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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, June 28, 2012

Supreme Court Finds Stolen Valor Act Unconstitutional

While everyone waits for more details on the U.S. Supreme Court's ruling upholding the healthcare law, another opinion was released this morning.  In United States v. Alvarez, the Supreme Court considered the question whether the Stolen Valor Act that holds citizens criminally liable for lying about receiving medals of honor violates an individual's right to freedom of speech under the First Amendment.  The Ninth Circuit Court of Appeals previously held that it did violate the First Amendment, and the Supreme Court granted certiorari last October.  This morning (June 28, 2012), the Supreme Court affirmed the Ninth Circuit decision, finding that the Act does violate the First Amendment. 

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, June 27, 2012

Supreme Court Strikes Down Montana's Political Spending Law

On June 25, 2012, the U.S. Supreme Court struck down a Montana statute that placed limits on corporate political spending.  American Tradition Partnership v. Bullock.  The statute provided that a "corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party." Mont. Code Ann. §13–35–227(1) (2011).  The Montana Supreme Court had previously rejected a First Amendment challenge to the statute. 

In reversing the state court decision, the U.S. Supreme Court cited its holding in Citizens United v. Federal Election Commission, striking down down a similar federal law on the basis that "political speech does not lose First Amendment protection simply because its source is a corporation."  Thus, the Supreme Court has effectively answered the question whether its holding in Citizens United applies to state law, by stating that "[t]here can be no serious doubt that it does."

Authored by Julie Tappendorf, Ancel Glink

Tuesday, June 26, 2012

Court Strikes Down Another Part of Chicago Gun Ordinance

Yet another part of Chicago's gun ordinance has fallen to a constitutional challenge, this time in Gowder v. City of Chicago.  In this case, plaintiffs challenged the provision in the ordinance that conditioned gun possession on having a permit and prohibited issuance of any permit to persons convicted of "unlawful use of a weapon." 

The Court found the City's ordinance void for vagueness because "unlawful use of a weapon" could mean different things in different jurisdictions.  While regulations prohibiting gun possession by felons and persons convicted of domestic violence crimes have been upheld, the Chicago ordinance violated the Second Amendment because it prohibited gun possession in the home, depriving even non-violent misdemeanants of a core Second Amendment right. 

In response, the City is expected to amend its gun ordinance to ban violent misdemeanants from getting a gun permit for five years, and violent felons from getting a gun permit for life. The City may also appeal this decision to the Seventh Circuit.

Post Authored by Dan Bolin, Ancel Glink.

Monday, June 25, 2012

Court Upholds PAC Opinion that Texts are Subject to FOIA

In a previous blog post, we reported on a PAC opinion that was issued last November determining that text messages between public officials pertaining to public business are subject to release under FOIA, even if transmitted on privately owned cell phones.  That opinion was appealed to the Sangamon County circuit court.  In an oral ruling issued on June 11, 2012, the Circuit Court Judge upheld the PAC opinion. 

What does that mean for local government officials?  As we discussed previously, public bodies and officials should be aware of the position taken by the PAC with respect to electronic communications. Local officials who use their personal cell phones, computers, tablets, and other electronic devices to communicate on government business should be advised that their communications may be subject to FOIA, even if they are not transmitted by or do not “pass through” city equipment. Local governments may need to consider implementing local policies to govern the use of personal equipment for communications about government business consistent with the PAC’s opinion.

Post Authored by Julie Tappendorf, Ancel Glink.

Friday, June 15, 2012

Wednesday, June 13, 2012

How Far Does the Second Amendment Extend Beyond the Home?

In 2008, the United States Supreme Court first recognized a personal right to possess a handgun for self-defense, especially in the home. District of Columbia v. Heller, 554 U.S. 570 (2008). Since that time, lower courts and local governments have been left to grapple with the scope of this new Second Amendment right. While local regulations are certainly invalid when they restrict handgun possession in the home for self defense purposes, courts are beginning to consider whether the Second Amendment right applies outside the home, which will have great consequences for all forms of local gun regulation, including zoning restrictions on gun shops, firing ranges and other gun-related land uses.
Recently, two Federal District Courts considered whether the Second Amendment right applies outside the home, and came down on different sides of the question. In Woollard v. Sheridan, 2012 WL 695674, No. L–10–2068 (D. Md. Mar. 2, 2012), a Federal District Court granted summary judgment to an organization arguing that the Second Amendment would not allow Maryland to require an applicant to demonstrate a “good and substantial reason” for a permit to carry a handgun outside the home. In doing so, the Court concluded that the right to bear arms is not limited to the confines of a person’s residence because the protected purpose of self defense must take place wherever that person happens to be.  In response, Maryland was unable to demonstrate that the regulation was reasonably adapted to a substantial government interest, and the permit requirement was found unconstitutional.
However, in Moore v. Madigan, 2012 WL 344760, No. 11–cv–03134 (C.D. Ill. Feb. 3, 2012), a Federal District Court upheld the constitutionality of Illinois’ “Unlawful Use of Weapon” statutes, reasoning that the core Second Amendment right only exists inside the home. These statutes generally prohibit the carrying of firearms in public, with limited exceptions for unloaded and cased weapons. The Court noted the Supreme Court’s narrow holding in recognizing the Second Amendment, its emphasis on the application of the right to the home, and the “implicit approval” of long-recognized concealed weapons bans.
While the full scope of the core Second Amendment right might be disputed by courts, the right must include the right to possess a handgun in the home for self-defense purposes. As a result, communities should tread carefully in the enforcement or adoption of local regulations that interfere with this core right. For regulations affecting peripheral aspects of this right, local officials should establish that its local regulation reasonably furthers the community’s public safety, crime abatement or other substantial goals.
Post Authored by Daniel J. Bolin, Ancel Glink

Tuesday, June 12, 2012

New PAC Opinion: Public Body Cannot Require Advance Notice to Record Public Meeting

In an opinion released last week, the Illinois Attorney General determined that a public body violated the Open Meetings Act when it refused to allow an individual to record a public meeting because he failed to advise the public body in advance of his intention to record the meeting.

The county had adopted rules pursuant to Section 2.05 of the OMA requiring persons to notify, in advance, the county clerk of his or her intention to record a meeting.  The rationale behind the advance notice was to ensure that the individual could bring recording equipment through the security checkpoint at the county building.  The person had informed both a representative of the county board and of the sheriff's office of his intention to record the meeting.  The county refused to allow the individual to record the meeting, however, because he had not notified the county clerk in accordance with the county's rules. 

The individual filed a complaint with the PAC's office.  The PAC determined that although the OMA allows a public body to adopt reasonable rules concerning recording of meetings, the advance notification requirement in the county's rules was not "reasonable" because it placed a burden on people who want to record meetings and restricts their ability to do so. 

Although the PAC's binding opinions are limited to the circumstances surrounding the request for review - in this case, the application of the county's advance notice requirement to this individual - there is a bit of cautionary advice in the opinion as to how the PAC views advance notice rules in general.  For example, the opinion notes that it would be difficult to enforce and administer an advance notification requirement because many people carry cell phones capable of recording meetings.  The opinion further notes that any public body applying an advance notice requirement would have a "steep burden" to overcome in demonstrating that the requirement was reasonable, given the statutory right afforded to individuals to record public meetings.  Given the PAC's position, it will be very difficult for any public body to justify an advance notice requirement. 

Post Authored by Julie Tappendorf, Ancel Glink

Monday, June 11, 2012

Highlights of 2012 Spring Session of Illinois Legislature

For a municipality-focused summary of the 2012 spring session, check out the Illinois Municipal League's June 8th update, on the IML website.  IML Legislative Director Joe McCoy describes the good and the bad of this spring's session as it relates to municipalities. 

Among the bills that passed both houses and await the Governor's signature:

Change in Meeting Agenda Requirements
HB 4687  was approved by both chambers and would amend the Open Meetings Act to require agendas to describe the "general subject matter" of items for final action.

Enterprise Zone Program Extended
SB 3616 extends enterprise zones by an additional 25 years, creates five additional zones, introduces competition and financial transparency, and eliminates tax incentives that are deemed unnecessary to the core mission of enterprise zones

Prevailing Wage Notifications
HB 5212 relieves public bodies from the responsibility of notifying contractors of prevailing wage rate revisions. Instead, contracts would need to include a statement that the actual revisions would be made available on the Illinois Department of Labor's website.

Use of Streets for Charitable Solicitations
SB 3518 requires municipalities and counties to allow for charitable solicitations in roadways if the individuals engaged in the solicitation are police, firefighters, or other public-safety employees

Special Service Areas
SB 409 sets additional notice and hearing procedures for Special Service Areas.

Among the bills that have not passed both houses, but remain active:

TIF Reform HB 5457 would make substantial changes to the TIF statute. 

Abandoned Property
  • SB 16  would have required banks to maintain abandoned property.
  • SB 2534 would have made $25 million available to municipalities for use in maintaining abandoned property.
  • SB 3522 would have raised $30 million for use in property maintenance and $20 million for housing counseling throughout the state. 
Responsible Bidder Requirement
SB 2643 would require eligible bidders to demonstrate participation within a United States Department of Labor approved apprentice and training program.

Prevailing Wage Exemptions
  • HB 4537  and HB 3094 would create an exemption under the Prevailing Wage Act for projects that are valued at less than $20,000.
  • HB 5038 would exempt the removal of trees and limbs along roadways and parkways from prevailing wage requirements when that work is not part of other construction.
  • HB 5366 would provide that "public works" does not include conservation projects or practices on private land paid for wholly or in part out of public funds.

Friday, June 8, 2012

Don't Miss this Upcoming Stormwater Workshop!

Ancel Glink is excited to participate in the South Suburban Stormwater Management Tools Workshop on June 28, 2012 in Homewood, Illinois (see attached Brochure).  Ancel Glink attorney Brent Denzin will collaborate with regional agencies (Metropolitan Planning Council and Metropolitan Water Reclamation District (MWRD), local governments (Village of Homewood, Cook County Forest Preserve) and stormwater engineers (Weaver Boos Consultants) to provide a unique, hands-on workshop for local government officials.  The Workshop is designed to identify cost-effective solutions to stormwater/flooding problems--from amending ordinances to strategic public works projects. 
Please join us in Homewood for a morning of problem solving!

Thursday, June 7, 2012

REMINDER: Illinois Law and Planning Firms Offering Free Seminar for Local Officials

On Friday, June 15th from 8:30 a.m. to 12:00 p.m. in Bloomington-Normal, IL, and on Friday, June 22nd from 8:30 to 12:00 p.m. in Naperville, IL, the Zoning and Land Use attorneys at Ancel Glink, Illinois' leading local government law firm, and planning consultants from Houseal Lavigne Associates, a premiere Illinois planning consulting firm, will present a free seminar for local officials and employees interested in land use planning and zoning issues in their communities.

Topics include:

Land Use Law Update CM |1.5 | Law
Ancel Glink's land use practice group will discuss best practices for zoning hearings, and how new legislation expressly authorizes communities to adopt rules of procedure to assist in the management of ordinary and complex zoning applications. Participants will also learn about the latest cases affecting planning and zoning officials, analyzing emerging issues under the Second Amendment, takings claims by billboard owners, limits to local regulation of telecommunications facilities, and more.

New Tools for Zoning & Visualization CM |1.5
Houseal Lavigne Associates planning consultants will demonstrate how enhanced visual communication and improving the appearance of zoning ordinances, design guidelines, and other regulatory tools are becoming increasingly important in the digital age. As our tools, software and the web evolve, so have our practices, codes, and ordinances. The increased transparency in government has also broadened the audience of potential users and readers, and expectations of easy access and user friendliness are at an all time high. This presentation will highlight the use of visual tools and imagery to enhance zoning ordinances, explain zoning changes, and highlight the development potential of key sites.

This program has been approved for 1.5 hours of AICP Certification Maintenance in law and 1.5 hours of AICP Certification Maintenance in planning practice.

201 Broadway Street, Normal, Illinois

 NIU Naperville
1120 E. Diehl Road, Naperville, IL 60563

RSVP: Kathy Cook (kcook@ancelglink.com or 312-782-7606)

Tuesday, June 5, 2012

Supreme Court Affirms Sewer Assessment Case (Armour v. Indianapolis)

Yesterday, the U.S. Supreme Court issued an opinion in the sewer assessment case reported previously on this blog, Armour v. City of Indianapolis, No. 11-161 (June 4, 2012).  The Court upheld the City's decision to forgive the balance owing for homeowners who had not fully paid the assessement, while not issuing refunds to their neighbors who had already paid in full.

The court first determined that since there were no suspect classifications involved, the City's decision to modify the assessment policy was subject to rational basis.  As discussed previously, Indiana state law (the Barrett Law) authorized cities to assess the cost of sewer improvement projects on properties that benefitted from the project.  The statute permitted lot owners to choose to pay the assessment either (1) immediately in the form of a lump sum or (2) by installments. 

In 2005, the Indianapolis adopted a new assessment and payment method, the "STEP Plan", and it forgave any Barrett Law installments that lot owners had not yet paid.  A group of lot owners who had paid their entire assessment in a lump sum sued the City, claiming they should have been provided equivalent refunds. The Court upheld the City's "STEP Plan," concluding that the City had a rational basis for distinguishing between the lot owners who had already paid their share of project costs and those who had not; consequently, there was no equal protection violation.

Post Authored by Julie Tappendorf, Ancel Glink.