But just phrasing the choice does not deal with many auxiliary problems, such as:
  1. If the employer has positions (such as recreation program directors) that work irregular hours, especially in the summertime, paying these positions on an hourly basis could result in substantial overtime costs;
  2. If the employer decides to retain exempt status for positions that are paid less than the required minimum salary, the employer must address the  residual effects of raising salaries (perhaps even substantially) for some employees but possibly not for others, even those in the same classification or in higher-level classifications in the same job sequence;
  3. Perhaps most significantly, how does the employer budget for the changes when it doesn’t know when they will go into effect?

This last problem is a serious problem for local government entities that have May 1 fiscal years.  Most such entities are in the process of formulating or even finalizing their May 1, 2016 – April 30, 2017 budgets now.  Almost certainly, the new regulations will impact these employers during the 2017 fiscal year.  But when and to what extent will that impact occur?

For employers that have not already done so, it is strongly suggested that “mini-audits” be conducted with respect to the classifications potentially affected, both directly and residually, by the new regulations.  Positions that are clearly non-exempt (such as laborers and clerks) can be eliminated from the analysis.  Likewise, positions that are clearly exempt (such as the Executive Director of a Park District or the Village Manager of a municipality) and that are not likely to be affected residually by salary increases for lower-level exempt employees do not require more than cursory analysis.  But other classifications, currently considered to be exempt, should be reviewed to determine:  (a) whether they are properly considered to be exempt under the FLSA’s “duties” test for exempt status; (b) whether, if they are exempt under the duties test, it is in the employer’s best interests to continue to claim exempt status for them or whether the employer would be better off reclassifying the employees as non-exempt; (c) whether, if exempt status is to be continued, salary adjustments are needed, not only for directly affected employees but also for other employees who are affected, surely but indirectly, by the salary compression inevitably resulting from increasing the salaries of directly affected employees at least to the required minimum salary level; and (d) how the employer should address budgeting concerns resulting from federally-mandated mid-term personnel cost increases.

Original Post Authored by Don Anderson, Ancel Glink

Wednesday, March 23, 2016

Just Published: Handling the Land Use Case

I am excited to report that Handling the Land Use Case (2016 edition) was recently published by Thomson Reuters. Blog author Julie Tappendorf is one of the co-authors of this two volume treatise on land use litigation. Other authors include John Delaney, Stanley Abrams, Frank Schnidman and Patricia Salkin. The publisher's description of the book is below and if you want to learn more about the book, you can visit the publisher's website.
In Handling the Land Use Case: Land Use Law, Practice & Forms, expert authors with more than 100 years of cumulative land use experience guide you through the complexities of a land use matter from the first client meeting through the administrative and judicial processes. Their overview is comprehensive, covering everything from neighborhood land use squabbles to sophisticated conflicts, presenting guidance on handling the various stakeholders in these situations. The manual provides informative references for lawyers, municipal officials, private land use consultants, landowners, and developers. Coverage includes: 
• Basic regulations

• Use of expert witnesses and exhibits

• Dealing with citizen participation

• Substantive areas of land use and environmental law

• Legal forms and sample documents, both in the text and accompanying CD-ROM

• Extensive checklists and a selected bibliography

• Various approaches and options for attorney fees

• Sample clauses

Post Authored by Julie Tappendorf

Tuesday, March 22, 2016

Private Foundation Must Respond to FOIA Request

In a recent circuit court decision, the DuPage County Circuit Court rendered a potentially precedent-setting decision that could have ramifications for municipal and park district foundations. Chicago Tribune v. College of DuPage.

In April, 2015, the Chicago Tribune sued the College of DuPage and the College of DuPage Foundation to obtain documents that were withheld in response to a federal grand jury subpoena the Tribune sent to both entities.  The College of DuPage later provided most, but not all of the requested documents. The Foundation did not respond, arguing that it was not subject to FOIA as a nonprofit entity that is not a subsidiary of the College.

In the lawsuit, the Chicago Tribune argued that the College and the Foundation violated FOIA by refusing to respond to the subpoena.  Further, the Tribune argued that that Foundation is a subsidiary of the College, and should be similarly subject to FOIA. 

The court first addressed whether the Foundation is a public body or a subsidiary of a public body. The court acknowledged that the Foundation is a private, nonprofit corporation, with 501(c)(3) tax exempt status.  The court also noted that the Foundation was not created pursuant to any statute.  Based on the formal legal nature of the Foundation the independence of the Foundation’s Board of Directors, and the lack of any case law finding a private, nonprofit foundation to be a subsidiary of a public school, the Court found that the Foundation is not a public body, nor a subsidiary of the College. 

The court next addressed whether the Foundation possessed a public record pertaining to the transaction of public business.  Section 7(2) of FOIA provides as follows:
A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.  (emphasis added) 5 ILCS 140/7(2). 
The court found that the Foundation had indeed contracted to perform a governmental function on behalf of the College.  Although no specific contract was cited, a June 22, 2009 Memorandum of Understanding of the Foundations’ Board of Trustees, stated that all donations to the College would be routed through the Foundation.  The Foundation holds all private donations to the College, even those that were not solicited by the Foundation.  Further, the College has no separate endowment and its sole fundraising source is the Foundation.  The court found this proved that the Foundation performs duties that directly relate to the governmental function of the College. 

The court then addressed whether the Tribune’s subpoena is a public record, subject to FOIA.  The Court answered this question in the affirmative, finding that the subpoena is a public record of the Foundation, as the Foundation is under contract with the College, to “perform a governmental function on behalf of the public body.”

The court acknowledged that this decision could impact other private, non-profit foundations as it could cause donors who wish to remain anonymous to withhold donations for fear of disclosure of information under FOIA.  However, it reasoned that this potential impact would be remedied by the FOIA privacy exemptions. 

The Foundation now has until April 19, 2016 to comply with the FOIA request or appeal.  We will continue to monitor the case to see whether an appeal is filed.

Post Authored by Erin Baker, Ancel Glink

Monday, March 21, 2016

Illinois Planning Group Opposes Annexation Bill

The legislative committee of the Illinois Chapter of the American Planning Association (APA) is asking Illinois municipalities to contact their legislative representatives to oppose House Bill 6033. If passed, that bill would amend the annexation provisions of the Illinois Municipal Code to establish new notification and procedural requirements beyond what is already required by state law.  The pertinent provisions are summarized below:
  • New section 7-1-1.2(a) would require the corporate authorities to conduct a public hearing before any annexation is approved, even those where all parties are in agreement on the annexation. 
  • New section 7-1-1.2(b) would require the municipality to provide 30 days prior notice of the public hearing to all owners within 1/2 mile of the proposed annexation area. 
  • New section 7-1-1.2(c) would provide those owners notified under (b) a right to be heard at the public hearing.
  • New section 7-1-1.2(d) would require the corporate authorities to make a determination and a good faith investigation into issues raised at the hearing, and then respond to those issues.
  • Finally, new section 7-1-5.4 would require municipalities to work with developers and government bodies impacted by any annexation to ensure roads are maintained in as good, if not better, condition than before annexation.

The legislative committee has sent out an e-blast with its analysis of the legislation.  According to the legislative committee e-blast:
HB 6033 is an odd piece of legislation. It is unclear what, if any, issues it is trying to address in existing annexation law. The bill, as presented, is duplicative of many existing annexation and annexation agreement statutory requirements, and includes a lot of imprecise language that can open the door to significant and costly litigation based on alleged technical defects in the annexation process. Annexation has always been a process left to the discretion of a municipality based on its development and planning objectives. HB 6033 turns this longstanding policy principle on its head, presupposes that annexations occur in a policy vacuum, and elevates the rights of people who are not necessarily residents of the municipality or even the territory to be annexed.
To learn more about the APA's recommendation, click here.   

Thursday, March 17, 2016

Municipal Minute's 1000th Post!

Over Labor Day weekend in 2011, I started the Municipal Minute blog as a way to educate local government officials and employees about legal issues relevant to municipalities and other government entities. My first post, Tweeting into Trouble, was published on September 3, 2011. While it had only 82 views, it was a great start and the content of that post is still relevant today. Now, 4 1/2 years and exactly 1000 posts later, the blog's name and mission remain unchanged. The side benefit is that the education on local government law has not been one-sided - I've learned just as much as my readers.

I can't tell you how grateful I am for all of you who read the blog, whether via Twitter, RSS or other reader, email, or otherwise, whether you started with me 1000 posts ago or are a brand new reader. Thanks so much for tuning in, and I hope you stick around for 1000 more posts. 

And, let's not forget the other important celebration happening today - Happy St. Patrick's Day!


Tuesday, March 15, 2016

Lawsuit Seeking Tougher Gun Regulations Dismissed

In recent years, many local gun regulations, including gun dealer regulations, have been subjected to legal challenges arguing that the regulations were too stringent to comply with the requirements of the Second Amendment. Recently, a Cook County Circuit Court considered a lawsuit arguing the opposite position - that two villages’ gun dealer regulations were not strong enough to stem the tide of illegal guns in to a neighboring city.

In Coalition for Safe Chicago Communities v. Village of Riverdale, 15 CH 10390, a community organization filed a lawsuit against the Villages of Riverdale and Lincolnwood, arguing that the villages violated the Illinois Civil Rights Act by failing to adequately license or regulate firearms dealers. Specifically, the lawsuit argues that the village's failure to adequately regulate these dealers has a disparate impact on African-Americans living in the City of Chicago because these residents are disproportionately affected by crime involving firearms sold within these two villages. Plaintiffs sought a mandatory injunction requiring the villages to adopt gun regulations recommended by a recent report from the City of Chicago to reduce the flow of illegal firearms in to the city.

The court dismissed the case, however, finding that the community organization lacked standing in the case. The complaint failed to allege any of the individual plaintiffs suffered a distinct and palpable injury as a result of the village’s firearm regulations. Plaintiffs also failed to quantify the economic interest or economic loss attributable to the village’s regulations. While plaintiffs alleged that the firearms purchased or obtained in the villages afflicted a disproportionate level of gun violence in the city, the court concluded this “generalized grievance” was not enough to grant plaintiffs standing. The court found that plaintiffs’ alleged injury is not fairly traceable to the villages’ gun regulations, and adoption of plaintiffs’ requested regulations is not likely to redress plaintiffs’ alleged injury.

The court also found that the plaintiffs failed to state a claim under the Illinois Civil Rights Act. First, the plaintiffs improperly relied on the villages’ alleged lack of regulations, and as a result failed to allege the required “identifiable, facially-neutral policy or practice” or “criteria or methods of administration.” Additionally, plaintiffs failed to adequately allege the villages’ regulations resulted in the disproportionate level of gun violence in plaintiffs’ neighborhoods, and subjected the plaintiffs to discrimination.

While plaintiffs were unsuccessful in this lawsuit, local governments may face more legal challenges to their firearms regulations in the years to come, from litigants contending the regulations are too strict, and from others contending the regulations are not strict enough.

Authored by Daniel J. Bolin, Ancel Glink

Monday, March 14, 2016

Candidate Off Ballot Where Circulator's Name and Signature on Nominating Petitions Do Not Match

It's election season, or as some call it, the silly season, meaning lots of political ads, political signs, and court challenges. Today's case deals with a challenge to a candidate's petition for nomination based on an alleged failure to comply with the Election Code requirement that each nomination page of signatures contain a circulator's signature.

In Schwartz v. Kinney, 2016 IL App (3d) 160021, objectors brought an election challenge to the candidacy of Jack Schwartz, candidate for Rock Island County State's Attorney. The basis for the challenge was that the circulator's signature on certain nomination pages did not match the typed name in the circulator affidavit. Specifically, on some of the nomination pages, The typed name of Jack Schwartz was identified as the circulator, but his wife, Amy Schwartz, actually signed the circulator's affidavit. 

The objection was first heard by the Rock Island electoral board, which heard testimony from the candidate and his wife on the issue. They both admitted that although Jack was listed as the circulator, Amy was the one who signed the circulator affidavit. They argued, however, that because they were both present for the signing of the nomination pages, there was "substantial compliance" with the Election Code. 

The electoral board ruled in favor of the objection, finding the nomination pages where Amy signed instead of Jack to be invalid. As a result, Jack no longer had enough signatures to be placed on the ballot.  

On appeal, the appellate court upheld the electoral board's ruling, finding that Jack did not comply with the Election Code because the name of the circulator and the signature of the circulator did not match. The court also rejected the candidate's argument that they were "co-circulators" finding no language in the Election Code to allow such a practice.

Post Authored by Julie Tappendorf

Friday, March 11, 2016

Defense Request for Facebook Archives of Victim Too Broad

It's not a government case, but still an interesting issue relating to social media use in court cases. Recently, a federal judge in Illinois ruled that defense attorneys "cast too wide a net" in asking to see the Facebook archives of an accident victim and her family in a case filed by the family against the defendant truck driver. The defense argued that the social media content went to damages issues, including grief and mental suffering following the victim's death. While the court acknowledged that some of the social media content may be relevant, the request for all content going back to 2006 was too broad. 

You can read more about the case in the Chicago Daily Law Bulletin here.

Post Authored by Julie Tappendorf

Thursday, March 10, 2016

Upcoming Government Social Media Conference in Reno

Interested in government use of social media?  Then you don't want to miss the second annual social media conference designed specifically for government officials and employees - #GSMCON 2016. Here are the details:

April 6-8, 2016
Atlantis Resort & Spa, Reno, Nevada 

Last year's conference was jam packed with sessions of interest to government employees involved in social media activities, and this year's conference includes even more social media topics of interest to governments.  Examples of 2016 topics include the following:
  • Legal Aspects of Government Social Media (Municipal Minute author Julie Tappendorf of Ancel Glink will be presenting this session)
  • Penning the Perfect Policy
  • How to Handle Negative Viral Social Media
  • Managing Elected Officials' Profiles
  • More topics are listed in the agenda here
Keynote speakers include representatives from Facebook, LinkedIn, and Twitter, among many others. 

You can register for the conference here.  

Post Authored by Julie Tappendorf

Wednesday, March 9, 2016

Employee's Acceptance of Workers Compensation Benefits Bars Tort Lawsuit

At issue in today's case is whether an award of workers' compensation benefits to a paramedic precludes his tort claim against his employer (City of Chicago). The answer is yes, in Locasto v. City of Chicago.

Locasto alleges he was injured during a training exercise. He filed for workers' compensation benefits and received an award of about $150,000. He also filed a lawsuit claiming that the City intentionally injured him during firefighter paramedic training by forcing him to engage in rigorous physical exercise with minimal water breaks that resulted in dehydration and acute kidney failure. The City responded that his receipt of a workers' compensation award precluded his tort case, citing the "exclusive remedy" provision on the Workers Compensation Act. The court agreed with the City, finding that once an employee applies for and accepts workers' compensation benefits under the Act, he or she is then barred from pursuing alternative remedies, including intentional tort claims against the employer.

Post Authored by Julie Tappendorf

Tuesday, March 8, 2016

Court Declares Property Tax Exemption for Hospitals Unconstitutional

A recent court decision struck down a provision in the Illinois Property Tax Code that grants hospitals an exemption from property taxes if the value of certain services or subsidies provided by the hospital to low income and underserved individuals for the hospital year equals or exceeds the hospital’s estimated property tax liability for that year.

Carle Health System owns four parcels in Urbana, Illinois.  Prior to 2004, those parcels were exempt from real estate taxes under a Property Tax Code provision which exempts parcels being used exclusively for charitable purposes.  From 2004 through 2011, the exemption was removed and the parcels were assessed as taxable.  Carle sued to have the exemptions restored.  In 2015, a trial court ruled in favor of Carle, finding the property exempt under Section 15-86 of the Property Tax Code, a recent amendment to that Code.  

In Carle Foundation v. Cunningham Township, 2016 IL App 140795 (4thDist., 2016), the appellate court reversed, ruling that Section 15-86 is facially unconstitutional because it purports to grant a charitable exemption on the basis of providing services or subsidies equal in value to the estimated property tax liability without requiring that the subject property be used exclusively for charitable purposes.

The Court began its analysis with a discussion of Article IX Section 6 of the Illinois Constitution.  That Section authorizes the General Assembly to exempt from taxation only the property of the State, units of local government and school district and property used exclusively for agricultural and horticultural societies, and school, religious, cemetery, and charitable purposes.  The Court stated that the “used exclusively” language has been interpreted in prior decisions to mean “used primarily.”  The Court held that the absence of the term “used exclusively” from Section 15-86 rendered that section unconstitutional.

In reaching its conclusion the Court reasoned that “A property cannot buy a charitable exemption” and continued “The use to which the property is devoted is decisive rather than the use to which income from the property is employed.”  Further, “Property which is used to produce income to be used exclusively for charitable purposes may not be exempted from taxation, the test, being instead, the present use of the property rather than the ultimate use of the proceeds from the property sought to be exempted. "

Consequently, hospitals will no longer be able to rely on Section 15-86 as a route to property exemption and will be required to demonstrate that their property is used primarily for charitable purposes in order to qualify for property tax exemption.

Post Authored by Jim Rock, Ancel Glink

Monday, March 7, 2016

Appellate Court Reverses Dismissal of FOIA Based on “Reasonable Access”

Section 8.5 of FOIA was recently enacted to allow public bodies to refer requesters to the public body's website to access public records. We have reported on this blog previously how this FOIA amendment it benefits both public bodies and requesters by (1) encouraging more transparency of public records and (2) eliminating some of the administrative burden on public bodies to respond to individual requests, where the records are already available online.  Recently, a court had to interpret section 8.5, and specifically the provision that requires the records to be "reasonably accessed" on the website.

In this case, Garlick submitted a FOIA request to Naperville Township asking for property details and assessment data for the entire township. Specifically, he wanted the database in its native format, and the “N07” root/parent directory and all sub-directories, including jpeg files.  The Township assesses real property for taxation purposes and has information on about 32,000 real estate records and parcels, all available on the Township's website.  The Township responded by referring Garlick to the Township's website where the records were available electronically, and cited section 8.5 of FOIA, which allows a public body to refer a requester to its website for posted materials.

Garlick then filed suit against the Township alleging a violation of FOIA. He argued that requiring him to launch 32,000 independent web searched to obtain the information he requested in his FOIA request violated the Act’s purpose.  He also argued that copying the database would not constitute the creation of a new record.

The Township responded that FOIA no longer requires a public body to copy records that are available online, that Garlick had reasonable access to the records, and that FOIA does not require a public body to create records in a specific format.  The trial court ruled in the Township’s favor, finding that Section 8.5 of the Acct was applicable.

Garlick appealed and the appellate court reversed the trial court’s decision.  The court reviewed the language of section 8.5, which states as follows: 
Notwithstanding any provision of this Act to the contrary, a public body is not required to copy a public record that is published on the public body's website. The public body shall notify the requester that the public record is available online and direct the requester to the website where the record can be reasonably accessed.  5 ILCS 140/8.5(a).  
The court held that requiring Garlick to perform 32,000 searches (which according to Garlick would require around 2,600 hours of his time) was enough to raise a question as to whether the records requested by Garlick could be "reasonably accessed" as required by section 8.5.  The court then sent the case back to the trial court to make that determination. Garlick v. Naperville Township, 2016 IL App (2d) 150381-U (February 22, 2016).

We will continue monitoring this case to see how the court holds.

Post authored by Erin Baker, Ancel Glink