Citizen’s Arrest Made At Park Board Meeting for Alleged OMA Violation

Citizen’s Arrest Made At Park Board Meeting for Alleged OMA Violation

  Monday, June 30, 2014    Julie Tappendorf

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UPDATE:  Subsequent to the meeting at which the citizens arrest was made, the Clark County Park District adopted a new policy allowing up to 30 minutes of public comment at every meeting.

Today's post involves our second "public comment" case in under a week.  This case deals with an Illinois park district board that did not allow public comment at a recent board meeting.  You might recall that last week we reported on a New Mexico case where the court struck down a public comment policy that banned "negative" or critical public comments as unconstitutional. 

On May 12, 2014, the Clark County Park District Board held a special meeting, where it went into executive session to discuss the executive director’s evaluation.  After returning to open session, the Board voted to table the “status of executive director” agenda item.  According to news reports and a subsequently filed lawsuit, members of the public had, apparently, requested and were denied an opportunity to speak at the meeting before the meeting was adjourned.  

Shortly after the meeting was adjourned, John Kraft, a member of the citizen’s group Illinois Leaks (formerly known as Edgar County Watchdogs), placed the Park Board members under citizen’s arrest for allegedly violating Section 120/2.06(g) of the Illinois Open Meetings Act.  That section provides that “[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.”  A few days after the meeting, Kirk Allen also filed a lawsuit against the Park Board claiming that the Board violated the OMA by refusing to allow public comment at the special meeting.  Allen v. Clark County Park District (May 15, 2014)

It is important to point out that Section 2.06(g) of the OMA does not state that a public body must include a public comment section at every meeting.  Instead, that section requires a public body to provide some opportunity to address public officials under the rules established and recorded by the public body.  Thus, it seems reasonable to interpret the statute to allow a public body to adopt a rule that provides an opportunity for public comment at all regular meetings, but not special meetings or committee meetings.  However, it's not clear that the Public Access Counselor of the Attorney General's office would agree with that interpretation.  In fact, the PAC previously found the Naperville Electoral Board in violation of the Open Meetings Act when it failed to allow for public comment at a special electoral board meeting in 2012.  We reported on that opinion here.

Because this will be the first time a court will address this issue, this case will be worth watching to see how a court interprets the "opportunity to address public officials" requirement of Section 2.06(g).   

Post Authored by Tiffany Nelson-Jaworski and Julie Tappendorf, Ancel Glink

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Court of Appeals Rules in Favor of City in Facebook Parody Case

Court of Appeals Rules in Favor of City in Facebook Parody Case

  Wednesday, November 02, 2022    Julie Tappendorf

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In Novak v. City of Parma, the U.S. Court of Appeals for the Sixth Circuit ruled in favor of a municipality and certain police officers in a First Amendment challenge relating to an imposter Facebook page created by a private individual. 

Novak created a knockoff Facebook page that looked substantially identical to the City of Parma police department ("Department") page. The imposter Facebook page included posts such as offering free abortions in police vans and a “pedophile reform event” which caused concerned citizens to reach out to the Department to complain. Novak also deleted any comments on his page that stated the page was a fake. 

Ultimately, the Department posted a warning on its Facebook account about the imposter account, which Novak reposted on his imposter page. The Department also issued a press release and took part in a TV news interview, announcing an investigation of the Facebook account and warning people about the imposter page. Novak subsequently took down the page for fear of getting in trouble but was arrested and charged for violating an Ohio law that makes it illegal to use a computer to disrupt or impair police functions. After being found not guilty of the charges, Novak filed a lawsuit against the city and multiple police officers. The district court ruled in favor of the city and Novak appealed. 

On appeal, Novak claimed his arrest was in retaliation for creating the parody Facebook page, violating his First Amendment rights. The Court of Appeals rejected his argument, stating a reasonable officer would have believed every element of the Ohio disruption statute was met. The Court pointed to the fact that police were aware the call center had received multiple calls about the imposter page and the Ohio law created no standard for how much “disruption” had to be caused. The Court also noted that qualified immunity protects an officer who “reasonably picks one side or the other” in a debate where judges could “reasonably disagree." Here, the Court determined that the officers reasonably believed that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause. The Court also noted that reassurance from no fewer than three other officials (city law director and the judges who issued arrest warrants) supported a finding that the officers “reasonably,” even if “mistakenly,” concluded that probable cause existed, which supports qualified immunity for the individual officers. 

Novak also sued the city under the theory of municipal liability for the officers’ actions. For municipal liability to attach, there must:

1. Be an official policy or legislation in place authorizing the alleged violation.
2. A designated decision-maker authorized the activity.
3. Failure to train or supervise employees.
4. There is a custom in rights violations.

Novak argued the city law director set the city’s official policy when he determined the police officers had probable cause to continue investigating him. The Court disagreed, stating that would mean every city prosecutor would “set policy” for the municipality several times a day every time they assessed probable cause, which is not reasonable. The Court stated even if the law director had made the final municipal determination that the officers had probable cause to arrest the plaintiff, the judges' independent findings to issue arrest warrants eliminated the causal connection.

In sum, the Court of Appeals upheld the ruling in favor of the city and police officers.

Note that this case has been appealed to the United States Supreme Court. 

Post Authored by Katie Nagy & Julie Tappendorf

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Ordinance Prohibiting Illegal Aliens From Renting Unconstitutional

Ordinance Prohibiting Illegal Aliens From Renting Unconstitutional

  Tuesday, July 23, 2013    Julie Tappendorf

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The City of Farmers Branch, Texas adopted an ordinance requiring individuals to obtain a license before renting an apartment or home. The ordinance required proof of citizenship or other evidence that the licensee is lawfully present in the U.S. The ordinance provides criminal penalties for violations of the license requirement and for making any false statement on a license application.  Landlords can also be prosecuted for knowingly permitting an occupant to rent without a license. 

 

A group of landlords and tenants sued the City to challenge the ordinance.  The district court ruled in their favor, holding that the ordinance was preempted under the U.S. Constitution's Supremacy Clause, as an improper regulation of immigration. The City appealed to the Fifth Circuit Court of Appeals, which affirmed the ruling against the City.  Villas at Parkside Partners, et al. v. City of Farmers Branch. 

 

The opinion is 122 pages long, with multiple opinions, including a majority opinion, three concurring opinions, one concurring/dissenting opinion, and a dissenting opinion.  To make the opinion even more convoluted, the author of the majority opinion files a separate concurring opinion.

 

The appellate court first acknowledged the U.S. Supreme Court's recent decision in U.S. v. Arizona that struck down provisions in an Arizona law that required legal immigrants to carry registration documents at all times, allowed state police to arrest any individual for suspicion of being an illegal immigrant, and made it a crime for an illegal immigrant to be employed in the state.  In that case, the U.S. Supreme Court determined that the Arizona law was preempted by the Supremacy Clause of the U.S. Constitution because it conflicted with federal immigration laws and policies.  Similarly, the Fifth Circuit determined that enforcement of the Farmers Branch ordinance also conflicts with federal law because the establishment of criminal penalties based on the housing of non-citizens disrupts the federal immigration framework, allowing state police to hold aliens in custody for unlawful presence without any federal direction or supervision. 

 

The concurrence agreed with the majority's decision, but would go a step further and hold that the ordinance was not only preempted by federal law, but was also not a valid exercise of the City's police power in "effectively removing illegal immigrants from the City" by singling out illegal immigrants for adverse treatment "reminiscent of the anti-Japanese fever that existed in the 1940s." 

 

The dissent would uphold the ordinance as a valid exercise of the City's police power, stating that the police power "no doubt empowers Farmers Branch to enact a licensing regime to exclude child predators from living in multifamily apartment complexes" and, therefore, would seem to follow that the City could deter illegal aliens from renting through the same police powers, so long as no invidious discrimination occurs. 

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Religious Services and Stay at Home Orders

Religious Services and Stay at Home Orders

  Tuesday, May 05, 2020    Julie Tappendorf

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EO-32 and Religious Exercise

On April 30, 2020, Governor Pritzker issued Executive Order 2020-32 (EO 2020-32), which is effective from May 1, 2020 through the end of May 2020. Like the Governor's previous "stay at home" order, people are required to stay home unless they are engaging in essential activities such as working at essential businesses, conducting essential government functions, or engaging in essential activities. EO 2020-32 did modify certain provisions in the previous order, some of which we reported on last. One of the changes was to expressly allow people to engage in the free exercise of religion as an "essential activity," but with restrictions. 

EO-32 states that people may leave the home: 

f.  To engage in the free exercise of religion. To engage in the free exercise of religion, provided that such exercise must comply with Social Distancing Requirements and the limit on gatherings of more than ten people in keeping with CDC guidelines for the protection of public health. Religious organizations and houses of worship are encouraged to use online or drive-in services to protect the health and safety of their congregations.

Under the new EO-32 that took effect on Friday, May 1st, religious institutions are encouraged to use online or drive-in services. Religious institutions can provide in-person services, however, if they meet social distancing requirements. That includes limiting the number of people to 10, and requiring people to maintain at least a six foot distance from others, wash hands with soap and water for at least 20 seconds or use hand sanitizer, and wear face coverings. 

Recent Lawsuit by Beloved Church

The addition of this language to EO-32 may have been in response to a recent lawsuit filed by the Beloved Church in Lena, Illinois against Governor Pritzker, the Administrator of the Stephenson County Health Department, the Stephenson County Sheriff, and the Village of Lena Police Chief, seeking an injunction to allow the church to conduct worship services. The Church's complaint claims that EO 2020-32 violated the church’s federal and state constitutional rights, including the First Amendment's Free Exercise Clause, the Illinois Religious Freedom Restoration Act, the Emergency Management Act, and the Illinois Department of Health Act. The Church had filed its complaint after being served with a cease and desist notice from the Stephenson County Department of Health.

On April 30th, the Church filed a motion for a temporary restraining order (TRO) asking for emergency relief. On May 3, 2020, Federal District Court Judge John Lee denied the church’s motion for a temporary restraining order (TRO) and ruled that EO 2020-32 is constitutional and does not target religious organizations for differential treatment. 

First, Judge Lee acknowledged the foundational rights secured by the First Amendment, but noted that these rights are not limitless and can be subject to restriction if necessary to further compelling government interests. Judge Lee cited two historical cases, which stated that the right to practice religion freely does not include liberty to expose the community to disease, since the community has a right to protect itself against disease epidemics. 

Next, Judge Lee found that EO-32 "undoubtedly advances the government's interest in protecting Illinoisans from the pandemic" and that the EO did not treat religious worship services differently than similar uses such as schools, movie theaters, and concert halls, rejecting the Church's argument that religious services should be treated the same as grocery stores, manufacturing plants, and other essential businesses. 

Judge Lee also rejected the Church's argument that the Governor exceeded his authority by declaring a disaster declaration that exceeds 30 days, finding that there may be disasters that "pose a threat that may persist for long periods of time and certainly beyond a single 30-day period." 

Judge Lee further rejected the argument that the order was, in effect, a "quarantine" under the meaning of the Illinois Department of Health Act, distinguishing between a "stay at home order" that allows people to leave their homes for essential services and a true "quarantine" that requires total isolation. 

Finally, Judge Lee determined that the EO allows alternative worship services such as small group worship or meetings of 10 or less persons and drive-in services, unlike the Kentucky order found invalid by the Sixth Circuit Court of Appeals.  

Lawsuits in Other States

Similar lawsuits have been filed in other states. For example, in Kansas, the state's Supreme Court upheld the Governor’s executive order banning religious services of more than 10 people. However, a federal judge in Kentucky granted a temporary restraining order filed by a church against Louisville’s Mayor, who banned an Easter Sunday drive-in service, declaring the mayor's decision "unconstitutional." Also, after issuing an arrest warrant for a Florida pastor who refused to cancel packed services and obey social distancing orders, Governor DeSantis issued a directive exempting religious gatherings from Florida’s stay-at-home-order.

Religious Exercise and the Federal Government

At the federal level, Attorney General William Barr has made it clear that the federal government will be investigating state and local orders or ordinances to determine whether they exceed state or local authority by infringing religious liberties. Barr issued a memo directing Department of Justice (DOJ) attorneys to monitor, investigate, and vigilantly safeguard those rights. He acknowledges that state and local government may impose temporary and reasonable restrictions on civil liberties to protect the public,  but reminds officials that the Constitution is not suspended during emergencies, and the First Amendment and federal statutes prohibit imposing special restrictions on religious activities that do not also apply to similar nonreligious activities.

The DOJ also recently filed a Statement of Interest in support of a Mississippi church that held worship services in the church parking lot where congregants sat in their cars with rolled-up windows listening to their pastor preach over their car radios. The City of Greenville, which allowed citizens to attend a drive-in restaurant with open windows, fined each congregant $500 for attending parking lot services. The DOJ argued that by singling out churches as the only essential service that may not operate despite following all social distancing guidelines, the City did not act evenhandedly, since local government social distancing restrictions on places of worship must be narrowly tailored to advance a compelling interest.

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

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