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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, October 18, 2018

PAC Rules Public Body Improperly Denied FOIA Request as Unduly Burdensome



In the 13th binding PAC opinion of the year, the PAC found that the Governor’s office improperly denied a request for records as unduly burdensome.  PAC Op. 18-013.  The requester, One Illinois, submitted a FOIA request to the Governor’s office seeking documents and emails sent or received by seven current and former employees and officials pertaining to certain appointments. The Governor’s office responded that the request was unduly burdensome and offered the requester the opportunity to narrow the request under Section 3(g) of FOIA.  The requester then narrowed his request to seek only emails and not related documents.  The Governor’s office again denied the narrowed request as unduly burdensome.  The requester then filed a complaint with the PAC.     

In defense of its denial, the Governor’s office claimed that its initial search for emails yielded 44,356 potential responsive emails.  However, that initial search was not limited to the subject of appointments.  The PAC found that the Governor’s office failed to demonstrate that the initial search was a reasonably adequate search for responsive emails, noting that a subsequent search that included the word “appoint” yielded only 1,783 potentially responsive emails.  The PAC found that the Governor’s office did not show that review of 1,783 emails would be unduly burdensome.  Further, the PAC noted that the Governor’s office did not show that the burden of reviewing and responding to this FOIA request would outweigh the public interest in the information sought.  The PAC ordered the Governor’s office to provide the requester with the e-mails in response to the request.

This opinion shows that when responding to a claim as unduly burdensome, the public body must demonstrate that it conducted an adequate search, with tailored search terms, and show why the burden outweighs the public interest in the information. 

Post Authored by Erin Pell, Ancel Glink

Wednesday, October 17, 2018

Requiring Protesters to Leave LGBTQ Festival Area Violated Free Speech Rights


The Sixth Circuit Court of Appeals recently issued an opinion finding Nashville's requirement that anti-gay protesters move from the sidewalk in the LGBTQ festival area and across the street violated the protesters' free speech rights. McGlone v. Metropolitan Government of Nashville, et al.

The Nashville Pride Festival was held in June of 2015, pursuant to a special events permit issued by Nashville. A group of protesters also showed up to the event with the purpose of protesting the Festival. However, police told them they could not remain on the sidewalk area immediately adjacent to the Festival and would have to move across the street.  Attendees of the Festival were not asked to leave, however. After the Festival was over, the protesters filed suit claiming that the police actions violated their free speech rights under the First Amendment.

The issue for the court was whether Nashville's exclusion of the protesters from the sidewalk area in the park was unconstitutional. The court concluded that the police actions were unconstitutional because there was no evidence that the protesters would interfere with the Festival, leading the court to conclude that the only reason they were moved was because their message conflicted with the Festival's message. Since Nashville couldn't show a compelling government interest for making them move to the other side of the street, the protesters' free speech rights were violated.

Monday, October 15, 2018

Lawsuit Against Transit District Relating to Bus Accident Time-Barred by Tort Immunity Act


Kelley was injured in a multi-vehicle accident that involved a bus operated by a unit of local government (Rides Mass Transit District). She subsequently sued to recover damages, and RMTD filed a motion to have the case dismissed, arguing that Kelley did not file her claim within the one year statute of limitations under the Tort Immunity Act. Kelley, on the other hand, argued that the one year statute of limitations did not apply because of the "common carrier" exception to that statutory time limit for filing a lawsuit against a unit of government. 

The case made its way to the appellate court, which ruled in favor of RMTD. Specifically, the court held that the "common carrier" exception to the one year time limit to file a lawsuit did not apply in this case. Although RMTD was a common carrier, it was not a common carrier to Kelley, because she was not a passenger of the bus when the accident occurred. As a result, the court determined that Kelley's lawsuit was not timely filed, and should be dismissed.  Kelley v. Bonham, 2018 IL App (5th) 170103-U

Tuesday, October 9, 2018

PAC Issues 12th Binding Opinion on "Personnel" Exception to OMA


The Illinois Attorney General's PAC office recently issued its 12th binding opinion for 2018, finding a public body in violation of the Open Meetings Act for improperly discussing its budget, layoffs, and related matters in closed session during a board meeting. PAC Op. 18-012.

A union president filed a complaint with the PAC office alleging that the Board of Trustees of Western Illinois University violated the OMA when it went into closed session to discuss reducing the salaries of all librarians and laying off other employees. The union argued that the discussion of classes of employees rather than specific employees was not within the scope of the OMA exceptions. The University Board responded that the Board did, in fact, discuss specific employees during closed session, and that discussion falls within the scope of section 2(c)(1) of the OMA that authorizes the discussion of compensation, performance, hiring, and dismissal of specific employees. 

The PAC disagreed with the University, finding that although the Board of Trustees did discuss one specific employee during closed session, the majority of the discussion concerned budgetary matters and considerations applicable to categories of employees, which the PAC said was outside the scope of 2(c)(1). The PAC also stated that the discussion of an elimination of a job or position for budgetary reasons unrelated to the performance of the employee does not fall within the scope of 2(c)(1). The PAC concluded that the Board of Trustees' closed session discussion exceeded the scope of the OMA's exceptions, and violated the OMA. The PAC ordered the public body to release a copy of the closed session minutes and verbatim recording, except for that portion that discussed a specific employee.

Although the PAC's opinion regarding budgetary discussions being outside the scope of the OMA's exception is not new (the PAC has issued previous opinions on this issue), the broad statement that a public body cannot discuss the dismissal of a specific employee unless the reason is performance-based seems inconsistent with the unambiguous language of 2(c)(1), which states as follows:
(1) The appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine its validity. However, a meeting to consider an increase in compensation to a specific employee of a public body that is subject to the Local Government Wage Increase Transparency Act may not be closed and shall be open to the public and posted and held in accordance with this Act.
The language clearly allows discussion of the dismissal of specific employees without any qualification that the dismissal be performance-related - the statute uses the word "or" between "performance" and "dismissal" and does not contain language that a discussion of the dismissal of an employee be for "performance-related" reasons. This opinion seems to narrow the scope of 2(c)(1) beyond the clear language of that exception.

Friday, October 5, 2018

Quorum Forum Podcast Airs Live From the IML Conference


Episode 10 of our Quorum Forum Podcast is now available. In this episode, we broadcast live from the recent Illinois Municipal League (IML) conference in Chicago and we feature guest speakers from a number of Illinois municipalities and provide highlights from some of the sessions presented by Ancel Glink attorneys. 

You can listen here.

Thursday, October 4, 2018

Homeowners May Not Enforce Terms of Annexation Agreement




A recent Illinois appellate court decision examined who is a “successor in interest” under an annexation agreement and state law.  The result is informative for municipalities and developers seeking to better understand what rights and obligations flow to successors in interest of all or a portion of the property subject to such agreements.  

In 1990, a developer entered into an annexation agreement with a village to develop a subdivision over approximately 828 acres.  The agreement included a requirement that the developer design and construct a storm drain system for the subdivision.  In 2004, Patricia and Brian Doyle contracted with the developer to build a home in the subdivision and approximately three years later the Doyles began to notice their sump pump ejecting water every few seconds during times of rain or heavy snow.  Two years later, in March 2010, the Doyles noticed erosion around the storm drain next to their home causing them to file a drainage complaint with the village.  

After attempting several minor fixes, the village eventually corrected the problem in December 2011 but not before the failed system damaged the Doyles’ home.  The Doyles then brought suit including a claim of negligence against the developer for failing to install a properly working storm drain system.  The Doyles claimed the developer breached its duty under the annexation agreement to install a functioning sewer system and the Doyles had standing to recover because the annexation agreement was binding on “successor owners of record of the Subject Property.”  The trial court dismissed the Doyles’ claim and, on appeal, the First District Court of Appeal agreed. 

In Doyle v. Village of Tinley Park and Malone, the appellate court found that both the annexation agreement, and the Illinois Municipal Code provisions governing these agreements bind successor owners of land subject to an annexation agreement and that any party to such an agreement may bring a civil action to enforce its provisions. However, the Court added that these provisions did not apply to subsequent purchasers of each and every lot in a subdivision.  To do so, the Court explained, would result in absurd results such as a village being able to sue homeowners for a developers failure to construct a working sewer system. 

The court held that the phrases used in the annexation agreement (“successor owners of record of the Subject Property”) and in the statute (“successor owners of record of the land) were intended to only mean those successors who take title to the entire subject property.  If the agreement or statute intended otherwise, the Court wrote, it would have expressly stated that it applied to successor owners of the subject property “or any portion thereof.

The decision has practical implications for parties drafting annexation agreements who are seeking to clarify what provisions will remain enforceable by and against subsequent owners.  As the court pointed out, in order to make provisions of an annexation agreement specifically applicable to subsequent purchasers, the parties must expressly provide say so in the agreement rather than merely relying on generalized assignment and successor in interest provisions.       

Post Authored by David Warner, Ancel Glink         

Wednesday, October 3, 2018

Court Dismisses Challenge to Village's Zoning Approval for a Gun Shop


We reported previously about a lawsuit challenging the Village of Niles' approval of a special use permit to allow the operation of a gun store and indoor firing range in the Village. In an earlier decision, the appellate court reversed the trial court's dismissal of the lawsuit based on lack of "standing", and sent the case back to the trial court for further proceedings.

After the case was sent back to the trial court, the plaintiff filed an amended complaint alleging that the Village's grant of the special use permit was unconstitutional. The trial court again dismissed the case for lack of standing, and the plaintiff again appealed. Last week, the appellate court upheld the dismissal of the case in People for a Safer Society v. Village of Niles.

The plaintiff had argued that the ordinance the Village approved to grant a special use to allow the gun store and indoor firing range was "arbitrary and capricious" and violated the plaintiff's substantive due process rights. The lawsuit also argued that the approval would reduce the value of neighboring properties. In its motion to dismiss, the Village argued that plaintiffs lacked standing because they did not own or reside in property adjacent or adjoining the property. The Village also argued that the complaint did not show any evidence of a special harm to the plaintiffs different than what the general public might suffer.

The appellate court applied a three-part test to determine whether the plaintiff "People for a Safer Society" had association standing to challenge the zoning approval. Although the court determined that the plaintiff showed that the group's interests in suing were consistent with its purposes and that the claim did not require participation of individual members, it did not meet the third factor - that its members would have standing to sue in their own right. Since plaintiff could not show that any of its members had individual standing to sue, plaintiff did not have the standing required to challenge Niles' zoning approval. As a result, the dismissal of the case was appropriate.


Tuesday, October 2, 2018

Exclusive Remedy to Challenge Township Road Tax is Tax Objection Process


A citizen filed a lawsuit to challenge a road tax assessed by an Illinois township. The tax had been approved by residents at a special township meeting. The plaintiff claimed that the tax was illegal because it was imposed in violation of the state tax cap law (PTELL), and that the meeting at which it was approved was not properly noticed and township officials acted inappropriately. 

The circuit court dismissed the case, finding that plaintiff was required to file a tax objection complaint rather than pursue a class action lawsuit. Plaintiff appealed, and the appellate court also ruled against him, finding that the appropriate and exclusive remedy for plaintiff to challenge a tax is through the statutory tax-objection process. Since plaintiff did not avail himself of that procedure, the circuit court properly dismissed his case. Reno v. Newport Township, 2018 IL App (2d) 170967

Monday, October 1, 2018

Ill Supreme Court Upholds Hospital Charitable Tax Exemption


The Illinois Supreme Court recently issued an opinion relating to a hospital's eligibility for a charitable property tax exemption. Oswald v. Hamer, 2018 IL 122203

Oswald, a Cook County taxpayer, had filed a lawsuit alleging that Section 15-86 of the Property Tax Code (which authorizes charitable property tax exemptions) is facially unconstitutional. Oswald claimed that the Illinois Constitution authorizes the state legislature to exempt from taxation only properties that are exclusively used for charitable purposes, yet the statute mandated that hospitals receive a tax exemption even if they were not exclusively used for charitable purposes. 

The Court rejected Oswald's constitutional challenge, finding that Oswald did not meet the burden of showing that the statute was unconstitutional in all applications, and that each hospital would still have to establish that it met the statutory definition to obtain a tax exemption.