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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

Tuesday, September 21, 2021

Court Dismisses FOIA Case as Moot


In 2020, an individual who was previously convicted of offenses relating to a shooting incident submitted a FOIA request to a municipality seeking copies of inventory sheets and photographs of an old vehicle allegedly containing a gun used to shoot another person. The City prepared two affidavits attesting to the City’s reasonably diligent search for records responsive to the request and denied the request because the City did not have any responsive inventory sheets or photographs within its possession or custody, except for a vehicle tow report which was provided to the requestor. 

Before the City even responded to the FOIA request, the requestor sought an injunction to compel the City to produce the requested records and sought civil penalties against the City. The court dismissed the case, finding the requestor’s claims were moot because the City’s affidavits showed the City had already provided all responsive records in its possession.

The requester appealed, and the appelate court upheld the dismissal of the case as moot because the City already produced the only record responsive to the FOIA request in the City’s possession. Bryant v. North Chicago Police Chief and Freedom of Information Officer. The appellate court also rejected the requestor’s speculative claims about the existence of additional records and denied civil penalties against the City, because the City provided all requested documents in its possession and the requestor failed to prove that the City willfully and intentionally failed to comply with FOIA. The appellate court also noted that the requestor failed to appeal his denied FOIA request to the Public Access Counselor's office of the Attorney General and never received a binding PAC opinion, so there was no presumption that the City acted willfully and intentionally in allegedly failing to comply with the FOIA request.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, September 20, 2021

Governor Signs Public Safety Legislation


For our next legislative update, we wanted to provide insight on two important legislative updates related to public safety and mental health services in the State of Illinois.

Public Safety

As most of you already know, in January, the Governor signed a criminal justice and public safety reform bill into law. Earlier this summer, we reported on the status of the trailer bill to the legislation, which clarified and amended many provisions of the Act to provided guidance to law enforcement and local government for compliance with the new law. On June 25, Governor Pritzker signed the trailer bill into law as Public Act 102-0028.

The Act includes numerous provisions on police training, the use of body camera footage, police misrepresentation matters, and restrictions on officer use of force, among other clarifications of the January statute. Of note for local governments are the provisions mandating at least 30 hours of in-service officer training every three years and those specifying the permissibility of police review of body camera footage. Under the Act, officers and supervisors may not redact, label, duplicate, or otherwise alter body camera footage, and the footage must be stored securely for 90 days after recording—if altered or destroyed, the report detailing such alteration or destruction must be kept for one year. Footage will not be destroyed within 90 days if there is a “flagged encounter” captured on the recording. Encounters will be flagged if:

·          A complaint has been filed related to the incident;

·          An officer discharged their firearm or used force during the encounter;

·          Death or great bodily harm occurred to anyone involved;

·          The encounter resulted in a detention or an arrest;

·          The officer is the subject of an internal investigation of misconduct;

·          The footage may be valuable to a criminal prosecution; or

·          The recording officer requests that the video be flagged for official purposes.

Additionally, while officers may generally review body camera footage to assist in writing incident reports, no review is permitted when an officer is involved in or is witness to the use of force which results in death or great bodily harm, or when an officer is required to write a report following a complaint of misconduct. This statute should be reviewed carefully and monitored for further amendment to ensure compliance with its many provisions.

Mental Health Services

P.A. 102-0580 creates the Community Emergency Services and Support Act (CESSA). CESSA provides that an EMS Region shall provide mobile emergency mental and behavioral health services to individuals not presenting as a threat to first responders and not involved in criminal activity. CESSA applies to every unit of local government that provides and coordinates ambulance or similar medical response or transportation services for individuals with emergency medical needs.

Post Authored by Mike Halpin & Erin Monforti, Ancel Glink

Thursday, September 16, 2021

New Open Meetings Act Laws


As we continue to provide updates on new bills signed into law by the Governor, today we will discuss two laws concerning open meetings.

P.A. 102-0348 enacted the Empowering Public Participation Act to restrict when law enforcement agencies or officers can conduct background checks on speakers at a meeting of a public body. The Act provides:

A law enforcement agency or an officer employed by a law enforcement agency may not knowingly and intentionally conduct a background check of a person for the sole reason of that person speaking at an open meeting of a public body, including police disciplinary boards. 5 ILCS 850/10(a).

The Act does not apply in cases where the agency or officer believes there is a reasonable suspicion of criminal conduct or a threat to security at the meeting or when the person speaking at an open meeting is under consideration for appointment to a government position by the public body.

Violation of the Act is a Class C misdemeanor but does not create any claim for damages or other relief.

P.A. 102-0653 amends the OMA to require public bodies to review their closed session meeting minutes every six months, or as soon as practicable, taking into account the nature and meeting schedule of the public body. Ad hoc committees must review closed session minutes at the later of (1) six months from the date of the meeting or (2) at the next scheduled meeting of the ad hoc committee. Prior to this amendment, the OMA required public bodies to conduct this review on a semi-annual basis.

The Act also provides that when a public body is dissolved, disbanded, eliminated, or consolidated by executive action, legislative action, or referendum, the public body taking over the previous body’s functions will review the closed session minutes of that public body.

Post Authored by Rain Montero & Julie Tappendorf, Ancel Glink

Wednesday, September 15, 2021

PAC Issues 8th Binding Opinion of 2021


A regular reader sent us a copy of the most recent PAC binding opinion - as many of you know, the Attorney General's website is still not fully operational so the public still cannot access any of the binding opinions issued by the Public Access Counselor.

Earlier this year, a reporter submitted a FOIA request to the Office of the Mayor of the City of Chicago seeking text messages sent or received by Mayor Lightfoot regarding conversations between Mayor Lightfoot and certain hospital personnel on their personal or city-issued devices. Although the Mayor’s Office properly extended the time to respond to the FOIA request by an additional five business days, the Mayor’s Office subsequently failed to either comply with the request or deny the request in writing within the extended response period. In PAC Op. 21-008, the PAC concluded that the Mayor Office violated FOIA section 3(d), which requires public bodies to either comply with, deny in whole or in part, or otherwise appropriately respond to a FOIA request.

Nothing groundbreaking in this opinion.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, September 14, 2021

Legislative Update: General Governance


This post contains another edition of our legislative updates from the most recent Illinois General Assembly session in Springfield. This post focuses on laws that impact general governance. 

P.A. 102-0024 provides that a county, township, or municipality may waive any fees or costs associated with a permit, inspection, or certification of occupancy required by law for construction, reconstruction, alteration, repair, movement to another site, removal, or demolition of multiple structures within their jurisdiction. These waivers (provided under the local government’s discretion) are limited to disastrous circumstances or the threat of disaster, including fire, flood, earthquake, storm, water contamination, blight, rioting, or public health emergency, as well as other circumstances explicitly mentioned in the new law.

P.A. 102-0435 provides relief for businesses relating to the COVID-19 pandemic. The law allows county and municipal officials to pass resolutions to waive or reconsider the imposition of fees for specific licenses and permits, including business licenses, liquor licenses, construction permits, food service permits, and other activities usually regulated by the county or municipality. The new law specifies that applicants must demonstrate their need for a fee waiver based on tangible hardships resulting from the COVID-19 pandemic.

P.A. 102-0602, which enacts the Local Volunteer Board Member Removal Act, states that a person or government body that appointed a member of a volunteer board or commission may remove that member for misconduct, official misconduct, or neglect of office. This authority is in addition to any other removal authority provided by law. Note that the Act does not apply to individuals appointed to fill a vacancy on an elected board associated with a local government unit.

Post Authored by Mike Halpin & Erin Monforti, Ancel Glink

Monday, September 13, 2021

New Election Laws in Illinois


As we noted last week, we are going to be reporting on a number of new laws that have taken effect or will take effect soon over the next couple of weeks. Today, we report on two election-related laws.

P.A. 102-0001 provides resources to election authorities for conducting secure elections. First, the Act provides that any federal funds received by the Illinois State Board of Elections under the Help America Vote Act that are not otherwise used in the course of a federal election can be available to election authorities to maintain secure collection sites for vote by mail ballots. Second, the Act authorizes local election authorities to operate curbside voting procedures during early voting and on election day, subject to provisions that limit the interference of election judges. Finally, the Act requires that all vote by mail ballots be accepted by election authorities, even if they do not have the requisite postage or are mailed to a collection site not within the voter’s election district.

P.A. 102-0015 changes the general primary election date to June 28, 2022 and changes corresponding dates in preparation of the general primary election, including dates for filing nomination papers and objections to those filings. The law also provides that November 8, 2022 is a State holiday as well as a school holiday for purposes of the School Code. These provisions are repealed on January 1, 2023.

In addition, this new Act also prohibits a unit of local government from adopting an ordinance or resolution that requires a member of the General Assembly to resign his or her office in order to be eligible to seek elected office in the unit of local government and provides that any such ordinance or resolution is void. The Act allows for permanent vote by mail, and also preempts home rule units from regulating the eligibility requirements for those seeking elected office in the local government that is inconsistent with the Act.

The Act includes a number of other new provisions, including new cybersecurity provisions, high school voter registration, 

Thursday, September 9, 2021

Governor Signs Several Bills Into Law That Affect Local Governments


Governor Pritzker recently signed into law several new laws that affect local governments and we will report on these over a few blog posts. Below is a summary of laws that affect (1) COVID-19 affordable housing; (2) community college housing; (3) liquor; and (4) lemonade stands.

COVID -19 Affordable Housing

P.A. 102-0175 provides COVID-19 relief funds to address shortages in affordable housing. The bill creates the COVID-19 Affordable Housing Grant Program Act and amends the Affordable Housing Planning and Appeal Act, the Illinois Housing Development Act, and the Illinois Income Tax Act. Perhaps most notable is the Act’s preemption of home rule authority: a home-rule unit of local government may not take action which regulates affordable housing more restrictively than the State has provided for under the Affordable Housing Planning and Appeal Act. We recommend that local governments (especially those that are not exempt from affordable housing reporting requirements) review our post on the Act and the legislation and consult with their legal counsel if they have questions as to how the law affects them.

Community College Housing

P.A. 102-0062 will permit non-exempt local governments to work with nonprofit housing developers and housing authorities to develop affordable housing aimed at community college students, who traditionally do not have access to campus housing. The Act will take effect on January 1, 2022.

Liquor

P.A. 102-0008 had previously enabled retail liquor license locations to provide one free drink to customers showing their vaccination cards but that expired on July 10, 2021. Though that promotion has ended, the Act still allows retail liquor licensees to sell drinks-to-go. Local liquor commissioners and local liquor control commissions are authorized to adopt rules to regulate these to-go drinks more restrictively than the State.

Lemonade Stands

A new Act, taking effect on January 1, 2022, prohibits health departments of a unit of local government or a public health district from regulating the sale of lemonade or nonalcoholic drinks or mixed beverages by a person under the age of 16.

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Wednesday, September 8, 2021

Quorum Forum Episode 56: Vaccine Mandates


We celebrated a 10 year anniversary with Municipal Minute last week and this week, and today we "celebrate" another episode of our Quorum Forum podcast, Episode 56: Vaccine Mandates. In this episode, Ancel Glink attorneys discuss what FDA approval of the first COVID-19 vaccine means for employers considering vaccine mandates. This episode also discussses recent tort immunity cases local governments should know to avoid liability from lawsuits. 

Email your questions to podcast@ancelglink.com

 

Tuesday, September 7, 2021

Governor Updates Previous Face Covering and Vaccination Executive Order


It seems that almost as soon as we post something about new COVID-19 guidance, that guidance has changed. But, we did want to update you on a recent Executive Order issued by the Governor that extends the time-frame for the new vaccine mandates for certain Illinois workers, including healthcare workers, school personnel, and higher education personnel.

In Executive Order 2021-22, the Governor updated EO 2021-20 which had set a deadline for vaccine compliance for a first shot of September 5, 2021. The deadline for covered workers to get the first shot is now September 19, 2021. This new vaccine mandate applies to health care workers (as defined in the EO), school personnel (also defined in the EO), and higher education personnel (defined in the EO). Until these personnel are fully vaccinated, they must comply with certain testing requirements set out in the EO (unless they qualify for a medical or religious exemption). We encourage you to consult with your labor counsel on these new requirements, as they place certain affirmative obligations on employers who are covered by these new requirements.

The EO also includes face covering requirements for persons over age 2 in indoor spaces.

Friday, September 3, 2021

10 Years Ago Today a Blog Was Born


Believe it or not, it's been 10 years since I started the Municipal Minute blog! That's right, 10 years ago, I spent my Labor Day weekend designing and compiling material to post on this blog, never thinking that I'd still be doing this 10 years later and certainly not envisioning that we would write and post nearly 2,000 separate posts (1,951 as of today). 

Since that first post, we've been updating local government officials and employees on new laws, bills, and cases, as well as recent developments they may find of interest in their service to local government. It hasn't always been easy, and some of our posts have generated their share of controversy (and a mostly civil debate), but I can certainly say that it has never been boring, particularly over the past 18 months. COVID-19 and its impact on governments has challenged all of us to be quick and nimble in sharing information about new executive orders, mandates, COVID-related funding sources, and related developments to help us get through a pandemic that still impacts us today. 

We hope you have found this resource (which is written entirely by Ancel Glink attorneys at no cost to our readers) to be helpful in your service to local government. There is no question that providing this service to you has helped us keep current with these new laws, cases, and developments. 

And as we mentioned last year, in case you weren't a regular reader in 2011 (and let's be honest, there were just a handful of you back then!), you can check out our first blog post here:  Tweeting into Trouble? Or, if you want to see what else we've written about over the past 10 years, you can go directly to the front page of the Municipal Minute blog and search through our topic list on the home page for other posts that may be of interest to you. 

Thanks for your support and continued readership! 

Thursday, September 2, 2021

Check out the Employment Law Articles on Workplace Report


We have previously reported on Municipal Minute about the employment-law related information reported on Ancel Glink's Workplace Report blog, but wanted to remind our new readers of this resource. We have provided a sampling of recent posts below that may be of interest to our readers. You can click on the title to go to the Workplace Report and read the entire article.

New Masking Mandates and Vaccination

Supreme Court Upholds Indiana University COVID-19 Vaccination Mandate

Illinois Appellate Court Rules on Transgender Bathroom Policy

Workers' Rights Constitutional Rights to be on November 22, 2002 Ballot

Illinois General Assembly Legislative Update 

Long Haul COVID Patients May Be Covered Under Federal Disability Law

Monday, August 30, 2021

Village and Police Officer Immune From Liability in Drunk Driving Incident


In 2017, Marcos Rodriguez was involved in a minor traffic accident while driving with a blood alcohol concentration of at least 0.24. A police officer responded to the accident and allowed Rodriguez to drive away. According to Rodriguez's lawsuit against the village and police officer, the officer did not investigate whether Rodriguez was under the influence of alcohol. Rodriguez also did not inform the officer he had been drinking. A few minutes later, Rodriguez sustained injuries in a second accident after he fell asleep at the wheel, left the roadway and struck a utility pole, and sued the village and the police officer.

In his lawsuit, Rodriguez claimed that the police officer’s failure to investigate Rodriguez and prevent him from driving away caused the second accident and defendants should be held liable for his injuries. The trial court ruled against Rodriguez, finding that because the defendants did not owe him a duty, they could not be liable. The court also ruled that even if the defendants owed Rodriguez a duty, section 4-102 of the Tort Immunity Act (which provides immunity for failure to provide adequate police protection or service) and section of that same Actt 4-107 (which provides immunity for failure to make an arrest) also provided the defendants with immunity.

On appeal, the Appellate Court in Rodriguez v. Village of Forest Park upheld the trial court’s ruling in favor of the village and police officer. The Appellate Court rejected Rodriguez's argument that the officer’s failure to investigate and prevent him from driving after the first accident fell within the willful and wanton conduct exception of section 2-202 of the Act. Specifically, since the officer’s alleged omissions more clearly relate to his failure to arrest and his failure to provide adequate police services, the officer had absolute immunity from liability under sections 4-102 and 4-107 of the Act.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, August 17, 2021

PAC Determines Names of Residents Who Received Parking "Exceptions" Are Releasable


The City of Chicago’s Office of the City Clerk received a FOIA request seeking letters of exception for residential parking in the City’s 45th Ward. In response, the City Clerk’s Office released the responsive letters but redacted certain information based on FOIA’s private and personal information exemptions, including the names of persons that had been issued "exceptions" to the City’s residential parking requirements. The requestor then submitted a request for review with the Public Access Counselor (PAC) challenging the partial denial.

In binding PAC Opinion 21-007, the PAC concluded that the City Clerk’s Office violated FOIA when it improperly redacted the names of persons contained in the parking letters of exception.

First, the PAC noted that names are generally not exempt under FOIA section 7(1)(b) (the private information exception) because names are basic (rather than unique) identifiers and the City Clerk’s Office failed to demonstrate that disclosing the names would reveal information that falls within FOIA’s definition of “private” information.

Second, as to the City Clerk's Office reliance on 7(1)(c), after balancing the requestor’s and the public’s interest in learning about allegations of improper parking exceptions in the City, the PAC concluded that the City Clerk’s Office failed to demonstrate that disclosing the names of people who had been issud parking exceptions would constitute a clearly unwarranted invasion of personal privacy, or that the privacy interests in the names was substantial enough to outweigh the public’s interest in disclosure. As a result, the PAC concluded that the names of residents who had been granted parking exceptions were not exempt under FOIA section 7(1)(c).

There may be situations where the release of someone's name could constitute an unwarranted invasion of personal privacy to trigger the FOIA exception contained in 7(1)(c), depending on the context of the record in which the person's name is attached. This case was not one of those, at least not according to the PAC.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Monday, August 16, 2021

PAC Issues 6th Binding Opinion Finding OMA Violation for Failure to Record Closed Sessionn


Thanks again to one of our readers who shared another binding PAC opinion - let's hope the PAC can get its website up and running again soon as it's been a long time since we've been able to access the binding opinions (and for members of public bodies that need to access the online OMA training). 

In PAC Op. 21-006, the PAC found a public body in violation of the Open Meetings Act for failing to record its closed session. According to the PAC's opinion, the district employee who usually took the minutes and kept the recordings for district meetings was not asked to attend this particular closed session, which included committee members and the district's legal counsel. Following the meeting, the employee filed a request for review with the PAC alleging that she believed the committee failed to record its closed session and claiming that the committee discussed topics outside the scope of closed session. In the district's response to the request for review, the district stated it had forgotten to turn on the recorder and would put practices in place to ensure compliance at future meetings. The PAC found the district in violation for failing to record the closed session but did not address the allegation that the discussions in closed session were outside the scope of permitted exceptions, finding that allegation speculative.

Wednesday, August 11, 2021

Court Finds No Bad Faith and Rejects Request for FOIA Civil Penalties


In 2014, Marvin Williams submitted a FOIA request to the Winnebago County State’s Attorney’s Office seeking certain grand jury records, including “no-bills” and “true bills” of indictment and the grand jury deliberations and votes regarding a criminal case involving Mr. Williams. The State’s Attorney’s Office denied the request, claiming the records were exempt under Section 7(1)(a) of FOIA, because the records were expressly prohibited from disclosure by a state law that governs the secrecy of grand jury proceedings and limits the disclosure of grand jury documents. Williams then sued the States Attorney’s Office, claiming they violated FOIA. The trial court ruled in favor of the States Attorney’s Office, and Williams appealed.

The appellate court ageed with the trial court except on one issue. The appellate court found that the States Attorney’s Office should disclose responsive “true bills” of indictment but with witnesses names redacted. 

After the State’s Attorney’s Office released the true bills to Williams, Williams asked the trial court to impose civil penalties against the State’s Attorney’s Office under FOIA section 11(j), which states: 

If the court determines that a public body willfully and intentionally failed to comply with this Act, or otherwise acted in bad faith, the court shall also impose upon the public body a civil penalty…” 5 ILCS 140/11(j). 

The court denied Williams request for statutory penalties, ruling that the States Attorney’s Office did not act in bad faith. In Williams v. Bruscato, the appellate court agreed with the trial court and rejected Williams' request for civil penalties. The appellate court found that Williams failed to prove that the States Attorney’s Office knew or had a reasonable belief that “true bills” of indictment were subject to disclosure, and that the State’s Attorney’s Office showed good faith in immediately releasing the true bills once the trial court ruled that they shoudl be released. Because Williams was unable to prove that the States Attorney’s Office willfully or intentionally failed to comply with FOIA, and did so ““deliberately, by design, and with a dishonest purpose,” the court rejected the petition for civil penalties against the States Attorney’s Office.

Importantly, the appellate court also rejected plaintiff’s interpretation of Section 11(j), noting that a "willful and intentional" failure to comply with the FOIA is not sanctionable unless that failure was itself in bad faith. So, according to the appellate court, a court should only impose a civil penalty where a public body willfully, intentionally, and in bad faith failed to comply with FOIA.

Post Authored by Eugene Bolotnikov

Tuesday, August 10, 2021

FAQ for Conducting Remote Meetings


As the COVID-19 pandemic continues and case counts increase, more public bodies are discussing whether they should go back to remote meetings. We thought it might be helpful to provide a brief "FAQ" to provide information on some of the most commonly asked questions about remote meetings. Note that because the COVID-19 pandemic (and the Governor's actions) remain very fluid, you should always consult with your legal counsel if you have questions about a meeting of your particular board, council, commission or committee.

Q1: Even though the Governor's executive order relaxing the OMA in-person requirements expired last month, can our public body still meet remotely?

Yes, a public body can meet without a physical quorum present so long as (1) there is a state-issued disaster declaration related to public health concerns in place over all or part of the jurisdiction of the public body; (2) the head of the public body determines that an in-person meeting is not practical or prudent because of the disaster; and (3) the public body follows the rules and procedures contained in section 7(e) of the OMA. See 5 ILCS 120/7(e)

Q2: Is there still a state-wide disaster declaration in effect?

Yes, the Governor issued another COVID-19 disaster declaration on July 23, 2021. The July 23, 2021 disaster declaration is in effect until August 22, 2021. Given the increasing case counts, it is likely the Governor will issue another disaster declaration later this month.

Q3: What type of determination does the head of the public body have to make?

Section 7(e) of the OMA doesn't provide much in the way of practical information as to what constitutes "practical or prudent" to satisfy the statutory requirements for holding a remote meeting. While the Governor did issue a new disaster declaration, he did not extend his state-wide finding that in-person meetings are not feasible. As a result, public bodies that decide to meet remotely under section 7(e) may want to support their decision with specific, and if appropriate, localized findings about the impact of the pandemic. 

For example, the head of the public body might point to the current trend regarding increasing test positivity rates in making his or her determination that an in-person meeting is not practical or prudent. The head of a public body might also look at local or regional vaccination rates, increasing case counts, the impact of new variants, or increased hospitalizations to support the required determination. 

Q4: Does this determination have to be made for every meeting?

Although not expressly addressed in the OMA section that authorizes remote meetings, it seems reasonable to interpret the statute to require the head of the public body to make an individual determination for each meeting, particularly given the fluid nature of this pandemic. That finding could be made by including it on each meeting notice or agenda and/or the head of the public body could verbally recite his or her finding at the beginning of the meeting. 

Q5: If we do meet remotely, what rules do we have to follow?

Most public bodies have met remotely at some point during the COVID-19 pandemic, and the rules that were established by the General Assembly last June when it enacted Section 7(e) of the OMA are still in place. A summary of these rules is below, but you may want to review the statute itself to make sure you are complying with all of the procedures for this type of remote meeting.

1. A Governor or IDPH-issued disaster declaration related to public health concerns must be in place that covers all or part of the public body.

2. The head of the public body must make a determination that an in-person meeting is not practical or prudent because of a disaster.

3. All members of the public body must be verified and must be able to hear one another and all discussions and testimony.

4. Members of the public must be able to contemporaneously hear all discussion, testimony, and voting at open meetings at the meeting place or, if that is not feasible, then the public must be provided alternative ways to attend the meeting (i.e., web-based link, telephone number, etc.).

5. The head of the public body, attorney, or chief administrative official must be physically present unless it is not feasible due to the disaster.

6. All votes must be by roll call.

7. 48 hours' notice must be given in accordance with the OMA unless a bona fide emergency exists.

8. Members attending remotely are considered part of the quorum.

9. Remote meetings must be recorded by audio or video means and the recordings must be made available to the public.

Q6: If a public body decides to hold an in-person meeting, can some members attend electronically?

Yes, so long as the public body follows the "traditional" method of remote attendance in Section 7 of the OMA. In order to utilize that method for remote attendance, the public body must have enacted a policy that authorizes this type of attendance. There must be a physical quorum of the public body present at the meeting place. The member must be approved for electronic attendance per the requirements of the written policy. Finally, there are only 3 reasons that authorize remote attendance under this "traditional" procedure: (1) personal illness or disability; (2) a family or other emergency; or (3) employment purposes or business of the public body. Vacation is not an authorized reason under this alternative procedure.

Stay tuned for a follow-up FAQ on public attendance at remote meetings.




Monday, August 9, 2021

Court Addresses Zoning Challenge and Finds City Immune From Monetary Damages


We don't see a lot of zoning cases in the appellate courts, so a recent case involving a special use caught our interest. Pumilia v. City of Rockford.

In 2018, Pumilia purchased a property in Rockford that had previously been used for a used car dealership, intending to operate a similar business on the lot. He bought the property, obtained insurance, improved the parking lot, and ordered signs for the new business. When the sign company filed an application for a sign permit with the City, it triggered a City zoning review. Shortly thereafter, the City informed Pumilia that the previously issued special use permit to allow a used car dealership had lapsed under the City's ordinance because the used car business had not been operated for 12 months or more. City staff informed him that he would have to apply for a new special use permit, which he subsequently did. However, both the ZBA and City Council denied the special use request, and he sued.

In his lawsuit against the City, Pumilia claimed that the special use permit to operate the used car lot was re-established based on City staff's actions and that he was entitled to monetary damages for the City's actions. The trial court ruled in his favor, finding that the special use was not abandoned and awarding Pumilia his court costs as well as damages for his $2,500 business bond and $5,868 that he incurred for vehicle storage. 

The City appealed, and the appellate court upheld the ruling on the special use but vacated the award of damages.

First, the appellate court determined that although the property was not used as a used car lot for more than 12 months, Pumilia had "reestablished" the special use when he applied for a new special use and when City staff issued positive findings of fact on the special use, which the appellate court determined was expressly provided for in the zoning code. Specifically, the appellate court cited the provision in the zoning code that allowed a property owner to reestablish a special use if staff provides a positive review on six findings of fact.

On the issue of damages, the appellate court rejected the trial court's award, finding that the City was clearly entitled to immunity from damages under the Tort Immunity Act. The appellate court rejected Pumilia's argument that he was entitled to damages because City staff acted "willfully or maliciously," finding that because City staff's determination in this case was discretionary, it did not affect the immunity afforded to the City under the Tort Immunity Act.

Friday, August 6, 2021

Quorum Forum Podcast Ep 55: Sunshine and Supreme Court Cases


Ancel Glink's Quorum Forum Podcast has released a new episode, Episode 55: Sunshine and Supreme Court Cases. Information about this episode is below:

It’s summer, so that means it is time to review cases about sunshine laws, along with the significant U.S. Supreme Court cases affecting local governments. Ancel Glink’s Eugene Bolotnikov and Dan James review important cases you should know, along with what the Governor’s latest disaster declaration means for local government meetings under the Open Meetings Act. 

Send your questions to podcast@ancelglink.com!


Thursday, August 5, 2021

Seventh Circuit Denies Injunctive Relief in Challenge to University's Vaccination Mandate


Recently, the Seventh Circuit Court of Appeals denied injunctive relief in a challenge to Indiana University's mandate that all students be vaccinated against COVID-19 prior to the start of the fall semester unless the student has a medical or religious exemption. Klaasen v. Indiana University

Following adoption of the vaccination mandate, eight students filed suit against the university, claiming the policy violated their due process rights under the 14th Amendment. The district court denied the students' request for injunctive relief, and the Seventh Circuit agreed, finding no basis for an injunction. The Seventh Circuit found support for IU's vaccination mandate in a U.S. Supreme Court case finding constitutional a state requirement that all residents be vaccinated against small pox. The Seventh Circuit also found no constitutional violation where students who claimed a medical or religious exemption would have to wear masks and be regularly tested. Finally, the Court noted that the students were not required to attend IU and if they objected to the vaccination requirement, they could simply attend another school. In short, the Seventh Circuit found no constitutional violation in IU's vaccination mandate to support injunctive relief against the university.

Wednesday, August 4, 2021

New State Law Permits Limited Medical Cannabis Use During Park Programs


Public Act 102–0067, signed into law on July 9, 2021, adds a new Section 31 to the Compassionate Use of Medical Cannabis Program Act regarding the administration of medical cannabis to individuals with disabilities who participate in camps, educational programs, or similar programs sponsored by Illinois park districts. The new law does not relax any of the current restrictions and rules regarding the use of recreational cannabis.

The Act restricts the authority of park districts and covered entities to regulate the use and possession of medical cannabis by people with disabilities during the course of park district programming, as follows:

  • A park district must allow a program participant’s parent, guardian, or caregiver to administer a medical cannabis infused product to a participant with a disability on the park premises if both the participant and caregiver are authorized cardholders.
  • A park district may not discipline or restrict a program participant because he or she requires a medical cannabis infused product or because the product has been administered to the participant in accordance with the new law.

The Act also contains some protections for park districts which are intended to limit other participant’s exposure and access to cannabis products. Caregivers and participants covered by the law must comply with the following conditions:

  • The caregiver must remove the medical cannabis infused product from the park district after the product has been administered to the program participant.
  • A caregiver cannot administer a product that might create a disruption to the program or activity for people with disabilities or expose other participants to the product
  • The Act does not require a member of the park district's staff to administer any medical cannabis infused product to a program participant.

One important caveat in the new law that park districts should be aware of - a park district may not authorize the administration of these products to program participants if the park district would lose federal funding as a result. So, park districts may want to check to see if there were any relevant conditions placed on federal grant funding they may have received. 

Park districts should review their existing policies to ensure they do not enforce any rules which directly conflict with the new law. Staff training is also recommended so that eligible participants can exercise their rights safely and privately without causing unnecessary disruptions to park programs.

Post Authored by Erin Monforti and Adam Simon, Ancel Glink

Monday, August 2, 2021

Federal Court Dismisses Due Process Claim Related to Fair Notice of Parking Restrictions


Last week, a federal court dismissed a case against a municipality filed by a driver that her due process rights under the Fourteenth Amendment were violated when she received a parking ticket for leaving her vehicle on a secondary snow route. The driver claims she was not provided “fair and proper notice” of the parking restrictions because there were no signs posted in the Village indicating where parking was prohibited.

In Lewis v. Village of Alsip, the court held that the driver's claim that she was entitled to signage announcing the parking ordinance had no merit. First, the Court found that the parking ordinance did not regulate passive behavior, and so the act of parking was fairly punishable by the ticketing procedure established in the Village. Second, the Court reasoned that an average member of the community would likely have some awareness of restrictive parking rules given the prevalence of similar regulations in the Chicagoland area. Based on both factors, the Court held that the driver's interpretation of the due process clause was too expansive and was not consistent with previous cases.

While the driver can file an amended complaint, the Court made clear that her former theory that she was deprived of procedural due process when her car was ticketed and she was fined for prohibited parking without any signage indicating the prohibited snow route would not succeed.

Post Authored by Erin Monforti and Julie Tappendorf, Ancel Glink

Wednesday, July 28, 2021

Court Upholds Chicago's Impoundment Ordinance


In Lintzeris, Moraitis, Jossell, and Daniels v. City of Chicago, five individuals filed suit against the City of Chicago after their vehicles were impounded by the City. They challenged the validity of the City’s impoundment ordinance and administrative hearing procedures. 

After the trial court ruled in the City's favor, the plaintiffs appealed. On appeal, plaintiffs argued that the City's impoundment ordinance was preempted by a section of state statute governing vehicle impounds and procedures, and claimed that the City was prohibited from charging fines not provided for in state statute. The appellate court disagreed, finding that home rule municipalities have authority to impose fines in addition to those provided for in state statute. The appellate court also rejected plaintiffs' argument that the City’s impoundment ordinance procedural requirements were inconsistent with state statute. 

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Tuesday, July 27, 2021

State Opens ARPA Funding Application Portal to Eliglble Local Governments


In March, Congress passed the American Rescue Plan Act (ARPA), which seeks to mitigate some of the economic impacts of the COVID-19 pandemic by providing stimulus payments to individuals and creating state and local fiscal recovery programs, among other relief. Through this federal program, over $742 million has been allocated to Illinois for distribution to cities, towns, and villages. This week, Governor Pritzker announced that the distribution of these funds is imminent, pending applications from eligible units of local government which seek to take advantage of the recovery funds.

Local governments with fewer than 50,000 residents that have not yet received any ARPA aid are eligible to apply for the available funds—in Illinois, there are just over 1,250 eligible units of local government. To apply for funding, authorized community representatives may access a portal administered by the Department of Commerce and Economic Opportunity and must submit certain required documentation. The deadline to apply for funding is September 30, 2021, and payments are expected to be distributed in two installments; the first in the coming months and the second approximately one year from the first payment. Local government officials who are unsure whether their communities qualify for these funds can check their eligibility and their expected allotment here.

The ARPA funds can be used to offset costs and losses associated with the pandemic, including negative impacts on small businesses and to support essential workers and portions of the community that have been especially vulnerable to the harmful effects of the coronavirus. Eligible local governments can also use the funds to invest in necessary infrastructure improvements to water and sewer services, as well as broadband utility access. Local government officials are encouraged to consult with their colleagues and attorneys as they prepare their applications and work to utilize the ARPA funds efficiently and equitably.

Post Authored by Erin Monforti and Julie Tappendorf, Ancel Glink

Monday, July 26, 2021

Updated: Remote Meetings & the Governor's Recent Disaster Proclamation and EO


UPDATE: We have gotten a few follow-up questions about our blog post this morning and are publishing this updated post to clarify a statement about a public body's ability to conduct a remote meeting even without the Governor's "feasibility finding" being included in the most recent EO and Disaster Proclamation.

As we previously stated, the Governor did not include in his latest disaster proclamation his previous finding that in-person attendance at public meetings was not feasible due to the disaster. In addition, the Governor's newest executive order did not extend the prior executive orders that relaxed in-person meeting requirements. Exec. Order 2020-15.

That does not necessarily mean that public bodies are prohibited from continuing to hold remote meetings, although we have little to no guidance on this issue since there have been no cases or PAC opinions interpreting this section of the OMA. A decision to hold a remote meeting now would seem to depend on localized circumstances and the head of the public body making the required statutory finding that an in-person meeting is not practical or prudent because of the disaster. So, while the Governor seemed to send a message last Friday that there is no longer a state-wide justification to conduct remote meetings under section 7(e) of the Open Meetings Act, there could be a localized justification for a public body to continue to utilize that procedure, provided the local body can make the required statutory finding. Just as an example, there may be areas in the State with higher than average case counts and/or lower than average vaccination rates that might support a public body conducting a meeting remotely.

To the extent that a public body can make the required local finding that an in-person meeting is not practical or prudent because of the disaster, then the procedures for conducting remote meetings under section 7(e) of the OMA would need to be followed.

For the majority of public bodies that have moved forward or are moving forward with in-person meetings, however, this might be a good time for local governments to review their remote participation policies to recall how these policies work, and to the extent that they don't have a policy, consider enacting one. While many local governments have made video or audio conferences a part of their meetings in the past year, they should make sure they have a remote attendance policy to allow individual members to attend meetings remotely through the "traditional" Open Meetings Act provisions relating to electronic attendance. That traditional remote meeting process in the Open Meetings Act allows public bodies to adopt rules to allow a member to participate by video or audio conference when a physical quorum is present at the meeting so long as the member is prevented from physically attending because of: (i) personal illness or disability; (ii) employment purposes or the business of the public body; or (iii) a family or other emergency. The remote member must notify the clerk of his or her physical absence ahead of time, unless impractical, and a majority of the public body then approves allowing the remote member’s participation by video or audio conference. 

You can read the most recent disaster proclamation here and the most recent Executive Order that extended certain EOs here.

Thursday, July 22, 2021

Court Finds Daycare May Have Prescriptive Easement Against Village


Ian and Eva James have operated a daycare in Bensenville since 1989. The daycare building sits immediately south of the Soo Railroad Line. The Railroad owns a strip of land between the Line and the daycare building. The daycare uses the strip for parking, a dumpster, and vendor deliveries, which is accessed from a Village road, over a driveway through which a public sidewalk runs. In 2015, the Village sought to establish a Quiet Zone along the Line so trains would not be required to sound their horns at crossings in the Village. Because that process required the Village to restrict access to crossings by pedestrians and vehicles, the Village barricaded the strip that the daycare had used for access.

The daycare owners sued the Village and asked the court to declare that they had a prescriptive easement to access their property and to award damages for blocking that access. The trial court ruled in favor of the Village. 

The appellate court reversed in Chicago Title and Trust Company v. The Village of Bensenville. The appellate court held that the daycare owners had made a case that they had a prescriptive easement for access over the strip of land that had been barricaded by the Village. A prescriptive easement requires evidence of a non-permissive use of land for a 20-year period that is adverse, uninterrupted, exclusive, continuous and under a claim of right notice to the landowner. The owners had used the land exclusively and uninterrupted for at least 20 years, and the Railroad had sufficient constructive notice of that use because the owners had openly used the land continuously for decades. There was no evidence that the Railroad had ever been asked permission by the owners, so their use was adverse. The appellate court also rejected the Village's argument that the owners use of the strip was presumed to be permissive. The case was sent back to the trial court to make a final determination on the owners' other claims.

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Wednesday, July 21, 2021

Illinois Appellate Court Overturns Pension Board, Holds that Police Chief is Entitled to Not-on-Duty Disability Pension


In a recent decision, Girot v. Board of Trustees of the Braidwood Police Pension Fund, an Illinois Appellate Court overturned a pension board determination that a former police chief was not entitled to a not-on-duty disability pension. 

In February 2019, the Braidwood Police Pension Board had concluded that the chief was no less disabled when he took the job with the police department than when he finished his service, and as a result he did not meet the statutory requirements for a not-on-duty disability pension. The chief sued, and the case made its way to the Appellate Court.

The Appellate Court used the relevant statutory language to analyze whether the police chief had proven his eligibility for a non-duty disability pension. The Court examined the following issues: (1) whether the police chief was disabled under the law due to an injury not sustained in the line of duty, and (2) whether his disability necessitated his retirement or suspension. 

In addressing the first question, the Court held that the Pension Board had not properly weighed the significant evidence that the chief presented about his disability arising during, rather than before, his employment as police chief, including the chronic pain condition he experienced after a complete knee replacement. According to the Court, the medical records produced by the chief during his Pension Board hearing showed that this condition was diagnosed after he was hired, and that it rendered him unable to perform his responsibilities as chief of police. The Court held that the Board improperly focused on the portions of the hearing that were less favorable to the chief's application, and that the bulk of credible evidence presented regarding his disability supported approving his disability pension application.

In addition, the Court concluded that the pain arising from the chief’s condition, along with the medication he took to in response, required his retirement or suspension from duty. The fact that the chief’s application coincided with the predetermined end of his term of service, rather than an early retirement or suspension from police service, was immaterial because it was undeniable that his disability rendered him incapable of performing his job duties, regardless of when he applied for the pension.

Post Authored by Erin Monforti and Julie Tappendorf, Ancel Glink


Monday, July 19, 2021

Court Finds No Constitutional Violation in Entry to Home and Seizure of 37 Cats


Today's case involves the U.S. Constitution and cats, two topics that don't usually go together. Gaetzjens v. City of Loves Park (7th Circuit Court of Appeals)

Sally Gaetjens owned a home in Loves Park, Illinois where she bred cats. In 2014, she went to the doctor for high blood pressure and was told to go to the hospital. When neither her doctor or her neighbor could locate Gaetjens, the Loves Park police were called and informed that Gaetjens may be having a medical emergency. After seeing unattended packages, mail, and garbage at Gaetjens' home, they obtained a key to the home from Gaetjens' neighbor and entered the home. The police encountered intense odor that they described as a mix of urine, feces, and possibly a decomposing body and called EMS. In searching for Gaetjens, they found 37 unattended cats. The City placed a notice on the door that the home was unsafe and not fit for habitancy, and called animal control to impound the cats. 

Sally Gaetjens subsequently sued various local government agencies, including the City of Loves Park, arguing that the condemnation of her home and confiscation of her cats without a warrant violated her Fourth Amendment rights against unlawful search and seizure. 

Both the district court and Seventh Circuit Court of Appeals acknowledged that the City did, in fact, conduct a "search" when it entered her home. However, the courts found the search to be lawful and constitutional because the City had a reasonable basis for believing that there was a medical or other emergency to justify their warrantleess search. The courts also ruled that the seizure of the cats was lawful because of the imminent danger to the cats that could not be care for once the home was declared uninhabitable. In short, the courts did not find a constitutional violation in the City's actions.


Thursday, July 15, 2021

PAC Releases 5th Binding Opinion of 2021


Thanks again to a reader who forwarded a copy of a recent Public Access Counselor (PAC) binding opinion in a FOIA appeal. The Attorney General's website page where public bodies could previously find information about FOIA and OMA, including access to the PAC's electronic training program and PAC binding opinions is still down. 

In PAC Op. 21-005, a requester filed a request for review with the PAC after a municipal police department provided a redacted document in response to a request for employee attendance records. The requester had filed a request seeking records showing the name, star numbers, dates, and type of time off for police officers and employees who requested time off between January 1, 2021 and January 8, 2021 and January 1, 2020 and January 8, 2020. The requester had filed similar requests with other municipal police departments. The police department provided a record, but had redacted all of the substantive data. On appeal to the PAC, the police department justified its redactions by citing to 7(1)(d)(iv), claiming that release of this information could endanger the life or physical safety of law enforcement personnel and 7(1)(v), that the information constituted security measures that could jeopardize the safety of personnel if disclosed.

The PAC concluded that neither of the cited exemptions justified redaction of the data that was requested. First, the PAC stated that a basic employee attendance record is not the type of sensitive record that could potentially jeopardize the life or physical safety of police officers or employees. Second, the PAC stated that employee attendance records did not fall within the 7(1)(v) exemption that protects vulnerability assessments, security measures, and response policies. The PAC then directed the police department to release the requested attendance records.

Tuesday, July 13, 2021

Court Authorizes Limited Disclosure of Medical Information Under FOIA


In 2018, the Chicago Sun-Times submitted a FOIA request to Cook County Health and Hospital System (CCHHS). The first part of the request sought policies, memos, and other records regarding CCHHS’s compliance with the Criminal Identification Act (Act). The second part sought the times/dates of admissions for gunshot wound patients seeking treatment at CCHHS, and the corresponding times/dates these admissions were reported to law enforcement. Although CCHHS disclosed responsive policies, CCHHS withheld the requested time/date records based on FOIA section 7(1)(a), which exempts information specifically prohibited from disclosure by federal or state laws, and FOIA section 7(1)(b), which exempts private information. The Sun-Times filed a lawsuit alleging that CCHHS improperly withheld records under FOIA. The trial court ruled in favor of the public body, finding that the requested records were exempt from disclosure. The Sun-Times appealed the trial court’s ruling. 

On appeal, the Appellate Court reversed the trial court and ruled in favor of the Sun-Times. Chicago Sun Times v. Cook County Health & Hospital System. The Appellate Court held that disclosing the years that gunshot patients were admitted and the years that law enforcement was notified about those admissions was not prohibited by federal or state laws. Although CCHHS argued this information was “protected health information” (PHI) prohibited from disclosure by HIPAA regulations, the court rejected that argument, finding that because the information could be “de-identified” to provide only the years while removing other PHI, CCHHS could disclose this information without violating HIPAA or a patient’s privacy rights.

In addition, although FOIA prohibits disclosing “medical records,” under section 7(1)(b) of FOIA, the Court held that the year of a patient’s admission, by itself, does not constitute a private medical record prohibited from disclosure under FOIA, especially where the information “is entirely divorced from any personally identifying information.”

Based on this court decision, a public body may have to release medical-related information if that information is not identifiable to a specific individual. 

Post Authored by Erin Monforti and Eugene Bolotnikov, Ancel Glink

Monday, July 12, 2021

Quorum Forum Podcast Ep. 54: Litigation and Legislation


Ancel Glink's Quorum Forum Podcast just released Episode 54: Litigation and Legislation. 

In this episode, we discuss common questions local officials have about lawsuits they might encounter while serving the public. We also review legislation from the Illinois General Assembly's 2021 spring session.

Send your questions about litigation and legislation to podcast@ancelglink.com

Thursday, July 8, 2021

Appellate Court Rejects Deliberative Process and Attorney-Client Exemptions in FOIA Challenge


Chicago Public Media submitted several FOIA requests to the Cook County Office of the President (OCCP) seeking records relating to a political action committee chaired by a commissioner of the Cook County Board of Commissioners. In response, OCCP produced certain records, and withheld other information based on FOIA exemption 7(1)(f), the deliberative process exemption, and 7(1)(m), the attorney-client communication exemption. Chicago Public Media sued alleging that OCCP improperly withheld certain non-exempt records. After reviewing the withheld documents, the trial court held that OCCP did not violate FOIA in withholding certain records, except for one specific record, which the court ordered OCCP to disclose. Chicago Public Media appealed. 

In Chicago Public Media v. Cook County Office of the President, the Appellate Court determined that OCCP improperly relied on the "deliberative process exemption" to withhold certain documents. Specifically, the Appellate Court found that OCCP did not establish how certain withheld emails that discussed media strategies and the manner of providing information to the public related to its deliberative process for developing governmental policies or actions. 

The Appellate Court also found that certain redacted emails either did not contain confidential legal communications or were not received or sent by an attorney. Although OCCP labelled a string of emails as "Confidential Attorney Work Product," that label alone failed to demonstrate the existence of an attorney-client relationship.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, July 7, 2021

Court Rules in Favor of Public Bodies in FOIA Case Involving Security Video Footage


In 2017, the Chicago Sun-Times submitted a FOIA request to the Chicago Transit Authority and the Chicago Police Department seeking surveillance footage of an assailant charged with attempted murder for pushing a CTA customer onto the tracks at a subway station. Both public bodies denied the FOIA request, arguing that the security video was exempt under FOIA section 7(1)(v), which  exempts the following from disclosure:

security measures *** that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures. 5 ILCS 140/7(1)(v).

The Sun-Times sued the CTA and CPD, alleging that the footage was improperly withheld under FOIA. The trial court ruled in favor of the requester and ordered both public bodies to produce the footage. 

On appeal, the Appellate Court ruled in favor of the CTA and CPD, finding the video footage to be exempt under FOIA. Chicago Sun-Times v. Chicago Transit Authority. The Appellate Court held that Section 7(1)(v) of FOIA only requires a public body to demonstrate that releasing a particular record could reasonably be expected to jeopardize the effectiveness of its security measures—not that it would jeopardize them. The CTA had submitted an affidavit of its homeland security expert that the footage contained security information that was not currently public, including video quality, resolution, field of view, and blind spots of the CTA's surveillance cameras. The CTA argued that people could use this information to evade security measures when targeting passengers, planning attacks, or evading capture by law enforcement. As a result, the Appellate Court found that CTA sufficiently proved that disclosing the surveillance camera footage from the rail platform could reasonably be expected to jeopardize the effectiveness of its security measures, so the footage was therefore exempt. 

The Appellate Court also rejected the Sun-Times' argument that there was no evidence that a mass transit system's video surveillance ever prevented any terrorist plot or any kind of assault or attack, finding that the CTA only had to prove that the security footage was designed to identify, prevent or respond to "potential attacks," not actual attacks.

Post Authored by Eugene Bolotnikov, Ancel Glink


Tuesday, July 6, 2021

Supreme Court Issues Ruling in Warrantless Search Case


The U.S. Supreme Court recently issued a ruling in a warrantless search case that may be of interest to municipalities.

After a motorist drove by a highway patrol officer while playing loud music and honking his horn, the officer flashed his lights to signal the driver to pull over. Instead of stopping, the driver drove into his garage. The officer followed the driver into the garage, questioning and administering field sobriety tests to the driver. After a blood test revealed the driver’s blood-alcohol content was three times the legal limit, the State charged the driver with driving under the influence. The driver argued that the evidence should be supressed because it was obtained after the officer’s entered his garage without a warrant, in violation of the Fourth Amendment. The trial and appellate courts rejected his argument, finding that the driver’s failure to pull over and comply with the police signal created probable cause to arrest the driver and the driver could not defeat an arrest begun in a public place by retreating into his home. Additionally, the appellate court stated that pursuing a suspected misdemeanant is always permissible under the “exigent-circumstances” exception to the warrant requirement.

In Lange v. California, the United States Supreme Court disagreed, holding that pursuing a fleeing misdemeanor suspect does not always categorically justify entering a person’s home without a warrant. Instead, the Supreme Court noted that an officer can make a warrantless entry when the exigencies arising from a misdemeanants’ flight creates a compelling need to act before it is possible to get a warrant. The Court noted that misdemeanors are generally minor in nature and, although a suspect’s flight might create an exigent need for police to act swiftly, the Court cautioned that not every case of misdemeanor flight triggers a categorical rule allowing a warrantless home entry.

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, July 2, 2021

School Prevails Against Village in Tax Waiver Case


In a lengthy opinion, an Illinois Appellate Court ruled against a municipality in a case involving an alleged breach of an agreement between the municipality and a Montessori School that waived the school's right to a tax exemption for the school property. Keystone Montessori School v. Village of River Forest.

In 1998, Keystone Montessori School wanted to operate a private school on property zoned for commercial uses. The commercial zoning did not allow schools as a permitted or special use. The Village and Keystone entered into a number of agreements as a condition to the Village granting planned development approvals to allow Keystone to operate a school on the property. One of these agreements provided that Keystone would not apply for a tax exemption on its property. Over the years, Keystone attempted to amend the tax agreement but the parties did not agree to any amendment. According to Keystone, it had paid over $1 million in property taxes on the property over the years. In 2018, notwithstanding its agreement with the Village, Keystone applied for a tax exemption for its property, which was granted in 2018.

Keystone subsequently filed a lawsuit against the Village asking the court to invalidate the tax agreement on the basis that it was unconstitutional and unenforceable, among other claims. Specifically, Keystone claimed that requiring the school to waive its right to a tax exemption that was allowed by right under the Illinois constitution and state statute was contrary to public policy and rendered the tax agreement void and unenforceable. The Village responded that a school can agree to waive its rights, which Keystone did in exchange for the zoning relief necessary to operate its school on this property. 

The trial court ruled in Keystone's favor, finding the tax agreement to be void and unenforceable. However, the court did not grant Keystone's request for reimbursement for the 20 years of taxes the school had paid over the years, finding that Keystone could have filed for a tax exemption earlier so its claim for reimbursement was not timely.

The appellate court upheld the trial court's ruling in favor of Keystone, rejecting the Village's argument that Keystone could legally waive its tax exemption rights. The appellate court determined that the Village "usurped for itself" the power to decide whether Keystone should receive the exemption that was authorized by the Illinois constitution and provided for in the Illinois Tax Code. The court also held that Keystone could not legally waive its exemption through the tax agreement because the tax exemption was intended to benefit the public as a whole and not just the school itself. 

Thursday, July 1, 2021

Supreme Court Agrees to Hear Digital Billboard Case


Earlier this week, the United States Supreme Court agreed to hear a case evaluating how municipalities can regulate electronic message boards and off-premises signs (i.e., billboards). This dispute marks the first time the Supreme Court has waded into local signage control since 2015, when the Court decided Reed v. Town of Gilbert. Reed introduced significant uncertainty for communities seeking to promote community aesthetics through sign regulation. We will soon see whether City of Austin v. Reagan National Advertising brings more of the same.  

In 2017, two advertising companies submitted permit applications to digitize billboards located in Austin, Texas. Austin denied the applications based on a city sign code provision that only allowed on-premises signs to feature digital displays. The code prohibited off-premises digital signs.  Austin’s code (like many other sign codes) defines off-premises signs as “a sign that displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution, or other commercial message which is generally conducted, sold, manufactured, produced, offered, or occurs elsewhere than on the premises where the sign is located.”  

The advertising companies challenged the constitutionality of Austin’s on-premises/off-premises distinction on First Amendment grounds. In defense, Austin argued that its sign regulations promoted a compelling government interest; namely, protecting the aesthetic value of the city and public safety.  Last August, a federal court sided with the advertisers and found that Austin’s prohibition of off-premises digital signs was an unconstitutional content-based speech regulation.

Communities regularly distinguish between on-premises signs and off-premises signs, and, in some cases, enforce sign codes that prohibit off-premises signs altogether. The Supreme Court’s interest in this case suggests municipalities should be prepared to potentially reconsider that regulatory approach, and particularly if the Court issues another opinion like Reed.  We’ll be monitoring this case closely.

Post authored by Greg Jones and Daniel James

Wednesday, June 30, 2021

Supreme Court Tackles "Takings" Question Presented by California Labor Statute


NOTE: UPDATED TO CORRECT REFERENCE TO AUTHOR OF DISSENTING OPINION

On June 23, 2021, the U.S. Supreme Court issued its opinion in Cedar Point Nursery v. Hassid. The case involved two fruit-growing businesses in California that challenged a 2020 regulation enacted by the California Agricultural Labor Relations Board that mandated agricultural employers to allow union organizers onto their property to solicit support for unionization efforts for up to three hours per day, 120 days per year.

Two of the agriculture businesses challenged the regulation after union organizers attempted to enter their properties under the new regulation— in one case, the union organizers were prevented from entering, and in the other, the organizers entered the property but had not provided the required notice to the business before doing so. The District Court dismissed the businesses’ claims, and the Ninth Circuit affirmed the dismissal finding that the access that the regulation granted to each property was not a per se, or outright, taking of their property as prohibited under the Fifth and Fourteenth Amendments to the Constitution. The businesses appealed to the U.S. Supreme Court, which disagreed with the lower courts' rulings and found the regulation to be an unconstitutional taking.

Five justices joined Chief Justice Roberts in the majority opinion, which held that the regulation impermissibly authorized a permanent, physical invasion of the growers’ properties because it gave third parties the ability to infringe on the grower’s right to exclude others from their properties. The Court held that the right to exclude others is so fundamentally important to property ownership that encroaching on that right without compensation qualifies as a taking under the Constitution. Despite arguments from the union organizers that the regulation did not rise to the level of a taking because it did not authorize a constant, physical presence on the growers’ land, the Court held that the intermittent access that the regulation required was serious enough to rise to the level of a taking. The Court also rejected an argument that this case would set a precedent for challenges to other government-authorized physical invasions.

Justice Kavanaugh, concurring with the majority, provided insight into the labor context of the regulation. He opined that even with the protections afforded by national labor laws and regulations, the union organizers have no right to encroach on the growers’ land because access to the laborers was not contingent on access to their employer’s property.

In dissent, Justice Breyer and two other Justices argued that the majority opinion’s analysis was flawed, as the regulation was not a permanent physical invasion. The dissent advocated for a more multifactor test to determine whether the regulation was unconstitutional, and criticized the majority’s holding as jeopardizing “large numbers of ordinary regulations in a host of different fields that, for a variety of purposes, permit temporary entry onto . . . a property owner’s land,” such as those which authorize inspections of private property for safety or environmental purposes. Whether this fear as expressed by the dissent will be realized remains to be seen in the context of federal, state, and local regulatory activity.  

Post authored by Eugene Bolotnikov and Erin Monforti, Ancel Glink