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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

Wednesday, October 9, 2024

Local Government Law Institute - December 6, 2024


Calling all local government attorneys -- don't forget to sign up for the 2024 Local Government Law Institute hosted by the Illinois Institute for Continuing Legal Education (IICLE). This year's conference will be held in-person at the UBS Center in Chicago and will also offer a webcast option. 

More details about the conference sessions and speakers and registration can be found here. Below is a brief summary of the sessions offered at this year's conference.

Local Government Law Institute, 2024

Friday, December 6, 2024

The conference begins at 8:55 a.m. and concludes at 4:15 p.m. (cocktail reception to follow)

UBS Tower, Chicago (and webcast)

Sessions include:

  • Case Law and Legislative Update
  • Due Process Considerations in Administrative Hearings
  • State and Federal Tort Immunity
  • Update on Takings and Impact Fees
  • Lunch Panel on Parliamentary Procedures/How to Run a Meeting
  • Zoning & Planning Issues and Overlap Between Taxing Bodies
  • Difficult World, Difficult Issues
  • From Polls to Policy: Election Law Updates
  • Secondary Trauma & Imposter Syndrome: Resilience Strategies for Local Government Attorneys


Monday, October 7, 2024

In the Zone: Seventh Circuit Dismisses Takings Challenge to City’s Short-Term Rental Regulations


The Seventh Circuit Court of Appeals dismissed a lawsuit against a city that argued that the city’s shared housing ordinance constituted an unconstitutional "takings" because it prevented a condo owner from renting his property on Airbnb and other homesharing platforms. Mogan v. City of Chicago

The city’s ordinance for shared housing units allowed condominium homeowners’ associations (HOAs) to determine whether short-term rentals would be allowed in their respective buildings. When an HOA prohibited rentals, they would contact the city to have that building added to a list of prohibited buildings for short-term rentals. Renting or listing a short-term rental in a prohibited building would subject the unit owner to a $5,000 fine each day the violation continued. 

A condo unit owner in a building that had been placed on the city's prohibited building list by the HOA and property management company sued, arguing that the city’s ordinance was an unconstitutional taking under the Fifth Amendment and an inverse condemnation under the Illinois Constitution. The condo unit owner claimed he suffered financial losses because he had invested thousands of dollars to refurbish the apartment with the intent of using it as a short-term rental. The district court dismissed both claims, and the unit owner appealed.  

On appeal, the Seventh Circuit focused on language in the HOA covenants that governed the use of all units within the condo building. The covenants stated that no unit within the condominium could be leased for less than 30 days or greater than 30 days where hotel services were provided. Based on the language in the covenants that were in place at the time the owner purchases his condo unit, the court found that the owner was on notice he could not lease his unit for less than 30 days. As a result, the court reasoned that the owner could not prove the city’s ordinance had any economic impact on his unit or that the ordinance interfered with a reasonable investment-backed expectation (necessary elements to prove both the takings and inverse condemnation claims) because the unit owner never had a property right to lease his unit on a short-term basis.

Post Authored by Dan Lev & Julie Tappendorf, Ancel Glink

Thursday, October 3, 2024

Public Body Properly Redacted 911 Callers' Phone Numbers in PAC Opinion


A law firm submitted a FOIA request seeking copies of 911 call recordings and other records related to a traffic crash, and the public body disclosed responsive 911 recordings, but redacted the callers' names and phone numbers. After the requestor submitted a request for review with the PAC challenging the redactions, the public body disclosed the names of the callers, but maintained that the home and personal phone numbers of the callers was exempt from disclosure under the "private information" exemption in FOIA. The PAC agreed with the public body and issued a binding opinion finding that the public body properly redacted the callers' phone numbers. PAC Op. 24-012.

First, the PAC rejected the requester’s claim that law firms are entitled to greater access to exempt information in public records because attorneys are officers of the court, noting that FOIA applies equally to all requestors and there is no statute supporting the existence of an “attorney-exception” that would allow attorney to have broader access to otherwise exempt information based on the professional credentials and motives of the requestor.

Second, the PAC rejected the requester's argument that the FOIA exemption in Section 7(1)(d)(iv) applies only to "confidential sources," finding that the exemption’s plain language includes people who file complaints with or provide information to law enforcement agencies, like the callers at issue.

Third, the PAC rejected the requester's argument that this same exemption does not apply when people call an agency and voluntarily provide their information, because the plain language of the exemption does not condition the confidentiality of a person’s name on whether those people have a reasonable basis to believe their names will be kept confidential. The PAC further noted that even if the 911 callers who provided their private phone numbers anticipated being contacted about what they witnessed, this possibility does not render this FOIA exemption inapplicable to the otherwise confidential identifying information of people who voluntarily contact law enforcement.

Finally, the PAC rejected the argument that the term "identities" in that FOIA exemption also includes at least one piece of personal information (e.g., home address, phone number, date of birth) in addition to a person's name, because there is no support for this claim. Indeed, the PAC determined that the term “identity” is typically defined as a person’s name, and a person’s other contact information is not necessary to provide an essential component of an "identity." Even if FOIA requires disclosing the identities of witnesses to traffic accidents, the PAC stated this does not diminish a public body’s authority to redact expressly exempt private information such as their phone numbers.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, October 2, 2024

In the Zone: Court Upholds Constitutionality of Horse Boarding Zoning Ordinance


An Illinois Appellate Court issued a ruling in favor of a Village in a longstanding dispute over a commercial horse boarding operation in Drury et al. v. Village of Barrington Hills, et al.

A property owner filed suit against the Village and his neighboring property owner to challenge the constitutionality of a zoning approval ordinance that allowed a horse boarding operation on his neighbor's property. The lawsuit claimed that the ordinance was unconstitutional because it did not benefit the "public welfare" but instead was intended to personally benefit his neighbor. The trial court upheld the zoning ordinance finding that it was "rationally related to the legitimate public interest of promoting horse-boarding operations" in the Village and plaintiffs appealed. 

On appeal, the Appellate Court upheld the trial court's ruling upholding the constitutionality of the zoning ordinance. First, the Court held that even though the zoning approval ordinance had since been repealed, the constitutionality of the ordinance was still relevant because the operator of the horse-boarding facility had filed a separate lawsuit claiming he had a vested right to continue his operations. Second, the Appellate Court rejected plaintiffs' argument that the trial court applied the wrong legal standard, holding that the "rational basis" test applied to their facial substantive due process challenge to the zoning ordinance. Applying the rational basis test to this challenge, the Court acknowledged that the Village had conducted extensive public hearings and received testimony and evidence from experts and numerous members of the public before acting on the zoning ordinance. The Court found the trial court's findings to be well reasoned and thorough, and agreed with its legal conclusion that the zoning ordinance was rationally related to a legitimate public welfare purpose. Finally, the Court rejected plaintiffs' argument that the zoning ordinance's "retroactivity" provision only benefited his neighbor, finding that it was actually beneficial to a number of other horse boarders in the Village. 

Tuesday, October 1, 2024

Court of Appeals Weighs in On Recent First Amendment Decision Issued by U.S. Supreme Court


In March, we reported on two opinions issued by the U.S. Supreme Court in cases involving First Amendment challenges to government officials’ use of social media on their personal social media accounts, including Lindke v. Freed. In Lindke, the Supreme Court announced a two-part test for establishing that an official’s actions on their personal social media acounts can be attributed to the government (and subject to First Amendment limitations. In order to show that an official’s social media activity on the official's personal social media account is subject to the First Amendment, it must be shown that the official:

  1.  has actual authority to speak on behalf of the government on a particular matter; and
  2.  purports to exercise that authority in the official's activities on social media.

The Lindke opinion was issued in response to a case challenging the social media activities of the City Manager of Port Huron, Michigan, who had deleted critical comments on his personal Facebook page that were left by an individual who was dissatisfied with the City’s handling of the COVID-19 pandemic. In addition to deleting the critical comments, the City Manager eventually blocked the critic from accessing his Facebook page altogether. The commenter sued the City Manager, claiming the deletion of comments and blocking violated his First Amendment rights. After the U.S. Supreme Court announced its two-part test, it sent the case back to the Sixth Circuit Court of Appeals to assess whether the City Manager’s social media activities violated the First Amendment. In late August, the Sixth Circuit issued its opinion, providing more insight on the analysis set forth by the Supreme Court.

For the first part of the test announced by the Supreme Court, the Sixth Circuit clarified that the City Manager must have had actual authority to speak on behalf of the City in his posts. The Sixth Circuit explained that the City Manager’s Facebook posts would need to be within his “portfolio of responsibilities” to bring his activity under First Amendment scrutiny. In other words, it would not be enough for an individual challenging his activities to show that he had some authority to speak on behalf of the City—rather, the posts must be clearly related to his role and responsibilities as City Manager. Additionally, the actual authority to speak on behalf of the government must come from a distinct statute, ordinance, regulation, custom, or usage. While it is relatively easy to show that an ordinance or regulation gives an official authority to speak, the Court acknowledged it can be difficult to show actual authority by “custom” or “usage,” which rely on unwritten practices that have become so widespread or common that they carry the force of law. The Sixth Circuit, echoing the Supreme Court, cautioned that assessing actual authority requires a close review of an official’s duties, and will be found where those duties include making statements on behalf of the government consistent with their office.

If the critic is able to show that the City Manager had actual authority to speak on behalf of the City, he then has to establish that the City Manager exercised that authority in the social media activity being challenged. The Sixth Circuit clarified that this second step of the test announced by the Supreme Court requires a post-by-post analysis. The commenter must show that the City Manager was exercising his official authority in the posts where his comments were deleted. For the challenge to the City Manager’s choice to block the critic from his page, however, the assessment is much broader -- any post on the account that is shown to be an exercise of his actual authority to speak on behalf of the City could result in liability under the First Amendment if the City Manager censored protected speech. The Sixth Circuit noted that “context is everything” for the post-by-post analysis under the second part of the test announced by the Supreme Court and requires a close review of the challenged posts’ content and function. The Sixth Circuit provided several examples of social media activity that would most likely lead to a finding that the First Amendment applies: 

  • Posts expressly citing an official’s legal authority to post on behalf of the government;
  • Posts that have some legal consequence, such as the posting of a “burn ban” by a municipal fire marshal; or
  • Posts that were made using government staff or funding.

Because the test announced by the Supreme Court was not available to the parties when the Lindke case was brought, the Sixth Circuit sent the case back to the district court to provide an opportunity to establish facts that shed light on this new test. The Sixth Circuit noted, however, that the state action analysis set forth by the Supreme Court does not address several other important issues that are relevant to a First Amendment challenge (including forum analysis and the application of qualified immunity), suggesting that there will likely be more litigation challenging government social media activities in the future.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink


Monday, September 30, 2024

Court Finds in Favor of College that Protected Personal Information of Students from FOIA Release


The BGA submitted a FOIA request to City Colleges of Chicago (College) seeking various education records related to their 2018 graduation rate. The College withheld its responsive records citing Section 7(1)(a) of FOIA, claiming that the educational records contained personally identifying student information (PII) that was prohibited from disclosure by the Family Educational Rights and Privacy Act of 1974 (FERPA) without the consent of the students, their parents, or guardians. The BGA sued the College alleging that its response violated FOIA, and the circuit court ruled in favor of BGA, finding that FERPA did not "specifically prohibit" the disclosure of the requested records because FERPA only conditioned the College's receipt of federal funding on its compliance with FERPA, and ordered the College to disclose the records.

The College appealed and the Appellate Court reversed the circuit court's ruling. BGA v. City Colleges of Chicago. In a matter of first impression in Illinois state courts, the Appellate Court examined the interplay between FERPA and FOIA, and concluded that FERPA specifically prohibited the College from disclosing PII in educational records without student, parental, or guardian consent. Thus, the Appellate Court held that the College properly withheld educational records containing PII in response to the FOIA request. The Court also found that the circuit court’s order requiring the College to disclose its records containing PII without consent was unreasonable, because FERPA imposes a binding obligation on schools that accept federal funds and prohibits schools from disclosing PII. As a result, the circuit court’s order for the College to disclose its PII without consent would force the Colleges to violate federal law, and risk losing its federal funding, which is essential to its operations.

The Appellate Court also declined to order the College to disclose its de-identified educational records with PII removed, and instead remanded the case back to the circuit court to review the College's responsive records "in camera" to determine whether the records can be redacted or segregated to protect the disclosure of PII.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, September 26, 2024

PAC Finds Police Department in Violation of FOIA for Withholding Police Report


In response to a FOIA request seeking a case report and related records for an incident, a municipal police department withheld responsive records from disclosure citing Section 7(1)(d)(i) of FOIA, which exempts records that would interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement. The requestor then appealed the denial to the Public Access Counselor of the Attorney General's office (PAC). 

In PAC Op. 24-011, the PAC issued a binding opinion concluding that the police department violated FOIA by entirely withholding its responsive records. Specifically, the PAC noted that the case report indicated the police department had administratively closed its investigation into this matter. The PAC rejected the police department's argument that this exemption was still valid because the department was assisting other law enforcement agencies with similar incidents involving a suspect matching the same description, motive, and vehicle, finding that the department did not provide a detailed factual basis explaining with specificity how disclosing its responsive records would interfere with those ongoing joint law enforcement investigative efforts.

The PAC ordered the department to release the records, but stated the department could redact names, identifying information, and details that might disclose the identity of an at-large suspect pursuant to the personal privacy and private information exemptions.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, September 18, 2024

In the Zone: Join Us at the 2024 APA-IL State Conference


It’s that time of year again: the 2024 APA-IL State Conference is next week, from September 25–27, at the I Hotel and Illinois Conference Center in Champaign, Illinois. The Conference program is packed with great sessions and events, including several noteworthy presentations from Ancel Glink attorneys: 

  • Join attorney Dan Bolin on Wednesday, September 25 at 9:45 AM, at GovLove x APA-IL: Award-Winning Planners, for a discussion of notable contributions to the planning field that have been recognized for achievements in building safer, stronger, and more equitable communities.
  • Also at 9:45 AM on Wednesday, attorney Tyler Smith will be presenting important legislative and case law updates during the annual Speed Planning session.
  • At 2:30 PM on Wednesday, join Greg Jones for a session on Preparing for Legislative Action in 2025¸ featuring updates from the APA-IL Legislative Committee.
  • On Thursday, September 26, Greg Jones will be joining several esteemed colleagues and friends to provide a full-day Plan Commissioner training session, featuring a presentation on best practices for plan commissioners, networking opportunities, and a mock hearing (learn more and register here here).
  • On Thursday at 8:30 AM, Dan Bolin will be presenting on Planning for Migrant Arrivals to discuss best practices for responding to the influx of migrants and asylum seekers arriving in Illinois communities.
  • On Friday, September 27 at 11:00 AM, attorneys Dan Bolin, Adam Simon, and Erin Monforti will be participating in the Hot Ones Law Session to discuss the hottest topics in planning law while enjoying hot wings and refreshing questions from attendees.

The full program for the Conference is available here. We hope to see you next week!

Post Authored by Erin Monforti, Ancel Glink, P.C.

Monday, September 16, 2024

Referendum Could Not Change "Manner of Selection" of Municipal Board of Ethics


In Schittino v. Village of Niles, an Illinois Appellate Court invalidated a referendum that had attempted to change the manner of selection of a municipal board of ethics from an appointed board to an elected one.

A home-rule municipality adopted an ordinance to establish an appointed board of ethics. In 2019, voters initiated a referendum to replace the appointed ethics board with an elected one. The referendum was delayed in litigation as the village clerk refused to certify the referendum, believing it was unauthorized by the Illinois Constitution. In 2021, an Illinois Appellate Court held that the clerk’s role under state law was limited to determining whether the petition was in “apparent conformity” with filing requirements—e.g., having the minimum number of signatures—and not matters of substantive constitutionality. As a result, the referendum was allowed to proceed and was subsequently approved by voters at the April 2021 election.

The village then placed a referendum on the June 2022 ballot to repeal the 2021 referendum and restore the ethics board to appointed positions. However, because voters failed to approve the 2022 referendum, the 2021 referendum remained in effect and the village scheduled elections for the ethics board at the next municipal election in 2023.

In 2023, a lawsuit was filed to challenge the 2021 referendum and asked the court to declare that the 2021 referendum was not authorized by the Illinois Constitution and to issue an injunction prohibiting  the village from certifying any 2023 election results for the elected ethics board members. The circuit court ruled in favor of the plaintiff and declared the 2021 referendum invalid and prevented its enforcement.

Intervenors in the lawsuit (including a candidate for the ethics board at the 2023 election) appealed the circuit court’s decision. The Appellate Court agreed with the circuit court and denied the appeal, as follows.

First, the Appellate Court held that the ethics board members did not qualify as “officers” as required under Section 6(f) of Article VII of the Illinois Constitution. Section 6(f) provides as follows:

  (f)  A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law, except that the form of government of Cook County shall be subject to the provisions of Section 3 of this Article. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law. A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 of this Article.

The Appellate Court pointed to an Illinois Supreme Court case that held that “officers” referenced by section 6(f) are only those included in the form of government provided for in the Illinois Municipal Code. Here, the Appellate Court found no language in the Illinois Municipal Code providing for an ethics board as part of the form of municipal government. As a result, the ethics board members were not "officers" under Section 6(f) of the Illinois Constitution, and the "manner of selection" of their members could not be changed by the 2021 referendum.

Second, the Appellate Court rejected the intervenors argument that the suit was barred by the laches doctrine because the plaintiff waited two months before the 2023 election to file suit against the 2021 referendum, resulting in prejudice to the ethics board member candidate intervenor. The Appellate Court held that the intervenors failed to demonstrate any evidence to show prejudice and that the plaintiff did not unreasonably wait to file suit as the 2022 referendum could have repealed the 2021 referendum.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Wednesday, September 11, 2024

Seventh Circuit Dismisses Challenge to State's Mail-In Ballot Procedure


Last month, the Seventh Circuit Court of Appeals rejected a challenge to Illinois election laws that allow election officials to receive and count mail-in ballots for up to two weeks after the date of the election so long as the ballots are either (1) postmarked on or before the day of the election or, (2) if there is no postmark, the voter signs a certification that accompanies the ballot. Bost v. Illinois State Board of Elections, et al.

A group of Illinois voters and political candidates filed a lawsuit against the State Board of Elections to challenge Illinois' mail-in vote procedure, arguing that it unlawfully expanded the time in which residents can vote. The district court dismissed the claims, finding that the plaintiffs did not have standing to sue and, even if they did, the challenge had no merits. 

Plaintiffs appealed to the Seventh Circuit Court of Appeals, which upheld the dismissal on standing grounds. The Seventh Circuit first rejected the voters-plaintiffs' argument that the plaintiffs votes will be "diluted" if mail-in ballots are counted after election day, finding that claim to be too generalized and not the type of particularized injury to support standing. Second, the Seventh Circuit rejected the candidate-plaintiffs' argument that they had to expend additional resources after election day to contest any objectionable ballots, finding that this future claim of harm was neither actual or imminent to support standing. The Court also rejected the candidates-plaintiffs' argument that they have an interest in ensuring that only legally valid votes are counted, finding that argument to be purely speculative. In sum, the Seventh Circuit upheld the dismissal of the lawsuit based on lack of standing.

Tuesday, September 10, 2024

Village Owed No Duty of Care to Bicyclist Injured on Sidewalk


An Illinois Appellate Court ruled in favor of a Village in a bike injury case in Johnson v. Village of Palatine.

In June 2020, a cyclist was riding his bicycle on a sidewalk adjacent to a high-traffic street. While riding his bike, the cyclist struck an uneven section of the sidewalk, and fell and was injured. He sued the Village, claiming the Village owed him a duty of care to maintain or repair the sidewalk, which he claimed the Village negligently failed to do, leaving it dangerous and unsafe for use.

The Village asserted the following defenses against the lawsuit:

(1)  under the Tort Immunity Act, the Village did not owe the cyclist a duty of care because the sidewalk was intended only for pedestrian use while bicyclists were only permitted users;

(2)  the Village also did not owe the cyclist a duty of care because the alleged defect in the sidewalk was an open and obvious condition; and

(3)  the Village had immunity under the Tort Immunity Act regarding its allocation of funding to its proactive sidewalk replacement program.

The cyclist argued he was an intended user of the sidewalk because there were no bike lanes available on the high-traffic street, leaving him no other choice but to use the sidewalk. He also claimed he was an intended user because the Village had ordinances regulating bicycle use on sidewalks where it was allowed so long as there was no signage prohibiting that use, of which there was none on the high-traffic street. The cyclist also claimed that since he was a citizen of the Village, it was intended that he would use the sidewalk, so the Village owed him a duty of care.

The trial court ruled in favor of the Village and the Appellate Court upheld that ruling on appeal. The Appellate Court first determined there was no merit to the cyclist’s claim that he was an intended user of the sidewalk. The Court noted that the sidewalk was not signed for cyclist use, nor were there pavement markings or other indicators that the sidewalk was intended for bicycle use. Further, the Village’s own ordinances defined sidewalk as being intended for pedestrians, with no mention of cyclists. The Court rejected the cyclist’s argument that because he was forced to use the sidewalk because of the dangerous nature of the busy road, that meant he was an intended user. 

The Appellate Court concluded that there was no merit to the Plaintiff’s contention that he was an intended user of the sidewalk and that his argument regarding his interpretation of the Tort Immunity Act contradicted all precedent. The Court did not address the Village’s “open and obvious” argument since it disposed of the case based on its finding that the cyclist was not an intended user of the sidewalk, and, as a result, the Village did not owe him a duty of care.  

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

Friday, September 6, 2024

New Illinois Law Regulates Low-Speed Electric Scooters


Effective on August 9, 2024, Illinois Governor Pritzker signed SB 1960 into law as Public Act 103-0899, which amends the Illinois Vehicle Code to add provisions regarding low-speed electric scooters.

The new law defines a low-speed electric scooter as follows:

A device weighing less than 100 pounds, with 2 or 3 wheels, handlebars, and a floorboard that can be stood upon while riding, that is solely powered by an electric motor and human power, and whose maximum speed, with or without human propulsion, is no more than 10 miles per hour. "Low-speed electric scooter" does not include a moped or motor-driving cycle.

The law allows municipalities, park districts, forest preserve districts, or conservation districts (units of local government) to authorize and regulate the operation of low-speed electric scooters within their respective units of local government on any or all highways under their respective jurisdiction, sidewalks, trails, or other public rights-of-way where the operation of bicycles is permitted.

The law clarifies that the use of low-speed electric scooters within the units of local government is only allowed if a unit of local government authorizes their use within its jurisdiction.

The law also clarifies that any authorization or regulation by a park district, forest preserve district, or conservation district concerning low-speed electric scooters only applies on property owned, managed, or leased by the park district, forest preserve district, or conservation district.

The law also:

  • exempts low-speed electric scooters operators from obtaining an Illinois driver’s license (or permit), registration, or a certificate of title to operate the scooter;
  • prohibits operating a low-speed electric scooters unless a person is 18 years of age or older;
  • prohibits operating a low-speed electric scooters while under the influence of drugs or alcohol;
  • prohibits operating a low-speed electric scooters on a highway with a posted speed limit in excess of 35 miles/hour;
  • prohibits operating a low-speed electric scooter on state highways;
  • prohibits operating a low-speed electric scooter while carrying certain items that prevent the operator from keeping at least one hand on the wheel;
  • prohibits a low-speed electric scooter from carrying more than one person at a time;
  • prohibits attaching a low-speed electric scooter or its operator to any other vehicle being operated on a public right-of-way; and
  • requires low speed electric scooters to be well-maintained, in good operating condition, and possess certain required equipment (e.g., lamps, brakes, sirens).
Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink