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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

Thursday, May 12, 2022

Seventh Circuit Clarifies Scope of Liability for Abuse Claims Under Title IX

On May 10, 2022, the Seventh Circuit Court of Appeals issued an opinion analyzing under what circumstances a school district could be held liable under Title IX (a federal statute) for alleged abuse of a student by a school employee. C.S. v. Madison Metropolitan School District

According to the facts in the court’s opinion, during a student’s seventh-grade year at school, several employees reported to the principal that they were concerned about incidents they witnessed involving a school security assistant: the employee was seen giving back rubs to students, allowing the young girl in question to visit his office after school, hugging the girl, and refusing the girl’s attempts to kiss him on the cheek. In response, the principal told the security guard to limit physical contact and avoid private interactions with the student, advising him to set strong boundaries with her. After the student graduated from middle school, she reported that the inappropriate conduct had not stopped after the principal’s warnings: instead, she claimed that the employee’s conduct had escalated and she sued the school district under Title IX. The district court ruled in favor of the school district, and the student appealed to the Seventh Circuit.

The test adopted by the U.S. Supreme Court for Title IX sex discrimination claims requires a plaintiff to show that a school district official with authority to institute corrective measures had (1) actual notice of a teacher or employee’s misconduct and (2) acted with “deliberate indifference” in response. In this case, the Court of Appeals acknowledged that test and also noted that a school district cannot be held liable under Title IX based “solely on the knowledge of the risk of future misconduct.” Instead, a school district has liability only when the school has knowledge of past discrimination and has proven unwilling to act to end the discriminatory conduct and limit further harassment.

In this case, the Seventh Circuit also ruled in favor of the school district, finding that when the principal was notified of the earlier inappropriate interactions between the student and security assistant, she responded reasonably by counseling the employee to establish boundaries. Because no further harassment or abuse was reported to the principal following her discussion with the employee, the principal had no actual notice of abuse and no reason to expect the relationship would escalate. The school avoided a finding of “deliberate indifference” under the Title IX discrimination test adopted by the Supreme Court because the principal took actions that were reasonably calculated to bring the school into compliance with Title IX, based on her knowledge of the alleged misconduct.

While the school district was not found liable in this case, the Court of Appeals did suggest that schools “err on the side of taking reactive and preventative measures to ensure compliance with Title IX,” when they observe or become aware of inappropriate conduct.

Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Wednesday, May 11, 2022

PAC Finds "Final Action" Even Without a Vote

The Public Access Counselor of the Illinois Attorney General's Office (PAC) recently issued its 6th binding opinion of 2022 finding a public body in violation of the Open Meetings Act for failing to sufficiently describe an agenda item. PAC Op. 22-006.

After a meeting of a school board, an individual filed a request for review with the PAC alleging that the school board voted to make masks optional in the schools without listing that action item on its meeting agenda. The school board filed a response, explaining that the board discussed a revised mitigation plan prepared by the superintendent but did not take a vote on the plan at the meeting. The school board argued that since it did not take final action on the plan, there was no requirement to place that item on the meeting agenda.

The PAC reviewed the meeting minutes, as well as other documents relating to the meeting, including a communication sent out by the school board to parents. The PAC first acknowledged that the board's discussion of the mitigation plan did not violate the OMA. However, the PAC found that the board did, in fact, take final action on the mitigation plan even though the board did not vote on the plan. The PAC based its decision on language in the meeting minutes that noted that the board reached a "consensus" on the superintendent's mitigation plan as well as a communication sent out by the board to parents that notified them of the changes to the mitigation plan regarding masking in the schools. 

Interestingly, the PAC acknowledged that an Illinois Appellate Court had previously expressly held that "[w]ithout the public vote, no final action has occurred" but then disregarded that holding and similar court holdings in finding that the school board took final action on the masking plan without an actual vote. The PAC seemed to distinguish the court's holding that no final action is taken without a public vote because the school board in this case had not ratified its decision. Frankly, this issue seems more appropriately raised in an action to challenge the validity of the masking plan changes without final action having been taken by the school board (which is an issue that is clearly outside the PAC's jurisdiction) rather than having the PAC determine whether final action was taken without proper notice since no vote was actually taken by the board. In an even more surprising turn, the PAC concludes its opinion by ordering the school board to take a formal vote on the plan - seemingly mandating action to determine local legislative policy. 

Friday, May 6, 2022

Quorum Forum Podcast Ep 64 - Planning and Law

Ancel Glink's Quorum Forum Podcast just released Episode 64: APA-CMS Bar Exam 2022

In this episode, we are celebrating four years of Ancel Glink’s Quorum Forum podcast at the APA-CMS Bar Exam, a realistic simulated law school experience for planners and land use professionals. Recorded live at the Haymarket Pub and Brewery on April 6, 2022, listen to APA-IL Chapter President Nina Idemudia and Ancel Glink attorneys Daniel Bolin, Megan Mack, and Greg Jones discuss the most important planning law cases of the year. 

Wednesday, May 4, 2022

Governor Extends Disaster Proclamation for Another 30 Days

Illinois Governor Pritzker issued another disaster proclamation last Friday that extends through May 29th. You can read it here. Since this disaster proclamation meets the requirements of section 7(e) of the Open Meetings Act, public bodies can meet remotely (or in a hybrid fashion) so long as they can make a localized determination that it is not practical or prudent for the body to meet in-person because of a public health crisis and the public body complies with all of the requirements of section 7(e).

Tuesday, May 3, 2022

Supreme Court Finds City in Violation of First Amendment for Denying Religious Flag on City Flag Pole

On Monday, the U.S. Supreme Court issued an opinion finding the City of Boston in violation of the First Amendment after it denied a religious group the ability to fly its "Christian Flag" on the flagpole at City Hall. Shurtleff v. City of Boston. Justice Breyer authored the opinion, and all nine Justices joined in the judgment, although there were three separate concurring opinions.

The City of Boston has three flag poles on a plaza at City Hall. The City usually flies the American flag, the Massachusetts flag, and the City flag on those flagpoles. Occasionally, the City allowed private groups to hold events on the plaza and fly the flag of their choosing on the third flagpole (the one that usually flies the City flag). According to the decision, the City allowed 50 different flags to be flown on the City flagpole between 2005 and 2017. 

In 2017, a group called "Camp Constitution" asked the City to allow it to hold a flag raising event where the group would fly a flag that would commemorate the Christian faith (Christian Flag). The City denied approval on the basis that it believed that flying a religious flag at City Hall would violate the Establishment Clause of the First Amendment. The group sued the City, and the district court held that the City acted within its constitutional authority by denying the Christian Flag, finding that the flags flying from the City's flag pole constituted government speech, meaning the City could choose what flags to fly (i.e., control the message).

The case made its way to the U.S. Supreme Court which issued its opinion this week finding that the City's flag practices were not government speech. Instead, the Court determined that the City had opened up a public forum when it allowed private groups to fly flags of their choosing at City Hall, and once a public forum was open, the City could not discriminate based on religious viewpoint. The Court stated as follows:

When a government does not speak for itself, it may not exclude speech based on "religious viewpoint"; doing so "constitutes impermissible viewpoint discrimination."

The Court acknowledged that there is a blurry line between government speech (where the government can control the message) and a public forum (where the government invites speech and cannot discriminate based on viewpoint). In analyzing whether the flagpole activities were government speech or constituted a public forum, the Court looked at three factors.

First, the Court looked at the history of flag flying at City Hall, which the Court recognized mostly supported the City of Boston since the City's flagpole most often conveyed the City's message (the City flag) and not private expression.

Second, the Court looked at whether the public would tend to view the speech (i.e., flag flying) as City speech or private expression. The Court determined that this factor was not clear since the City flag and private flags shared the third flagpole.

The final factor was the extent to which the City controlled the flag raisings and shaped the messages. It was this factor that the Court found determinative in its analysis of whether the speech was government speech or private expression. The Court noted that the City had allowed numerous groups to raise their flags over a 12 year period and had never denied permission until 2017 when it denied the Christian Flag. The Court also noted that the private groups selected the flags, not the City. The Court found no evidence that the private flags were an expression of the City's official sentiments or messaging, contrasting Boston's practice with a flagpole policy adopted by the City of San Jose that expressly states that the approved flags that may be flown on its flagpoles "are not intended to serve as a forum for free expression by the public" and instead are flown "as an expression of the City's official sentiments." 

It is important to note that the Court did not hold that all government flagpoles must accommodate private expression or that a government cannot choose to fly a flag of its own choosing to commemorate an occasion, event, or group. What the Court did say, however, is that a government flagpole could turn into a "public forum" if the government opens it up to private expression in a manner like what the City of Boston had done. Once a public forum is created, the government needs to be careful not to discriminate based on the viewpoint of the message or speech in a way that would violate the First Amendment.

Monday, May 2, 2022

Bills Affecting Libraries Sent to Governor

Illinois libraries may be interested in two bills that passed both houses in the Illinois General Assembly's Spring Session and have been sent to the Governor.

HB 5283 - Library Board Vacancies and Treasurer Appointments

If the Governor signs this bill, vacancies in the office of trustee on a library district board or on a municipal library board where the trustees are elected will now be required to be filled within 90 days of the vacancy (currently, the statutes require these vacancies to be filled "forthwith" without specifying a time-frame). For library districts, the legislation also would authorize the State Librarian to appoint someone to fill a board vacancy if the board of trustees of the library district fails to fill it within the 90 day statutory time-frame. The State Librarian will have 60 days after the board's failure to appoint someone to fill the vacancy. The bill also provides that a board of trustees of a library district can choose to appoint a treasurer rather than elect one from among the trustees.

SB 3497 - Fee Waiver for Nonresident Minors

This legislation amends both the Local Library Act and the Library District Act so would apply to municipal libraries and library districts. If this bill is signed, a library board of trustees may adopt regulations that waive the nonresident fee that is otherwise applicable for persons under the age of 18. It's important to note that this is not an automatic fee waiver, so individual library boards of trustees will have to decide whether they want to affirmatively adopt a regulation establishing the fee waiver. 

Thursday, April 28, 2022

Annexation Agreement Binds Successor Owner of Part of Property

An Illinois appellate court recently issued an opinion about enforcement of an annexation agreement against a successor owner that will be of interest to Illinois municipalities. Village of Kirkland v. Kirkland Properties Holdings Co.

In 2003, the Village entered into an annexation agreement with the owner at the time of about 115 acres of land that was unincorporated. The agreement was for a 20 year term, and stated that it was binding on the "successor owners of record of the land which is the subject of the agreement." The agreement provided for the annexation of the property into the Village and future residential development. The agreement required the owner to construct certain public improvements on the property, including roadways, and to provide the Village with a letter of credit to secure construction of the public improvements. 

In 2011, the owner sold 41 of the 82 platted lots to Plank. In 2017, Plank sold 34 lots to KPHC (the defendant). In 2019, the Village sent letters to KPHC requesting that it deposit a letter of credit in an amount proportionate to the number of lots it owned in the development in order to secure the completion of the roadways. When KPHC did not provide the security, the Village sued, arguing that KPHC was in breach of the annexation agreement. KPHC filed a motion to dismiss, arguing that because it did not own the entirety of the property that was subject to the annexation agreement, it was not responsible for the obligations under that agreement. The trial court ruled in KPHC's favor and dismissed the Village's lawsuit, holding that the obligations did not "run" to a successor owner unless that successor owner purchased the entire subdivision. The trial court also awarded fees to KPHC under a fee-shifting provision in the annexation agreement.

The Village appealed, and the appellate court reversed the dismissal of the Village's case against KPHC. First, the appellate court noted that the agreement itself makes it clear that the agreement "runs with the land" and is binding on successor owners. The appellate court rejected KPHC's argument that because the agreement didn't specify that it was binding on subsequent owners who only purchase a portion of the property, that it didn't extend to KPHC. The court found the Village's use of a "proportionate responsibility" analysis for apportioning responsibility for construction of public improvements and the provision of security for those improvements to be a common and workable scenario and consistent with the language in the annexation agreement that contemplated phasing of the development. 

In sum, the appellate court reversed the dismissal of the Village's case against KPHC and remanded it back for further proceedings. 

Wednesday, April 27, 2022

Appellate Court Rules on Local Government COVID Workplace Policies

The Fourth District Court of Appeals recently issued two decisions upholding workplace policies requiring COVID-19 vaccination and/or testing for public employees.  

In Graham v. Pekin Fire Department, several current and former employees asked a Sangamon County court to issue a temporary restraining order (TRO) barring various public employers, Governor Pritzker, and the Illinois Department of Public Health from enforcing a workplace policy requiring all employees either to be vaccinated against COVID-19 or, alternatively, to undergo regular testing for COVID-19. The employees maintained that the vaccination and testing policy was invalid because only the IDPH has the authority to quarantine people and require them to be vaccinated or tested for contagious diseases, and that the vaccination and testing policy was discriminatory under section 5 of the Right of Conscience Act. The circuit court denied the employees' TRO petition.

After the employees appealed, the appellate court upheld the denial of the employees request for a TRO. The appellate court noted that the Illinois General Assembly recently enacted a statute that made it clear that it was not a violation of the Conscience Act for an employer to take measures to prevent the spread of COVID-19. The court also concluded that employers had the power to enact workplace safety rules, including the vaccination and testing requirement.

In Allen v. North Mac School District 34, a school district announced a policy in October 2021, stating that employees who did not provide proof of COVID-19 vaccination or comply with required weekly COVID-19 testing could be deemed ineligible to work and placed on a nondisciplinary administrative leave until the teacher complied with the policy, or subject to disciplinary action if a teacher failed or refused to comply. In March 2022, educators in various school districts filed an emergency motion for a TRO against numerous school districts and various state agencies and officials, including Governor Pritzker. The educators argued that (1) school districts lacked authority to require teachers to get a COVID-19 vaccination or submit to testing and (2) educators could not be compelled to take a COVID-19 vaccine or be subjected to weekly testing without first being afforded their right to due process. In April 2022, the Sangamon County circuit court ruled in favor of the educators and issued a TRO to stop enforcement of the policies.

On appeal, the appellate court vacated the TRO issued by the circuit court for several reasons. Specifically, although Section 2 of the Public Health Act affords an individual the right to due process if he or she does not consent to an order from the IDPH or a certified local health department, the court clarified that this case does not involve a situation where the IDPH or a certified local health department has ordered the educators to do anything. The appellate court also noted that the Act does not require a public school district to obtain a court order before it can place a teacher on unpaid administrative leave for refusing to get vaccinated or tested on a weekly basis. Instead, the court held that the school districts adopted lawful and reasonable workplace policies designed to protect students and school employees, and nothing in these policies restricted the educators’ activities, movement, or interactions anywhere outside of the workplace.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, April 26, 2022

IL Supreme Court Narrows Absolute Immunity for Injuries Resulting from Escaping Prisoners

The Illinois Supreme Court recently issued an opinion limiting the application of absolute immunity for local public entities and public employees under Section 4-106(b) of the Tort Immunity Act (Act) as it relates to prisoners in custody. Robinson v. Village of Sauk Village

Robinson filed a complaint against two municipalities and individual police officers (collectively, Defendants) to recover for injuries he suffered after he was hit by a vehicle that had been fleeing the Defendant police officers. Police had received a stolen vehicle report, located the vehicle in motion, and attempted to stop it with emergency lights. The vehicle fled at a high rate of speed through multiple jurisdictions, committed multiple traffic violations and crossed into Indiana before stopping in a parking lot. The lead officer positioned his squad car perpendicular to the vehicle’s driver door and exited drawing his firearm on the suspect. The lead officer approached the vehicle but remained approximately 10 feet away. The suspect remained in the closed vehicle and ignored orders to exit. Instead the suspect repeatedly shouted, “shoot me” and pointed a bottle and a small black object at the lead officer. Notably, the officers did not block the vehicle or otherwise directly limit or control the suspect’s movement. Unrestricted, the suspect drove away at a high rate of speed into Illinois with officers in pursuit. During the pursuit, the suspect struck and severely injured Robinson in an intersection cross walk. The suspect continued to flee to Indiana where he was fatally shot by Indiana police officers.

The circuit court ruled in favor of the Defendants in granting their motion for summary judgment, finding Defendants were immune from liability because the suspect was "in custody" for purposes of Section 4-106(b) of the Tort Immunity Act when officers pointed weapons at him in the parking lot and ordered him to show his hands. Section 4-106(b) of the Act provides, in part, “[n]either a local public entity nor a public employee is liable for *** [a]ny injury inflicted by an escaped or escaping prisoner.” The Act defines “prisoner” as a person held in custody. 

The appellate court disagreed with the circuit court, holding that the suspect was not an “escaped or escaping prisoner” as required for absolute immunity under the Act. The appellate court further noted custody is not defined by the Act but a mere show of authority by police officers is insufficient to establish physical custody. Because the suspect’s freedom of movement was not controlled by the officers, he was not in custody before he fled the parking lot. As such, the appellate court reversed the circuit court’s grant of summary judgment.

On appeal to the Illinois Supreme Court, Defendants argued that the demonstration of authority by police officers when they drew their weapons and gave orders in the parking lot was sufficient to establish custody under the Act. Robinson countered by arguing that a show of authority does not establish custody under the Act and that previous Supreme Court case law defined custody as control over a suspect’s freedom of movement. Robinson further argued that if a mere show of authority is sufficient to establish custody under the Act, absolute immunity would be invoked every time a police officer tells a person to stop or activates emergency equipment.

The Court looked to the Black’s Law Dictionary definition of “custody” which could mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or taking manual possession. Without determining how broad the term custody may be, the Court concluded the act of directly controlling and limiting someone’s freedom of movement, i.e. being placed in a squad car, was custody within the meaning of the Act. Further, the Court concluded the phrase “held in custody” requires some direct restriction or control of a person’s freedom of movement to a particular place for at least a limited period of time. Moreover, the term prisoner refers to a person subject to some level of physical confinement.

Here, the suspect was partially surrounded by 6 officers with weapons drawn. However, the suspect remained in the vehicle with the engine running and ignored commands. The officers attempted to restrain and control the suspects movements but failed because they did not physically block his ability to move to a particular place. In conclusion, the Court agreed with the appellate court that a mere show of authority is insufficient to establish a person is “held in custody” under the Act. Particularly in this case, the failure of the police officers to block the suspect’s freedom of movement with their police vehicles or otherwise control his movement meant that the absolute immunity provision of the Act did not apply since the suspect was not an escaped or escaping prisoner. Until a person’s freedom of movement to a particular place is directly limited or controlled by law enforcement, they are not an “escaped or escaping prisoner” within the meaning of the Act to trigger absolute immunity. In short, the Illinois Supreme Court agreed with the appellate court that summary judgment should not have been granted to Defendants, and the Court remanded the case back for further proceedings.

Post Authored by Bryan Strand, Ancel Glink

Monday, April 25, 2022

Court Addresses Juvenile Records in FOIA Case

A requester submitted a FOIA request to the Chicago Police Department (CPD) asking for records related to a 2019 officer-involved shooting of a juvenile. CPD denied the request, arguing that the juvenile law enforcement records were specifically prohibited from disclosure under the Juvenile Court Act of 1987 (JCA). The requestor subseuqently filed a lawsuit alleging that CPD had violated FOIA by failing to provide the responsive juvenile law enforcement records. The trial court ruled in favor of the requestor, finding that the JCA’s privacy protections for juvenile law enforcement records ended upon a minor’s death, meaning the requester was entitled to the disclosure of those records.

On appeal, the Appellate Court disagreed and reversed the trial court ruling, finding that the court's finding that the JCA’s privacy provisions do not apply to law enforcement records of a deceased minor was incorrect. Calloway v. Chicago Police Department. The appellate court noted that the JCA does not contain any language explicitly or implicitly limiting the scope of these protections to records involving a deceased minor. As a result, the appellate court held that these records cannot be disclosed to unauthorized parties without good cause and an order from the juvenile court.

The appellate court also held that the CPD failed to prove, by clear and convincing evidence, that the requested records fell with the scope of the asserted FOIA exemption, because the CPD’s affidavit in support of its claimed exemptions was brief and conclusory, and failed to provide the detailed justification required to show why the exemptions applied. The appellate court then remanded the case back to the trial court to determine what, if any, responsive records are exempt from disclosure under FOIA and which records are subject to disclosure.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, April 21, 2022

Supreme Court Issues Decision in Challenge to Austin's Sign Regulations

The US Supreme Court just issued an opinion in a case challenging the City of Austin's sign regulations. This case overturns the Court of Appeals ruling finding the City's sign regulations to be unconstitutional and seems to offer welcome relief to municipalities struggling to regulate off-premise signs after the Court's 2015 ruling in Reed v. Gilbert. City of Austin v. Reagan

Like many other municipalities, the City of Austin, Texas has enacted sign regulations that restrict off-premises signs. Under the City's sign code, no new off-premises sign can be installed, and existing off-premises signs are "grandfathered," meaning they can remain in place but cannot be altered in a manner that would increase their nonconformity. Two billboard companies challenged the City's sign regulations, claiming that the City's distinction between off-premises signs and on-premises signs is unconstitutional under the First Amendment's free speech clause and the Supreme Court's ruling in Reed.

The District Court held that the City's sign regulations were content-neutral and the distinction between on-premise and off-premise signs satisfied the constitutional standard for content-neutral signs. The Court of Appeals reversed, however, finding that the distinction was content-based because a government official would have to read a sign's message to decide whether a particular sign was off-premise or on-premise. The Court of Appeals then determined that the City's sign regulations did not satisfy the constitutional analysis that applies to content-based signs (strict scrutiny). 

The case made its way to the U.S. Supreme Court. The Court overturned the Court of Appeals ruling, rejecting the Court of Appeals' interpretation of Reed to mean that a sign regulation is "content-based" if an official has to read the sign to make a determination on whether a sign fell under the off-premise or on-premise regulation. The majority opinion found that interpretation of Reed to be "too extreme." The Court acknowledged that some evaluation of a sign's message may be necessary in applying sign regulations and that evaluation alone does not turn a content-neutral sign into a content-based sign that requires a stricter scrutiny for a constitutional analysis. 

The Supreme Court distinguished this challenge to the one at issue in Reed, finding that the challenged City of Austin sign regulations do not single out any topic or subject matter for differential treatment. Instead, the Court found that the challenged sign regulations distinguish based on location, which was more in the nature of a time, place, or manner restriction rather than a content or message restriction. The Court also acknowledged the Court's previous decisions that have upheld the distinction between on- and off-premise signs, including restrictions on billboards.

The Court did not make a determination as to whether the challenged sign regulations survive the "content-neutral" analysis and instead sent it back to the lower courts for application of the proper constitutional test for content-neutral sign challenges. 

Thursday, April 14, 2022

PAC Orders Release of Disciplinary Complaints in 5th Binding Opinion

In November 2021, a reporter submitted a FOIA request to the City of Chicago Department of Human Resources (Department) seeking disciplinary records and complaints of racism, harassment, and discrimination filed against City employees. The Department released some redacted records, but withheld the remaining records citing the personal privacy and deliberative process exemptions. After the reporter appealed the partial denial to the PAC, the PAC issued its fifth binding opinion of the year concluding that the Department violated FOIA by improperly withholding responsive records. PAC Op. 22-005.

Specifically, the PAC found that disclosing most of the withheld complaints would not constitute a clearly unwarranted invasion of any City employee's right to personal privacy because the public has a significant interest in obtaining information that sheds light on claims of misconduct by public employees. The PAC also noted that complaints alleging workplace misconduct by City employees, even if the complaints are later deemed unfounded, still pertain to the public duties of public employees and, as a result, disclosing these complaints would not result in a clearly unwarranted invasion of personal privacy to the City employees.

Additionally, the PAC determined that the Department failed to show how the complaints revealed the Department’s predecisional deliberative process. Although complaints may lead to deliberate discussions culminating in final actions, the PAC found that the complaints in this case were not part of a deliberative process because they preceded the decision-making process. The PAC also found that the complaints were factual in nature and purely factual information is not exempt from disclosure under exemption 7(1)(f).

Post Authored by Eugene Bolotnikov, Ancel Glink