Federal Court Tackles First Amendment Challenge to University’s Public Comment Procedures

Federal Court Tackles First Amendment Challenge to University’s Public Comment Procedures

  Thursday, June 01, 2023    Julie Tappendorf

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Recently, a federal district court denied a university's motion to dismiss a First Amendment lawsuit brought by union members. SEIU Local 73 v. Board of Trustees of the University of Illinois.

In early 2022, three SEIU Local 73 Union members (who also sat on the Union’s bargaining committee) sought prior permission to speak during the public comment period of the upcoming University Board of Trustees (Board) meeting. Each member noted on their request that they planned to address the Board regarding collective bargaining and labor relations at the University. The Board denied their request to speak based on its public comment procedures which prohibit presentations on “issues under negotiation as part of the University’s collective bargaining process.” The Union and its three members then sued the Board, claiming its policy violated its free speech rights under the First Amendment, and the University filed a motion to dismiss the lawsuit.

The district court first engaged in a "forum analysis," which is a common first step in assessing First Amendment claims brought against government bodies when they restrict speech in public places. The Union argued that the Board meeting should be considered a “designated public forum,” which means it would be a forum held open for speech during certain times with little to no restrictions on the speech. The Board argued that the meeting was a “limited public forum,” meaning it was open for speech on a selective basis and only for a distinct purpose. The district court determined that the Board meeting was a limited public forum based on the numerous rules and procedures governing public comment: members of the public are required to seek advance permission to participate, have a limited time to address the Board, and may only speak on matters which the Board has authority to address. Additionally, the Board had specific restrictions on comments addressing particular topics―including matters falling under collective bargaining negotiations. Because it was a limited public forum, the court noted that the restrictions imposed by the Board were subject to a less stringent review than under a designated public forum.

Next, the Court found that because it was a limited public forum, the Board could constitutionally impose reasonable restrictions on speech during public comment, so long as it did not discriminate against speakers based on their viewpoint. The Union argued that the Board's policy prohibiting all labor-related speech was unreasonable so their First Amendment claim should not be dismissed. The University, on the other hand, argued that its policy was reasonably drafted to avoid a violation of Illinois labor laws, which require that all collective bargaining be done with a union’s chosen exclusive representative.

On this issue, the court agreed with the Union and determined that its claim should not be dismissed. It distinguished collective bargaining procedures from comments made during a public meeting, noting that “merely listening” to unioni employees during public comment does not constitute bargaining or unlawful direct dealing. Because the meeting was held open to the public, the court determined there was minimal risk that an unauthorized "agreement" would be formed between the union members who spoke during public comment and the Board. The court also noted that the Board was not obligated to respond to the comments made during public comment, which further limited the risk of direct dealing. As a result, the court denied the University’s motion to dismiss the Union’s First Amendment claim, and the case will continue through litigation.

The Court made it clear that its opinion should be interpreted narrowly, based on the unique restrictions that the University adopted on public comment at its Board meetings. However, forum analysis applies equally to local government meetings, and readers should be aware that Free Speech rights may be implicated when public comment is restricted.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink 

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Illinois General Assembly Spring Session Ends

Illinois General Assembly Spring Session Ends

  Wednesday, May 31, 2023    Julie Tappendorf

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The Illinois General Assembly adjourned its spring session over the weekend. Before the session ended, the General Assembly acted on a few bills of interest to local governments. We have summarized a few of these below for informational purposes but note that these bills have not been enacted and are awaiting Governor action. We will report on a few other bills of interest over the next couple of weeks and provide updates if these bills become law.

Affordable Housing Planning and Appeal Act (SB 1476)

We previously reported on this bill that proposed certain changes to the AHPAA. Note that the version that passed the Illinois Senate and House is substantially different than what was originally introduced. The version that passed both houses would retain the current definition of an "exempt" municipality as a municipality that has at least 10% of its housing stock as "affordable" or a municipality with a population of less than 1,000. The bill does modify the reporting requirements for non-exempt municipalities, including a new requirement that non-exempt municipalities submit a report of their progress to the Illinois Housing Development Authority no later than 4 years after adopting or updating their plans. The bill also includes a requirement that plans include a proposed timeline of actions for implementation, and a summary of actions already taken. The bill also modifies the appeals process for developers.

Law Enforcement Drone Surveillance (HB 3902)

If signed by the Governor, this bill would modify the "Freedom from Drone Surveillance Act" to authorize law enforcement agencies to conduct drone surveillance of parades, races and other "routed events," and certain outdoor special events hosted by a unit of local government. The bill would not allow use of drones for protests, marches, demonstrations, or other First Amendment protected activities. The bill includes detailed regulations regarding law enforcement use of drones and requires law enforcement agencies using drones under these provisions to adopt a policy consistent with the bill. 

Amusement Taxes (HB 3808)

If this bill is signed by the Governor, it would expressly exempt Internet streaming services from cable/video franchise fees.

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U.S. Supreme Court Adopts New Test for Wetlands Subject to Clean Water Act

U.S. Supreme Court Adopts New Test for Wetlands Subject to Clean Water Act

  Tuesday, May 30, 2023    Julie Tappendorf

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The U.S. Supreme Court is always busy at the end of its term issuing opinions in some of the more high profile cases. Last week, we reported on the Fifth Amendment Takings Clause case where a county had retained surplus foreclosure revenues above and beyond the debt owed to the county. Today, we report on another case where the Court ruled in favor of landowners against government regulation. Sackett v. U.S.

The Sacketts owned property in Idaho on which they planned to build a home. While they were backfilling the property to get it ready for construction, the EPA issued a stop work order because the EPA argued that their backfilling activities violated the Clean Water Act because the Act prohibits discharging pollutants into the "waters of the United States." The Sacketts sued, arguing that the wetlands on their property were not "waters of the United States." The district court and Ninth Circuit Court of Appeals ruled in favor of the EPA, and the Sacketts appealed to the U.S. Supreme Court. 

The U.S. Supreme Court rejected the EPA's argument, and ruled in favor of the Sacketts. First, the Court held that the Clean Water Act applies to waters that constitute "streams, oceans, rivers, and lakes" and only those adjacent wetlands that are "indistinguishable" from these bodies of water. In order to assert jurisdiction over a wetland, the Court said that the EPA has to establish that the wetland constitutes "waters of the United States" and that the wetland has a "continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins." 

The Supreme Court's opinion in Sackett establishes a new, stricter test for determining whether the Clean Water Act applies to a wetland, and wetlands that are entirely separate from traditional bodies of water would no longer qualify. Applying the Court's new test to the wetland on the Sacketts' property, the court determined that the Sacketts' wetland was "distinguishable from any possibly covered waters," and as a result was not covered by the Clean Water Act.

There were a number of concurring opinions in this case, including a concurrence authored by Justice Kavanaugh and joined by Justices Sotomayor, Kagan, and Jackson. They agreed that the Clean Water Act did not apply to the Sacketts' wetlands but would have adopted a more expansive test that would apply the Clean Water Act to wetlands that are either (1) next to a larger body of water or (2) separated from a body of water by a man-made or natural barrier. They also stated that the Court's new test was "sufficiently novel and vague" so as to create regulatory uncertainty.

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Homeowner Brought Plausible Takings Case against County that Retained Excess Foreclosure Funds

Homeowner Brought Plausible Takings Case against County that Retained Excess Foreclosure Funds

  Thursday, May 25, 2023    Julie Tappendorf

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Today, the U.S. Supreme Court issued a unanimous opinion holding that a homeowner had stated a plausible claim against a county under the Takings Clause of the Fifth Amendment to the U.S. Constitution after the county foreclosed and sold the home and retained the sale funds in excess of the tax debt. Tyler v. Hennepin County.

According to the opinion, the county imposes a real estate tax on property within the county and if the tax isn't timely paid, the county obtains a judgement against the property, which temporarily transfers title to the state. If the property is not redeemed within a three year period, the property is sold and the proceeds pay off any tax debt with the excess sale funds being split between the county, town, and school district.

In this case, the 94 year old owner of a condo failed to pay her property taxes after she moved to a senior community. The condo was seized by the county and sold for $40,000. $15,000 of the sale proceeds went to pay off the tax debt and the county kept the remainder. The homeowner filed a lawsuit against the county claiming its retention of the excess value of her home was an unconstitutional taking of her property in violation of the Fifth Amendment and also violated the excessive fines clause of the Eighth Amendment. The county filed a motion to dismiss the lawsuit, which was granted by the district court and upheld on appeal to the court of appeals.

On appeal to the U.S. Supreme Court, the Court first analyzed whether the remaining value after the sale of the foreclosed property constituted "property" under the Fifth Amendment's takings clause. The Court said the answer to this question was yes, under a principle the Court traced back to the Magna Carta that a government cannot "take more from a taxpayer than she owes." The Court concluded that the homeowner had plausibly alleged a taking where the county retained the excess sale revenues, and reversed the court's dismissal of her claims against the county. The Court did not decide the excessive fines claim.

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Annexation Agreement Binds Successor Owners of Portion of Undeveloped Land in Subdivision

Annexation Agreement Binds Successor Owners of Portion of Undeveloped Land in Subdivision

  Tuesday, May 23, 2023    Julie Tappendorf

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The Illinois Supreme Court ruled in favor of a municipality in a motion to dismiss its lawsuit that alleged that a successor owner breached an annexation agreement between the municipality and a successor owner. Village of Kirkland v. Kirkland Properties Holdings Co., LLC. We wrote about the Appellate Court ruling in this case last year which also had ruled in favor of the municipality here.

The Village had filed a lawsuit against the successor owner of a portion of land that had been annexed and approved for a subdivision claiming that the successor owner (who had purchased an undeveloped portion of the subdivision) refused to provide a letter of credit to secure the completion of roads within the subdivision. The successor owner argued that the annexation agreement did not apply to the successor owner because it had only purchased a portion of the land subject to annexation. The trial court agreed with the owner and dismissed the municipality's lawsuit. On appeal, the Appellate Court reversed, ruling that the municipality's case could proceed. The successor owner appealed to the Illinois Supreme Court, which also ruled in the municipality's favor.

The Illinois Supreme Court first looked at the language in the annexation agreement itself, noting that it contained express language requiring the posting of a letter of credit to secure completion of all public improvements, including subdivision roads. The Court also noted that the annexation agreement had been recorded against the property, and included specific language that it would "run with the land" and apply to successor landowners. The Court pointed to language in Section 11-15.-4 of the Illinois Municipal Code that states that annexation agreements are "binding upon the successor owners of record of the land which is the subject of the agreement..." as legislative intent that the rights and obligations in an annexation agreement will bind future owners. The Court rejected the successor owner's argument that only a successor owner of all of the land would be bound by the agreement. Finally, the Court held that language in the annexation agreement contemplated a "phased" development where improvements would be constructed as phases of the subdivision were constructed, and it was reasonable for the municipality to require the developer to post security for phased improvements as each phase proceeded. 

In sum, the Court held that the municipality had sufficiently pleaded that the successor owner was bound by the terms of the annexation agreement and remanded the case back to the circuit court to allow the municipality's case against the owner to proceed.

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File Layouts in City Database System Expressly Exempt From FOIA

File Layouts in City Database System Expressly Exempt From FOIA

  Monday, May 22, 2023    Julie Tappendorf

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The Illinois Supreme Court recently ruled in favor of a public body in a FOIA challenge involving a request for city's database system records used for enforcing parking, red-light, and speed-camera tickets. Chapman v. Chicago Department of Finance. The city had denied the request, citing section 7(1)(o) of FOIA which exempts the following:

Administrative or technical information associated with automated data processing operations, including but not limited to software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals, and any other information that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under this Section.

The circuit court ruled in the city's favor but the Appellate Court reversed and ordered the city to provide the records to the requester. On appeal to the Illinois Supreme Court, the city argued that release of this data in the form of the file layout of the database system could jeopardize the security of the city's systems by providing detailed information that could facilitate cyber-attacks. The city also argued that the exemption in section 7(1)(o) established a "per se" exemption for file layouts and that there was no requirement to establish harm.

The Illinois Supreme Court agreed with the city, finding that section 7(1)(o) squarely applied to the FOIA request and supported the city's denial. The Court determined that the inclusion of 10 specific items in 7(1)(o) demonstrated an intent by the legislature that these items be expressly exempt from disclosure because there was a presumption of harm - in other words, the public body did not have to demonstrate that release would jeopardize the security of its system because it was presumed it would. The Court concluded that section 7(1)(o) provides a "narrow and reasonable exemption to protect" a government's automated data processing systems at risk of unnecessary harm, especially from the harm threatened by cyberattacks. As a result, the Court upheld the city's denial of the FOIA request finding that the file layouts were expressly exempt from FOIA.

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City Council Emails Do Not Trigger a Meeting Under OMA

City Council Emails Do Not Trigger a Meeting Under OMA

  Friday, May 19, 2023    Julie Tappendorf

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In another advisory opinion, the PAC found no OMA violation where members of a city council emailed about city business because the emails were neither "contemporaneous" or "interactive" communications between a majority of a quorum of the public body. 2023 PAC 76462 and 46463. This same PAC opinion also found no violation where a majority of a quorum attended a campaign event (similar to yesterday's opinion).

The PAC reviewed the emails that were the subject of the request for review to determine whether they were a "contemporaneous" and "interactive" communication between a majority of a quorum of the city council that would trigger a meeting. The PAC noted that it has previously determined that in order to be considered "contemporaneous," the communications must occur in the same general time frame, and that emails sent over a period of hours or days are usually not contemporaneous. The PAC also noted that the communications must be interactive and a single email from one member to other members would generally not violate the OMA unless other members responded.

The first email exchange involved two council members in which the first email was sent and the second email responded to that initial email within 15 minutes. The PAC determined that although the second email was contemporaneous and interactive, because it only involved two council members, it did not trigger a "meeting" since a majority of a quorum of the council was three members. The third email was from a third council member to the other two council members after he had been forwarded a copy of the other emails by a resident. The PAC found that this third email also did not trigger a meeting because it was not contemporaneous or interactive since it was sent three days after the first two emails and nobody responded to the third email. The last email consisted of a council member forwarding an email from the public to two other council members with no response, which the PAC also determined was not "interactive" under the OMA. In short, none of the questioned emails triggered a meeting under the OMA.

With respect to the campaign event, the PAC found that although a majority of a quorum attended the campaign event, there was no evidence presented by the individual who filed the request for review that the members engaged in discussions about city business that would have transformed a political event into a "meeting" under the OMA. The PAC relied on the same legal analysis as in its opinion that we reported on yesterday, including that a gathering will not constitute a "meeting" under the OMA where there is no "examining or weighing of reasons for or against a course of action, no exchange of facts preliminary to a decision, no attempt to reach accord on a specific matter of public business. 

In sum, the PAC found no violation of the OMA in either the email exchanges nor the attendance by a majority of a quorum at the campaign event.

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PAC Finds No OMA Violation at Political Gathering

PAC Finds No OMA Violation at Political Gathering

  Thursday, May 18, 2023    Julie Tappendorf

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When we become aware of an advisory PAC opinion that can provide helpful guidance to government officials and employees, we like to report on those opinions and today's opinion is a good example.

In 2023 PAC 76532, an individual filed a request for review claiming a city council violated the OMA because a majority of a quorum of the city council attended a campaign event where they allegedly discussed city business.

The PAC first noted that the Illinois Supreme Court has held that the OMA is not "intended to prohibit bona fide social gatherings of public officials, or truly political meetings at which party business is discussed." Instead, the OMA is designed to "prohibit secret deliberation and action on business which properly should be discussed in a public forum due to its potential impact on the public." The PAC also cited to a federal court case stating that a "gathering" will not constitute a meeting under the OMA when there is "no examining or weighing of reasons for or against a course of action, no exchange of facts preliminary to a decision, no attempt to reach accord on a specific matter of public business."

Applying these court cases and their opinions here, the PAC determined that the request for review did not contain sufficient factual allegations to support an OMA violation. First, the PAC acknowledged that although members of a public body attending a campaign or political party gathering could convene a meeting if they discussed public business as a group "with the intent to reach an accord," in this situation, there was no evidence that the city council members who attended this political event "engaged in deliberative discussions of public business amongst themselves." Second, the PAC stated that campaign fundraisers where statements are made in favor of candidates and political positions are unlikely to trigger the OMA even where a majority of a quorum of the public body is in attendance. Without any evidence of actual discussion of city business as a group at the campaign event, the PAC concluded that no further action was warranted and closed out the request for review.

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Quorum Forum Ep. 72: New Employment Laws

Quorum Forum Ep. 72: New Employment Laws

  Wednesday, May 10, 2023    Julie Tappendorf

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Ancel Glink has released a new episode of its Quorum Forum podcast - Episode 72: New Employment Laws

We’re celebrating five years of the Quorum Forum podcast with Ancel Glink’s Amber Samuelson and the Municipal Clerks of Illinois! Amber and the clerks discuss new employment laws regarding paid leave, bereavement leave, and protections for natural hair. 

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Library Fails to Respond to FOIA Request in PAC Opinion

Library Fails to Respond to FOIA Request in PAC Opinion

  Tuesday, May 09, 2023    Julie Tappendorf

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Last week, the PAC issued its sixth binding opinion on 2023 finding a public body in violation of FOIA for failing to respond to a FOIA request. PAC Op. 23-006.

In December, 2022, a reporter filed a FOIA request with a public library for correspondence between the library and Justice Sotomayer's staff about a visit to the library. The library acknowledged it received the FOIA request but did not respond or provide responsive records. The reporter then filed a request for review with the PAC office of the Attorney General. Since the library did not substantively respond to the PAC's request for review nor did it provide responsive records to the requester, the PAC issued a binding opinion finding the library in violation of FOIA.

Nothing newsworthy here, just a reminder to public bodies that they need to comply with FOIA.

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Appellate Court Interprets "Average Salary" Calculation in Demoted Sergeant's Application for Pension

Appellate Court Interprets "Average Salary" Calculation in Demoted Sergeant's Application for Pension

  Monday, May 08, 2023    Julie Tappendorf

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An Illinois Appellate Court issued a ruling interpreting a provision in the Illinois Pension Code regarding the calculation of the "average" salary for purposes of determining the pension benefit amount. City of East Peoria v. Board of Trustees of Police Pension Fund.

A former police sergeant resigned his position in October of 2020 and requested that his pension benefits be "determined by the highest rate of pay within the last year." The prior September, he had been promoted to deputy chief but returned to the position of sergeant in December of 2019. The Pension Board approved his pension benefits, and calculated the amount based on his former rank of deputy chief. After the City filed a complaint to challenge the Pension Board's decision, the Pension Board held a second hearing, and reapproved the previous request that the sergeant's pension benefits be calculated based on his former rank of deputy chief. The Board reasoned that section 3-111(a) of the Pension Code protected against a diminishment in pension benefits for an officer who was demoted within a year of retirement.

The City again appealed to the circuit court, which upheld the Pension Board's determination. The City then appealed to the Appellate Court. The sole issue before the Appellate Court was whether the Pension Board misinterpreted section 3-111(a) of the Pension Code when it granted the sergeant a pension benefit based solely on the salary attached to the rank of deputy chief. 

The City argued that the Pension Code requires the pension benefits to be calculated based on the greater of (1) the salary attached to the rank held on the last day of service or (2) the salary received during the one year period prior to the last day of service. Here, the City argued the Pension Board should have calculated the pension benefits based on the latter method and averaged the monthly salary over the past year to come up with the pension benefit amount. 

The Pension Board and the former sergeant argued that section 3-111(a) requires a different calculation in a situation where an officer was demoted in the year prior to retirement. In this case, the Board argued that his pension benefits should be based solely on the salary attached to the highest rank earned during the last year of employment.

The Appellate Court rejected both arguments, instead finding that in a situation involving a demotion within the last year, the Pension Code permits a retiring officer's pension to be based on half of the salary attached to the combined rank held by the officer for one year prior to retirement. The Court rejected the City's argument of a "monthly average" method of calculation, finding it would not account for the full scope of longevity adjustment. The Court also rejected the Board's finding that the former sergeant was entitled to a pension based solely on the rank of deputy chief, which he only held for three of the last 12 months, because it didn't take into account the fact that the sergeant had been demoted.

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Appellate Court Lifts Preliminary Injunction Requiring Businesses Without Licenses to Close

Appellate Court Lifts Preliminary Injunction Requiring Businesses Without Licenses to Close

  Tuesday, May 02, 2023    Julie Tappendorf

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In a recent case, the Illinois Appellate Court lifted the trial court's injunction that closed three businesses for failure to comply with a municipal business licensing ordinance. Riverdale v. American Transloading Services, et al.

A municipality enacted an ordinance to authorize it to deny a business license if the business had any outstanding village fines, taxes, or property taxes, with an exemption for businesses that made a down payment to the municipality and entered into a payment plan with the county on deliquent property taxes. In 2019, the municipality refused to renew three businesses' licenses because they were past due on their property taxes. The businesses continued to operate their businesses without a license and the municipality filed lawsuits asking the court to issue an injunction to force the businesses to cease operations without a license. The businesses countersued claiming the ordinance was unconstitutional. 

The trial court first ruled that the exemption was unconstitutional because it encroached on county authority to collect property taxes. However, the trial court upheld the remainder of the ordinance finding it was a valid exercise of the municipality's home rule powers, and issued a preliminary injunction against businesses operations while the remainder of the case continued.

The businesses appealed, and the Appellate Court lifted the injunctions, finding that the municipality did not meet the requirements for preliminary injunctive relief. Specifically, the Court held that the trial court failed to balance the "equities and relative hardships" of the parties, and the Village failed to show it would suffer more harm without a preliminary injunction than the businesses would suffer if the injunction were granted. The Court recognized that the municipality's government interest in enforcing its ordinance was legitimate, and that it could ultimately prevail in the remainder of the case. However, the Court concluded that issuance of the preliminary injunction would cause irreparable loss to the businesses by requiring them to close for the remainder of the lawsuit that outweighed the municipality's interest. The Appellate Court did not weigh in on the challenge to the ordinance itself, leaving that to the trial court to resolve.

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