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Tuesday, January 31, 2012

Party Can Waive Rights under Anti-SLAPP Statute

In Johannesen v. Eddins, 2011 IL App (2d) 110108, an Illinois appellate court overturned the trial court’s dismissal of a lawsuit and remanded the case to determine whether a party had waived his rights under the anti-SLAPP law (the Citizen Participation Act) when he verbally agreed to support his neighbor's variation application.

Plaintiff sought to build a new home next to defendant’s property.  Defendant requested that the plaintiff shift the proposed home further away from defendant’s property, creating the need for a corner side yard variation.  Plaintiff agreed to accommodate defendant’s request; in exchange, defendant orally agreed that he would support the owners’ application for a corner side yard variance. Plaintiff filed a variation application, and defendant signed the application as a “nominal applicant.”

During and after the ZBA’s consideration of plaintiff’s’ application, defendant allegedly engaged in a series of ex parte communications with the village manager, to urge the recalculation of plaintiff’s front setback requirement. The village manager issued a determination letter recalculating the front setback requirement.  That recalculation meant plaintiff could no longer construct his proposed home. Plaintiff appealed the manager’s determination, and defendant publicly opposed plaintiff’s appeal. The village ultimately granted less intense variations, and plaintiff had to redesign a smaller home, in a significantly different location.   

Plaintiff sued defendant, claiming he breached his oral promise to forego any challenge to the village’s front setback calculation.  Defendant filed a motion to dismiss under Illinois’ anti-SLAPP statute, the Citizen Participation Act.  That statute protects a citizen’s right to public participation, and authorizes a party to file a motion to dismiss a lawsuit on the grounds that the suit is based on defendant’s actions in furtherance of his or her First Amendment rights of petition, speech, association, or to otherwise participate in government.

On appeal, plaintiff argued that defendant waived his First Amendment rights when he entered into an oral agreement to support the corner side yard variation and forego any challenge to the village’s front setback calculation. The appellate court found that the trial court failed to consider plaintiff’s argument, and that it was improper to dismiss plaintiff’s lawsuit because actual testimony was necessary to establish the terms of the alleged oral agreement and the extent of any waiver by defendant. The court noted that a party may waive rights under the statute based on a preexisting legal relationship, like a contract or settlement agreement.

Post authored by Dan Bolin, Ancel Glink.

Monday, January 30, 2012

Non-Home Rule Municipality Can Prohibit Oil and Gas Drilling

An Illinois appellate court recently held that the City of Carlyle, a non-home rule municipality, has the authority to prohibit the drilling of oil within the City’s boundaries.  Tri-Power Resources, Inc. v. City of Carlyle, 2012 IL App (5th) 110075.

TriPower had leased mineral interests in a 67-acre parcel of land in unincorporated Clinton County and had obtained a permit to drill for oil on the property from the Illinois Department of Natural Resources (IDNR).  The City subsequently annexed the property, which was automatically zoned into a residential zoning district.  The City’s zoning code prohibits the drilling of oil on residentially zoned property.  TriPower sued the City, claiming that the City was preempted from prohibiting the oil drilling on the property by the Illinois Oil and Gas Act.  

The appellate court first addressed the issue of the City’s authority to prohibit the drilling activities, finding that a non-home rule municipality is limited to “those powers specifically conveyed by the constitution or by statute.”  The Illinois Municipal Code authorizes municipalities to control the use of property through its zoning authority.  Although the City’s zoning code did not expressly prohibit (or permit as a by-right or special use) the drilling or operation of gas/oil wells, the court determined that these uses were deemed prohibited by exclusion.”  In addition, the court noted that Section 11-56-1 of the Illinois Municipal Code provides that local municipal governments “may grant permits to mine oil or gas.”  In other words, the City had express statutory authority to regulate, and even prohibit, oil drilling within its borders.

Next, the appellate court addressed TriPower’s argument that the Illinois Oil and Gas Act preempts municipalities from prohibiting drilling activities that are permitted by the IDNR.  The court noted that the Oil and Gas Act authorizes the Department to issue drilling permits, but only upon receipt of official consent of the relevant municipality.  The court concluded that the plain meaning of this statutory provision is to authorize municipalities to prevent the IDNR from issuing a permit for activities to occur within municipal limits.  

Thanks to Patty Salkin for the case summary on her blog, Law of the Land.

Friday, January 27, 2012

Village Officials Must Accept Personal Delivery of FOIA Requests

Yesterday, the Illinois Attorney General issued a binding opinion finding a municipality in violation of the Freedom of Information Act because a village president refused to accept personal delivery of a FOIA request.  The Village had recently adopted a policy requiring all FOIA requests to be made by mail only.  Notwithstanding the village policy, the requester hand-delivered a FOIA request to the village president at a board meeting.  The village president denied the request, citing the new village policy, and the requester filed a complaint with the AG. 

According to the opinion, the requester had frequently hand-delivered FOIA requests to individual board members because the village did not have office hours and mail was not regularly picked up.  The requester admitted that he had, on occasion, hand-delivered FOIA requests to board members on private property and on public streets. 

The AG looked to Section 3(c) of the Act that provides that FOIA requests “may be submitted to a public body via personal delivery, mail, telefax, or other means available to the public body.”  Based on this language, the village could not adopt a policy refusing to accept hand-delivered FOIA requests.  The AG did acknowledge that the opinion did not mean that personal delivery at any time or place is acceptable.  Specifically, the opinion did not mean a “village officer” would be obligated to accept delivery of a FOIA request during a chance encounter on the sidewalk, or at his or her private residence or place of business. 

Nevertheless, based on this opinion and other recent opinions, the AG continues to interpret “public body” to include individual members of a public body.  The plain language of the statute, however, defines “public body” as the corporate bodies themselves and members of those bodies are not included within the scope of the definition.  See Section 2(a) of FOIA (reprinted below).  Moreover, it is not clear how far the AG’s interpretation would extend beyond members of the corporate authorities (i.e., president and trustees in this case) – in other words, would the AG’s definition of “public body” also include other village officers or even employees?  At least with respect to whether text messages of public officials and employees on private devices are subject to FOIA, the answer is yes.  Whether any public official or employee (public works employee, police officer, or other public employee or official) must accept personal delivery of a FOIA request is not so clear.

 Sec. 2. Definitions. As used in this Act:
    (a) "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 including but not limited to committees and subcommittees thereof, and a School Finance Authority created under Article 1E of the School Code. "Public body" does not include a child death review team or the Illinois Child Death Review Teams Executive Council established under the Child Death Review Team Act.

Post Authored by Julie Tappendorf, Ancel Glink.

Thursday, January 26, 2012

Rental Inspection Ordinance Found Unconstitutional

A New York Appellate Court recently found a local ordinance requiring an inspection and rental occupancy permit prior to occupancy of rental units unconstitutional.  ATM One, LLC v. Incorporated Village of Hempstead.  The Court determined that the ordinance exceeded the village’s authority by conditioning an owner’s ability to engage in the business of renting his or her own property on the owner’s forced consent to forego constitutional rights.  The court also found the ordinance unconstitutional because it authorizes a warrantless inspection of residential real property. 

Post authored by Julie Tappendorf, Ancel Glink.

Tuesday, January 24, 2012

Out-of-State Adult Businesses Can Be Used to Satisfy “Alternative Avenues of Communication”

The New Jersey Supreme Court recently addressed the question whether a court can consider the availability of “alternative channels of communication” in another state as part of its determination of an as-applied challenge to the state law limiting the places where sexually-oriented businesses may operate.  In Borough of Sayreville v. 35 Club, L.L.C., No. A-66-10, (N.J. Sup. Ct., January 19, 2012), the court answered yes, finding that a municipality can consider not only the “neighboring communities” that lie within a state’s borders, but also consider “neighboring communities” beyond those borders.  

In November 2007, 35 Club L.L.C. began operating a business called “XXXV Gentlemen’s Club” in the Borough of Sayreville. The business has been described as an “all-nude gentlemen’s cabaret” and falls within the statutory definition of a sexually-oriented business.  Shortly after the business opened, the Borough of Sayreville sued the business to permanently enjoin it from operating at that location because state law prohibits the operation of a sexually-oriented business within 1,000 feet of a public park or residential zone.

The court first acknowledged that adult-oriented forms of expression are entitled to the protections afforded by the First Amendment.  The court noted that the U.S. Supreme Court has considered challenges to ordinances that regulate the locations where businesses of this type may be conducted through the creation of buffer zones and has upheld these ordinances as consistent with the protections afforded by the First Amendment. The court cited the Supreme Court’s decision in City of Renton v. Playtime Theatres for the conclusion that locational restrictions are content-neutral because they do not prohibit these businesses, but instead are “designed to prevent crime, protect the city’s retail trade, [and] maintain property values,” thereby aiming to preserve quality of life in the communities that adopt them.  

The question the New Jersey court wrestled with was whether enforcing the state's locational restrictions would allow for reasonable alternative avenues of communication. The statute at issue requires a 1,000-foot buffer between a sexually-oriented business and certain sites including schools, public parks, and places of worship.  The court noted that there were a number of reasons why the state looked at the regional market in determining whether there are alternative avenues of communication available.  First, it might be more convenient for a patron to travel a few minutes into New York or Pennsylvania than to travel twenty minutes away to Newark or Elizabeth.   Second, the court recognized that patrons of these adult businesses often travel to other states to access this sort of entertainment. Third, the court noted that prohibiting any consideration of locations in nearby states would result in unequal treatment among municipalities.  Finally, the court rejected 35 Club’s argument that courts should not consider sites beyond state borders because the operators of these businesses have no voice in municipal government of neighboring states, finding that this argument ignores the fact that these businesses have no more voice in municipal governments within the state.

Post authored by Julie Tappendorf, Ancel Glink.

Monday, January 23, 2012

Public Entities Must Adopt Reasonable Accommodation Policies for Disabled Persons

Recent changes to the Americans with Disabilities Act and the Rehabilitation Act require a public entity to adopt policies related to the use of mobility assistance devices and the use of service animals as reasonable accommodations for individuals with disabilities.
The regulations interpreting Title II of the ADA prohibit discrimination in program accessibility:

[N]o qualified individual with a disability shall, because a public entity=s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity. 28 C.F.R. '35.149. 

The regulations also provide for program accessibility in existing facilities:

A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. 28 C.F.R. '35.150(a). 
For people who require assistance in the form of mobility devices or service animals, the adoption and implementation of policies that make a public entity’s services, programs and activities more inclusive help meet the obligations of the Act. 

In putting together these policies, a public entity should make sure that any exclusion of either type of accommodation is based on a particular set of facts after weighing the risks arising from those facts.  Generalized fears of potential risks are not an adequate basis for failing to provide a reasonable accommodation.  In addition, the policies should provide the public entity with some discretion to use common sense to prevent injuries when there is a direct threat to the safety of patrons.

Post Authored by Adam Simon, Ancel Glink

Friday, January 20, 2012

School Districts are Subject to Municipal Zoning

The issue of whether school districts must comply with municipal zoning ordinances has been a subject of debate between the districts and municipalities for some time.  Under Illinois law, school districts are not subject to local building codes, and instead must follow the building regulations contained in the Illinois School Code.  Some school districts have taken the position that this preemption of local building control also extends to zoning.  The Illinois Attorney General recently addressed the issue of local zoning control in an opinion dated December 23, 2011, No. 11-005.

The question posed to the AG was "whether Illinois public school districts are subject to either municipal or county zoning ordinances."  The AG responded that "public school districts are subject to municipal and county zoning ordinances, except to the extent that compliance with local zoning would frustrate a school district's statutory objectives." 

The opinion began with a summary of relevant statutes granting authority to municipalities and counties over zoning within their jurisdictions.  The opinion then analyzed provisions in the School Code, including Section 10-22.13a that provides that school boards may "seek zoning changes, variations, or special uses for property held or controlled by the school district," as well Section 10-20 providing that the authority granted by the School Code "does not release a school board from any duty imposed upon it by this Act or any other law."  Reading these two statutory provisions together, the AG determined that these statutes would be rendered superfluous if school districts were completely exempt from local zoning. 

In short, according to the Illinois Attorney General, school districts are subject to municipal zoning ordinances.  If a local zoning ordinance would interfere or frustrate the school district's statutory objectives, however, a school district can seek judicial review.  There is no automatic exemption in these circumstances; instead, the issue of whether a zoning ordinance frustrates a school district's objectives is a question of fact for the judge to resolve. 

Post Authored by Julie Tappendorf, Ancel Glink.

Wednesday, January 18, 2012

Supreme Court Declines to Take on Prayer at Government Meetings

The U.S. Supreme Court passed on the opportunity to hear two cases involving prayers at government meetings.  The first case, Forsyth County, N.C., v. Joyner, et al. (11-546), involved prayers with repeated references to Jesus Christ and to Christian themes at the twice-a-month public meetings of the County Board of Commissioners.  The second, Indian River School District, et al., v. Doe, et al. (11-569), involved a regular practice of a School District Board to open its monthly meetings with one of its members reciting a religious invocation.  The Fourth Circuit Court, in the Forsyth County case, and the Third Circuit, in the Indian River S.D. case, had ruled that both religious practices were unconstitutional, although opening the meeting with a nondenominational prayer was acceptable.

Post Authored by Julie Tappendorf, Ancel Glink.

Monday, January 16, 2012

Municipalities and Administrative Towing Fees

A number of Illinois municipalities have enacted ordinances that authorize the imposition of an administrative fee when a vehicle has to be towed and impounded due to the arrest or detention of the owner or driver for violation of a particular law or ordinance.  For example, an ordinance might authorize the impoundment of a vehicle in a DUI arrest or when the vehicle has been used in the commission of a felony.  Many of these ordinances impose a $500 fee when a vehicle has to be towed and impounded.  That administrative fee is in addition to the actual towing and impoundment costs that also must be reimbursed.

Until recently, these ordinances were not expressly authorized by state statute.  However, effective January 1, 2012, the Illinois Vehicle Code expressly authorizes municipalities to adopt ordinances imposing impound fees in accordance with the new statute.  625 ILCS 5/11-208.7.  The statute provides that a local ordinance must comply with the provisions of this new statute in order to be enforceable, although there is no express home rule preemption.  The statute also sets out the bases for which a municipality is authorized to tow and impound a vehicle, including driving under the influence of alcohol or drugs, operation of a vehicle in the commission of a felony, and driving with a suspended or revoked drivers license, among others. 

The statute also establishes certain procedures for the impoundment and release of vehicles.  These provisions include a requirement that notice be sent to the owner/lessee of the vehicle at the time the vehicle is towed.  The municipality must also provide notice of an administrative hearing to the owner, lessee, and any lienholder of record within 10 days after the vehicle is impounded.  That hearing must be conducted no later than 45 days after the notice is mailed.  The administrative hearing must be conducted by a licensed attorney as hearing officer, who is required to issue a written decision at the conclusion of the hearing. 

Recently, a number of class action lawsuits have been brought against Illinois municipalities challenging the imposition of similar administrative towing fees.   The lawsuits claim that these fees far exceed the actual costs of administering the towing and impounding of a vehicle, and that the procedures for towing and impounding the vehicles violate due process rights of the vehicle owners.

It remains to be seen how the new statute will affect the outcome of these lawsuits, particularly since the pending lawsuits were filed prior to the effective date of this statute and the challenged ordinances do not have the benefit of express statutory authorization. 

Post Authored by Julie Tappendorf, Ancel Glink.

Friday, January 13, 2012

PAC Interprets New "Recurrent Requester" Provision Under FOIA

The Public Access Counselor (PAC) of the Illinois Attorney General's office issued an opinion on January 9, 2012, interpreting the new provision in the Freedom of Information Act that authorizes a municipality to classify an individual as a "recurrent requester" for purposes of responding to FOIA requests.  In this opinion, the AG determined that the village violated FOIA by improperly classifying the requesters under the new provision. 

In this case, a husband and wife had submitted numerous FOIA requests to a particular village over the course of a year.  The village combined the couple's requests together, classifying them as "recurrent requesters" under Section 3.2 of FOIA.  As a result, the village took the position that it had 21, rather than 5, business days to respond to the request.  The couple filed a request for review of the village's decision with the PAC's office.  The village defended its decision to classify the couple as a single entity because their requests were usually in the same envelope and the responses mailed to the same address.

The PAC disagreed with the couple, finding that the village violated FOIA because the statute defines a requester as one "person."  Therefore, the couple's requests could not be consolidated to fall within the statutory provision of 50 requests within the statutory time period.  In addition, the PAC found that the village failed to follow the statutory procedure for notifying the wife of the village's determination because the notice did not explain why she was treated as a "recurrent requester" or the possible responses that the village would provide within the 21 days. 

The PAC's opinion can be accessed on the AG's website

For those keeping score, the PAC is now 13-0 in issuing binding PAC opinions ruling against the public body (the PAC issued a second binding opinion in 2012 that ruled in favor of a reporter in a request for review filed against the Chicago Public Schools). 

Post authored by Julie Tappendorf, Ancel Glink.

Thursday, January 12, 2012

Ancel Glink Municipal Question of the Month - Change Orders

Municipal Q&A - January 2012:

What does a governmental body need to do to approve a change order to a contract previously entered into?

Answer:  State law establishes a rather complicated process for the approval of significant change orders.  (720 ILCS 5/33E-9)  If a change order necessitates an increase or decrease in the cost of the public contract by a total of $10,000 or more, or in the time of completion by a total of 30 days or more, then the corporate authorities of the governmental body or a designee must make a written determination that one of the following three circumstances exists: 

(1) the circumstances that necessitate the change in performance were not reasonably foreseeable at the time the contract was signed, or

(2) the change is germane to the original contract as signed, or

(3) the change order is in the best interest of the unit of State or local government and authorized by law.

The written determination and change order must be preserved in the contract's file and also available for inspection by the public.  Violators of this statute are subject to criminal penalties. 

To review other Q&A or to subscribe to the monthly Q&A, visit Ancel Glink's website.

Wednesday, January 11, 2012

"Social Media and the City" - New Article

The International Municipal Lawyer's Association (IMLA) recently published an article titled "Social Media and the City - Current Issues Facing Municipalities" in the Municipal Lawyer, authored by Damien T. Shores, an attorney in the Texas Attorney General's office.  The article raises many of the legal issues we have discussed on this blog concerning municipal use of social media.  The author also provides practical recommendations for municipalities in their use and control of social media communications.

Records Retention.

The article discusses a municipality's legal obligations regarding record retention and recommends that municipalities establish a policy that treats social media content similar to e-mail messages since most jurisdictions have already enacted records retention policies for e-mails.  For additional information, revisit our previous blog post on this issue. 

Freedom of Information.

The article also advises municipalities to assume that all social media content is subject to Freedom of Information laws, even when content is posted on sites protected by passwords or that have restricted access. 

Recognizing that communications can be forwarded to anyone (or everyone) with the press of a button, the author notes that content created on a password-protected, private computer or mobile device "is about as private as your least private friend."  The author recommends that municipalities provide dedicated cell phones and establish official e-mail addresses to employees and officials so the municipality can maintain some control over these records. 

One question that has come up frequently is whether content posted by a "friend" or "fan" is subject to public disclosure.  The answer will often depend on the nature of the post (does it relate to the transaction of public business?) and whether the information is within the control or possession of the municipality.  The author notes the difficulties that municipalities face in processing requests for disclosure of information that is not created or maintained by the municipality.

Open Meetings.

As we have discussed on this blog, social media can pose unique challenges to municipalities in ensuring compliance with open meetings laws.  The author cautions municipal officials to avoid any electronic deliberations on public business, whether by e-mail or via a social networking site. 

Importance of a Social Media Policy.

The author concludes with advice similar to what we have given on this blog - municipalities should draft and implement a social media policy that addresses the risks involved in this new media.  For tips on what should go into a social media policy, revisit our posts on  9/26 and 9/27.

Post authored by Julie Tappendorf, Ancel Glink.

Tuesday, January 10, 2012

Webinar - The Most Important Land Use Developments in 2011 and What’s New for 2012

On January 24, 2012, from noon to 1:00 p.m. CST (1:00 p.m. to 2:00 p.m. EST), the International Municipal Lawyers Association (IMLA) will host its lively annual review session of the important land use developments of 2011.  Tune in to learn what happened in 2011 in the land use arena to help you in the year ahead.

Speakers include Julie Tappendorf (Municipal Minute author), Dwight Merriam, Dan Mandelker, Nancy Stroud, Carol Brown, and Stuart Meck. 

For more information about this webinar and other upcoming webinars offered by IMLA, visit IMLA’s website.  Or, you can download a copy of the registration form here. 

Friday, January 6, 2012

Washington Supreme Court Rules State Failed to Fund Education

In a major ruling issued on January 5th, the Washington Supreme Court ruled that the state legislature had failed to fulfill the state's constitutional mandate to amply fund education in McCleary et al. v. State of Washington

The case began in 2007, when a statewide coalition of school districts, education organizations and community groups sued the state, arguing it had provided a clear definition of basic education yet failed to fully fund it, evidenced by local school districts’ growing reliance on levy dollars to supplement the state’s basic education funding.  Washington is not the only state where school districts have to increasingly rely on local funding sources such as local property taxes to fund education. 

In a 85 page opinion, Justice Debra Stephens wrote “[b]y the legislature’s own terms, it has not met its duty to make ample provision for ‘basic education'...This court cannot idly stand by as the legislature makes unfulfilled promises for reform.”  The Supreme Court determined that the state constitution provides children a positive constitutional right to an amply funded education.  "Education" is defined  as the basic knowledge and skills needed to compete in today’s economy and meaningfully participate in this state’s democracy.  The word “ample” provides a broad constitutional guideline meaning fully, sufficient, and considerably more than just adequate.  The Court determined that "ample funding" for basic education must be accomplished by means of dependable and regular tax sources, which the state had not accomplished.

While acknowledging that the state had adopted education funding reforms in 2009 that would, if fully funded, address these deficiencies, the Court declared it would maintain jurisdiction to oversee timely implementation of those reforms and hold the state accountable to meet its constitutional duty.

Case Requiring City to Pay for Work Outside Scope of Contract Under Theory of Equitable Estoppel Goes to Illinois Supreme Court

Last year, an Illinois Appellate Court held that the doctrine of equitable estoppel could be applied to require a municipality to pay a vendor for additional work outside of the contract even if that work was not authorized by the city council.  Patrick Engineering, Inc. v. City of Naperville.  The city filed an appeal of that decision with the Illinois Supreme Court, and the Illinois Municipal League (IML) recently filed an amicus brief supporting the city’s appeal.

A brief summary of the facts of the case is below: 

The city had entered into a contract with a vendor through a competitive-bidding process. The contract required that any additional services outside of those specified in the scope of the contract had to be agreed to in writing between the parties.  If the vendor did not receive confirmation that the additional services were approved by the city, then the vendor was not obligated to perform and would not be paid for those additional services.  Nevertheless, the vendor performed what it claimed to be additional services, but did not get the written approval or confirmation as required by the contract.  Nevertheless, the vendor submitted a substantial bill to the city for these additional services.  The city declined to pay for the additional services, citing the contract terms.  The vendor sued for breach of contract, claiming that it relied on statements by two employees to perform the additional work and the city should be required to pay for the additional work under a theory of equitable estoppel.

The trial court dismissed the case against the city, holding that equitable estoppel does not apply against a municipality unless the representation is made by the municipality itself or by an officer or employee who has explicit authority to act on behalf of the municipality.  In this case, the city could not be held responsible for statements made by someone acting beyond the scope of his or her authority.  The appellate court reversed, however, holding that the city was bound to the representations made by its employees, despite the fact that they had no express authority and the city council did not approve the additional work pursuant to the terms of the contract. 

This case is of significant importance to Illinois municipalities because the Second District’s ruling modifies the long-standing rule that equitable estoppel will only be applied against a municipality where actions are induced by the municipality itself or a municipal official with actual, not apparent authority. 

Wednesday, January 4, 2012

First Amendment Protects Protestors of Towing Ordinance

The 7th Circuit Court of Appeals recently held that city officials were not entitled to qualified immunity on a First Amendment challenge to city actions against protestors of a towing ordinance in Surita v. Hyde, No. 09-1165 (7th Cir. December 22, 2011). 

In 2002, the city amended its towing ordinance to allow police to seize and impound vehicles and to impose a $500 fine on persons driving without a valid license or proof of insurance. The towing ordinance generated a number of protests that it applied more harshly against minorities.  While dealing with protestors, the mayor barred a citizen from speaking at a city council until he apologized to a city employee for a previous verbal confrontation.  The police chief imposed a $1,500 fee for use of the city park to hold a protest rally regarding the ordinance, on the basis that more officers were needed for the rally because it was a protest as opposed to a rally in favor of a city ordinance.  Out of 530 events in a five-year period in the city, only one other event was required to pay a permit fee. 

Several individuals then sued the city, its mayor, and its police chief under §1983, alleging violations of their First Amendment rights of free speech, of assembly, and to petition government for redress of grievances.  The district court had denied qualified immunity to defendants who appealed to the 7th Circuit.  

The 7th Circuit first determined that audience time during city council meetings constituted a designated public forum and, as a result, the city had a limited ability to regulate expressive activity.  The court determined that the ban on the plaintiff's speech at the city council meeting was a content-based exclusion without any compelling interest in violation of the First Amendment.  As to the challenged permit fee, the court held that the fee was unconstitutional as a content-based regulation because it was determined on the basis of the content of the speech - in this case, because the event was a protest of the city's towing ordinance.  The defendants were denied qualified immunity. 

Tuesday, January 3, 2012

Sign Ordinances and the Upcoming Election

As municipalities across Illinois prepare for the March 20, 2012 primary, it is a good time to revisit municipal sign ordinances and their effect on political signs. As followers @AncelGlinkLand already know, some municipalities are already reminding residents about existing sign regulations or even adopting new ordinances in advance of the upcoming election.

The renewed attention to political signs comes on the heels of the adoption of P.A. 96-0904 last January. This new law amended the zoning enabling statute to establish that “other than reasonable restrictions as to size, no home rule or non-home rule municipality may prohibit the display of outdoor political campaign signs on residential property during any period of time . . . .” 65 ILCS 5/11-13-1.  This means that home rule and non-home rule municipalities are prohibited from enforcing time restrictions on the display of outdoor political signs on residential property.  Many municipal sign ordinances had enacted time restrictions for election signs that require the removal of signs within a certain time period after an election and prohibit the placement of signs before a certain date before an election – those time restrictions are no longer enforceable.  A municipality can, however, still regulate the size of election signs.

This sign law was not groundbreaking, however, and is generally considered to be consistent with the U.S. Supreme Court’s holding in City of Ladue v. Gilleo.  In that case, the Supreme Court struck down a municipal sign ban that “almost completely foreclosed a venerable means of communication that is both unique and important” -- the display of political messages on residential property.

As the upcoming primary approaches, municipalities, candidates, and residents should review their municipality’s sign ordinance and the limits placed on these regulations by this fairly new sign law.

Post authored by Daniel J. Bolin.

Monday, January 2, 2012

OMA Electronic Training Program - UPDATE

Last week, I reported on a few technological glitches to the Attorney General's OMA electronic training program that kept me from progressing past screen 14 of the training program.  I am pleased to report that I have since completed the entire training.  I'm not sure whether the AG fixed the glitches or my use of Safari rather than Internet Explorer as my web browser (a tip from a park district official) did the trick. 

As an update to my previous post, I had to progress through 62 screens to get to the finish line and print out the training completion certificate.  You should put aside at least 30 minutes to an hour to complete the entire program, although you can complete the program in parts.  If you log off before finishing the program, you can choose to pick up where you left off or start the program from the beginning.

Happy training to those who must complete the program by year end.