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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

Friday, July 21, 2017

Court Upholds Ordinance Prohibiting Storage of Unregistered Vehicles


A recent Illinois Appellate Court decision considered the validity of a municipal ordinance that prohibits the storage of unregistered vehicles on private property. 

In Youngberg v. Village of Round Lake Beach, a municipality passed an ordinance making it unlawful to store any vehicle on private land unless the vehicle was duly registered for operation on the public highways of the State of Illinois. The plaintiff was issued citations by the municipality for parking two unregistered vehicles in his driveway. After an administrative adjudication hearing, the plaintiff was found to have violated the ordinance, and was issued fines. The plaintiff filed a complaint for administrative review, and the municipality’s decision was upheld by the circuit court.

On appeal, the plaintiff argued the municipality lacked the statutory authority to prohibit him for keeping an unregistered vehicle on his property. The plaintiff claimed that the Illinois Vehicle Code prohibited the operation of unregistered vehicles on public highways, but did not prohibit the storing of such vehicles on private property.  Further, the plaintiff argued that storing an unregistered vehicle on private property does not create a nuisance, and therefore the municipality lacked the statutory authority to declare otherwise by ordinance.

The court began its analysis by noting that, as a home rule unit, the municipality was not constrained by statute. Rather, the municipality was authorized to exercise any power and perform any function pertaining to its government and affairs, so long as the General Assembly has not preempted the use of home rule powers in that area. The plaintiff challenged whether the municipality’s ordinance pertained it to its government and affairs, arguing that it was the State of Illinois that had the more vital interest in making certain that state vehicle registration fees are paid. The municipality argued that when unregistered vehicles are kept on private property, they attract vermin, allow stagnant water to pool, and become eyesores.  The municipality maintained that preventing these conditions protected the health and welfare of the community.

The court found that the municipality’s ordinance served the distinctly local function of helping to guard against unhealthy and unsightly conditions within the municipality’s boundaries. As such, the court held that the ordinance pertained to the municipality’s government and affairs, and therefore was a valid exercise of the municipality’s home rule powers.

The plaintiff also argued that the ordinance exceeded the municipality’s police power as a home rule unit. The court acknowledged that ordinance was somewhat overinclusive, as not all unregistered vehicles will become eyesores. The court also noted that the ordinance was somewhat underinclusive, as some properly registered vehicles might become health hazards or eyesores.  Nonetheless, the court found that it was reasonable to “attack the problems associated with unused vehicles by prohibiting the unenclosed storage of vehicles that cannot be driven legally.” Consequently, the court found that the ordinance was also a proper exercise of the municipality’s police power.

Many municipalities have enacted similar ordinances prohibiting the unenclosed storage of unregistered vehicles.  This case confirms that, at least for home rule units, these ordinances are valid as an exercise of the municipality’s home rule and police powers.

Disclaimer: Ancel Glink represented the Village of Round Lake Beach in this case. 

Post Authored by Kurt Asprooth, Ancel Glink

Thursday, July 20, 2017

Updated Law Enforcement Guide to FOIA Released


The Public Access Counselor (PAC) for the Illinois Attorney General recently updated its guidelines for law enforcement agencies in complying with FOIA requests. The updated "FOIA Guide For Law Enforcement" replaces the previous guidelines and includes references and citations to recent cases and PAC opinions involving requests for law enforcement records.

You can access the guide on the Attorney General's website here. That page also includes links to copies of numerous PAC opinions involving requests for law enforcement records, which have been organized by FOIA exemption.

The Guide discusses the following topics, among others:

General Guidelines
  • Presumption of Openness
  • Section 2.15 (Arrest Reports)
  • 9-1-1 Calls
  • Dashboard Camera Video Recordings
  • Section 3(g) (Unduly Burdensome Requests)
  • Costs and Fees under FOIA
  • What is Creation of a New Record?
  • Emails and other Communications on Private Accounts** (see note below)
Section 7 Exemptions
  • 7(1)(a) (prohibited from disclosure by federal or state law, rules or regulations)
  • 7(1)(b) (private information)
  • 7(1)(c) (personal information)
  • 7(1)(d) (law enforcement or administrative enforcement proceedings)
  • 7(1)(e) (security of correctional institutions or detention facilities)
  • 7(1)(f) (predecisional, deliberative communications)
  • 7(1)(n) (adjudication of grievances and disciplinary cases)
  • 7(1)(v) (security plans)
Section 7.5 Exemptions
  • 7.5(k) (Illinois Vehicle Code)
  • 7.5(v) (FOID Act and Concealed Carry Act)
  • 7.5 (bb) (Juvenile Court Act of 1987)
  • 7.5 (cc) (Law Enforcement Officer-Worn Body Camera Act)
This Guide will be helpful for law enforcement agencies (including municipal police departments) in responding to FOIA requests. It could also serve as a resource for general use by public bodies, as many of the topics discussed in the Guide have general applicability beyond law enforcement records. To the extent a public body and/or FOIA Officer has questions about how these guidelines apply to a specific request or situation, they should consult with the public body's attorney for guidance, as is noted on page 1 of the Guide.

**Interestingly, with respect to the topic of electronic communications on private accounts, the PAC concludes that emails/texts pertaining to the transaction of public business are public records even when sent on private accounts. The Guide cites a number of PAC opinions to support that conclusion but does not, however, mention the Champaign v. Madigan case. That case, as you may recall, addressed the appeal of a PAC opinion finding a violation of FOIA when city council texts weren't turned over. Although the court agreed with the PAC that the city violated FOIA, it did so on more limited grounds than relied upon by the PAC. In determining whether electronic communications sent/received by members of a public body on their private devices or accounts are subject to FOIA, the court set out 3 circumstances where those emails/texts on private devices are subject to FOIA, as follows: (1) when forwarded to an official account of the public body; (2) when sent to a majority of the public body; or (3) when sent during a meeting of the public body. 

Shout out to a Deputy Public Access Counselor at the Attorney General's Office for letting us know about the publication of this updated information!

Post Authored by Julie Tappendorf

Wednesday, July 19, 2017

Governor's Aide Fired on First Day for Tweets


In another installment of "be careful what you tweet," an aide for the Illinois governor was fired on his first day on the job, reportedly for inappropriate tweets.  News reports identify some of the former aide's tweets as being racist and homophobic, including the following:
"To the Indian people in the library: SHUT THE F--- UP!"
"I bet you liked that #fag"
"Maybe body slamming reporters is the winning formula for republicans in IL?"
It's important to point out that many of these tweets were posted years ago, so employees should take notice that what's in the past doesn't always stay in the past.  The Internet doesn't forget.

Post Authored by Julie Tappendorf

Tuesday, July 18, 2017

PAC Finds Body in Violation of FOIA For Failure to Respond to FOIA Request


I hesitated even posting this today, but we have been consistent in reporting on all binding opinions issued by the Public Access Counselor's office on FOIA and OMA complaints so we didn't want to miss this one.  Last week, the PAC issued an opinion finding a public body in violation of FOIA for its complete failure to respond to a FOIA request.  PAC Op. 17-009.  That's it, folks - there is nothing more to it than that. 4 of the 9 binding opinions issued this year have dealt with the same issue. 

Post Authored by Julie Tappendorf

Monday, July 17, 2017

Judge's Twitter Activities Did Not Constitute Bias


Recently, the Ninth Circuit Court of Appeals addressed an argument that the sitting judge in a case should have been recused because of his social media activities.  U.S. v. Sierra Pacific Indus. (9th Cir. July 13, 2017). After being found liable for damages relating to forest fires in California, the defendants (2 forestry operators) appealed the decision, requesting that the case be reversed on several grounds, including bias on the part of the judge for the following activities:
  1. Following a public Twitter account maintained by the U.S. Attorney constituted improper ex parte communications; and
  2. Tweeting a link to an allegedly erroneous news article required reversal of the district court's decision.

The Court first held that the judge's alleged "following" of the U.S. Attorneys' office on Twitter did not prove bias, stating as follows:
[T]he fact that an account holder "follows" another Twitter user does not evidence a personal relationship and certainly not one that, without more, would require recusal.
The Court next addressed the claim that following the U.S. Attorneys' Twitter account constituted improper ex parte communications between the judge and the U.S. Attorneys' office, in the context of an opinion from the Code of Conduct applicable to judges that states:
[C]oncerns of improper communication arise in the context of the exchange of frequent messages, 'wall posts', or 'tweets' between a judge or judicial employee and a 'friend' on a social network who is also counsel in a case pending before the court.
In the Court's opinion, the mere "following" of the States Attorneys' Twitter account did not rise to the level of social media communications that would fall within the Code of Conduct.

Finally, in the Court's opinion, the judge's tweet that linked to a news article about the case did not mandate recusal since the tweet did not contain only the title and link, and no commentary from the judge. The Court based its opinion in part because the Twitter account in question did not publicly identify the judge as the account holder. It's not clear if the outcome would have been different if that had not been the case - in other words, if the account was clearly identified as the judge's Twitter account.  

The Court concluded its opinion with some advice to judges on social media activities:
Nonetheless, this case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench.
Post Authored by Julie Tappendorf


Thursday, July 13, 2017

President Sued For Blocking Twitter Users


We have previously mentioned on the blog that the law treats a personal social media site different from a government site. For example, a government social media site may be subject to open records laws (FOIA), record retention laws, and most importantly, the First Amendment. 

Because the First Amendment protects free speech rights against government interference, government must be careful in moderating activities on its social media sites. So, while individuals might delete comments or posts that they don't like from their personal social media page, a government does not have the same freedom because comments and posts made on a government social media page could be protected First Amendment speech. Similarly, while individuals can block people from their own personal pages, governments have to be cautious not to censor an individual's protected speech.

This issue recently came up in connection with the President's Twitter account. According to news reports, people have been blocked from the President's @realDonaldTrump Twitter site after tweeting criticism. Earlier this week, seven individuals and the Knight First Amendment Institute at Columbia University filed a lawsuit against Trump, press secretary Sean Spicer and Dan Scavino (the White House director of social media) claiming that their First Amendment right to free speech had been violated by the Twitter block. The lawsuit claims that @realDonaldTrump is an official government social media site because of the way the President uses his Twitter account to communicate about government business. You can read some of these arguments on the Knight First Amendment Institute's website here and you can read the complaint here.

It will be interesting to see how this case proceeds, particularly in light of the recent U.S. Supreme Court opinion recognizing social media as an important platform for exchanging views and engaging with elected officials. Specifically, the Court stated as follows:
Twitter, [where] users can petition their elected representatives and otherwise engage with them in a direct manner. 
The threshold question is whether the President's @realDonaldTrump account is a government account that would implicate First Amendment protections. The answer to that question will likely turn on how the account is used by the President and the White House, and how that site is used as compared to the @POTUS account. The fact that White House aides assist him in administering the @realDonaldTrump page, including posting tweets on behalf of the President, will also likely be relevant.

This is an important issue for elected officials at all levels who use Twitter, Facebook, and other social media sites to communicate and connect with their constituents. 

Post Authored by Julie Tappendorf

Wednesday, July 12, 2017

Septic License Holder's Due Process Case Against County Can Continue


Last week, the Seventh Circuit allowed a Brown County, Indiana man to continue his federal lawsuit against the County for his claims that the County violated his due process rights.

John Simpson owned a septic installation company in Brown County, and held a County license to install and repair septic systems. On May 31, 2013, Simpson received a letter from a County Health Officer, Paul Page, demanding that he immediately repair a septic system, and if Simpson failed to do so, his license could be revoked. A second letter was sent to Simpson on June 14, 2013 informing him that his name was being removed from the list of approved septic contractors and, therefore, would have his license rescinded. Simpson was not told of the law or regulation that he violated in order to have his license revoked, and was not given any opportunity for a hearing or an appeal of the revocation.

Simpson sued, and his case made its way to the Seventh Circuit Court of Appeals. That Court overturned the district court’s dismissal of Simpson’s case against the County, allowing his case to move forward.  The Seventh Circuit focused primarily on the power and discretion the County’s septic ordinance gave their health officers. Under the established procedures of the County’s septic ordinance, a County Health Officer has broad discretion to remove any worker who demonstrates an “inability or unwillingness to comply” with the ordinance. This allowed these officers to act without giving people like Simpson any right to be heard before their license was taken from them. The Court noted that there was no reason to believe that the cost of basic procedures (such as notice and a hearing) would be so unduly burdensome to deny a pre-deprivation process to Simpson.

In sum, the Seventh Circuit held that Simpson has stated a claim for a violation of procedural due process, allowing his case to continue.

Post Authored by Katherine Takiguchi, Ancel Glink

Tuesday, July 11, 2017

PAC Finds Another City in Violation of FOIA



The PAC recently issued another binding opinion, Public Access Opinion 17-007,  finding the City of Benton in violation of FOIA.  The City received a FOIA request seeking agendas and minutes for the Benton Airport for 2013, 2014, and 2015, and forwarded the request to the Airport Board.  A member of the Airport Board responded asking for a 5 day extension as it had not yet appointed a FOIA officer.  When the requester still did not receive the requested information, she filed a Request for Review with the PAC claiming that the City violated FOIA.  In response to the Request for Review, the City argued that since the FOIA request pertained to the Airport, it should be directed to the Airport, which the City claimed is a separate entity, and not to the City. PAC Op. 17-007.

The PAC first evaluated the extension, finding it inappropriate under Section 3(e) of FOIA, which does not allow a public body to unilaterally extend the time for response because of a lack of a designated FOIA officer.  Further, the requester did not agree to any extension of time. 

Next, the PAC disagreed with the  City’s contention that the Airport is a separate entity.  Although the Airport has its own board and adopts it own laws, the PAC found that the Airport was a City-owned property, and the Board was created by City ordinance. The Airport Board members are also appointed and may be removed by the City’s mayor and Airport funds are maintained in the City treasury.  Further, the PAC noted that the Airport Board submits reports to the City, and is listed as a City Board on the City’s website.  The PAC found that these facts showed that the City is responsible for responding to the FOIA request, just as it would be for other municipal departments.  In sum, the PAC found that the City violated Section 3(d) of FOIA by failing to respond and ordered the City to comply with the request.  

Post Authored by Erin Pell, Ancel Glink

Monday, July 10, 2017

Employee Challenges Employer's Social Media Policy


We've reported frequently on employees "behaving badly" on social media and being disciplined and even terminated for postings, even when those posts are made on their private social media sites and on their own time.  As a general rule, an employer can discipline employees for personal social media activities, so long as those activities do not constitute protected activity (i.e., First Amendment protected speech, matters of public concern, protected concerted activities, etc).  Individual gripes about your job or your boss are typically not protected and can subject an employee to discipline.

An employee at a retirement facility was recently terminated for her social media posts that included the following:
Today was the worst!!!!!!!!!
And, in a post that appeared to be directed at her co-workers:
Thanks for helping out...Oh wait I am a team of 1 because others have meetings or they to [sic] lazy to get up to help someone.
Reportedly, the employee says she was forced to resign for violating the employer's social media policy. She claims her employer's social media policy prohibits employees from making online comments that might embarrass the company, and that policy violates her right to discuss workplace conditions.

We'll certainly keep an eye on this case as it moves forward. Based on the information available on this case, it appears that her posts fall more in the "individual griping" category (not protected) rather than activities protected by labor laws such as discussion of salary and working conditions (protected). That being said, even if this particular employee's posts were not protected and if her termination is upheld, the employer's social media policy could still be found invalid if it is so broad in scope that it could be interpreted to cover protected activities.

You can read more about the case and the employee's claims in the Roanoke Times here.

Post Authored by Julie Tappendorf

Friday, July 7, 2017

PAC Finds Governor's Office in Violation of FOIA


In its 8th binding opinion of 2017, the PAC issued a ruling finding the Governor's office in violation of FOIA for not responding to a request for copies of the Deputy Governor's emails and daily schedule. PAC Op. 17-008.  There really isn't much more than that to report - the Governor's office failed to respond to the request, so the PAC found the office in violation of FOIA. 

Frankly, there doesn't seem to be a good reason why the PAC made this a binding opinion. It doesn't provide any new guidance to public bodies that we haven't seen in so many other binding opinions - i.e., if someone files a FOIA request, you have to respond to it. As I've noted before on the blog, it would be helpful to public bodies if the PAC were more transparent with its advisory opinions  and posted them on its website. These advisory opinions (which make up more than 90% of the opinions issued by the PAC) often provide interpretations of unique issues that public bodies face in complying with FOIA and OMA.  

Post Authored by Julie Tappendorf

Thursday, July 6, 2017

July 1st Deadline for Basset Training in Certain Counties



As you may recall P.A. 99-46 (approved in 2015) required alcohol servers and ID checkers in liquor establishments to be Basset-trained. The Act phased in the training requirement by county population. Servers in counties with a population over 200,000 were required to comply with the Act by July 1, 2016. Servers in counties between the population of 30,000 and 200,000 must be in compliance with the Basset training requirement by July 1, 2017. The balance of the state has a July 1, 2018 deadline to implement Basset training.
  
The State Liquor Commission website has a list of locations where training is provided on a monthly basis.  Other locations may be scheduled for training events from time to time. You can find more information here:

It is incumbent on licensees to make sure their servers and ID-checkers are Basset certified. Failure to do so may result in enforcement action taken against the licensee. New servers have 120 days to complete their Basset training. Servers must renew their training every three years. Licensees will want to obtain a copy of the Basset training card for all of their servers in the event the state or the local commissioners audits the licensee.


Local Liquor Commissioners will want to inform liquor licensees of this training requirement. Municipalities may consider adding the Basset training to their local liquor ordinance.

Post Authored by Steve Mahrt, Ancel Glink

Wednesday, July 5, 2017

Supreme Court Decision Affects Local Governments on Social Media


Excerpt from the ELGL (Engaging Local Government Leaders) Blog: Supreme Court Decision Affects Local Governments on Social Media

Last week's Supreme Court decision in Packingham v. North Carolina recognizes the application of the First Amendment to social media. Today, Dan Bolin and Julie Tappendorf take a closer look at what that means for local governments in a blog post for ELGL (Engaging Local Government Leaders):

The Government Can’t Just Delete Comments it Doesn’t Like

If you see a post you don’t like on your personal Facebook 'wall,' you can just delete or hide it, or just block someone from posting at all. Moderating comments on local government social media sites is very different, however, because of the First Amendment.

The First Amendment provides individuals with the right to engage in protected speech without government interference. If a local government establishes a social media site to communicate with the public about agency business, the First Amendment will apply to the comments and posts made by others on that site. So, the moderator of the agency page cannot simply delete, hide or block posts or people based solely on the content of the message that was posted.

That does not mean that 'anything goes' on government social media sites. Governments can adopt rules on public comments so long as the rules do not implicate protected speech. For example, local governments might ban commercial advertising on its site, prohibit discriminatory comments, and ban all links to third party sites.

However, removing posts that are simply critical of the agency or its activities could be subject to challenge as a violation of the First Amendment. Many governments find it helpful to look at social media moderation along the same lines as moderation of comments at a public meeting – while it is acceptable for the public to criticize and disagree with agency actions, if the speech becomes disruptive, agencies will enforce 'rules of decorum.'

Local governments should put their comment policies in writing and post them on their social media sites (or provide links to the policies on their website) to put the public on notice of the type of comments that will be subject to removal.

Local Government Employees have First Amendment Rights on Social Media

Public employees also have the right to exercise their First Amendment speech rights, to comment on working conditions, and to speak on matters of public concern. As a general rule, however, social media posts that fall more into the category of an “individual gripe” about the employee’s job or supervisor will not be considered protected and could result in discipline and even termination.

Adopt and Review a Social Media Policy

By adopting a social media policy, including a comment policy and employee use policy, local governments can manage social media in accordance with the First Amendment, open records laws, open meetings laws, and copyright laws."


In case you haven't heard, ELGL is a fun and fast-growing organization aiming to connect, communicate, and educate about local government. Give them a follow on Twitter @ELGL50, and check out their blog for more information about important local government topics.

Post Authored by Dan Bolin, Ancel Glink

Thursday, June 29, 2017

Court Upholds PAC Opinion Rejecting Use of "Trade Secrets" Exemption


Previously, we reported on a PAC binding opinion finding a village in violation of FOIA for redacting certain financial information from contracts it released under FOIA. The requester had asked for records relating to financial incentives provided to Garth Brooks for a concert he performed at Allstate Arena. The village had provided the records, but redacted the amount of the financial incentives. The requester filed a complaint with the Illinois Attorney General (PAC office), which determined that the village had violated FOIA by redacting information that was not exempt from FOIA, and did not fall into the "trade secret" exemption. The PAC also rejected the village's argument that a local ordinance protected this information from release.

The village appealed the PAC's ruling in court, and just this week an appellate court upheld the PAC's ruling that the village violated FOIA in not turning over the financial information in the requested records. BGA v. Village of Rosemont. The court agreed that the "trade secrets" exemption did not apply to the rent and other financial incentive information within the requested contracts. The court also agreed that the village was preempted from adopting an ordinance that  attempted to exempt from public release information that is required to be released under FOIA, stating as follows:
Home rule units have the power to expand the duty to disclose, but they lack authority to exempt from disclosure documents and information for which FOIA mandates disclosure. 
As a result, the village was directed to release the information to the requester.

Post Authored by Julie Tappendorf


Wednesday, June 28, 2017

Seventh Circuit Finds No Violation of RLUIPA or Illinois RFRA Based on Sprinkler System Dispute


A recent decision from the Seventh Circuit considered whether a municipality violated the Illinois Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Person Act (RLUIPA) by evicting residents of a religious recovery home that lacked a sprinkler system.
In Affordable Recovery Housing v. City of BlueIsland, a faith-based group sought to use a vacant convent as a recovery home for adults suffering from drug and alcohol addiction.  However, after the recovery home had already moved in dozens of residents, the municipality notified the recovery home that it was required to install a sprinkler system.  The recovery home refused to install the sprinkler system because of the significant cost. The municipality then issued an eviction order, and the residents of the recovery home were forced to move out.
The recovery home filed suit claiming, among other things, that the municipality had violated the Illinois RFRA and RLUIPA. The recovery home argued that the municipality substantially burdened its exercise of religion by evicting the recovery home residents due to the lack of a sprinkler system.  While the recovery home subsequently obtained a state license to operate, which did not require the installation of a sprinkler system, the recovery home pursued its claims based on the alleged infringement of its exercise of religion.

The Seventh Circuit rejected the recovery home’s claims.  The court found that there was no evidence that the expulsion of the recovery home's residents was attributable to anything other than a legitimate concern for fire hazards based on the lack of a sprinkler system.  The court also noted that the recovery home did not claim that the sprinkler system requirement itself burdened its religious exercise, only the expulsion of its residents.  As such, the court found that the expulsion of the residents was due to the recovery home's disregard for the sprinkler requirement, and that the whole issue could have been avoided had the recovery home researched the state licensing and operating requirements before it started accepting residents.  The court also held that, even if the municipality's fire-safety code could be considered a zoning law subject to RLUIPA's protections, the municipality was not seeking to exclude the recovery home from the municipality's boundaries, and therefore there was no violation of RLUIPA. 

Post Authored by Kurt Asprooth, Ancel Glink

Tuesday, June 27, 2017

Murr v Wisconsin: A Restatement and Complication of the Whole Parcel Rule


As promised, we've put together a more in depth analysis of the U.S. Supreme Court's opinion in Murr v. Wisconsin (the takings case).

No one has ever accused the Supreme Court of making Fifth Amendment regulatory takings law easy to understand. Following this robust tradition, Justice Kennedy penned the latest installment in a head scratching regulatory takings analysis with his majority opinion in Murr.

Murr starts with the purchase of two adjoining properties, Parcel E and Parcel F, in the early 1960s, later conveyed in the mid 1990s. Both parcels sit in the Lower St. Croix River watershed and are both subject to federal and state development regulations that make each lot undevelopable, but through operation of state law, the parcels are merged to make one larger development parcel. Merger rules like this are common and well established across the United States, and this becomes an important factor in Justice Kennedy’s analysis. However, what should have been a fairly straight line from past Supreme Court regulatory takings analysis derived from Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), becomes a whole new elaboration and analytical framework on Penn Central’s “whole parcel rule”, a point raised in Chief Justice Roberts’ dissent.

Regardless, Murr is still a victory for local governments and balances the inherent tension in the Supreme Court’s regulatory takings analysis between private property rights and government’s ability to promote orderly growth and development; it just does so in a convoluted way. Justice Kennedy’s decision establishes a new analytical framework to determine what is the “denominator” in understanding the property affected by a regulation. Recall, the Supreme Court addressed this issue in Penn Central. The railroad company wanted to build an office tower over Grand Central Station. New York City’s historic preservation requirements prohibited the construction of the tower. Penn Central tried to assert that the City’s regulation resulted in a taking of its air rights above the station. The Court declined to adopt the railroad’s "unbundling" of property rights, explaining that any takings analysis must look at the parcel as a whole. Lucas’ total taking was derived from this formulation, where the challenged regulation leaves no economic value in the property. However, if any part of the property still retains economic value, a taking claim can be defeated.

In the wake of Murr, to understand “What is the proper unit of property against which to assess the effect of the challenged governmental action?” three interrelated factors must be considered:

  1. How is the land defined under state law and what are the reasonable restrictions that affect that development and dispensation of the land?
  2. What are the physical characteristics of the land and the surrounding human and ecological environment?
  3. What is the value of the property under the challenged regulations, particularly with regard to whether the regulated land adds value to the remaining property, such as increased privacy?

Among the questions raised by Murr are whether these factors are in addition to Penn Central’s multi factor analysis or stand independently, only applicable in merger situations?

There are certainly others, but in the immediate aftermath, it is clear Murr preserves local governments ability to define developable areas on parcels of land and preserves the merger tool as a way to accommodate property owners while ensuring for orderly development patterns.

Post Authored by David Silverman, Ancel Glink

Friday, June 23, 2017

Supreme Court Upholds Government Decision in Murr v. Wisconsin


BREAKING NEWS FOR LAND USE FOLKS - MURR DECIDED BY USSCT

This morning, the U.S. Supreme Court issued its opinion in Murr v. Wisconsin, a long-awaited land use decision. The Supreme Court upheld the court of appeals ruling that the owners of two "merged" lots did not suffer an unconstitutional "taking" of their property when the government denied their request to allow them to separate the consolidated lots so they could be individually developed. Murr v. Wisconsin, USSCT (decided June 23, 2017)

The Supreme Court analyzed the plaintiffs' takings claim by considering plaintiffs’ property as a whole, cfinding that plaintiffs could not establish a compensable taking because they (1) have not suffered a taking under Lucas, as they have not been deprived of all economically beneficial use of their property and (2) also did not suffer a taking under the more general test of Penn Central.

We will provide a more detailed summary of the Supreme Court's decision next week, including the Court's takings analysis.

Post Authored by Julie Tappendorf

Prevailing Wage Act Amended Regarding Timing for DOL Publication of Prevailing Wages


There has been very little legislation being enacted in this term of the Illinois General Assembly, at least to-date - exactly 2 new Public Acts have become effective.  One of these deals with the the Prevailing Wage Act.  

Local governments know they are obligated to approve a prevailing wage ordinance each June to adopt the prevailing wages that apply to public works projects. The Act also requires the Department of Labor to investigate and ascertain the prevailing wages in the month of June. So, public bodies rely on the DOL to release and publish the prevailing wage rates prior to the public body's enactment of the prevailing wage ordinance.  Over the past few years, that's been hit or miss (the DOL didn't even adopt new wage rates in 2016).  

Recently enacted legislation (P.A. 100-002) would make it even more difficult for public bodies to comply with the statutory requirements. Although no change has been made to the mandatory June deadline for a local government adopting the prevailing wage ordinance, the Act was modified to give the DOL until August 15th to publish the applicable prevailing wage rates.  So, presumably, a public body has to adopt the ordinance in June, but the DOL doesn't have to publish the new rates until August - 2 months after the deadline for local government compliance. There certainly seems to be a disconnect on this one.

You can read the P.A.100-002 here.

Post Authored by Julie Tappendorf

University Violated Free Speech Rights of Student Group Advocating for Changes to Marijuana Laws


We've seen a lot of First Amendment cases lately, including today's which deals with a university policy regarding use of its logo.

Iowa State University grants student organizations permission to use its trademarks under certain conditions. However, when the student chapter of the National Organization for the Reform of Marijuana Laws (NORML) requested permission to use the school logo in its design that included a cannabis leaf, the school denied the request. Two students sued the school, claiming the decision violated their First Amendment free speech rights. Recently, the Eighth Circuit Court of Appeals issued an opinion ruling in the students' favor in Gerlich v. Leath.

The court of appeals addressed various arguments by the students that the university's policies were unconstitutional. First, the court held that the university's rejection of NORML's logo designs for t-shirts discriminated against the group based on the group's viewpoint - specifically, its stance on marijuana. The court noted that it appeared that the university denied the request because of a fear that the university would be seen a endorsing a political cause. The court rejected the university's argument that this was government speech, finding that the university did not use its student group logo licensing policy to "speak to the public." 

In sum, the court determined that the university violated the student group's free speech rights when it denied permission to use the university logo on t-shirts and other messaging by NORML.

Post Authored by Julie Tappendorf

Wednesday, June 21, 2017

Supreme Court Finds Social Media Ban for Convicted Sex Offenders Unconstitutional


For the first time, the U.S. Supreme Court addressed the question whether social media activities (i.e., posting, commenting, etc on social media sites such as Facebook, Twitter, and other sites) are considered "speech" under the First Amendment. In today's case, the Court answered that question yes. Packingham v. North Carolina.

A North Carolina law makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”  The law reportedly would apply to about 20,000 people in North Carolina and over 1,000 people have been prosecuted for violating it.

Packingham was convicted under this law for posting the following statement on his personal Facebook profile about a state court dismissed a traffic ticket against him: 
“Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!”
He appealed his conviction on the basis that the law violated his First Amendment free speech rights. The case made its way to the U.S. Supreme Court, which ruled in Packingham’s favor this week, striking down the law as unconstitutional. 

The Court first determined that the law applies to common social media sites such as Facebook and Twitter. The court noted that social media allows users to gain access to information and communicate with one another, and that the law bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. In the Court's opinion, foreclosing access to social media altogether prevents users (even convicted criminals) from engaging in a legitimate exercise of First Amendment rights.

Although the Court acknowledged that the government can enact specific, narrowly-tailored laws to prohibit sex offenders from engaging in certain social media activities (like contacting a minor or using a website to gain information about a minor), the Court found the North Carolina law too broad because it also prohibited protected First Amendment activities on social media that had nothing to do with keeping sex offenders away from vulnerable victims.

In sum, the Court stated as follows: 
[T]o foreclose access to social media altogether is to prevent the user from engaging in the legitimate exer­cise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even con­victed criminals—and in some instances especially con­victed criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.
The concluded that as a general rule, the Gov­ernment “may not suppress lawful speech as the means to suppress unlawful speech.” Because that is what North Carolina’s law did, the Court held it was invalid.  

Post Authored by Julie Tappendorf

Tuesday, June 20, 2017

Occupy Chicago Loses Challenge to Chicago Parks Ordinance


Previously, we reported on an Illinois appellate court ruling that upheld Chicago's ordinance closing public parks between 11 pm and 6 am after a challenge by the Occupy Chicago movement after members were arrested for violating the ordinance. The appellate court had acknowledged that the protesters were exercising their First Amendment rights. However, the court also held that the City had the right to enact regulations on use of its parks, and its hours of operation restrictions were a content-neutral regulation that addressed legitimate governmental concerns about keeping the parks safe. 

The members appealed to the Illinois Supreme Court, which issued a ruling last week also finding the ordinance constitutional. City of Chicago v. Alexander, 2017 IL 120350.

The Illinois Supreme Court first addressed the plaintiff's argument that the Illinois constitution provides greater protection for the right of assembly than the U.S. constitution. The Court rejected that argument, finding that the two provisions are "virtually identical in language" and should be interpreted using the same case law precedent.

The Court rejected plaintiff's other arguments, finding that they were waived because they were not raised before. 

In conclusion, the Court found that the appellate court applied the proper test in determining that the Chicago ordinance imposing hours of operation restrictions on city parks was constitutional as a valid "time, place, and manner" regulation.

Post Authored by Julie Tappendorf

Monday, June 19, 2017

Township Did Not Violate RLUIPA in Denying SUP for Religious School


The Sixth Circuit Court of Appeals recently issued an opinion upholding a local government decision to deny a special use permit to a religious school against a challenge that the decision violated RLUIPA (the Religious Land Use and Institutionalized Persons Act). Livingston Christian Sch. v. Genoa Charter Twp.

The school entered into a lease agreement to relocate its operations to the Brighton Nazarene Church in Genoa Charter Township. The school applied for an amended special use permit, which the Township denied by a 4-3 vote. Shortly thereafter, the school sued the Township, alleging that the denial of its special use application violated RLUIPA. 

The court of appeals analyzed the school's argument that the denial was a "substantial burden" on the school's religious exercise under RLUIPA. The court noted that to be a substantial burden under RLUIPA, the burden must have some degree of severity - in other words, "not just any imposition on religious exercise will constitute a violation of RLUIPA." In applying this test to the school's claims, the court found  that the school had a feasible alternative location, including its former location, and remaining tat that location "would not have imposed a substantial burden" on the school. The court also rejected the school's argument that the denial of its special use application effectively barred it from operating anywhere within the Township's borders, holding that this alone does not constitute a substantial burden. The court noted that when a religious institution has an available alternative outside of the desired jurisdiction, and that location is reasonably close, traveling that distance is not a substantial burden on religious exercise. 

Post Authored by Julie Tappendorf

Friday, June 16, 2017

City Prevails in PSEBA Case


From Ancel Glink's sister labor and employment blog, The Workplace Report: PSEBA Eligibility Ordinance Upheld by Court.

Recently, an Illinois appellate court addressed the legality of a local ordinance that established an application and hearing process to use in determining whether an employee is eligible for benefits under the Public Safety Employee Benefits Act (PSEBA), an Illinois statute. Englum v. City of Charleston. PSEBA provides that public safety employees, generally police, fire and paramedics, who suffer a catastrophic, career or life ending injury or illness as a result of performing certain duties of their job (generally responding to an emergency), are entitled to lifetime free health insurance to them and their dependents. 

Englum challenged the ordinance, alleging that the city did not have authority to adopt procedures under PSEBA. Specifically, he claimed the city exceeded its authority as a non-home rule municipality. The Fourth District Appellate Court disagreed. It held that because the PSEBA statute itself required benefits to be paid to eligible employees, but did not provide a procedure to determine eligibility so that the statute itself did not limit an employer’s authority to create a benefit application process. Furthermore, the court found that the Illinois Municipal Code allows municipalities to enact ordinances “in regard to the relation between all municipal officers and employees in respect to each other, the municipality and the people.” Award of PSEBA benefits, according to the court, involves not only the relation between municipal officers and employers, but also taxpayers, as they will ultimately fund the benefit.



This decision is important because it confirms the authority of municipalities to establish an orderly and uniform process for determining PSEBA eligibility, which can be an extremely contentious issue for both sides. Municipalities, whether home rule or non-home rule, should consider enacting an ordinance for the orderly determination of PSEBA benefits.

For a more detailed summary about the case, visit The Workplace Report. 

Post originally authored by Margaret Kostopolus, Ancel Glink

Disclaimer:  Ancel Glink represented the City of Charleston in this case.

Tuesday, June 13, 2017

PAC Addresses "Deliberative Process" and "Attorney-Client" Exemptions in 2 FOIA Opinions


Yesterday, the Public Access Counselor (PAC) of the Illinois Attorney General's office issued 2 binding opinions finding public bodies in violation of FOIA.

In PAC Op. 17-005, a requester filed a FOIA request seeking traffic counts from roadway monitoring operations at specific roads. The village denied the request, asserting that the traffic counts were "drafts" that had not been publicly released and were exempt under 7(1)(f). The PAC rejected the village's explanation for the denial, finding that "purely factual material" is not exempt under section 7(1)(f) of FOIA. In this case, the PAC determined that the statistical data requested by the requester did not reveal the village's reasoning or decision-making process, so it fell outside the "deliberative process exemption" even if the data was subject to later revision. 

In PAC Op. 17-006, a reporter asked for records showing job titles, locations, and number of employees that the Department of Corrections considers "essential," meaning they would be required to work in the event of interruption in state funding to the Department. The Department denied the request, first citing 7(1)(f) (deliberative process) and then later citing 7(1)(m) (attorney-client communication).  

First, the PAC noted that the Department failed to provide a detailed factual basis for the exemption, as required by section 9(a) of FOIA, and failed to provide records to the PAC for confidential review under section 9.5(c) of FOIA. 

Second, the PAC rejected the Department's use of the "attorney-client" exemption, and its argument that the determination of whether an employee is "essential" is a legal analysis that falls under the attorney-client privilege under section 7(1)(m) of FOIA. The PAC found that the Department failed to provide any support for its argument that these records constituted a communication between the Department and its attorney or that they were materials created in preparation for trial. 

The PAC also rejected the Department's reliance on the "deliberative process" exemption, finding that the Department failed to provide support for its argument that the records express opinions or formulate policies.

Post Authored by Julie Tappendorf

Monday, June 12, 2017

County's Public Forum Policy Unconstitutional


The Higher Society of Indiana wanted to hold a rally at the Tippecanoe County Courthouse, and applied for a permit from the County Board of Commissioners. The County denied the permit, and the organization brought a federal lawsuit claiming the denial violated the group's First Amendment rights. In a recent 7th Circuit Court of Appeals decision, the court agreed with the group and granted its request for an injunction. Higher Society of Indiana v. Tippecanoe County (7th Cir. June 7, 2017)

In 1999, after a controversy about a nativity scene at the courthouse, the County Board had voted to declare the courthouse grounds a "closed forum," and adopted a policy that only displays and events sponsored and prepared by county government would be allowed. After adopting the policy, the County approved a variety of events to take place on the courthouse grounds, including an art fair, a League of Women Voters event, a Fraternal Order of Police event, among others.  Still other groups held events without obtaining County permission, including Planned Parenthood, Greater Lafayette Moms in favor of Gun Sense, and others. 

In Court, the County conceded that its policy was not viewpoint neutral, but argued that its policy only allowed government speech, which the County could legally control. The Court rejected the County's argument, however, citing the various events that the County did approve or that did take place that were not traditional government speech, and instead fell within private speech similar to Higher Society's proposed rally. 

Post Authored by Julie Tappendorf

Thursday, June 8, 2017

PAC Finds City Council in Violation of OMA for Closed Session


In its 4th binding opinion of 2017, the PAC found a municipality in violation of the Open Meetings Act for improperly discussing an intergovernmental agreement in closed session.  PAC Op. 17-004.

A city council had gone into closed session at one of its meetings to discuss an intergovernmental agreement with an adjacent municipality. The agreement would provide for the sharing of revenues and expenditures in a designated commercial and industrial area adjacent to both communities. The county states attorney filed a request for review with the PAC questioning whether the city council's reliance on the "pending or probable" litigation exception was appropriate. 

The PAC determined that the evidence did not support the city council's use of the litigation exception. Specifically, the PAC noted that the newspaper had reported that no lawsuit was pending and that the mayor had stated that that he did not expect a lawsuit to be filed. Citing an Attorney General's opinion from 1983, the PAC concluded that the city council did not have reasonable grounds to believe a lawsuit was more likely than not to be instituted or was "close at hand." Although the city council had complied with the OMA requirement of citing the exception and entering into the closed session minutes a specific basis for a finding that litigation was probable, the PAC nonetheless found the basis insufficient to justify the closed session and found the city council in violation of the OMA.

Post Authored by Julie Tappendorf 

Wednesday, June 7, 2017

Failure to Formally Accept a Public Dedication Leads to Property Dispute



In J&A Cantore LP v. The City of Elmhurst, 2017 Ill App 2d, 160601, a property owner claimed ownership in a disputed portion of real estate of approximately 58 feet in width, and located immediately adjacent to the owner's parcel.  The owner had fenced and used the property for more than twenty (20) years and claimed ownership by adverse possession. 

The City of Elmhurst disputed the owner's claim to the 58 foot wide parcel because adverse possession does not run against property held for public use.  Elmhurst alleged it had acquired a fee interest in the disputed parcel in 1925 when H.O. Stone Addition was platted and recorded.  The 1925 Plat showed the disputed parcel as West Avenue.  

To complete a statutory dedication, a municipality must accept the dedication.  Acceptance can either be expressed or implied.  An express acceptance is shown by direct municipal action, such as an Ordinance or Resolution stating acceptance.  An implied acceptance is based on municipal acts recognizing the street and treating it as public.  Acceptance may come a reasonable time after dedication and is valid as long as it occurs prior to withdrawal or revocation of the dedication.  

In this case, the court held that the City of Elmhurst had failed to take express action accepting the dedication of the streets shown on the 1925 Subdivision Plat.  The court, however, found that the City had accepted the dedicated streets by implication. The court found sufficient evidence of donative intent on the Plat, despite the absence of express language dedicating the roads to the public, to conclude that the parcel had been dedicated to the City.  The court pointed to the number of streets shown on the Plat and that the individual lot lines did not encompass the street areas.  Also, the Plat was an addition to the City of Elmhurst, thereby evidencing a donative intent to the City.  In addition, the City had taken action to improve most of the streets in the 1925 Subdivision.  The City had also taken action to vacate some of the streets shown on the 1925 Plat.  Moreover, the City leased the disputed parcel to the Elmhurst Park District in 1983 for trail purposes and open space.  All of these acts showed acceptance of the dedication by the City.  Although some of these acts occurred many decades after dedication of the roadway, the court found such acceptance was still valid because there had been no withdrawal or revocation of the dedication. 

Finally, the court concluded that Plaintiff’s claim of ownership by adverse possession did not apply because the City of Elmhurst acquired ownership of West Avenue and the property was being used for a public purpose.  Adverse possession does not run against property being held for public purposes.  The court stated that the City, as fee owner of West Avenue, had the right to re-enter the property and use it for public street purposes.


Municipalities are best served by promptly accepting a dedication of property by formal council action.  Such express action would avoid a future dispute over ownership, such as occurred in the Cantore case. 

Post Authored by Steve Mahrt, Ancel Glink

Friday, June 2, 2017

Employees & Social Media: A Continued Lesson


There has been quite a bit of press this week on social media posts that have gotten people in hot water. Kathy Griffin's tweet about the President was just one of many making headlines this week. Another involved a reporter who tweeted the following after the finish of the Indy 500:
Nothing specifically personal, but I am very uncomfortable with a Japanese driver winning the Indianapolis 500 during Memorial Day weekend.
According to news reports, the Denver Post reporter was terminated for what the newspaper called a "disrespectful and unacceptable tweet."

If you read some of the comments to news reports of persons being terminated for their social media activities, you will find some who argue that an employee cannot and should not be fired for exercising the employee's First Amendment rights. The problem with that argument is that the First Amendment does not protect all speech. It also does not protect the speaker from the consequences of his or her "speech" or in this case, social media activities. What we learn from these stories is that employees do not have an absolute right to say what they want on social media and they can (and have been) fired for inappropriate social media conduct.   

Post Authored by Julie Tappendorf


Thursday, June 1, 2017

7th Circuit Rules in Favor of Transgender H.S. Student


On May 30th, the Seventh Circuit Court of Appeals ruled in favor of a transgender teen who challenged a Wisconsin school district's policy denying the teen access to the boys' restroom. Whitaker v. Kenosha Unified S.D. #1 (7th Cir. May 30, 2017).

The plaintiff, a 17 year old high school senior, had requested permission from the school district to use the boys' restroom. The school district denied the student's request, claiming that it would invade the privacy rights of male classmates. The student filed suit against the school district, alleging that its bathroom policy violated Title 9 and the Equal Protection Clause of the U.S. Constitution.  The student also sought preliminary injunctive relief from the court to allow the student access while the case was pending. The district court granted injunctive relief to the student, and the school district appealed to the 7th Circuit. 

On appeal, the 7th Circuit reviewed the facts of the case. The Court noted that the student's birth certificate identified the teen as a female, but at 13, began to openly identify as a boy. A year after transitioning, the student requested permission to use the boys' restroom, but the school district decided only to allow use of either the girls' restroom or a gender-neutral restroom in the main office. 

In considering the school's appeal, the Court first found that the student was likely to suffer irreparable harm from the district's bathroom policy because (1) use of the boys' restroom was, according to expert opinions, integral to the student's transition and emotional well-being and (2) the district's alternative of  using a gender-neutral restroom was not adequate because it was far from the student's classrooms and invited attention from classmates. 

The Court also found that the student was likely to succeed on the Title 9 sex discrimination claim because the school district's bathroom policy subjected the transgender student to "different rules, sanctions, and treatment than non-transgender students" and the district's provision of a gender-neutral alternative was not sufficient to relieve the district from liability under Title 9, particularly where the student was the only one provided access. 

The Court rejected the school district's argument that the purpose of the policy was to protect other students' privacy rights, finding that a "transgender student's presence in the restroom provides no more of a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions." 

Moreover, the Court questioned the school district's argument that the true indicator of a person's gender is the identifier on the individual's birth certificate, noting that in Wisconsin a birth certificate cannot be changed unless the individual has completed a surgical reassignment. 

Finally, the Court found that the school had not demonstrated it would suffer any harm from having to comply with the court's preliminary injunction order, nor did the district provide any evidence that students complained about the student's use of the boys' restroom, or that it violated their privacy. 

Post Authored by Julie Tappendorf

Wednesday, May 31, 2017

PAC Finds Violation for Redaction of Financial Information


The Public Access Counselor (PAC) of the Illinois Attorney General's office issued its third binding opinion this year last week. In PAC Op. 17-003, the PAC found a public body in violation of FOIA for improperly redacting and withholding certain financial information from its response to a FOIA request.

A city clerk filed a FOIA request with a sanitary district for copies of agreements, invoices, and other records relating to the district's agreement with a private company that managed and operated the district's wastewater facilities. The district responded to the request by providing 1,470 pages of records, some of which had been redacted. The district did not provide an explanation as to why the records had been redacted.

The requester filed a request for review with the PAC. After requesting the unredacted records and other records that had been withheld, the PAC determined that the district violated FOIA for the following reasons:

1.  It failed to comply with section 9(a) which requires a written explanation for any denial of a FOIA request, including a partial denial that results in redactions of public records.

2.  The redaction of the financial terms of the district's agreement with the private company was improper because the receipt and use of public funds is public information under the Illinois constitution, so it is neither proprietary or privileged.

3.  The district's withholding of its annual budgets was also improper, as there is no exemption under FOIA that would require a public body's budget to be withheld.

There is nothing too surprising from this opinion, although the PAC's interpretation of the Illinois constitution's about the receipt and use of public funds could be seen as overly broad in a different context where a record might actually contain proprietary information.

Post Authored by Julie Tappendorf

Tuesday, May 30, 2017

Ninth Circuit Upholds Oakland’s Collection Bin Restriction as Content Neutral


The Ninth Circuit Court of Appeals recently addressed the issue of whether the activity associated with donation collection bins would constitute "protected speech" under the First Amendment. The Court of Appeals concluded that Oakland’s ordinance regulating collection bins was content-neutral and passed the constitutional muster. Recycle for Change v. City of Oakland, No. 16-15295, 2017 U.S. App. LEXIS 8211 (9th Cir. May 9, 2017).

In October 2015, Oakland enacted an ordinance that required any property owner with a collection bin on its property to obtain an annual permit. The Ordinance also required the property owner to abide by a mandatory 1000 foot gap between collection bins. 

Despite the Ordinance’s justification of enactment for health and safety reason, Recycle for Change, a non-profit organization, challenged it for violation of its First and Fourteenth Amendment under the United States Constitution. RFC sought a preliminary injunction to prohibit the Ordinance’s enforcement, which was denied in the lower court. The organization appealed on their First Amendment claim only, stating that the Ordinance was content-based because it required the enforcing officer to examine the bin’s message and determine whether it was a charitable bin. The Ninth Circuit affirmed the District Court’s decision, and stated that the Ordinance passed the intermediate scrutiny test and was determined content neutral on its face.

In coming to its decision, the Ninth Circuit held that assuming that unattended donation collection boxes constituted protected speech or expressive conduct—an issue the Court did not decide—RFC was unlikely to succeed on the merits of its First Amendment claim. The Court held that because the Ordinance does not, by its terms, discriminate on the basis of content, and there was no evidence that Oakland enacted the Ordinance with an intent to burden RFC's message of charitable solicitation or out of any disagreement with that message, the Ordinance was content neutral. Applying intermediate scrutiny, the Court held that the Ordinance plainly served important governmental interests unrelated to the suppression of protected speech. Additionally, the Ordinance was sufficiently narrowly tailored and left alternative avenues of communication for plaintiff to express its message. 

Post Authored by Katherine Takiguchi & Julie Tappendorf, Ancel Glink

Thursday, May 25, 2017

Upcoming Webcast on Fracking


The Planning and Law Division of the American Planning Association (APA) is hosting an upcoming webinar on fracking.  Details are below:

Webcast— Controlling the Local Impacts of Hydrofracking

June 7, 2017
1:00 p.m. – 2:30 p.m. EDT (noon to 1:30 pm Central Time)
CM 1.50; L 1.50
CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Controlling the Local Impacts of Hydrofracking on Wednesday, June 7, 2017 from 1:00 p.m. to 2:30 p.m. EDT.  Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

Hydrofracking will occur in many states, but federal and state agencies will not regulate many of the adverse local impacts of unconventional gas exploration. On the other hand, local governments will, and without expert guidance may be inclined to prohibit the practice. Some states will respond to local bans by stripping local governments of their authority.
It is vital, therefore, to develop best practices for controlling unregulated local impacts and to deliver them effectively to local governments and leaders. This program will outline the regulatory framework, identify local impacts (positive and negative), and conclude with an exploration of strategies—including both regulatory and non-regulatory actions—that local governments can use to address those impacts.
Speakers include Jessica Bacher, Executive Director of the Land Use Law Center at Pace Law School and Joshua Galperin, a clinical lecturer and director in law at Yale Law School and the Environmental Law and Policy Program Director at the Yale School of Forestry and Environmental Studies.

Wednesday, May 24, 2017

Court finds Minor Defects in Statements of Economic Interests Not Enough to Invalidate Candidacy


An Illinois appellate court recently upheld a circuit court ruling regarding the Election Code, finding that minor defects in a candidate’s statement of economic interest do not invalidate candidacy. Guerrero v. Municipal Officers Electoral Board of the Village of Franklin Park, 2017 IL App (1st) 170486 (May 16, 2017), 

Certain candidates seeking to run in the April 4, 2017 municipal election filed various paperwork to run for office, including statements of economic interest.  Objections were filed to these candidates nominating petitions alleging that the statements of economic interest were deficient because they failed to 1) state the municipality in which they sought office, 2) list their respective addresses, and 3) list the date.  The matter was first heard by the local electoral board, which agreed with the objectors and found that the candidate’s names should not appear on the ballot.  However, the circuit court disagreed with the electoral board, ordering that the candidates’ names appear on the ballot. 

The appellate court agreed with the circuit court, finding no defect in any of the nominating papers, only in the statements of economic interests. The court addressed the issue of whether the nominating papers were invalid because the disclosure statements failed to list the unit of government or the date. After a review of the record, the court found these errors to be minor and insufficient to invalidate the nominating papers.  The court found that these small defects in the statements of economic interests were outweighed by the public interest in ballot access.

While the court found these defects to be minor and refused to invalidate the candidacy, candidates should still be mindful to avoid even minor defects in their nominating papers.  

Post Authored by Erin Pell, Ancel Glink