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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, April 16, 2021

Public Body Could Not Withhold Entire Action Plan Under FOIA


In 2018, Lucy Parsons Labs (LPL) submitted a FOIA request to the City of Chicago Mayor’s Office  seeking a copy of the City’s 150 page “action plan” regarding the City’s public response to the verdict in the highly publicized murder trial of a former CPD officer. The City denied the entire action plan, citing FOIA exemption 7(1)(v), which exempts:

“[v]ulnerability assessments, security measures, and response policies or plans 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 or the safety of the personnel who implement them or the public. 5 ILCS 140/7(1)(v). 

In its denial, the City argued that the entire action plan was “designed to respond to a potential attack upon the community’s population, including but not limited to details regarding the deployment of specialized resources, call numbers, critical staff positioning and procedures for the handling and preparedness for operations and emergency procedures.” The LPL filed a lawsuit asking the court to order the City to release non-exempt portions of the action plan. The circuit court ruled in the City's favor finding the entire action plan to be exempt from disclosure under FOIA exemption 7(1)(v). LPL appealed. 

In Lucy Parsons Labs v. The City of Chicago Mayor’s Office, the appellate court ruled in favor of LPL, finding that portions of the action plan could be subject to release. Although the appellate court acknowledged that the City’s detailed affidavits were sufficient to establish that portions of the City’s action plan were properly exempt under 7(1)(v) because disclosure could reasonably be expected to jeopardize the effectiveness of the plan, since the action plan contained a mix of both exempt and non-exempt information, the City failed to show that the non-exempt portions of the action plan were properly withheld from disclosure.

Post Authored by Eugene Bolotnikov, Ancel Glink


Thursday, April 15, 2021

Bills Introduced in Illinois General Assembly to Amend Open Meetings Act


Yesterday, we reported on a number of bills introduced in the Illinois General Assembly to amend FOIA. Today, we summarize some of the bills that propose amendments to the Open Meetings Act (OMA).

HB 1765 - If approved, this would amend the OMA to prohibit law enforcement agencies from conducting background checks on speakers at meetings of public bodies except to provide security to protect public officials and others in attendance.

HB 2818 - If approved, this would expand the definition of "public body" under the OMA to include governing bodies formed by intergovernmental agreements (IGA).

HB 2819 - If approved, this would amend the OMA to require public bodies to publish or post notice 10 days in advance of changing the regular meeting dates, times, or locations.

HB 2830 - If approved, this would amend the OMA to prohibit public bodies from meeting remotely in closed session and require a physical quorum of the public body to be present for the closed session.

SB 482 - If approved, this would expand the alternative remote meeting provisions adopted during the pandemic to remove the requirement that there be a state disaster declaration in place and allow the head of the public body to find that it is not practical or prudent to conduct an in-person meeting or that it is in the best interests of the public body and its residents to hold a remote meeting.

SB 2246 - This bill is similar to SB 482.

SB 2356 - If approved, this would modify the requirement for a semi-annual review of the closed session meeting minutes to require flexibility for ad hoc committees or those that do not meet regularly.


Wednesday, April 14, 2021

Bills Introduced in the Illinois General Assembly to Amend FOIA


There has been a lot of bill activity in the Illinois General Assembly's 102nd Session. Today, we are reporting on some of the bills that, if approved, would amend the Freedom of Information Act (FOIA).

HB 2815 - If approved, this would amend FOIA to provide that all elected and appointed officials of a public body (including members of the General Assembly) are entitled to access all records of the public body, unless the records are exempt from release under sections 7 or 7.5 of FOIA, without having to file a FOIA request.

HB 2816 - If approved, this would amend FOIA to (1) expand the definition of public body to include the governing bodies of IGAs between public bodies and (2) require the State Police to furnish LEADS information to a requester relating to the requester and disclose all queries made in LEADS about the requester.

HB 3624 - If approved, this would amend FOIA to exempt General Assembly members from the definition of "recurrent requester." It would also require public bodies to provide a detailed index or log of every document withhold from release with a description of the applicable exemption. Further, it would require a public body to place $7500 in an escrow account for every FOIA request denied by the public body, which a requester would be entitled to the money if the public body is determined to have violated FOIA in denying the request. The bill would also modify the preliminary/draft document exemption to exclude records prepared for an executive report.

HB 3737 - If approved, this would amend FOIA to expand the definition of "public body" to include member-based organizations that lobby for their government body members and would also provide that records of the member-based organization that pertain to the receipt of member funds or expenditure of those funds are subject to FOIA.

HB 4005 - If approved, this would amend FIOA to require a public body to provide records in the format requested by the requester.

SB 526 - If approved, this would amend FOIA to exempt from FOIA records pertaining to a murder investigation conducted within the past 80 years unless the act is alleged to have been committed by a law enforcement officer.

SB 2427 - If approved, this would amend FOIA to expand the definition of "public body" to include any non-profit agency that contracts with the Metropolitan Pier and Exposition Authority to manage State-owned property or provide goods or services to the Authority.

Friday, April 9, 2021

Court Finds Injunction Relieved Public Body From Releasing Records Under FOIA


In 2015, Charles Green submitted a FOIA request to the Chicago Police Department seeking all closed complaint register files (CRs) for all Chicago police officers. After CPD failed to respond to the request, Green filed a lawsuit seeking an order directing CPD to release the requested files. However, the requester's lawsuit was continued, because an injunction entered by another court prohibited CPD from releasing any CR files that were older than four years from the date of any FOIA request. That injunction was later vacated in 2016. In 2020, the circuit court ruled in favor of the requester and ordered CPD to turn over all CR files dated from 1967 to 2011. CPD appealed the decision, arguing that the circuit court improperly ordered CPD to produce CR files that were subject to an injunction at the time that they were requested and that the court erroneously rejected CPD’s claim that producing 48 years of closed CR files would be unduly burdensome. 

On appeal, the appellate court in Green v. Chicago Police Department agreed with CPD that when CPD denied Mr. Green’s FOIA request for CR records in November 2015, it was required to follow the terms of a lawful injunction that prohibited CPD from releasing the records subject to the injunction. Further, the appellate court determined that it was irrelevant whether the injunction was subsequently vacated, because at the time CPD received the FOIA request, CPD was following a lawful injunction to avoid disclosing the CR records. Because the CPD received Mr. Green’s FOIA request for responsive CR records while an injunction was in place, the court concluded that CPD did not improperly withhold the records under FOIA. 

Because the court ruled in CPD's favor on the first issue, it did not address the second argument raised by CPD - that the court should have allowed CPD to raise an unduly burdensome claim as a defense in litigation even if it had not made that claim in response to the FOIA request. Public bodies should make sure they respond within the statutory time frame even if they intend to raise an unduly burdensome claim to avoid an argument that they waived that claim if the requester files a lawsuit. 

Post Authored by Eugene Bolotnikov, Ancel Glink


Wednesday, April 7, 2021

Illinois Governor Approves Election Code Changes Regarding Mail and Curb-Side Voting


The Governor approved the first Public Act of the 102nd General Assembly last week in P.A. 102-001. This new law amends various provisions of the Election Code, including the following:

  • The State Board of Elections is authorized to release federal funds under the Help America Vote Act to local election authorities maintain secure collection sites for mail-in ballots.
  • Election authorities are authorized to establish curb-side voting during early voting and on election day.
  • Election authorities are required to accept any vote by mail ballot, including those with insufficient or no postage. 
  • Election authorities that maintain collection sites for mail-in ballots must ensure the sites are secured by locks that can only be opened by election authority personnel.
  • Election authority personnel must collect all ballots from collection sites at the close of business each day and note the day the ballot was returned. 

The new law authorizes the State Board of Elections to establish guidelines for the security of these collection sites.

Tuesday, April 6, 2021

Court Questions Claim that Review of 28,000 Records is Unduly Burdensome in FOIA Case


In 2018, a requestor submitted a FOIA request to the Chicago Board of Education seeking documents related to the requestor’s racial discrimination claims made between 1999 and 2005. After identifying approximately 28,000 pages of records that would need to be reviewed for potential exemptions, the Board asked the requestor to narrow his request, which is permitted by FOIA. When the requestor refused, the Board denied the FOIA request as unduly burdensome. The requester sued, and the circuit court ruled in favor of the Board. The requestor then appealed.  

In Greer v. Board of Education of the City of Chicago, the First District Appellate Court reversed the ruling in favor of the Board, finding that the "unduly burdensome" exemption was not grounds for summary judgment because there were issues of material fact regarding whether the requestor’s request was unduly burdensome. Since the Board had already identified records that were apparently responsive to the FOIA request, the appellate court noted that the Board would not face a great burden identifying responsive records. The appellate court also questioned the Board’s assertion that redacting exempt information would take 86 days. The appellate court also disagreed with the Board’s claim that its burden of reviewing the 28,000 records outweighed the public’s interest in the requestor’s racial discrimination claims, noting that allegations of racial discrimination by public bodies, even those pertaining to a single employee, inherently constitutes a matter of public concern in which the public has a substantial interest. 

Because there were issues of material fact that left room for doubt on the Board's claim that it would be unduly burdensome to review 28,000 records, the court reversed the circuit court's ruling and sent the case back to the circuit court, ordering the Board to examine the 28,000 responsive documents to identify those that might be exempt.

This case is concerning to public bodies on what constitutes "unduly burdensome" - if reviewing 28,000 records for applicable exemptions and redactions isn't unduly burdensome, it makes you wonder what is. Many readers know we have reported on a number of "unduly burdensome" cases and PAC opinions in the past, and this case may just be an outlier. Public bodies should make sure they provide an estimate of the number of records that would require review in the initial response to a requester asking the requester to narrow the request and estimate the manpower necessary to tackle that review - although that didn't seem to make a difference in this case, it has been relevant in other cases and PAC opinions on the "unduly burdensome" issue.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Monday, April 5, 2021

U.S. Supreme Court Finds First Amendment Case Against Trump "Moot"


Over the past few years, we have kept readers informed about cases involving elected officials and their use of social media. You may recall the case in Virginia where a court of appeals determined that a county commissioner's blocking of users from her Facebook page was a First Amendment violation. The most talked about case involving an elected official's use of social media, however, was the case filed by the Knight First Amendment Institute against then-President Trump alleging that his blocking of users who criticized him on Twitter was a violation of the First Amendment. That case made its way to the Second Circuit Court of Appeals which issued a ruling in 2019 finding then-President Trump in violation of the First Amendment. We reported on that ruling here. We also reported when then-President Trump appealed the court of appeals ruling to the U.S. Supreme Court. 

The Supreme Court just issued a ruling today sending the case back to the Second Circuit with instructions to dismiss the case as "moot." The case (now named Joseph R. Biden, Jr. v. Knight First Amendment Institute at Columbia University, et al. because of the change in administration) is a short read. The U.S. Supreme Court issued a two sentence opinion vacating the judgment of the Second Circuit and remanding it back to the court of appeals with instructions to dismiss the case as moot. Justice Thomas filed a separate concurring opinion (12 pages), arguing that although he agreed that the case should be vacated as moot because of the change in administration, he questioned whether the First Amendment applies to a platform where a private company (in this case, Twitter) has "unbridled control" of user accounts. 

What's interesting is that after the change in administration, both sides (the Department of Justice and the Knight First Amendment Institute) had argued that the U.S. Supreme Court should declare the case "moot" but for different reasons. The DOJ argued the case was moot because of the change in administration. The Knight First Amendment Institute also argued the case was moot but because Twitter had permanently banned Trump from its platform. 

Thursday, April 1, 2021

Podcast Ep. 51: Parliamentary Procedures for Newly Elected Officials


Ancel Glink has just released Episode 51 of its Quorum Forum Podcast today: "Parliamentary Procedures for Newly Elected Officials" just in time for next week's municipal elections. More information below:

Episode 51: Parliamentary Procedures for Newly Elected Officials

Newly-elected and not-so-newly elected officials are preparing for business after the local government elections. That’s why Ancel Glink’s Steve Mahrt and Eugene Bolotnikov joined the Illinois Association of County Board Members to review parliamentary procedures and other helpful tips for orderly local government meetings. 

If you prefer video to audio, you can watch the training on YouTube here.

What strategies does your organization use to promote civility at meetings? Email us at podcast@ancelglink.com!

Tuesday, March 30, 2021

Food Truck Freedom Bill Introduced in General Assembly


The Illinois General Assembly recently introduced HB 3509, called the Food Truck Freedom Act. If passed, the bill would prohibit municipalities from requiring food truck businesses to obtain multiple licenses from the municipality regardless of how many trucks the business operates in that municipality. The bill would also require municipalities to recognize reciprocal business licenses issued to food truck businesses by different municipalities or local health departments. Additionally, the bill would prohibit municipalities or local health departments from imposing additional license qualification requirements on food truck businesses before issuing licenses. 

For initial business licenses, the bill would allow municipalities or local health department to charge a licensing fee to food truck businesses, but the fee can only reimburse the municipality for the actual cost of processing the business license. Subject to certain exceptions, the bill also prohibits municipalities from requiring a food truck business to pay any fee or obtain any permit for a special event on private property, regardless of whether the event is open or closed to the public. 

Please stay tuned for more updates as we continue monitoring HB 3509. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, March 25, 2021

Bill Would Repeal Rent Control Preemption Act


Earlier this week, the House Committee on Housing advanced a bill that would allow units of local government to implement measures regarding rent control, including imposing caps on rent prices. If passed, HB 0116 would repeal the Rent Control Preemption Act, which currently prohibits every municipality from regulating or controlling the amount of rent charged for leasing private residential or commercial properties. Please stay tuned for more updates about this bill.  

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, March 23, 2021

Court Upholds Home Rule City's Water Billing Ordinance


An Appellate Court recently upheld a municipality's water billing ordinance in Souza v. City of West Chicago.

In 2011, West Chicago contracted with Water Resources, Inc. to replace residential water meters and update meter equipment. After some customers experienced years of deficient, inaccurate, and/or missing water meter readings, the City terminated its contract with Water Resources in 2016. 

In 2019, two individuals filed a class action lawsuit against the City and Water Resources alleging that the City engaged in unlawful billing practices by charging customers for water and sewer services outside of the 12-month period prescribed by the water-utility billing provision in state statute (specifically, section 65 ILCS 5/11-150-2 of the Illinois Municipal Code). While the lawsuit was ongoing, the City amended its local water billing ordinance so that the local ordinance: (1) would control over state statute; (2) apply retroactively to any and all billed or unbilled charges incurred for water usage prior to and subsequent to the amended ordinance’s effective date; and (3) apply to all causes of action that have accrued, will accrue or are currently pending. 

The circuit court ruled against the water customers, finding that the City’s amended water billing ordinance was a valid exercise of its home rule powers.

The customers appealed, and the Second District Appellate Court upheld the ruling in favor of the City. Specifically, the appellate court noted that the City’s ordinance was a valid exercise of its home rule powers to regulate an area of vital local interest (the funding and operation of the City’s water utility system). The court rejected the customers' argument that state statute "preempted" the local ordinance finding no preemption language in the statute. 

The appellate court also rejected the customers' argument that applying the ordinance retroactively deprived them of a vested right. 

Finally, the appellate court rejected the customers’ claim that they were entitled to recover economic damages for all service charges wrongfully billed and/or collected by the City because of Water Resources' breach of its contract with the City. The appellate court found that the customers were not parties or third-party beneficiaries to the contract so could not bring a breach of contract claim against Water Resources.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Thursday, March 18, 2021

Court Rules in Favor of School District in Residency Case


An Illinois Appellate Court recently ruled in favor of the school district in a residency case, finding that a student was not a legal resident of the district. Gwozdz v. Board of Education of Park Ridge-Niles School District No. 64.

During the 2017-18 school year, parents enrolled their daughter as a seventh-grade student at a middle school located within the school district. The parents submitted documents identifying the student’s place of residence at a one-bedroom apartment in the district. According to the court opinion, the district became suspicious of the student’s residency during the verification process because the family listed two properties—a single family home outside of the district’s boundaries and the one-bedroom apartment within the school district. The opinion also noted that the district had found the lease “odd” because it was a lease from the family to itself, it was a 10-year lease, and the rent level never changed. 

Because of its suspicions, the district hired a private investigator to conduct surveillance of the family. The investigator observed that the family stayed at the out-of-district residence late in the evening and would leave the house early the next morning. The investigator also “spot-checked” the apartment building and never found the family’s vehicles at that location. After receiving the investigator’s report, the school district issued a letter informing the parents of its determination that the student was not a district resident. In response, the parents requested a hearing in front of the school board’s hearing officer to review the district’s determination. 

At the hearing, the father testified that the family owned the building within the school district and operated a flower business on the first floor. The second floor of the building consisted of eight apartments, seven of which were rented to others. The family kept a one-bedroom apartment to themselves and listed the apartment as its primary residence since December of 2012. In support of residency, the family also submitted other documents, including the student’s vaccination record, vehicle registrations and the student’s library card, all of which listed the apartment’s address. 

In finding that the student did not reside in the school district, the hearing officer noted the unlikelihood that the family lived in a one-bedroom, one-bath apartment, when there was a larger single family home outside of the school district. The hearing officer also found that the family’s testimony was not credible in light of the investigator’s report and pointed to evidence that the student was enrolled in a different school district during the 2015-16 school year, even though the family testified they moved to the apartment in 2012. As a result, the hearing officer upheld the school district’s determination. The circuit court affirmed the determination and the parents appealed. 

On appeal, the Court ruled in favor of the school board. Taking all the facts presented at the hearing together, the Court concluded that the parents intended for the single family home outside of the district to act as a “home base” for day-to-day care for the child. As a result, the Court held that the student did not reside in the school district and ordered the family to pay tuition for the 2017-18 school year.

Post Authored by Rain Montero & Julie Tappendorf, Ancel Glink


Wednesday, March 17, 2021

Court Upholds Use of "Deliberative Process" FOIA Exemption


An Appellate Court recently interpreted the "deliberative process" (sometimes known as the draft document) exception in section 7(1)(f) of the Freedom of Information Act in Fisher v. Office of the Illinois Attorney General. In this case, the court found that a public body (in this case, the Attorney General) did not violate FOIA in denying a request for certain records it claimed were exempt under that exception.

In 2012, the Attorney General (AG) filed a lawsuit against several Cathode Ray Tube (CRT) manufacturers, alleging they conspired to fix prices on certain products resulting in overcharges to Illinois consumers. Ultimately, the AG entered into settlement agreements with all of the manufacturers. In April 2019, an individual representing several clients that submitted claims as part of the CRT settlement, made a FOIA request to the AG, seeking communications between the AG and KCC Class Action Services LLC related to the CRT settlement. The AG denied the FOIA request, claiming that the communications were exempt from disclosure under FOIA’s "deliberative process" exemption in FOIA section 7(1)(f). The requester then sued the AG, alleging that the AG violated FOIA by improperly withholding the requested communications under the deliberative process exemption. The circuit court upheld the AG's denial of the FOAI request and the requester appealed. 

The Appellate Court agreed with the circuit court and also upheld the AG's use of the deliberative process exemption to deny the FOIA request. To exempt records under FOIA’s deliberative process exemption, the Appellate Court clarified that responsive materials must be both (1) inter or intra agency and (2) predecisional and deliberative. 

As to the first requirement, the court concluded that the requested communications between the AG and KCC were intra-agency materials under FOIA’s deliberative process exemption. As AG’s outside consultant, KCC provided the AG with analyses and recommendations regarding the distribution of settlement proceeds, which the AG relied on to create the final settlement distribution plan, and KCC performed essentially the same function in the AG's deliberative process as the AG would have performed if it had chosen to perform the preliminary review of each claim itself. 

Regarding the second requirement, the court determined that the records were predecisional because they were required in order for the AG to adopt and submit its final settlement plan in the CRT lawsuit. The court also determined that the records were  deliberative because the communications between the AG and KCC were related to the process that the AG engaged in to formulate its policies and to create a final settlement plan in the CRT litigation. In this case, AG had retained KCC as an outside consultant to make determinations, subject to the AG approval, regarding which claimants satisfied requirements for participation in the settlement. To that end, KCC reviewed claims and made recommendations to the AG that it used in its final settlement determinations.

This case provides some helpful guidance to public bodies in how the courts will apply the "deliberative process" exemption in section 7(1)(f) of FOIA, and also some insight into the Attorney General's view of this exemption, given that the public body in this case was the AG.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


Tuesday, March 16, 2021

Court Finds Term Limits Statute Constitutional


 In Buchanan v. Jones, an Appellate Court upheld the constitutionality of a 2019 state statute as applied to a 2016 referendum that limited the terms of office for individuals elected to the office of village president.

On November 8, 2016, a majority of voters in a municipality who voted in the general election approved the following referendum:

Shall the terms of office of those persons elected to the office of Village President in the Village of Broadview, at the April 4, 2017 consolidated election, and each election for said office thereafter, be limited such that no person shall be eligible to seek election or hold the office of Village President where that person has been previously elected to the office of Village President of the Village of Broadview for two consecutive full four year terms?

On July 19, 2019, the General Assembly amended the Illinois Municipal Code to add Section 3.1-10-17, which provides, in relevant part, that:

(a) The imposition of term limits by referendum, ordinance, or otherwise must be prospective. Elective office held prior to the effective date of any term limit imposed by a municipality shall not prohibit a person otherwise eligible from running for or holding elective office in that municipality. Term limits imposed in a manner inconsistent with this Section remain valid prospectively, but are invalid as they apply to service prior to the enactment of the term limits.

***

(d) This Section applies to all term limits imposed by a municipality by referendum, ordinance, or otherwise passed on or after November 8, 2016.” 65 ILCS 5/3.1-10-17.

A candidate for the office of village president filed nomination papers for the April 6, 2021 municipal election. A registered voter filed objections to the candidate's nomination papers with the Municipal Officers Electoral Board. Specifically, the objector argued that the candidate was not eligible to seek election to or hold the office of village president because he had previously been elected to that office for two consecutive full four-year terms and was barred from running again due to the 2016 referendum.

On January 26, 2021, the Electoral Board dismissed the objection and ordered the candidate's name to appear on the April 6, 2021 ballot. The Electoral Board reasoned that based on the language of the 2019 statute, any term that the candidate served as village president prior to November 8, 2016 should not be included in determining his eligibility to run for the office of village president in the April 6, 2021 election. The circuit court upheld the Board’s decision and Buchanan appealed.

On appeal, the objector argued that the 2019 statute was unconstitutional as applied to the 2016 referendum because it nullified the past results of a valid election, which established term limits for individuals holding the office of village president and determined who was ineligible to seek election to or hold that office. 

The Appellate Court rejected the objector's argument, finding that the 2016 referendum was silent as to whether service as village president prior to the referendum’s adoption should be considered in calculating consecutive terms. The Court reasoned that the new statute only places a limitation on the way that term limits are calculated in elections taking place after July 19, 2019, the effective date of the statute. As a result, the Court held that the statute was not unconstitutional as applied to the 2016 referendum, and the candidate was eligible to run for the office of village president.

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink

Monday, March 15, 2021

Court Rules in Public Body's Favor in FOIA Case Brought by Inmate


In 2015, an inmate filed two substantially identical FOIA requests with the Chicago Police Department asking the CPD to release records regarding the murder of an individual for which the inmate was prosecuted and convicted. After CPD initially failed to respond to both requests, the inmate sued CPD alleging that CPD had violated FOIA by failing to respond to his requests. After the trial court conducted an in camera inspection of the records produced to the plaintiff and confirmed that CPD conducted a reasonably diligent search for responsive records, the court ruled in CPD’s favor, finding that the inmate’s lawsuit was "moot" because CPD had already produced all non-exempt public records responsive to the inmate’s requests. The inmate appealed.

In Love v. City of Chicago, the First District Appellate Court also ruled in favor of the CPD. First, the appellate court rejected the inmate’s contention that CPD failed to produced certain records, finding no evidence that the CPD’s search was inadequate. Second, the court rejected the inmate's argument that CPD violated FOIA by not producing an index for certain records, finding that public bodies are not obligated to produce an index in response to a FOIA request outside of a court order which did not exist in this case. Finally, the court also rejected the inmate’s request to conduct his own "in camera" inspection of CPD’s records, noting that FOIA only allows a court to conduct in camera inspection of records when appropriate to determine whether records may be withheld under applicable FOIA provisions. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, March 12, 2021

Church Denied Injunctive Relief Against Previous COVID Restrictions


We previously reported on a lawsuit filed by the Beloved Church in Lena, Illinois to challenge Governor Pritzker's executive order that previously restricted places of worship to 10 in-person attendees. The district court had denied injunctive relief, finding that the Governor's executive order furthered the government's interest in protecting people from the pandemic and there were alternative methods for worship. The Church appealed to the Seventh Circuit Court of Appeals which issued an opinion recently affirming the district court but on different grounds. Cassell and Beloved Church v. Snyders.

The Court of Appeals noted that much had changed since the district court's May ruling denying the injunctive relief requested by the Beloved Church. First, the Governor's executive order that restricted places of worship to ten worshipers is no longer in place, having been replaced with a recommendation (rather than a mandated restriction) to limit worshipers. Also, the U.S. Supreme Court had since issued a number of rulings on COVID-related restrictions on religious institutions, some of which had found similar restrictions to be unconstitutional. The Seventh Circuit recognized these Supreme Court precedents but did not grant the Beloved Church its requested injunction against the Governor's restrictions finding that there was little risk that the Church would suffer any irreparable injury since the mandatory restrictions had previously been abandoned by the Governor and there was a very low likelihood that they would be reinstated given the availability of vaccines and the ongoing reduction in COVID cases.


Thursday, March 11, 2021

PAC Issues Binding Opinion on "Probable Litigation" Exception to OMA


The Public Access Counselor of the Attorney General's office (PAC) just issued its third binding opinion for 2021, finding a public body in violation of the Open Meetings Act when it went into closed session under the "probable litigation" exception. PAC Op. 21-003.

A City Council went into closed session at a regular meeting, citing the exception contained in 2(c)(11) of the OMA that allows a public body to discuss "probable or imminent litigation." A resident filed a complaint with the PAC arguing that the Council improperly went into closed session under this exception. In his complaint to the PAC, the resident noted that the City Council had informed him that the Council would be discussing a City sewer main located on the resident's property and which the resident claimed was not within a proper easement . The resident argued the closed session discussion was improper because there was no litigation threatened or pending to justify the closed session. In response, the City defended its decision to go into closed session, arguing that the discussions involved possible or threatened litigation.

The PAC first acknowledged that a public body is authorized to go into closed session to discuss litigation that has been filed and is pending and where litigation is "probable or imminent." The PAC referred to various Attorney General opinions and cases discussing what "probable or imminent'" means, and noted that "there must be reasonable grounds to believe that a lawsuit is more likely than not to be instituted or that such an occurrence is close at hand." 

In this particular case, the City explained that it believed litigation was imminent after the resident stated he was going to retain an attorney. The PAC found that this was not sufficient to justify going into closed session to discuss the sewer dispute. The PAC also found that the 2(c)(11) exception does not authorize closed session discussion of an underlying decision or course of action merely because it could potentially give rise to litigation at some point in the future. In sum, the PAC found the City Council in violation of OMA for going into closed session and ordered release of the closed session meeting minutes and the verbatim recording.


Wednesday, March 10, 2021

US Supreme Court Rules in Government's Favor in FOIA Case


Before issuing a proposed rule regarding cooling water intake structures, the Environmental Protection Agency (EPA) sent its draft rule to the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) for review and consultation. Staff members at NMFS and FWS reviewed the draft rule and advised the EPA that its draft rule would likely jeopardize certain species. After continued consultation with these two agencies, the EPA sent a revised proposed rule in March 2014 that addressed the NMFS and FWS concerns, and the agencies subsequently issued a joint final biological opinion and the EPA issued its final rule on the same day. 

Later, the Sierra Club (an environmental group) submitted a FOIA request seeking records related to the two agencies' consultations with the EPA. The agencies denied the request, arguing that the draft biological opinions analyzing the EPA’s 2013 proposed rule were exempt under the federal FOIA’s "deliberative process privilege." After the Sierra Club sued to obtain the withheld documents, the Ninth Circuit Court of Appeals concluded that the draft biological opinions represented the agencies’ final opinion regarding the EPA’s 2013 proposed rule and ordered release of the requested documents. The agencies appealed to the U.S. Supreme Court. 

In United States Fish and Wildlife Service v. Sierra Club, Inc., the U.S. Supreme Court reversed the Ninth Circuit and concluded that the FOIA’s deliberative process privilege protects the in-house draft biological opinions from disclosure because the documents were both pre-decisional and deliberative. 

The Court clarified that the privilege distinguishes between pre-decisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not. Here, even if the drafts reflected the agencies’ last views about a proposal, the draft opinions reflected preliminary views—not final decisions—about the EPA’s proposed 2013 rule. The Court noted that a document does not represent an agency’s final decision solely because nothing follows it. Instead, what matters is whether (1) the document communicates a settled policy of the agency; (2) the agency treats the document as its final position and (3) the agency concludes the deliberative process by which governmental decisions and policies are formulated, giving the document “real operative effect.” Here, the Court found that the agencies' draft opinions were subject to change and had no direct legal consequences. In fact, the decisionmakers at the agencies had neither approved the drafts nor had they sent them to the EPA. In short, even though the drafts may have had the practical effect of provoking EPA to revise its rule, the deliberative process privilege still applied because the agencies themselves did not treat the draft opinions as final.

Although this case involved interpretations of the federal FOIA statute and not the Illinois FOIA, it does offer some guidance on the "draft document" or "deliberative process" exemption which is in both the federal and Illinois FOIA statutes.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, March 8, 2021

Quorum Forum Podcast: Live at the APA-CMS Planning Law Session


Ancel Glink's Quorum Forum Podcast just released Episode 50: Sixth Annual APA-CMS Bar Exam. Details of this podcast are below:

The American Planning Association’s Chicago Metro Section and Ancel Glink’s Quorum Forum podcast hosted a live virtual happy hour for the Sixth Annual Bar Exam Planning Law Session! APA-IL President Elect Nina Idemudia and Ancel Glink’s Dan Bolin, Greg Jones and Joyce Jezeer joined planning professionals for a realistic law school simulation covering the year’s noteworthy cases on FOIA, zoning, short-term rentals and more for Quorum Forum’s 50th episode. 

Thursday, March 4, 2021

Bills Introduced to Amend Open Meetings Act


The Illinois General Assembly recently introduced three bills of interest to local governments. If passed, the bills would amend the notice and remote meetings provisions of the Open Meetings Act.

SB 482, if passed, would expand the alternative procedure for conducting remote meetings of public bodies by removing the current requirement that the State must have issued a disaster declaration before public bodies are authorized to hold remote meetings. The bill also allows a public body to hold a remote meeting if the head of a public body determines either (1) that an in-person meeting is not practical or prudent or (2) that conducting an audio or video conference is in the best interest of the public body. The bill would also require that the public notice for the meeting include language that the chair of the public body has determined that an in-person meeting is not practical or prudent or that conducting an audio or video conference is in the best interests of the public body.

HB 2830 proposes to amend the OMA to prohibit public bodies from conducting a closed meeting by audio or video conference. If passed, a public body could only conduct a closed meeting with the physical presence of a quorum of the public body members.

HB 2819, if passed, would require that if a change is made concerning a public body’s regular meeting dates, times, or locations (currently, the statute only references a change in dates), the public body must provide at least 10 days' notice of the change by publication in a newspaper of general circulation in the area where the public body functions. If passed, the bill also permits a public body to provide at least 10 days’ notice of a change made to its regular meeting dates, times, or locations on the public body’s website in addition to providing notice in a newspaper, or in lieu of providing notice in a newspaper if the public body does not have a newspaper of general circulation in the area where the public body functions.

These bills have not yet been voted on, but we will keep you posted if they move forward.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, March 3, 2021

FOIA Requester Not Entitled to Attorneys Fees or Civil Penalties


In 2015, an inmate filed a complaint against the Cook County State's Attorney's Office (SAO) claiming the SAO failed to comply with his FOIA request seeking records from five criminal cases in which he was convicted of various offenses. Shortly after the case was filed, the SAO provided the inmate with 2,867 pages of responsive records with applicable redactions based on FOIA exemptions. Nevertheless, the inmate claimed that because the SAO willfully and intentionally failed to comply with FOIA, the court should award fees, costs, and civil penalties. The SAO filed a motion to dismiss, arguing that the motion for fees and penalties was "moot" because the inmate had already been provided with all responsive, non-exempt records. The trial court ruled in favor of the SAO, and the inmate appealed.

In Watson v. Foxx, the Illinois Appellate Court denied the inmate's request for fees, costs, and civil penalties, agreeing with the SAO that the inmate's appeal was "moot" because the inmate admitted to receiving the records he had requested. 

Even if the case were not moot, the court noted that since the inmate represented himself in the FOIA lawsuit, he would not be entitled to attorneys fees because as a pro se litigant, he did not incur any attorney fees. The court also held that the inmate was not entitled to civil penalties under FOIA section 11(j) because there were no facts suggesting that the SAO had willfully and intentionally failed to comply with FOIA or otherwise acted in bad faith in responding to the FOIA request. 

Post Authored by Eugene Bolotnikov, Ancel Glink


Tuesday, March 2, 2021

PAC Finds No Violation of OMA In Declining Public's Request to Place Item on Agenda


As we have noted previously on Municipal Minute, some of the more interesting opinions out of the Attorney General's Public Access Counselor (PAC) office are advisory/non-binding opinions. Today, we report on one of these opinions.

On August 23, 2020, a member of the public sent a communication to a park district board of commissioners asking the board to place an item on the agenda for an upcoming board of commissioners' meeting. After receiving an email from the park district’s executive director notifying the individual that the board would not place the requested item on the agenda, the individual filed an appeal with the PAC alleging that the board of commissioners must have held an improper meeting to decline his request in violation of the Open Meetings Act. 

In its response to the PAC, the board explained that the executive director (who is an employee of the park district but not a board member) conferred separately with four of the five board members about placing the requested item on the agenda for the board’s meeting. During those separate, individual discussions, the executive director gathered the consensus that the board would not add the person to the agenda. 

The PAC first determined that there was no evidence that three or more members of the five member board engaged in contemporaneous interactive communications concerning a matter of park district or board business. Because these separate conversations between the executive director and individual board members did not constitute a “meeting” under section 1.02 of the OMA, the PAC concluded that the board never held an improper meeting under the OMA. 

The PAC also determined that the separate discussions between the executive director (a district employee) and individual board members did not constitute a final action that should have been taken at an open meeting in violation of section 2(e) of the OMA. Instead, the PAC noted that the decision to place or not place items on an agenda is not a final action, but rather a procedural step needed to identify substantive issues to be discussed or acted upon at a meeting.

Finally, the PAC noted that the OMA does not require a public body to place an item on its agenda at the request of a member of the public. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, February 25, 2021

Attorney General Issues Opinion on Compatibility of Offices


We don't see a lot of Attorney General opinions except for those issued by the Public Access Counselor's office regarding Open Meetings and FOIA complaints. But the Attorney General did just release an opinion regarding incompatibility of two offices earlier this month. Att'y Gen. Op. 21-001.

As background, there are certain government offices that are "incompatible" with one another - in other words, a person serving in one government office cannot simultaneously serve in another incompatible government office. There are a number examples in state statute, Attorney General opinions, and even a few court cases that discuss the "incompatibility of office" doctrine. The purpose of this doctrine is to avoid any potential or inherent conflicts of interest that might come up for the office holder who may have divided loyalties on a particular matter before both government bodies or may be serving in one position that has oversight over the other position. 

As an example of an incompatible office, there is a state statute that prohibits a trustee or alderman in a municipality from holding any other office under the municipal government during the officer's term of office. 65 ILCS 5/3.1-15-15. The Attorney General has also opined that a village trustee or alderman cannot serve on a school district or as park board president.

In the above-referenced Attorney General opinion, the Attorney General was asked to provide an opinion as to whether a member of the Illinois state senate could simultaneously serve in the Office of Assistant States Attorney. The Attorney General found those two offices incompatible. Specifically, the Attorney General noted that both offices are offices of the state with the States Attorneys office being part of the "executive branch" and the State Senate being part of the "legislative branch." As a result, simultaneous service in both offices would violate the separation of powers doctrine in the Illinois constitution. 


Wednesday, February 24, 2021

Seventh Circuit Overturns $44.7 Million Jury Verdict Against City in Shooting Incident


The Seventh Circuit Court of Appeals recently overturned a jury verdict against the City of Chicago awarding $44.7 million in damages relating to a shooting involving an off duty police officer. First Midwest Bank as Guardian v. City of Chicago.

According to the court opinion, the plaintiff claimed that a Chicago police officer shot his friend during an argument when the two had been drinking. The friend suffered traumatic brain and other injuries. The friend sued the City of Chicago seeking damages for the shooting, arguing that the City was responsible for the officer's conduct. Specifically, the plaintiff claimed that the City's failure to have an "early warning system" to identify officers who might engage in misconduct, failure to adequately investigate and discipline officers who engage in misconduct, and the "code of silence" among police officers contributed to the shooting incident. The City argued that the officer was off duty and not acting under "color of state law" at the time of the shooting, so the City was not liable under Section 1983 of the Civil Rights Act. The case made its way to a jury which found the City of Chicago liable and awarded $44.7 million in damages to the plaintiff. The jury found that two of the City's policies - its failure to maintain an adequate early warning system and failure to adequately investigate and discipline officers - caused the officer to shoot his friend. 

The City appealed to the Seventh Circuit Court of Appeals, which reversed the jury verdict and award. The appeals court found that although the injuries suffered by plaintiff from the shooting incident were grievous, the City was not responsible for the officer's actions, where the officer was acting as a private citizen and not as a City police officer. The Seventh Circuit noted that Section 1983 imposes liability only when a municipality has violated a federal right. Since none of the plaintiff's federal rights were violated, the court of appeals overturned the jury verdict against the City of Chicago.



Friday, February 19, 2021

PAC Issues Binding Opinion on Juvenile Victim Records


In a rare binding PAC opinion in favor of a public body, the PAC found that a police department properly withhold records relating to alleged sexual offenses against a minor in PAC Op. 21-002

In October 2020, a reporter submitted a FOIA request to a police department seeking records about complaints or allegations involving a named person and a church from 2018 through 2020. The records concerned alleged sexual offenses perpetrated by an adult against a minor. The Department denied the request in its entirety citing FOIA exemptions 7(1)(a), 7(1)(b) and 7(1)(c). 

After the requestor appealed the denial to the Public Access Counselor of the Attorney General's office, the PAC issued a binding opinion finding in favor of the public body, concluding that the department did not violate FOIA by denying the FOIA request in its entirety. 

First, the PAC concluded that the department properly withheld the requested records under FOIA section 7(1)(a), which exempts from disclosure information specifically prohibited from disclosure by state law, because information identifying children who are victims or alleged victims of criminal sex offenses is confidential and prohibited from disclosure by section 3 of the Privacy of Child Victims of Criminal Sexual Offenses Act. 

The PAC also concluded that the Department properly withheld the requested records in their entirety under FOIA section 7(1)(c), which permits withholding information that would constitute a clearly unwarranted invasion of personal privacy if disclosed. The department cited examples of Illinois laws taking extra precautions to protect the confidentiality of child sexual abuse information, arguing that because the records are replete with sensitive sexual abuse information, it would be nearly impossible to redact the report to remove any information that could be used to identify the minor. The PAC agreed, reasoning that the significant personal privacy interests of both the alleged victim, who was a minor at the time of the alleged offense, and the suspect, who was not arrested or charged with a crime, outweigh the relatively weak public interest in disclosure. As a result, the department properly withheld the responsive records under FOIA section 7(1)(c). 

However, the PAC rejected the department's argument that the requested records were exempt from disclosure under FOIA section 7(1)(a) based on the Juvenile Court Act of 1987 (JCA). Although the department argued that it was required to withhold the records regarding alleged victims of sex offenses under JCA section 5-905(2), the PAC disagreed. Specifically, the PAC clarified that the JCA’s definition of juvenile law enforcement records expressly excludes records that identify a juvenile as a victim. Furthermore, the PAC clarified that JCA section 5-905(2) only prohibits disclosure of information identifying victims and alleged victims of sex offenses that are committed by minors. Because the law enforcement records at issue concerned alleged criminal offenses perpetrated by adults against minors, the Department improperly cited FOIA section 7(1)(a) to withhold the records under the JCA. Since the denial was justified based on the previous arguments accepted by the PAC, this did not affect the PAC's ultimate finding that the department's decision to withhold all of the records was proper under 7(1)(a) and 7(1)(c).

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, February 18, 2021

Upcoming APA Webinar on Fair Housing Law


The American Planning Association (APA) Planning & Law Division is presenting a webinar on February 25, 2021 on fair housing. Information about the topic, speakers, and registration is below:

Fair Housing Law Under the Biden Administration

APA Planning & Law Division 

Thursday, February 25, 2021 

noon - 1:30 p.m. CST 

The Biden Administration has signaled its intent to make major reforms to fair housing law, modifying or reversing many of the changes to regulation enacted in the prior four years. This webinar will forecast how the Biden Administration will approach these issues, including the potential reinstatement of the Affirmatively Furthering Fair Housing Rule and the modification of the disparate impact standard under the Act. Panelists will provide perspective on how these changes will affect planners and land use lawyers alike, and reflect on the various policy and legal considerations at stake.

Featured panelists include Anika Singh Lemar, a Professor at Yale Law School specializing in land use and residential segregation; Daniel Lauber, a land use attorney and planner with over 40 years of experience working on fair housing issues; and Zachary Best, a civil rights attorney currently litigating a challenge to fair housing regulations instituted in 2020.

You can find registration information here or email Nick Abbott with questions about the webinar at nicholasabbott96@gmail.com

Wednesday, February 17, 2021

Illinois Bills Would Affect Zoning and Land Use Authority


Yesterday, we reported on a few bills introduced in the Illinois General Assembly relating to local government liability and immunities. Today, we wanted to mention a few recently introduced bills that relate to local government zoning and land use authority. Many of these will look familiar as they or similar bills have been introduced in previous legislative sessions but were not ultimately enacted.

HB 812 - Prohibiting Municipal Regulation of Accessory Dwelling Units (ADUs)

If passed, this bill would prohibit local governments (including municipalities) from banning accessory dwelling units, sometimes referred to as granny flats, in-law suites, coach houses, and a number of other names. The bill would allow reasonable regulations regarding the size and location of ADUs except to the extent that those regulations have the effect of prohibiting ADUs. The bill would preempt home rule authority.

SB 170 - Protection of Vegetable Gardens

If passed, this bill would expressly authorize the cultivation of vegetable gardens on private property and prohibit local government regulation inconsistent with this express authorization. Local governments would be authorized to regulate the height, setback, water use, fertilizer use, or control of invasive or unlawful species so long as those regulations do not preclude vegetable gardens. This bill would preempt home rule authority.

HB 811 - Electronic Publication of Notices

Although not technically a zoning or land use bill, if passed, this bill would have significant impact on required notices by allowing local governments to publish required notices (including notices for zoning public hearings) on its website rather than in a local newspaper. This bill or something like it has been introduced for many years but has not gone anywhere, maybe partly due to the opposition from newspaper publishers.

SB 42 - Cannabis Sales in Unincorporated Areas

If passed, this bill would prohibit counties from allowing the sale of cannabis on unincorpoated property that is located within 1 1/2 miles of a municipality that has prohibited cannabis sales in its jurisdiction.

Tuesday, February 16, 2021

Government Immunity and Liability Bills


A number of bills were recently introduced in the Illinois General Assembly that could impact local governments. We wanted you to be aware of these so you can monitor their progress through the legislature.

Eliminate Immunity for the Failure to Diagnose

HB 454 would eliminate protections for local governments and public employees from liability caused by the failure to diagnose mental or physical illness.

Codify the Public Duty Rule

SB 95 would codify the public duty rule and restore protections for local governments and public employees. Readers will remember that the Illinois Supreme Court eliminated the public duty rule (which provided certain legal defenses to local governments) in 2016 in Coleman v. East Joliet Fire Protection District - you can read our post on that case here.

Remove Liability for Cyberattacks

HB593 and SB 96 would protect local governments and public employees from liability caused by cyberattacks. 

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink

Wednesday, February 10, 2021

Seventh Circuit Finds Nativity Scene On Courthouse Lawn Constitutional


Each holiday season, an Indiana county allows private groups to set up a lighted Christmas display on the front lawn of its historic courthouse, typically consisting of a nativity scene, Santa Claus in his sleigh, reindeer, carolers and large candy-striped poles. Woodring, a county resident, sued the county to take down the nativity scene, arguing that the nativity scene violates the First Amendment’s Establishment Clause because it conveyed the county’s endorsement of a religious message. In response, the county agued that the nativity scene was part of its secular celebration of a public holiday. The district court sided with Woodring and held that the county may not display the nativity scene in its current arrangement. The county appealed.

In Woodring v. Jackson County, Ind, the Seventh Circuit reversed the district court and held that the county’s use of the nativity scene in a Christmas display did not violate the Establishment Clause of the First Amendment. In rejecting Woodring’s claims that the nativity scene was a “government endorsement” of a religious message, the court reasoned that the display was linked to a longstanding tradition of using the nativity scene in broader holiday displays to “depict the historical origins of Christmas.” The court noted that the county’s nativity scene is part of a larger Christmas display that contains various other symbols of Christmas, including Santa Claus, a reindeer, four carolers, and seven prominent candy-striped poles. Because the display consisted of both religious and nonreligious symbols of Christmas, the court found that the nativity scene was used in a broader context to depict the historical origins of the National Holiday. As a result, the court held that the nativity scene on the courthouse lawn did not violate the Establishment Clause of the First Amendment.

Post authored by Rain Montero and Julie Tappendorf, Ancel Glink

Monday, February 8, 2021

New Quorum Forum Podcast Episode 49: Not in My Park!


Ancel Glink's Quorum Forum Podcast just released Episode 49: Not in My Park! Regulating Park Activities. A summary of this episode is below:

Park agencies manage many acres of public space where sometimes controversial activities take place. What authority does your organization have to regulate protests, public art, and more, while respecting the individual rights of park patrons? Find out as Adam Simon and Dan Bolin discuss during "Not in My Park!" proudly presented by Ancel Glink’s Quorum Forum podcast at the IAPD/IPRA Soaring to New Heights 2021 Virtual Conference!

What controversial activities are impacting your parks? Email us at podcast@ancelglink.com 

Friday, February 5, 2021

Seventh Circuit Rejects Developer's Claims Against City Manager


In 2018, the City of DeKalb approved a Preliminary Development Incentive Agreement (PDA) with a developer regarding potential financing for the redevelopment of property in the City. The PDA provided that if the developer met certain contingencies specified in the PDA, the City would provide an approximate $2,500,000 Development Incentive in Tax Increment Financing (TIF) funding. The PDA imposed certain conditions and obligations on both parties before the agreement was final and prior to funds being distributed to the developer. 

After conducting due diligence into the developer, the City Manager recommended that the City terminate the PDA, and the City Council unanimously voted to terminate the PDA. The developer then filed a lawsuit claiming, among other things, that the City Manager violated the developer's First and Fourteenth Amendment rights. After the district court dismissed Fisk’s federal claims for failure to state a claim with prejudice, the developer appealed to the Seventh Circuit Court of Appeals. 

In 145 Fisk, LLC v. Niklas, the Seventh Circuit rejected the developer's First Amendment retaliation claim against the City Manager. The developer had claimed that the City Manager blocked a development incentive and retaliated against it because the company’s attorney member exposed unflattering information about the City Manager and named him in discovery in an earlier, unrelated lawsuit. The Seventh Circuit found that this claim had been properly dismissed by the district court because the developer did not engage in protected activity. The Seventh Circuit also found that the developer had waived any retaliation claim based on the exercise of free speech rights because it had not raised that claim with the district court. The Seventh Circuit also rejected the developer's procedural due process claim since the developer had no constitutionally protected property interest because the PDA only provided “a right to acquire property” and not a right in the property itself. Lastly, the Seventh Circuit rejected the developer's equal protection claim, finding that the City Manager had a rational basis for recommending that the developer not receive financing under the PDA.

Post Authored by Eugene Bolotnikov, Ancel Glink


Thursday, February 4, 2021

Cook County Adopts Landlord Tenant Ordinance


Last week, the Cook County Board adopted an ordinance to enact landlord-tenant regulations in Cook County. Although the ordinance itself does not expressly regulate the conduct of municipalities within Cook County, the ordinance will still be of interest to municipalities because the scope of these new regulations are not limited to the unincorporated areas of Cook County. 

The approved ordinance, most of which goes into effect in June, includes among other provisions, the following:

  • Provisions mirroring statutory restrictions that prohibit landlords from retaliating against tenants who file complaints with government agencies or from evicting tenants without following the proper eviction process.
  • A prohibition on landlords charging late fees greater than the ordinance allows.
  • Provisions for termination of leases by tenants.
  • Limits on the amount of required security deposits and a requirement that these deposits be returned within 30 days.
  • Time-lines for landlords to address maintenance issues.
This is by no means an exhaustive list of the new regulations.

The ordinance does contain some exemptions. For example, landlords of buildings with six or fewer units are not subject to the ordinance. Rentals of single family homes are also exempt.

In addition, the County ordinance contains the following provision which attempts to preempt municipal authority to regulate the landlord-tenant relationship in a different manner:

This Ordinance is subject to the home rule as established by the Constitution of the State of Illinois Article VII Section 6. Powers of Home Rule Units. This Ordinance regulates all residential buildings and structures that exist or are erected, constructed, altered, demolished, or relocated within the boundaries of Cook County, excluding those cities, villages, and incorporated towns that maintain promulgated regulations that establish both the rights and obligations of both the tenant and the landlord in the rental of dwelling units. The regulations must contain specific language defining and regulating the relationship between the tenant and landlord, policies protecting and promoting the public health, safety, and welfare of tenants, and remedies under a rental agreement in order to be excluded from this Ordinance.

Based on the language in the ordinance, it appears the County is attempting to preempt local control, including a municipality's authority to adopt contrary regulations on the landlord-tenant relationship or to decide not to regulate the relationship at all. Of course, this ordinance still has to be interpreted in light of the limitations on home rule authority in the Illinois constitution. Specifically, Article VII, Section 6 of the Illinois Constitution provides that if a home rule county ordinance conflicts with a municipal ordinance, the municipal ordinance will prevail within the municipality. So, just as Cook County municipalities did when Cook County adopted its minimum wage and sick leave ordinances, these municipalities may want to analyze this County ordinance in the context of their own municipal ordinances.

  

Wednesday, February 3, 2021

Most Regions in Illinois Now in Phase 4 of Restore Illinois Plan


As new COVID cases continue to decline, Illinois has loosened and, in some cases, lifted the "tier" mitigation measures that were imposed in November. As of today, most of the State's regions are now in Phase 4, with no additional tier restrictions (Regions 1, 2, 3, 5, 6, 7, 10, and 11 are in Phase 4). Regions 8 and 9 (Lake, McHenry, Kane, and DuPage counties) are still in Tier 1, while Region 4 (St. Louis area) is in Tier 2. You can keep up on these changes by visiting the IDPH website here. Note that on February 2nd, the Cook County Health Department recently issued an order that is stricter than the State restrictions and states that Cook County remains in Tier 1 notwithstanding the Governor's decision to move Cook County to Phase 4.

Phase 4 regulations can be found here and some of the key restrictions are summarized below:

Restaurants and Bars

  • Indoor dining and drinking now permitted for parties of up to 10 people
  • Seated areas should be arranged so that tables allow for 6 feet between parties; impermeable barriers may be installed between booths which are less than 6 feet apart

Retail and Service Counter

  • Continue capacity limit of no more than 50% occupancy

Personal Care

  • Continue capacity limit of no more than 50% occupancy

Indoor/Outdoor Recreation

  • Reopening select indoor recreation facilities (e.g., bowling alleys, skating rinks); indoor playgrounds and trampoline parks should remain closed
  • Indoor recreation to operate at lesser of 50 customers or 50% of facility capacity

Museums

  • Capacity limit of no more than 25% occupancy
  • Guided tours should be limited to 50 or fewer people per group

Meetings and Social Events

  • Limit to the lesser of 50 people or 50% of room capacity
  • Multiple groups may meet in the same facility if they are socially distanced and in separate rooms


Tuesday, February 2, 2021

Local Government Official "Recall" Bill Introduced


A number of bills were introduced last week that will likely be of interest to local governments. One of those bills deals with the "recall" of elected officials. Illinois HB 340 proposes to create the "Local Government Elected Officials Act" to provide a process for "recalling" (i.e., removing from office) elected local government officials who were elected during a consolidated election. Similar bills have been introduced in past legislative sessions but have never made it out of committee. 

Under this bill, a resident within the jurisdiction that the elected official represents would be allowed to file petitions with the local election official signed by the lesser of (1) 25% of voters in that jurisdiction who voted for Governor or (2) 10,000 signatures to request that the recall question be submitted to the voters at the next consolidated election. The ballot question language is required to be in the form as stated in the proposed bill, as follows:

Should (elected official) be recalled from (his or her) positions as (title of position)? (YES/NO)

If (elected official is recalled, who do you support to replace (him or her)?

(Elected official).

(Candidate).

(Candidate).

Anyone desiring to be considered as a replacement for a recalled official must follow the process set by the proposed bill, including filing petitions within the time-frame provided.

The bill includes home rule preemption language.

The bill does not provide any specific information as to what governmental units this would apply to - i.e., municipalities, park districts, library districts, school districts, townships, counties, all of the above? 

As noted above, similar bills have not made it very far, so we don't know whether this one will go anywhere but since it could potentially affect all local governments with elected members, we will keep you advised if it does move forward. 

Friday, January 29, 2021

US Supreme Court Finds Chicago Did Not Violate Bankruptcy Stay in Keeping Impounded Vehicles


Last week, the United States Supreme Court held that the City of Chicago did not violate the automatic stay provision of the Bankruptcy Code when the City refused to return impounded vehicles to debtors. City of Chicago v. Fulton

Under the Bankruptcy Code, when a debtor files a bankruptcy petition, that action creates an automatic stay that prohibits “any act to obtain possession of property of the [debtor’s] estate or to exercise control over” the debtor’s property. This provision is intended to protect the debtor’s assets and halts all collection activity while the bankruptcy proceeding moves forward.

Like many other municipalities, the City of Chicago impounds vehicles for failure to pay fines for motor vehicle infractions. After a number of individuals' cars were impounded and they filed for bankruptcy, they filed suit against the City, arguing that the automatic stay provision required the City to return their cars. In each case, the bankruptcy court held that the City’s refusal violated the automatic stay provision. The Court of Appeals affirmed all of the judgments in a consolidated opinion. The City then appealed to the U.S. Supreme Court.

The U.S. Supreme Court held that the City did not violate the automatic stay provision by retaining possession of the debtor’s vehicles. The Court reasoned that “to exercise” under the Code means to “bring into play” or take an affirmative action. Because the City merely retained possession of the vehicles and did not change the status quo of possession of the property, the Court found that the City’s actions did not amount to an “exercise of power” over the vehicles within the meaning of the automatic stay provision of the Bankruptcy Code. As a result, the Court held that the City of Chicago’s mere retention of debtors’ impounded vehicles did not violate the automatic stay provision of the Bankruptcy Code.

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink


Thursday, January 28, 2021

PAC Issues First Binding Opinion of 2021 on Unduly Burdensome FOIA Requests


In September 2020, a requestor submitted a FOIA request seeking subpoenas received by the Chicago Police Department (CPD) from federal agencies and search warrants served on CPD in August 2020. CPD denied the request as unduly burdensome, and subsequently offered the requestor an opportunity to submit a new FOIA request. After the requester’s attempts to confer with CPD to reduce the request to manageable proportions were ignored, the requestor appealed the denial of his FOIA request with the PAC. 

In PAC Op. 21-001, the first binding opinion of 2021, the PAC concluded that the CPD violated FOIA by improperly denying a FOIA request as unduly burdensome under Section 3(g) and improperly denying responsive grand jury subpoenas under FOIA Section 7(1)(a). Specifically, the PAC found that CPD did not first offer the requester an opportunity to "meet and confer" so the requester could narrow the scope of the burdensome request to manageable proportions. Instead of conferring with the requestor before denying the request, CPD’s written response to the requestor omitted any mention of an opportunity to confer and invited the requestor to submit a new request. 

Although FOIA does not specify the scope of required dialogue between the parties, the PAC argued that CPD’s refusal to participate in any meaningful exchange with the requestor, and ignoring the requestor’s efforts to confer, clearly did not fulfill the requirement specified in Section 3(g). Indeed, the PAC reasoned that the requirement to confer before denying a request as burdensome would be meaningless if a public body could simply refuse to follow through on an offer to confer when the requestor asks to do so. In addition to CPD’s failure to confer with the requestor, the PAC concluded that CPD also improperly denied the request as burdensome without specifying facts explaining why complying with parts of the FOIA request would burden CPD’s operations. 

The PAC also found that CPD improperly denied the responsive grand jury subpoenas under FOIA exemption 7(1)(a), which exempts information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law. While CPD claimed the responsive subpoenas were exempt under the Code of Criminal Procedure of 1963, the PAC clarified that the Code only prohibits a State’s Attorney, not police departments, from disclosing matters occurring before a grand jury in Illinois, and the Code does not encompass federal grand jury subpoenas. 

Public bodies should make sure that their communications with requesters about "unduly burdensome" requests clearly provide an opportunity to the requester to confer with the public body about the request in order to narrow it to a more manageable proportion. Certainly, if a requester asks for a meeting to discuss a request that the public body has deemed unduly burdensome, the public body should accommodate that request. Public bodies should also provide details in their "unduly burdensome" communication as to why the request would be unduly burdensome -i.e., it would take X hours and Y staff members to search, compile, and review the requested records which are estimated to be Z number of records. These details will help support a denial if the requester refuses to narrow the request when offered the opportunity.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink


Tuesday, January 26, 2021

Content-Based Regulation of Solicitation in Streets Found Unconstitutional


Earlier this month, a federal district court judge issued a ruling that will likely be of interest to municipalities that regulate or restrict solicitation on streets within their jurisdiction. Dumiak v. Village of Downers Grove.

In 2019, after two individuals had been cited for soliciting money on Village streets, they filed a lawsuit against the Village of Downers Grove and various Village, State, and County officials to challenge the constitutionality of the ordinance that prohibited their activities. The Village had enacted an ordinance based on authorization in state statute, specifically 625 ILCS 5/11-1006. That statute prohibits persons from standing on a highway for the purpose of soliciting contributions unless the solicitation is within a municipality that has expressly authorized solicitation and the solicitor is registered with the Attorney General as a charitable organization. 

The Village subsequently repealed its ordinance and the parties entered into a settlement of the litigation, which was memorialized in the trial court ruling dated January 11, 2021. That ruling expressly concluded as follows:

The Court therefore concludes, as a matter of law, that 625 ILCS 5/11-1006(c) is a content-based restriction on the freedom of speech that is not justified by any compelling interest and that the provision violates the First Amendment and is unconstitutional on its face under clearly established law, specifically the controlling Supreme Court decision of Reed v. Gilbert, 576 U.S. 155 (2015), and the controlling Seventh Circuit decision of Norton v City of Springfield, 806 F.3d 411 (7th Cir. 2015).

Based on this ruling, municipalities may want to review their own solicitation ordinances for any necessary amendments, as well as discuss modifications to their current practices with regard to enforcing solicitation activities on streets within their municipal borders. This ruling does not mean that municipalities cannot regulate any solicitation activities on streets within their jurisdiction, such as enforcing content-neutral regulations that prohibit activities that impede the flow of traffic. However, the ruling does call into question  regulations that restrict First Amendment activities in a content-based manner that are not justified by any compelling interest. 

Monday, January 25, 2021

Illinois Regions Lower COVID Restrictions


It's been awhile since we've updated our readers on the various restrictions in place throughout the State regarding COVID-19. Since November, most of the State had remained in Tier 3 which prohibited indoor dining among many other restrictions. Recently, the Governor loosened COVID restrictions for various regions in the State: some regions went to Tier 2, others to Tier 1 which opened up indoor dining, and still others are now in Phase 4 with no additional tier restrictions. Not all of the State is currently in the same Tier, however, and things change rapidly so you should always consult the IDPH website for the current restrictions for your region. Also, the State recently modified the Tier mitigation measures, so you should consult the updated Tier restrictions (links below).

As of January 25th, here is an update on where all 11 regions are with respect to COVID-19 restrictions:

  • Regions 1, 2, 7, 10, and 11:  Tier 1 (indoor dining now allowed at 25% capacity)
  • Regions 4, 8, and 9: Tier 2 (indoor dining still prohibited)
  • Regions 3, 5, and 6: Phase 4 (no additional tier restrictions) 

In case you aren't sure which region you are in, you can view the map here.

  • Region 1 - Northwestern Illinois/Rockford area
  • Region 2 - Central Illinois/Bloomington/Peoria area
  • Region 3 - Springfield area
  • Region 4 - Metro East/St. Louis area
  • Region 5 - Southern Illinois
  • Region 6 - Eastern Illinois
  • Region 7 - Will & Kankakee counties
  • Region 8 - DuPage & Kane counties
  • Region 9 - Lake & McHenry counties
  • Region 10 - Cook County (except Chicago)
  • Region 11 - Chicago

Friday, January 22, 2021

Liquor Delivery Bill Passes Both Houses in the Illinois General Assembly


During the recent “lame duck” session, a bill passed both houses of the Illinois General Assembly facilitating liquor delivery by retailers. If signed by the Governor, Ill. S.B. 54 would amend the Liquor Control Act to provide that nothing in the Liquor Control Act will “deny, limit, remove, or restrict the ability of a holder of a retailer’s license to deliver alcoholic liquor to the purchaser for use or consumption,” with just a few exceptions. Except for Chicago, home rule and non-home rule units alike may not regulate the delivery of alcoholic liquor inconsistent with the proposed statutory amendments.

“Delivery” means the movement of alcoholic liquor purchased from a licensed retailer to a consumer through:

1. delivery within the licensed retailer’s parking lot, including curbside, for pickup by the consumer;

2. delivery by an owner, officer, director, shareholder, or employee of the licensed retailer; or

3. delivery by a third-party contractor, independent contractor, or agent with whom the licensed retailer has contracted to make deliveries of alcoholic liquors.

Deliveries must be made within 12 hours from the time the alcoholic liquor leaves the retailer’s licensed premises, and “delivery” does not include use of common carriers. While nothing in the Liquor Control Act will limit the authorized deliveries, other laws surely would including the Vehicle Code’s open container law.

With the Governor’s signature, “on-premises only” licensees and other licensed retailers could make the liquor deliveries authorized by the amendments. Of course, many local liquor commissioners are already allowing temporary delivery of alcoholic liquor according to the guidance issued by the Illinois Liquor Control Commission in response to the COVID-19 pandemic. Additionally, many municipalities allow delivery and carry-out of “cocktails to-go” based on a previous statutory authorization, but that authorization is due to sunset on June 2, 2021. 

Although the liquor delivery landscape is not yet settled since this has not been signed into law yet, municipalities may want to proactively review their ordinances and be ready to address any potential changes once the legislation is enacted, assuming the Governor signs it into law.

Post authored by Daniel J. Bolin, Ancel Glink