Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter

Disclaimer

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

Thursday, September 15, 2022

Court Finds Village Had Discretionary Immunity in Motorcycle Accident Case


In Page v. Village of Coal City, an Illinois Appellate Court determined that a village was immune from liability for an injury resulting from a village employee’s actions because the village employee had a position with discretion to make decisions.

A motorcyclist was driving on a local road when her motorcycle tires hit a section of loose gravel, and as a result, she lost control and was thrown off the motorcycle. She filed a negligence claim against the village. The trial court found in favor of the village, and the motorcyclist appealed.

The court determined that the liability of the village depended on whether the village employee who was responsible for village road maintenance served in a position requiring discretionary actions or solely ministerial tasks. Under provisions of the state's Tort Immunity Act, actions by municipal employees are treated differently whether the employees are exercising discretionary authority or acting in a ministerial fashion. As a general rule, the Act provides certain immunities to municipalities for actions of their employees who have the discretion to make judgment calls.

In this case, the Appellate Court determined that the village employee responsible for road repairs held a position requiring an exercise of discretion. The court pointed to the fact the village employee made a conscious decision to gravel the hazardous road and leave the roadway open to traffic until it could be repaved by an outside contractor months later. That employee's decision had been based on multiple factors including village budget, costs, and safety, which supported the village's argument that its employee engaged in a policy determination. While the court acknowledged that the public works roadcrew adhered to a set process in repairing the road, there was no indication in this case that the roadcrew failed to complete the work in a reasonably safe and skillful manner. In sum, the Appellate Court upheld the trial court's ruling that the village had discretionary immunity.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Monday, September 12, 2022

Court Reverses Award of Damages to Developer in Case of Mutual Breach of Contract


Earlier this summer, an Illinois Appellate Court issued a decision finding that both the municipality and the developer had materially breached a redevelopment agreement. Because neither party had complied with the terms of the agreement, the Court decided that neither party was entitled to damages for the other’s breach. PML Development LLC v. Village of Hawthorn Woods.

In 2012, the parties entered into a redevelopment agreement that provided, among other things, that the developer would import fill and bring to grade a large piece of property it owned in the Village. The agreement required the developer to pay taxes on the property until the project was completed, at which point it would donate the land to the Village. The development project faced several obstacles early in the term of the agreement, including a number of changes to the project, including the amount of fill on the site, the sequencing of the project, and the company’s ability to sell certain materials. 

According to the breach of contract lawsuit filed against the Village, the developer argued that these changes presented major challenges to its ability to complete the project on time. The Village also claimed the developer had  breached its obligations under the agreement by not paying property taxes, which resulted in multiple tax liens being placed on the property. The trial court ruled in favor of the developer, finding that the developer's obligations were excused because of the Village's breach and awarding the developer damages for the breach.

On appeal, the Appellate Court found that neither party should have received any damages for breach of contract. The Court agreed with the trial court that the Village’s unilateral changes to the contract terms and working conditions for the company constituted a material breach, finding that under industry standards, the developer should have maintained control and discretion over the “means and methods” for developing the parcel. However, the Court did not find that the Village’s breach excused the developer from its contractual obligation to pay taxes on the property. Because the developer had promised to deliver a deed to the property without any liens or title issues, its failure to pay taxes undermined its ability to comply with that term in the agreement. The Court relied on a foundational principle of contract law to come to its conclusion: “[I]f both parties are in default (breach) there can be no recovery on the contract by either against the other" and reversed the trial court's damages award to the developer

Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, September 8, 2022

Court Clarifies Scope of Home-Rule Units’ Administrative Hearing Authority


Recently, an Illinois Appellate Court clarified the authority of a City’s administrative hearing department where there are overlapping state and municipal traffic regulations. In Potek, et al. v. City of Chicago, the Court held that certain local traffic violations were properly heard in City administrative hearings rather than before a court.

In 2005, the City amended its traffic code to prohibit all use of cell phones while driving. In 2010, the General Assembly passed a narrower law that only prohibited texting, emailing, or instant messaging while driving. It wasn’t until 2014, that the General Assembly expanded state law to prohibit the use of cellphones while driving altogether. 

Between 2012 and 2014, a number of drivers were issued notices that they violated the City ordinance by talking on their cell phones while driving. These violations were considered, and several tickets were paid, through the City’s administrative hearing department. Certain ticketed individuals later sued the City, claiming that the City did not have the authority to decide their traffic tickets based on a state statute that they claimed restricted municipal authority to hold administrative hearings. This statute (contained in the Illinois Municipal Code) states that municipalities may not hold administrative hearings (1) beyond the scope of their statutory or home-rule authority or (2) to prosecute “any offense under the Illinois Vehicle Code or a similar offense that is a traffic regulation governing the movement of vehicles.”

The trial court dismissed the individuals' claims for lack of standing and they appealed. The Appellate Court reversed the standing ruling, finding that the individuals did face a real injury as a result of the City delegating the traffic violations to the administrative hearing department rather than sending the tickets to a local court, so they had standing to challenge in court the administrative hearing department's authority to find them liable and collect fines for their violations.

However, the Appellate Court did not rule in the individuals' favor on their substantive authority argument and instead agreed with the City that its administrative hearing department had the authority to adjudicate several of the traffic violations based on the Illinois Municipal Code. Through the end of 2013, the City ordinance, and not state statute, prohibited talking on a cell phone while driving. As a result, the Court determined that the two laws at the time did not regulate a “similar offense” that required prosecution in court rather than before an administrative agency. The Court also noted that as a home-rule unit of government, the City’s authority to conduct administrative hearings “must be construed liberally.” The Court remanded back to the trial court those tickets that were issued after the state law had changed to prohibit talking while driving to determine whether the drivers were entitled to a refund to the fines they had paid to the administrative hearing department.

Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, August 25, 2022

Court Declines to Find City Liable for Police Officer Off-Duty Activities


The Seventh Circuit Court of Appeals recently issued a decision in Bohanon v. City of Indianapolis rejecting a claim that a "gap" in a city policy constituted municipal action to establish city liability for police officer off-duty activities.

On August 7, 2013, two off-duty officers in plain clothes were drinking at a bar when another bar patron became loud and combative with bar employees and refused to leave when asked. The off-duty police officers identified themselves as police officers and told the patron to leave. The patron subsequently threw one of the officer’s badges to the ground. According to the court opinion, the officers then punched the patron, dragged him out of the bar, and kicked him until he was unconscious. The patron filed suit against the officers and the city alleging civil rights violations. Although the jury ruled in favor of the patron and awarded damages, the judge granted the city's motion for judgment as a matter of law, reversing the damages award. The patron appealed to the Seventh Circuit Court of Appeals.


On appeal, the bar patron argued that a "gap" in a city police department policy was sufficient to establish city liability for the actions of its off-duty police officers. The city policy prohibited off-duty police officers under the influence of drugs or alcohol from taking any police action except under a narrow exception to protect life and limb in emergency situations. The Seventh Circuit disagreed with the patron, finding that a gap in policy amounts to municipal action only if the municipality has notice that its policy will cause constitutional violations. Here, the Court found no evidence that similar incidents had occurred. The Court also found that it was not obvious that the city policy prohibiting police action while under the influence subject to a narrow and specific exception would lead off-duty officers to use excessive force in violation of the Constitution. Finally, the court determined that the city policy did not cause constitutional violations; instead, the officers violated the policy through their actions, which caused the patron's injuries.

 

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Wednesday, August 24, 2022

Appeals Court Decides Challenge to Short Term Rental Ordinance


Short-term rental (STR) uses have been a topic of discussion among local government officials with the popularity of individuals listing their homes for short term stays on platforms such as Airbnb and VRBO. This week, the Fifth Circuit Court of Appeals (which has appellate jurisdiction over federal cases out of Texas, Louisiana, and Mississippi) invalidating New Orleans’s STR ordinance. Hignell-Stark, et al. v. City of New Orleans.

New Orleans created a licensing regime for STR uses in 2017, allowing property owners to apply for a license to rent their property for a period shorter than 30 days. The initial City code provisions made clear that an STR license was a privilege, not a right, and that the City exercised broad discretion to issue or withhold licenses. 

After receiving complaints from neighbors that short-term rentals were creating nuisances in residential neighborhoods, affecting neighborhood character, and increasing housing costs, the City revised its licensing program in 2019. These changes restricted STR licenses to the owner’s “primary residence.” The new ordinances also placed substantial limitations on advertising STRs.

A group of property owners challenged the new licensing scheme as unconstitutional under three theories: (1) the failure to renew their STR licenses was an impermissible “taking” under the Fifth Amendment; (2) the residency requirement violated the dormant Commerce Clause of the U.S. Constitution; and (3) the advertising restrictions violated the First Amendment.

The case made its way to the Fifth Circuit. First, the Court found in favor of the City on the owner's takings claims under the Fifth Amendment. Because an STR licenses was not a property "right," the Court held that the City’s refusal to renew a license did not violate a property right. The Court clarified that, while custom and practice may create property interests, STR licenses were not so deeply rooted in custom that the property owners were owed compensation when their renewal applications were denied. The recent creation of an STR licensing program in the City prevented the Court from concluding that the license holders had property interests in the renewal of their licenses.

Second, the Fifth Circuit ruled in favor of the owners on their dormant Commerce Clause claim. Under the dormant Commerce Clause, states and local governments may not discriminate against nor impose undue burdens on interstate commerce. The Court held that the residency requirement for STR licenses was discriminatory on its face because out-of-state property owners without a “primary residence” in the City were forbidden from participating in the STR market in residential areas. The City failed to show that the residency restriction was the only policy alternative for promoting its valid interests in reducing nuisances, retaining neighborhood character, and promoting affordable housing. Therefore, the City failed to show that the discriminatory residential requirement was constitutional.

Finally, the Court found it had no authority to decide the First Amendment claim. The district court had found that the Free Speech claim was “viable,” but had not yet issued a formal judgment granting or denying the property owners’ claims so the appeal was premature. 

This case provides a helpful overview of several constitutional issues that are implicated by the growing popularity of short-term rentals (and local government responses). While the Fifth Circuit does not have direct authority over Illinois cases, this decision provides more insight as to how higher courts may review STR regulations going forward.

Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, August 18, 2022

PD Properly Used Ongoing Criminal Investigation Exemption to Partially Deny FOIA Request


A reporter submitted a FOIA request to a police department (PD) seeking certain records relating to a 2018 homicide. In response, the PD disclosed certain redacted records but withheld other records, on the basis that release of certain exempt records would obstruct the PD’s ongoing criminal investigation into the homicide. The reporter then sued the PD claiming the response violated FOIA. The trial court ruled in favor of the PD, finding that it had demonstrated that disclosing the records it had withheld would interfere with its ongoing investigation. 

On appeal, the Appellate Court in Ballew v. Chicago Police Department upheld the ruling in favor of the PD, finding that the PD had properly demonstrated that the records were exempt under FOIA’s ongoing investigation exemption. The Appellate Court relied on an affidavit of a PD lieutenant who was overseeing the homicide investigation that stated that because the PD's investigation of the homicide was still open and ongoing, prematurely releasing the withheld records would materially impede that investigation because:

  1. investigators were still attempting to identify additional witnesses, collect additional evidence, and apprehend the suspect, who is at large;
  2. premature release would make it difficult to determine the veracity of witness statements because the significant media attention coverage brought to the case could increase the possibility of obstructive behavior that would misguide investigative efforts;
  3. the outcome of the investigation could be jeopardized if details of the investigation, investigative technique, and evidence were to be released; and
  4. releasing the information could place witnesses in danger or deter witness cooperation since the homicide underlying the FOIA request is potentially linked with another (unsolved) violent homicide.

The Appellate Court also rejected the reporter’s argument that the PD had used FOIA’s law enforcement exemptions to assert a “blanket” exemption over investigative records, explaining that nothing in the record supports any claim that the PD refused to review all responsive records before asserting the applicable exemptions over the withheld records. Instead, the Court found that the PD had produced the original case incident report and provided a detailed explanation in the affidavit as to why other responsive documents were exempt. The Court also rejected the reporter’s argument that FOIA required the PD to provide a granular document-by-document explanation regarding its claimed exemptions.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, August 16, 2022

Court Finds In Favor of Board of Education in FOIA Challenge


In 2014, a former teacher, filed a pro se lawsuit against a Board of Education (Board), alleging various FOIA violations related to the former teacher's 30 FOIA requests, including that the Board withheld responsive documents and the Board failed to conduct a reasonably diligent search for records. The circuit court ruled in favor of the Board, finding it had properly responded to all 30 of the FOIA requests, provided nonexempt responsive records in its possession and custody, and did not deliberately withheld documents pertaining to the requester's requests.

On appeal, the Appellate Court in Elmore v. Bd. of Educ. upheld the circuit court’s ruling in favor of the Board. Specifically, the Appellate Court found that the former teacher failed to show that the Board’s search for responsive records to her requests was inadequate or that the Board cited improper exemptions to withhold certain records. The Appellate Court further found that the former teacher failed to prove that the Board withheld certain requested records in their entirety, finding that the Board’s affidavits and other evidence satisfied the Board’s burden to show that it produced responsive nonexempt records in its possession and custody. The Appellate Court also stated that the teacher's belief that a certain document must exist did not make it so.

Additionally, the Appellate Court determined that the Board properly withheld information about the racial breakdown of all Board hires from 2011 to 2013 pursuant to the personal privacy exemption of FOIA (section 7(1)(c)). Specifically, the affidavit from the Board’s FOIA officer demonstrated that the the requested group of new hires was so small (6 employees) that disclosing a summary of ethnicities would unavoidably lead to identifying individual employees, and releasing this information would, therefore, unreasonably invade the privacy interests of those employees. The Appellate Court noted that public employees have a reasonable expectation that their racial identification will remain private, and with such a small number of people involved, releasing only ethnicities could still lead to identifying individual employees, so this part of the plaintiff’s FOIA request was properly denied under the invasion of personal privacy exemption.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, August 11, 2022

Court Upholds Redaction of Requester's Own Private Information Under FOIA


An inmate filed a FOIA request to a City seeking certain records pertaining to the inmate. The City provided the requested records but redacted the inmate’s private and personal information, including the inmate’s home address, home telephone number, date of birth, and his mother’s name, home address, and home telephone number, pursuant to FOIA exemptions 7(1)(b)(private information) and 7(1)(c)(disclosure would be an unreasonable invasion of personal privacy). 

The inmate then filed a request for review with the Public Access Counselor of the Attorney General's office (PAC) claiming the City’s redactions were improper. The PAC determined that no further inquiry was warranted and closed the file. The inmate next filed a pro se complaint in circuit court, alleging, among other things, that the City violated FOIA by improperly redacting records containing his private and personal information, because the inmate had impliedly consented to the disclosure of his own private and personal so the information was not exempt from disclosure under FOIA. The court dismissed the inmate’s complaint, finding that the records were properly redacted, and the inmate’s argument regarding his entitlement to his own exempt information was “not listed within the statute or any other relevant authority.”

The inmate appealed and the dismissal of the case was upheld by the Appellate Court in Warren v. City of Urbana. Specifically, the Appellate Court rejected the inmate’s argument that by submitting a written FOIA request for his own information, including his home addresses and “locations of incidents”, that the inmate consented to and was entitled to disclosure of otherwise exempt information. The Court noted that the General Assembly specifically included home addresses as “private” information under section 7(1)(b), and the only exception to this exemption is where “disclosure is required by another provision of this Act, a State or federal law, or a court order.” Because the inmate failed to identify any statute or court order which required the City to disclose his private information, the Court determined that the City's redaction of the inmate’s private information was proper.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, August 8, 2022

Court Rejects First Amendment Claim Involving Persons' Failure to Provide ID


On August 2, 2022, the Seventh Circuit Court of Appeals issued an opinion finding no First Amendment violation where three individuals failed to provide their ID to a police officer where there was probable cause to arrest them. Lyberger v. Snider

Three individuals followed a woman in her vehicle to her home. Once she arrived, the three individuals confronted and video-recorded the woman while she was parked in her driveway. She called 911 and when police arrived, they asked the three individuals for their identification, which they continuously refused.  The officer then placed them under arrest for disorderly conduct and obstruction. All charges were eventually dismissed. 

The plaintiffs then sued the City and police officers claiming various civil rights violations. The Seventh Circuit first analyzed the plaintiffs’ Fourth Amendment claim and concluded that the police officers had reasonable suspicion to justify the initial detention as well as probable cause to arrest the three individuals. 

The court then went on to analyze the plaintiffs’ First Amendment claim. The plaintiffs argued that the police officers violated their First Amendment rights by arresting them in retaliation for refusing to provide their ID cards per the police officers’ requests. The Seventh Circuit concluded the plaintiffs did not have a First Amendment right to withhold their identification. Although, the First Amendment generally prohibits police officers from subjecting individuals to retaliatory actions for engaging in protected speech, the Seventh Circuit held that probable cause to make an arrest (which was present in this case) defeated their claim that the arrest was in retaliation for protected speech.  As a result, the plaintiffs’ claim that their First Amendment rights were violated also failed.

Authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink.

Monday, August 1, 2022

PAC Says Resumes of Candidates for Elected Office Are Releaseable Under FOIA


The Public Access Counselor of the Illinois Attorney General's office (PAC) just issued its 11th binding opinion of 2022 finding a public body in violation of FOIA for failing to provide copies of the applications submitted by candidates for appointment to fill a vacant elected office. PAC Op. 22-011,

In April, an individual filed a FOIA request with a village seeking the names and applications of the candidates for a vacancy to the village board. The village denied the request, citing three FOIA exemptions including that the applications were exempt from release as private information, that release of the information would be an invasion of personal privacy of the candidates, and that the documents contained information that expresses policy or opinions. The village also argued that the records were not public records because the village president had not shared the applications with the village board. Ultimately, the village did release the application for the candidate who had been appointed to fill the vacancy but continued to withhold the applications submitted by the other candidates. The requester filed a request for review with the PAC.

The PAC rejected the village's argument that the unsuccessful candidates' applications were either (1) not public records or (2) exempt from release. First, the PAC found that the records were public records since they were in the possession of the village president and were used by the president in deciding who to appoint to fill the vacancy on the villagea board. Second, the PAC determined that the public's right to access information about candidates for elected office (and those considered for appointment to fill an elected office) outweighs any diminished right of privacy the candidates might have to their potential appointment to the village board. The PAC distinguished the privacy interests of candidates for elected office (who have a diminished right to privacy) with unsuccessful candidates for public employment (who have a privacy interest in not having their candidacy disclosed to the public because of the potential negative impacts in the community and with their current employment). Finally, the PAC rejected the village's argument that the records were used to "formulate policy" finding that the work history and educational background of the candidates for appointment to elected office are purely factual in nature. 

In short, the PAC determined that the resumes and other information about candidates for elected office (or appointment to fill a vacancy in an elected position) are releasable under FOIA. 

Friday, July 29, 2022

School Board Members Blocking of Parents on Social Media Violated First Amendment


We have reported in the past about the potential implication of the First Amendment when public officials engage on social media. Not all conduct or activities by public officials will trigger First Amendment protections and rights, but when a public official creates a public forum on social media and then takes action that censors protected speech, courts have held that this action violates the First Amendment. Recently, the Ninth Circuit Court of Appeals addressed this issue in a First Amendment challenge involving two school board members, finding the two officials had violated the First Amendment rights of individuals who they censored on their social media sites. Garnier v. Ratcliff, 9th Cir. July 27, 2022

The two school members had initially set up social media sites for their campaigns. After they took office, they used those same social media pages to engage with citizens about school board matters. On their pages, they informed citizens about upcoming school board meetings, solicited input about board decisions, and communicated with parents about school safety and other pending issues. Two parents who frequently posted critical comments on the school officials' pages, had their posts deleted by the school board members. Eventually, both school officials blocked the parents from their pages. Shortly after the parents were blocked, the school officials set up a word "filtering" setting on their pages that blocked a number of commonly used words that, in effect, eliminated any comments from their pages.

The parents sued, claiming that the deletion of their critical comments and blocking from the school officials' pages violated their First Amendment rights. The school officials first argued that their social media pages were not a public forum, so they were not acting as "state actors" for purposes of a civil right action. They further argued that even the pages were a public forum, their blocking of the parents was a reasonable time, place, and manner restriction. Finally, they argued that by establishing a word filtering setting that blocked all comments they had effectively "closed" the public forum, so the lawsuit was moot.

First, the court rejected the school officials' argument that the case was moot, finding that the closing of a public forum does not "cure" a previous First Amendment violation.

Second, the court found that the two officials were acting as "state actors" when they were engaging on their social media pages. Nearly all of their activities on their pages related to their school official duties, they identified themselves as school officials, engaged with constituents about school board business, and regularly posted about school board business. The court acknowledged that other circuit courts of appeals had similarly found activities and conduct similar to these two officials to have created a public forum that would trigger First Amendment protections, including cases involving a Facebook page set up by the Loudoun County commissioner, former President Trump's Twitter account. Here, the court determined that the officials' had created a designated public forum on their social media sites and their activities in deleting critical comments and blocking critical commenters violated the First Amendment because it did not serve a significant government interest and was not narrowly tailored.

This case is definitely worth a read for government officials who engage in social media activities related to their government duties because it provides a detailed analysis of when a personal social media page and activities can convert into government action triggering the First Amendment.


Wednesday, July 20, 2022

City's Citation for Business License Violation Upheld by Court


Recently, an Illinois Appellate Court upheld a circuit court's ruling in favor of a City's administrative decision imposing a fine against a parking lot owner for failure to obtain a business license. 895 Wood Dale LLC v. City of Wood Dale.

The owner of a commercial parking lot applied for a City business license, but the City refused to issue the license because the parking lot did not comply with the City's landscaping requirements contained in its zoning code. The City then cited the parking lot owner for operating its business without a business license, and the City's administrative hearing officer imposed a $500 fine. The owner filed a lawsuit to challenge the City's administrative decision, and the circuit court upheld the hearing officer's determination. 

On appeal, the parking lot owner argued that the City was "estopped" from enforcing the landscaping requirements of the City's zoning ordinance because the City had previously issued permits for the parking lot and had not required the landscaping at that time, had not informed the plaintiff of the landscaping requirements when the City inspected the improvements. The owner argued that it had relied on the City's inspection and permitting approvals and the City should not be allowed to enforce its landscaping requirements to hold up its business licensing. 

The Appellate Court rejected the owner's arguments and upheld the City's administration decision against the parking lot owner. The Court noted that the mere fact that a permit had been previously issued by the City does not preclude the City from enforcing its code and requiring a property to comply with code requirements. The Court also determined that the costs the owner would incur in complying with the landscaping requirements are not the type of losses that trigger equitable estoppel because the owner was always obligated to follow the code requirements. In sum, the Court determined that the owner failed to establish its equitable estoppel argument, so the City's administrative decision was proper.