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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, January 25, 2023

Illinois Supreme Court Upholds Home Rule City's Administrative Penalty in Impoundment Ordinance

A number of individuals filed a lawsuit to challenge the City of Chicago's authority to adopt an ordinance imposing administrative penalties on the owners of impounded vehicles, claiming that section 11-208.7 of the Illinois Vehicle Code only authorizes fees for towing, storage, and other reasonable administrative costs.  

The circuit court dismissed the complaint, finding that section 11-208.7 of the Illinois Vehicle Code did not preempt home rule authority. The appellate court agreed, finding no limitation or preemption in the statute that would prohibit a home rule unit from charging an administrative penalty or fine when impounding vehicles.

The plaintiffs appealed to the Illinois Supreme Court, which upheld the dismissal of the case. Lintzeris v. the City of ChicagoThe Illinois Supreme Court agreed with the circuit and appellate courts that there is no express language of prohibition or exclusion in the Illinois Vehicle Code that would preclude a home rule municipality from imposing additional fees, including administrative penalties. The Court also held that the imposition of local administrative penalties would not circumvent the authorization of fees, create an obstacle to charging fees, or derail any state function. In short, the Court upheld the City's administrative penalty provision in its impoundment ordinance. 

Post authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink.

Monday, January 23, 2023

U.S. Supreme Court Will Hear Challenge to Local Government's Retention of Surplus in Tax Forfeiture Action

The U.S. Supreme Court will be considering an appeal that will be of interest to local governments. Tyler v. Hennepin County. In 2015, a Minnesota county seized a condominium unit to cover an unpaid tax debt of $15,000. The county then sold the condo for $40,000, which it retained after distributing some of the proceeds to other taxing bodies as required by state law. The condo unit sued, claiming that the county violated the Takings Clause and the Excessive Fines Clause of the U.S. Constitution by not returning the surplus (i.e., the difference between the tax debt amount and the sales price) to the condo owner. The Court of Appeals ruled in favor of the county, finding that the county's actions were authorized by a Minnesota statute that authorized the county to take absolute title, extinguishing the owner’s equity in exchange only for cancelling a smaller tax debt, code enforcement fine, or debt to government agencies. The condo owner appealed to the U.S. Supreme Court, which agreed to hear the case in the next term.

Thursday, January 19, 2023

Court Applies "Subsidiary Body" to Non-Profit Organization in FOIA Challenge

In 2018, a requestor submitted several FOIA requests to Aurora Downtown, a not-for-profit organization, seeking certain records relating to the 2017 election. After Aurora Downtown failed to respond to all of the requests, the requestor filed a lawsuit, claiming that Aurora Downtown violated FOIA by providing incomplete responses to the FOIA requests. Aurora Downtown responded that it was not a “public body” subject to FOIA, but was instead an “independent” body organized as a not-for-profit corporation.

FOIA section 2(a) defines a public body, in relevant part, as follows: 

Public body" means all legislative, executive, administrative, or advisory bodies of the State, state universities and colleges, counties, townships, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees, or commissions of this State, any subsidiary bodies of any of the foregoing...”  (emphasis added)

The circuit court agreed with Aurora Downtown and dismissed the complaint, finding that Aurora Downtown was not a “subsidiary body” of a public body and so was not subject to respond to FOIA.

After the requestor appealed, the Appellate court in River Breeze,LLC v. Granholm overturned the circuit court’s dismissal and sent the case back for further proceedings, finding that the circuit court erred when it prematurely concluded that Aurora Downtown was not a “subsidiary body” subject to FOIA.

The Appellate Court noted that determining whether a private organization is a subsidiary public body under FOIA requires application of the Illinois Supreme Court’s four-factor “subsidiary body” test. In this case, the Appellate Court found that the requestor had alleged in his complaint enough facts in support of Aurora Downtown being a subsidiary body of the City of Aurora to survive a motion to dismiss. Specifically, the requestor alleged that Aurora Downtown was created by a City of Aurora ordinance, which identified Aurora Downtown as a City agency, and that Aurora Downtown operated as an advisory body to the City in implementing certain City projects. The Appellate Court rejected Aurora Downtown's argument that it had an independent legal identity as a duly organized not-for-profit corporation, finding that this fact alone cannot establish that Aurora Downtown is not a subsidiary public body under FOIA, and therefore, this fact could not justify the trial court’s dismissal of this allegation. The Appellate Court sent it back to the circuit court for further proceedings.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, January 17, 2023

PAC Issues Binding Opinion Regarding Failure to Respond to FOIA

The Attorney General's Public Access Counselor (PAC) has released its first binding opinion for 2023. In PAC Op. 23-001, the PAC found a school district in violation of FOIA for failing to respond to a FOIA request. The requester had asked for records relating to teaching staff levels, including emails with certain key words. The requester subsequently filed an appeal with the PAC claiming that although the school district acknowledged receipt of the request, it did not provide the requested documents or provide a response to the request. It will come as no surprise that the PAC determined that the district's failure to respond was a violation of FOIA.

As we have noted before, these type of binding opinions do little to provide guidance to public bodies on how to apply particular exemptions, interpret other provisions of FOIA, or address novel issues that public bodies may encounter in responding to FOIA requests. Of course, these opinions remind public bodies of their obligations under FOIA, but there is nothing new here that hasn't already been said in numerous other binding opinions. 

Friday, January 13, 2023

City's Foreclosure Action Stands Where Petition for Relief Filed too Late

In Rockford v. Gilles, an Illinois Appellate Court dismissed a lawsuit filed by a property owner that challenged a City’s foreclosure of the owner’s property finding that he did not file his petition to vacate that foreclosure judgment within the required two year period.

Over the course of 13 years, the City recorded 20 special assessment liens against two vacant lots owned by Gilles, totaling $11,465. The City then brought an action to foreclose on the property for failure to pay the liens. The City made three failed attempts to serve Gilles personally and the trial court granted the City’s motion to serve notice by publication. After Gilles failed to appear after notice was published, the trial court entered an order of default against Gilles, including a judgment of foreclosure and a sale of the property.

More than two years later, Gilles filed a petition with the court for relief from the foreclosure and sale of property. State statute provides a process for filing a petition to vacate a final order or judgment but the petition must be filed within two years of the judgment being entered. Gilles argued that he should be allowed additional time because he never received actual notice of the foreclosure proceeding (he had moved to Colorado). Gilles also argued that due to the extraordinary circumstances of his case (the pandemic, his wife’s ailing health), the court should provide him with relief even though the two year period for vacating the judgment had passed. The trial court ruled in his favor and vacated the prior orders, finding that his lack of diligence in defending the underlying lawsuit was the result of excusable mistake and not negligence since he did not know his property was in foreclosure. The City appealed.

The Appellate Court overruled the trial court’s decision, finding that relief from the two year filing period is appropriate only if the “defendant has actively misled the plaintiff or if the plaintiff has been prevented from asserting his or her rights in some extraordinary way, or if the plaintiff has mistakenly asserted his or her rights in the wrong forum.” The Appellate Court did not find those circumstances to exist in this case, and reversed the trial court’s ruling in favor of the property owner.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Wednesday, January 11, 2023

Quorum Forum Podcast: Planning Law Cases of the Year

Ancel Glink's podcast, Quorum Forum, is out with a new episode called: Episode 68: Planning Law Cases of the Year.

In this episode, Ancel Glink’s David Silverman, Greg Jones, and Dan Bolin join the American Planning Association’s Planning Webcast Series to discuss some of their favorite planning law cases from 2022! 

What do you think the hottest legal issues in planning will be for 2023? Email us at podcast@ancelglink.com!

Tuesday, January 10, 2023

Bill Would Raise Tourism Revenues from Fee on Hotel Rates

There are a few bills that have been introduced in the recent Illinois General Assembly session that are worth watching, including a bill that would authorize hotel owners to petition local governments to create a tourism preservation and sustainability district by ordinance, after a public hearing process. If established, the district could impose a "transaction charge" in an amount equal to or less than 5% of the hotel room rate. The revenues would then be passed on to either a locally created and state-certified convention and visitors bureau or an existing nonprofit organized for tourism purposes. HB 268 (Senate Amendment 1) has passed the Illinois senate and has been sent to the Illinois house.

Monday, January 9, 2023

Seventh Circuit Upholds Digital Sign Ban Citing Recent Supreme Court Case

We have written a number of posts on Municipal Minute discussing the U.S. Supreme Court's rulings in cases challenging municipal sign codes under the First Amendment. In 2015, we reported on the Court's decision in Reed v. Gilbert that struck down the Town of Gilbert, Arizona's temporary sign regulations. The Reed case had subsequently been applied by a number of courts across the country in challenges to municipal sign regulations where sign companies and others made an argument that the challenged regulations treated signs differently based on content, even where a regulation appeared to target sign location (i.e., on-premises versus off-premises signage) rather than the content of the sign itself. 

In April of 2022, we reported on the U.S. Supreme Court's ruling in National Advertising of Austin v. Austin where the Court upheld a City of Austin, Texas ordinance that distinguished between on-premises and off-premises signs, finding that the locational regulation was more in the nature of a time, place, and manner restriction rather than a restriction on the content or message of the sign. The Court rejected the argument that if an official had to read the sign to determine whether it was on-premise or off-premise (i.e., a "need to read" regulation), then it was a content-based regulation, holding that this interpretation of Reed was too extreme. 

Just last week, the Seventh Circuit Court of Appeals (the federal appeals court covering Illinois and nearby states), issued a ruling in a billboard challenge consistent with the Austin case, upholding a Madison, Wisconsin ordinance that that prohibited digital billboard signs. In Adams Outdoor Advertising LP v. City of Madison, Wisconsin, the Seventh Circuit rejected the billboard company's argument that Reed should control the outcome of the case. Instead, the Seventh Circuit relied on the more recent ruling in the Austin case to uphold Madison's ban on digital off-premises signs as a content-neutral "time, place, or manner" regulation, finding that the regulation targeted the location of the sign, and not the content or message. The Seventh Circuit also noted that Madison's stated government interests in promoting traffic safety and preserving visual aesthetics were significant government interests to support Madison's digital sign ban. In sum, the Seventh Circuit rejected the billboard company's challenge to Madison's digital off-premises sign ban.

Friday, January 6, 2023

Court Reverses Pension Board’s Calculation of Benefits

In June 2013, the former fire chief of a fire protection district (District), and the District entered into a three-year employment contract that included a 3% annual salary adjustment. In August 2015, the chief was placed on paid administrative leave, and the District and the chief entered into a retirement agreement stating that the chief would continue to be on paid administrative leave until his deferred retirement date of January 4, 2016. 

In October 2017, the chief (now 50 years old) submitted an application for a retirement pension. In his application, he listed his last day of work as January 4, 2016 (his deferred retirement date after paid administrative leave) and his annual pensionable salary as $186,449 (including the employment contract’s 3% annual salary adjustment).  The Board of Trustees for the District (Board) submitted paperwork indicating that the chief's final date of service was August 20, 2015 (prior to the paid administrative leave) and that his annual salary was $181,200 (not including the 3% adjustment not included).

In August 2018, the Public Pension Division of the Illinois Department of Insurance (Department) provided an advisory opinion regarding the chief's pension calculation  pursuant to 40 ILCS 5/1A-106.  The Department opined that section 4-108(a) the Pension Code bars unpaid leave exceeding 30 days from being included in creditable service. Since the statute does not address how to treat paid leave, the Department found it would “be reasonable that a paid leave of absence would count toward creditable service.” However, the Department concluded that the chief was not a “firefighter” during his paid administrative leave, meaning that the retirement agreement voided the chief's earlier employment contract, including the provision regarding the 3% annual salary adjustment.  As a result, the Department concluded that the chief's pension should be calculated based on his salary on August 21, 2015. 

In May 2019, the Board entered a written decision relying on the Department’s advisory opinion and awarded pension benefits without the 3% salary increase or taking into account any creditable service for the period of paid leave. The chief filed a complaint for administrative review, and the circuit court upheld the Board’s decision.

On appeal, the Appellate Court reversed the Board’s decision and ruled in favor of the chief. Brucki v. Orland Fire Protection DistrictThe Appellate Court first noted that the Department’s advisory opinion was of limited value, and was not binding on the court. Next, the Court determined that the Department’s interpretation of “firefighter” was too restrictive and contrary to the principle that the provisions governing firefighter's pensions must be liberally constructed in favor of the applicant.  In addition, the Court held that the 2015 retirement agreement did not negate the 2013 employment contract because the chief's final paycheck (dated January 11, 2016) included the 3% adjustment, and the final payments to the chief for unused sick and vacation days was calculated based on the 3% adjustment. 

The Appellate Court concluded that a mistake had been made in the pension calculation and instructed the Board to award pension benefits to the chief based on a final date of service of January 4, 2016 and an annual salary amount that includes the 3% adjustment. 

Post authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink

Thursday, January 5, 2023

Court Finds that Pension Code Does Not Require In Person Medical Examinations

In July 2020, a firefighter applied for an occupational disease pension, claiming that a stroke prevented him from performing normal work activity. The Pension Board selected three physicians to submit written medical opinions based upon the firefighter's medical records. The Pension Board conducted a hearing on the pension application and awarded an occupational disease disability pension to the firefighter. that Melton was disabled for service as a firefighter.  

The City appealed the Pension Board's award, arguing that the Pension Board's decision should be reversed on several bases, including that the three physicians selected by the Pension Board were required to have examined the firefighter in person as opposed to having provided opinions based solely on the applicant's medical records.  Section 4-112 of the Pension Code states, in part:

A disability pension shall not be paid until disability has been established by the board of examinations of the firefighter at pension fund expense by 3 physicians selected by the board and such other evidence as the board deems necessary.” 40 ILCS 5/4-112. 

The City argued that the selected physicians performed “only half their duties,” where they issued reports without first conducting in-person examinations. The Pension Board responded that conducting further in-person exams would only needlessly increase the cost of the hearing and delay its resolution. The trial court upheld the Pension Board's decision finding nothing in section 4-112 that precluded the physicians from reaching their opinions based on the firefighter’s medical records alone. 

The Appellate Court upheld the Pension Board's award in City of East Peoria v. Melton, holding that the plain language of Section 4-112 of the Pension Code does not require that the examination of the firefighter be in-person or that the applicant be subject to a physical examination, and the Court refused to read any such requirement into the statute. 

Post authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink

Wednesday, January 4, 2023

Court Finds Tax Map Files Exempt from FOIA

In 2021, a commercial requestor submitted a FOIA request to a County seeking a copy of the most recent county tax map file maintained by the County in accordance with section 9-35 of the Property Tax Code for all parcels in the County. The County denied the FOIA request citing exemption 7(1)(i), which exempts, in relevant part, the following: 

[v]aluable formulae, computer geographic systems, designs, drawings and research data obtained or produced by any public body when disclosure could reasonably be expected to produce private gain or public loss. 

In its denial letter, the County stated that because the requested tax maps constituted computer geographic systems data that, if disclosed, could reasonably be expected to result in private gain or public loss. 

The requestor then filed a lawsuit against the County alleging that it violated FOIA when it denied the request. The trial court ruled in favor of the County, finding that (1) the requested tax maps were stored in a "shapefile format" that qualified under FOIA exemption 7(1)(i) and (2) the County’s previous voluntary disclosure of the requested records did not waive the County’s ability to invoke exemption 7(1)(i). 

On appeal, the Appellate Court upheld the trial court's ruling in favor of the County in Hurlbert v. Edmonds. The Appellate Court determined that because the county tax maps were part of a computerized geographic system and disclosure of these records was reasonably expected to produce a private gain to the requestor, the County properly denied release of the records under FOIA exemption 7(1)(i). 

The Appellate Court also rejected the requestor’s argument that the County waived the ability to assert the exemption because it had previously produced the GIS data in various formats to the requestor and others, The court noted that individuals had obtained the data previously pursuant to a licensing agreement with the County that required payment of a fee and prohibited the reproduction or redistribution of the data. The court determined that with payment of a user fee, no private gain or public loss would result from disclosure of GIS data under a licensing agreement, which the Court distinguished from disclosure pursuant to a FOIA request.

Post Authored by Eugene Bolotnikov, Ancel Glink