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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, June 12, 2024

Court Upholds Injunction Against Water Shut Off to Mobile Home Park


In 2023, a municipality sent notice to the owner of a mobile home park and the residents in the park that it would be shutting off water to the park for nonpayment of water services. At that time, the mobile home park had a delinquent water account with the city for $858,447. The mobile home park was served by a single water main, and the owner of the park was responsible for payment of water services, not the individual residents of the park, and a shutoff of water would impact all residents in the mobile home park. One of the residents of the mobile home park filed a motion for a temporary injunction to stop disconnection, which was granted by the trial court. 

The city appealed the injunction to the Illinois Appellate Court, which upheld the trial court's order. Hammer v. City of Blue Island. The Appellate Court held that the status quo in this case was the continued provision of water service to the residents in the mobile home park, and that the balance of the equities in this case favored the residents because of the substantial harm if the water were shutoff while the case moved forward because that would render the residences uninhabitable. The Court also noted that the City's delay in taking action on the unpaid bill for two years, without notice to the tenants, exacerbated its own injury and harmed innocent tenants who were not aware that the park's water bill was delinquent. Finally, the Court acknowledged that the injunction was just preliminary relief, and that the city would still have the opportunity to defend the case. 

While this case only involved preliminary relief and the case will now move forward for the city to present its defenses against the lawsuit, this court ruling may provide some guidance to municipalities in similar situations to consider seeking legal remedies sooner rather than letting a delinquency continue for several years and to notify both the owner and tenants of water bill delinquencies.

Tuesday, June 11, 2024

Court Rules in Favor of Sheriff's Office in FOIA Lawsuit


In response to several FOIA requests asking for transcripts of conversations between Sheriff’s Office personnel and police dispatchers, a Sheriff’s Office released responsive records subject to applicable redactions. The requestor then sued, seeking a court order to compel the release of  records allegedly withheld from disclosure and to explain the FOIA exemptions used by the Sheriff’s Office to withhold or redact certain records. The lawsuit also asked the court to impose civil penalties against the Sheriff’s Office for allegedly willfully and intentionally failing to comply with the FOIA requests. 

After the lawsuit was filed, the Sheriff’s Office released additional records responsive to the requests, and explained the FOIA exemptions used to redact information. The trial court dismissed the lawsuit as moot since records had since been released and denied the request for civil penalties, finding that the Sheriff’s Office did not willfully or intentionally fail to comply with FOIA.

On appeal, the Illinois Appellate Court also ruled in favor of the Sheriff's Office. Harsy v. Perry County Sheriff’s Office. First, the Appellate Court agreed that the lawsuit was moot since the Sheriff’s Office had disclosed responsive records and properly cited exemptions to redact or withhold records. The Appellate Court also rejected the requester's "bad faith" argument since the Sheriff’s Office promptly issued refunds to the requestor for all claimed overcharges after the lawsuit was filed and failed to show the Sheriff's Office willfully or intentionally failed to comply with FOIA.

The Court also rejected the requestor’s argument that the trial court should have ordered the Sheriff’s Office to provide an index of redacted or withheld records, finding that because the requestor failed to request an index before the trial court’s in camera inspection, the necessity for an index after the circuit court’s in camera review was moot.

Post Authored by Eugene Bolotnikov, Ancel Glink


Monday, June 10, 2024

Friday, June 7, 2024

Court of Appeals Upholds Injunction Against a Library's Removal of Controversial Books


The Fifth Circuit Court of Appeals issued an opinion on June 6th upholding a court's issuance of a preliminary injunction against a library in a First Amendment challenge to the library's removal of controversial books. Little, et al. v. Llano County, et al..

In 2021, Llano County, Texas residents contacted the county commissioners to complain about books in the children's section of the library that they claimed were pornographic and overtly sexual. According to the court opinion, the residents were specifically concerned with several books about “butts and farts." The chair of the county commissioners and another member of that body directed the library director to remove the challenged books from the shelves. The director complied. In response to additional complaints, the chair contacted the library director about other books that “depict any type of sexual activity or questionable nudity." That communication was accompanied by a list put together by a state representative of books he referred to as "pornographic filth." By the end of 2021, 17 books had been removed from the library based on resident complaints.

In 2022, the library board was dissolved and replaced by a new board. The chair of the county commissioners appointed to the new board two members who had been involved in the book removal complaints. The new library board then implemented several policy changes, including prohibiting the library director from attending board meetings and requiring the director to seek approval from the library board before purchasing any new books for the library.

Seven library constituents then filed a lawsuit in federal court against the county commissioners, the library director, and the library board members claiming that the removal of the 17 books from the library was because they disagreed with the books’ content in violation of the First Amendment. They asked the district court to impose a preliminary injunction while the case moved forward that would require, among other things, that the library restore the 17 books.

The district court granted the preliminary injunction request and ordered the library to restore the removed books to library shelves while the case continued through the process. The district court found that the patrons had adequately pleaded a First Amendment claim because the library's likely motivation in removing the books was “a desire to limit access to the viewpoints” with which they disagreed. The court noted that while public libraries have “broad discretion” to curate the content of their collections, their discretion is not absolute. 

The library appealed the injunction to the Court of Appeals. The Court of Appeals analyzed the First Amendment cases, focusing on the U.S. Supreme Court ruling in Board of Education, Island Trees Union Sch. Dist v. Pico, 457 U.S. 853. In that case, a plurality of the Supreme Court held that school officials could not remove books from a school library's shelves simply because they dislike the ideas contained in those books, and that if their intention was to deny access to ideas they disagree with, and that intent was the decisive factor in their decision, then their exercise of discretion would violate the First Amendment. 

Based on the holding in the Pico case and other relevant cases, the Court of Appeals held that although librarians can consider the content of books in making curation decisions, that discretion must be balanced against patrons' First Amendment rights, including the right to receive information and ideas. If the motivation of a library official to remove a book is the desire to deny access to ideas to which they disagree, and that intent is the substantial reason for the decision, then the decision implicates First Amendment rights.

The Court of Appeals acknowledged that there are many other reasons why books may be removed that have little to do with a disagreement with the books' content. For example, the Court said a library could remove older editions of a dictionary, or books that are in a dilapidated condition, or books that hadn't been checked out in years based on lack of interest and poor circulation history, without acting unconstitutionally. However, the Court did not find that there was any evidence that the library's rationale for their book removal decisions in this case fell into any of these rationales.

Instead, the Court of Appeals found that the district court's preliminary injunction was based on its reasonable conclusion that the 17 books were removed after constituents complained they were "pornographic filth," and the library's substantial motivation to remove the was to deny access to particular ideas. The Court of Appeals found the evidence to be clear that the library director likely weeded these books because she was told to do so by those who disagreed with their message.

In conclusion, the Court of Appeals stated as follows:

Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree. Because that is apparently what occurred in Llano County, Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim, as well as the remaining factors required for preliminary injunctive relief. 

The Court of Appeals then ordered the library to restore the disputed books to "publicly visible and accessible shelves" in the library, update the library's catalog to reflect that these books are available for checkout, and enjoined the library from removing any books from the shelves without first providing the constituents who brought the lawsuit with documentation on the library officials responsible for making that decision and the reasons for the removal. 

Note that this appeal involved a preliminary injunction, and did not decide the substance of the case, so the plaintiffs' First Amendment claims will now move forward at the district court, while this injunction stays in place during those proceedings.

It is worth noting that the case is quite lengthy, and a good portion of the case is devoted to a dissenting opinion that argues that the library's decision in curating its materials is government speech, and concludes that the majority's opinion has turned courts into the "library police."

It will be interesting to see how this case plays out at the district court when the case returns for further proceedings but also whether the case ultimately makes it way to the U.S. Supreme Court since this ruling is only precedential in the Fifth Circuit Court of Appeals.



Wednesday, June 5, 2024

Defamation Claim Against City Inspector General Dismissed


A former city councilmember filed a defamation case against a city inspector general and other city defendants. The complaint alleged, among other things, that the inspector general defamed him when he authored and then transmitted a report to the mayor that accused him of committing the criminal offense of conspiracy. The complaint also alleged that the city's ordinances authorizing the mayor to appoint an inspector general violated state law. 

The inspector general filed a motion to dismiss the complaint arguing that his communications were privileged, that he had immunity under the Tort Immunity Act for his official actions in conducting the investigation and authoring the report, and that the complaint did not state a claim for defamation because it did not allege that he published the report to a third party. The trial court dismissed the complaint, finding that the Tort Immunity Act immunized the inspector general.

On appeal, the Appellate Court first held that the allegations challenging the legality of the city ordinances were insufficient to overcome the presumption of validity of a city's ordinances, so dismissal of that allegation was proper. As to the application of the Tort Immunity Act, the Appellate Court disagreed with the trial court that it applied to the inspector general in this case, finding that the inspector general was not covered by the cited sections of the Act because he was not an officer or an employee of the city but instead, an independent contractor. However, the Appellate Court upheld the dismissal of the case on other grounds, specifically that the inspector general had tendered the report to the mayor in the discharge of his official duties, and that action was covered by absolute privilege and immunity. McFarland v. O'Dekirk, et al.

Tuesday, June 4, 2024

Court Upholds Zoning Approvals for Wind Farm Project


An Illinois Appellate Court recently ruled in favor of a county and developer in a zoning dispute brought by residents to challenge the approval of a wind energy farm project in the county. Erickson et al. v. Knox County Wind Farm LLC, et al.

A wind farm developer filed an application with the county for approval of a conditional use permit and a zoning variation to allow the construction and operation of a wind energy farm. The county ZBA approved the variation and recommended that the county board approve the conditional use permit. After the county board approved the conditional use permit, a group of residents filed a lawsuit against the county and the wind farm developer asking the court to overturn the county board's approval. Specifically, the residents claimed the approvals violated their procedural due process rights, the approvals were arbitrary and capricious under the LaSalle factor standards, the ZBA failed to issue findings of fact when the variation was approved, and the application did not meet the variation standards.

The trial court ruled in favor of the county and developer, and the residents appealed. On appeal, the Appellate Court upheld the rulings in favor of the county and developer.

First, the Appellate Court held that the residents had actual notice of the ZBA hearing and a meaningful opportunity to be heard at that hearing (and, in fact, participated in the hearing). The fact that notice came shortly before the hearing did not violate their procedural due process rights and the fact that the developer had more time to prepare for that hearing than the residents was not relevant to the residents' due process rights. The Court also rejected the residents' argument that the hearing should have been continued because their expert witnesses were not available on the hearing dates finding that they had time to provide additional witnesses, and that they did present evidence and cross-examined the developer's witnesses at those hearings. In short, the Court held that the residents were not denied due process.

Second, the Court rejected the residents' argument that the approvals were arbitrary and capricious under the LaSalle factors test, finding that the residents failed to specifically argue how each LaSalle factor applied to their case and that they were unable to overcome the presumption of validity of the county zoning approvals.

Third, the Court found that the ZBA did, in fact, issue findings of fact after it granted the variation and supplemented those findings after the lawsuit was filed. Since findings were properly made before the court considered the merits of the lawsuit, the Court found no prejudice to the residents.

Fourth, the Court rejected the residents' argument that the county was required to provide them with due process before it issued building permits for the wind farm, and also rejected their argument that the building officials had been unlawfully delegated authority to issue permits.

Finally, the Court upheld the ZBA's approval of the variation, finding sufficient evidence in the record that the application met the variation standards.

Monday, June 3, 2024

Appellate Court Addresses Claims Relating to Confidentiality Provision in Settlement Agreement


A high school district was sued by a student and parents regarding a settlement agreement between the parties. The student and parents claimed the school district released confidential information about the settlement in response to FOIA requests and otherwise that caused them injury and breached the confidentiality provision in the settlement agreement. The school district filed a motion to dismiss the case based on several arguments, including that the Tort Immunity Act applied to several claims. The trial court dismissed the entire case, and the student and parents appealed.

On appeal, the Illinois Appellate Court upheld the dismissal of three of the counts in the lawsuit based on the Tort Immunity Act. The Court noted that Section 2-107 of the Tort Immunity Act provides that a local public entity is immune from liability for injuries caused by "the provision of information either orally, in writing, or by computer or any other electronic transmission..." Here, the Court found that the tort claims against the school district for public disclosure of private facts and intentional and negligent infliction of emotional distress were covered by this section of the Tort Immunity Act, and the trial court's dismissal of these claims was proper.

However, the Court disagreed with the trial court on its dismissal of the breach of contract count, finding that this claim could move forward to the next stage of litigation to flesh out the factual disputes between the parties as to when disclosures were made and whether the disclosures constituted a breach of the confidentiality provisions of the settlement agreement.

Plaintiff 1, et al. v. Board of Education of Lake Forest High School District 115, 2024 IL App (2d) 230173.

Thursday, May 23, 2024

Court Upholds Officer's Termination for Violating Department Policies in Social Media Activities


Last month, the Wisconsin Supreme Court upheld the termination of a police officer in a lawsuit filed by the officer to challenge his termination. Specifically, the officer claimed that he was terminated in violation of his due process rights after he was investigated for his social media activities. Andrade v. City of Milwaukee Bd. of Fire & Police Commissioners. 

In 2018, the police department arrested a Milwaukee Bucks player, and the incident drew some national attention. Andrade posted about the incident on his personal Facebook page multiple times over the course of a few months, including posts that the police chief found "inappropriate, disrespectful and defamatory." The Bucks player filed a lawsuit against the City and various police officers, and the complaint included references to the officer's social media posts as offensive and racist. The City initiated an internal investigation into the officer's social media conduct, and at the end of the investigation and interviews, charged the officer with violating various department policies. As part of the investigatory process, the police chief consulted with the district attorney's office which expressed concerns about using the officer as a witness in any criminal proceedings because the social media posts could be used by defense counsel to impeach the officer and called into question the officer's trustworthiness and credibility. The district attorney's office went so far as to place the officer on the "never call as a witness" list, meaning the office would not prosecute cases that would rely primarily on the officer's testimony. 

Based on the internal investigation and his communications with the district attorney's office, the police chief issued an order discharging the officer, and provided notice to the City's board of fire and police commissioners which conducted a hearing on the discharge. The board heard testimony and received evidence from both the City and the officer, and at the conclusion of the hearing, upheld the chief's decision to discharge the officer.

The officer appealed to the trial court, which found substantial evidence to support the board's decision. The case made its way to the Wisconsin Supreme Court, which also found in favor of the City, holding that the officer had been provided sufficient due process in the discharge proceedings by being provided an opportunity to present testimony and evidence to the board of fire and police commissioners.


Wednesday, May 22, 2024

Appellate Court Upholds Dismissal of FOIA Lawsuit


A requestor submitted various FOIA requests to a Public Defender's Office, the States Attorney's Office, and the County Sheriff. The Public Defender’s Office denied the request, arguing that the Public Defender’s Office was not a public body subject to FOIA because it was part of the judiciary. The State’s Attorney’s Office (SAO) and County Sheriff (Sheriff) responded that they did not have responsive records or denied the requests as unduly burdensome and invited the requestor to narrow the burdensome requests. 

The requestor then sued the Public Defender’s Office, the SAO, and the Sheriff claiming that they violated FOIA by denying his requests. The trial court ruled in favor of the public bodies, dismissing the lawsuit.

After the requestor appealed, the Appellate Court upheld dismissal of the lawsuit in Gakuba v. Winnebago County Public Defender’s Office

First, the Appellate Court determined that FOIA does not apply to the Public Defender’s Office because it operates as part of the judiciary and does not qualify as a “public body” subject to FOIA. 

Second, the Appellate Court held that the SAO did not violate FOIA because it had submitted an affidavit stating it was unable to locate records responsive to the requestor’s first request after conducting a diligent search. The Court also determined that the SAO properly denied the requestor’s second request as unduly burdensome because the requestor failed to narrow his burdensome request after being provided an opportunity to do so.

Finally, although the Sheriff initially failed to timely respond to the requestor’s FOIA request, the Court determined that the requestor's claims against the Sheriff’s Office were moot because the Sheriff had subsequently produced all responsive records to the request.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, May 21, 2024

FOIA Lawsuit Dismissed Where Requested Records Did Not Exist


In response to a FOIA request seeking policies and rules regarding statements by accused persons during custodial interrogations, a Sheriff’s Office responded that it did not have responsive records in its possession or custody. The  requestor sued the Sheriff’s Office alleging that its response violated FOIA, and sought a court order requiring the Sheriff’s Office to produce the requested records. The Sheriff’s Office moved to dismiss the case, supported by an affidavit from its administrative assistant responsible for maintaining its records that the assistant conducted a thorough search of the Sheriff’s Office records and did not find any responsive records. After the circuit court ruled in favor of the Sheriff's Office and dismissed the case, the requestor appealed.

In Hickman v. Mann, the an Illinois Appellate Court upheld the dismissal of the case. The court rejected the requestor’s argument that the circuit court should have struck the assistant’s affidavit because she was not the Sherriff’s Office designated FOIA officer, noting that FOIA’s plain language allows a public body’s FOIA officer or their designee to perform required duties under FOIA, including conducting a reasonably diligent search for records responsive to a FOIA request. Because the assistant had worked for the Sheriff’s Office for 14 years and her duties included maintaining its records, the assistant was authorized to attest that the Sherriff’s Office did not have records responsive to the FOIA request.

The Court also rejected the requestor’s various speculative arguments that the Sheriff’s Office had policies and rules responsive to his request within its possession or custody. First, the court determined that just because a state law contains requirements for recording custodial interrogations in certain situations does not prove that the Sheriff’s Office adopted policies or rules to comply with the law. Second, just because the requestor sent a similar FOIA request to a different agency that had enacted and disclosed a written policy does not establish that the Sheriff’s Office adopted a similar policy. Third, while FOIA requires public bodies to maintain a list of “reasonably current list of all types or categories of records under its control,” a public body’s failure to do so is not actionable under FOIA. The Court concluded that the Sheriff's Office was not required to create records in response to this FOIA request and if the policy that was requested in the FOIA request does not exist, then the nonexistence of the requested documents is a defense to a FOIA lawsuit. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, May 20, 2024

Court Rejected Lawsuit Challenging Denial of Local Pandemic Funding


During the pandemic, a City issued the "Safer at Home Order" which prohibited people from going out except for limited “essential activities.” To help mitigate economic damage as a result of the Order, the City made emergency funds available to non-essential businesses. The available funds were limited and not all of the qualifying businesses were able to receive funding.

A married couple who owned and operated an import and gift store filed suit against the City after their application for the emergency funds grant was denied. They claimed that the City denied their application because the husband had attended a rally protesting the Safer at Home Order, and that denial violated their free speech, equal protection and due process rights. They also alleged that certain statements made by the Mayor in a press statement about why he denied their application were defamatory.

The district court ruled in favor of the City and Mayor, and the business owners appealed to the Seventh Circuit Court of Appeals, which upheld the ruling rejecting the owners' claims in Navratil v. City of Racine

The business owners first alleged that the denial was retaliation for the husband exercising his First Amendment rights in attending the rally. The Seventh Circuit rejected that claim, finding that the rally he attended violated valid time, place, and manner restrictions as (1) the Safer at Home Order temporarily banned large public gatherings; and (2) the rally’s permit to gather on state property had been denied due to health hazards. 

The business owners also alleged a violation of their equal protection rights under two theories: (1) a political animus theory (that the grant application was denied due to the Democratic Mayor’s political beliefs about the Republican business owners); and (2) a class-of-one theory (other applicants in violation of the Safer at Home Order were granted funding). The Court rejected both theories, finding a lack of evidence to support the claims.

The business owners then alleged a violation of their procedural and substantive due process rights. The Court rejected that claim as well, finding the owners had no property interest in a purely discretionary government benefit and that they were not deprived of their legal ability to operate their business. 

Finally, the Court rejected the defamation argument on the basis that the Mayor’s statements about the business owners were substantially true and conveyed the Mayor's genuine thoughts and opinions.

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

Thursday, May 16, 2024

In the Zone: Court Rejects "Class of One" Equal Protection Lawsuit in Land Use Case


In Greenwald Family LP v. Village of Mukwonago, the Seventh Circuit Court of Appeals ruled in favor of a municipality in a "class of one" equal protection lawsuit challenging the municipality's decisions in various interactions with a property owner.

This case has quite a bit of history of interactions between the plaintiff (Partnership) and the Village related to 48 acres of land owned by the Partnership and the Partnership's desire to purchase additional property, ultimately leading the Partnership to file a lawsuit against the Village.

In 2014, the Partnership negotiated a purchase agreement to buy 4 acres of farmland from the Chapman family (Family) who owned 20 acres of farmland. The sale was contingent on Village approval of a land division of that larger parcel. The Partnership was told by the Village that a land division required a developer's agreement that would provide for the installation of certain infrastructure improvements including the construction of an access road, development plans, and a letter of credit to secure the obligation. The application was forwarded to the Village's plan commission, which conditionally approved the land division application conditioned on compliance with the conditions requiring a developer's agreement and development plans. After the Family's contract to sell the 4 acres with the Partnership  fell through because of the failure to meet these conditions, the Village purchased 8 acres from the Family, which included the 4 acres previously contracted for with the Partnership. The Village then constructed the access road, and sold the property to a developer as a development-ready parcel.

The Partnership also owned 47 other acres in the Village. Around 2018, the owner of property adjacent to the Partnership's land was negotiating to sell property to a developer, which triggered a requirement for construction of a new road that would cross a portion of the Partnership's property. After the Village initiated a condemnation action to "take" a portion of the Partnership's land needed for the road construction, the Partnership sued, claiming that the Village's condemnation action did not serve a public purpose and was intended to harm the Partnership. The Partnership alleged that the Village treated it differently than other developers and property owners in its various interactions and disputes. The district court rejected the Partnership's claims, finding a rational basis for each Village decision in dispute, and that ruling was appealed to the Seventh Circuit.

On appeal, the Seventh Circuit applied the two factors for a "class of one" equal protection claim (intentional treatment that is different from others similarly situated and no rational basis for the difference in treatment), and found no basis for the Partnership's claims because it agreed with the district court that the Village had a rational basis for each of its decisions being challenged (second factor). The Court cited to the benefits to the Village from development, including taxpayer benefits, commercial benefits, furtherance of planning objectives, and other community needs. The Court held that the Partnership failed to satisfy its burden to counter any conceivable rational basis for the Village's decisions, and concluded that the Partnership "is a disappointed landowner; it is not a victim of unconstitutional discrimination."