September 2012 ~ Municipal Minute

Thursday, September 27, 2012

Fifth Circuit Upholds Constitutionality of Texas Open Meetings Act

Thursday, September 27, 2012 Julie Tappendorf

On September 25, 2012, the Fifth Circuit Court of Appeals upheld the constitutionality of the Texas Open Meetings Act, ruling that criminal penalties in the Act do not violate the First Amendment. Asgeirsson v. Abbott (September 25, 2012).

Texas municipal officials alleged that the Texas Open Meetings Act violates the First Amendment by imposing criminal penalties on politicians for holding public meetings behind closed doors. The Act requires that most governmental meetings be open to the public. Officials in violation of the Act face penalties of up to 6 months in jail and a $500 fine. Municipal officials from across Texas argued that the Act is overly broad and unconstitutionally targets politicians with the criminal penalty.

The Fifth Circuit Court of Appeals unanimously affirmed the district court decision, ruling that the Act does not limit the officials’ First Amendment rights, as it is a “content-neutral time, place, or manner restriction” on speech. The three-judge panel evaluated the purposes of the Act, such as creating trust in government, increasing transparency, and ensuring that all members of a governing body may participate in the discussion of public business. Ultimately, the Court found that these purposes legitimized the need for criminal penalties within the Act. The Court ruled that the criminal penalties serve to compel disclosure, not curtail free speech.

Attorneys for the municipal officials vowed to appeal to the United States Supreme Court.

This case is worth watching as the Illinois Open Meetings Act imposes similar penalties for violations of the Open Meetings Act. In Illinois, a violation of the Act is punishable by up to 30 days in jail and a $1,000.00 fine.

Post Authored by Erin Baker, Ancel Glink

Ethics / Open Meetings

Wednesday, September 26, 2012

It's That Time Again - Regulating Political Signs

Wednesday, September 26, 2012 Julie Tappendorf

As we get closer to the November election, it is important to review your local regulations on political signs and make sure they comply with statutory and constitutional limitations. Most of you are familiar with the new political sign law (P.A. 96-0904) adopted by the Illinois legislature last year. 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. So, what does that mean?

Under the new law, home rule and non-home rule municipalities are prohibited from enforcing restrictions on outdoor political signs on residential property unless they relate to the size of the sign. Many municipal sign ordinances had routinely included time restrictions for election signs that required the removal of signs within a certain time period after an election and prohibited the placement of signs before a certain date before an election. Many other municipalities restricted the number of political signs allowed on a lot. Under this law, those restrictions are no longer enforceable on residential properties.

But, you can still regulate political signs. For example, you can regulate the size of election signs. Some communities have addressed "clutter concerns" by enacting aggregate size restrictions on political signs. You can also still regulate (and even prohibit) political signs on public property, including rights of way. You can also still regulate political signs on non-residential property.

As the election season approaches, municipalities might consider putting together a handy "fact sheet" to provide to candidates and residents regarding the local political sign limitations.

Post authored by Julie Tappendorf, Ancel Glink

Elections / Land Use and Environmental

Monday, September 24, 2012

City Prevails in Equitable Estoppel Contract Case

Monday, September 24, 2012 Julie Tappendorf

On January 6, 2012, we reported on a decision by the Illinois Appellate Court requiring a municipality to pay a vendor for additional work outside of the contract even though that work was not authorized by the city council. The city subsequently filed an appeal with the Illinois Supreme Court. We noted in January that the case was significant to Illinois municipalities because the Second District’s ruling modified the long-standing rule that equitable estoppel will only be applied against a municipality where actions are induced by the municipality itself (through action of the corporate authorities) or a municipal official with actual, not apparent authority. On September 20, 2012, the Illinois Supreme Court reversed the appellate court's decision, finding that equitable estoppel does not apply against a municipality where the municipal official possesses apparent authority rather than express authority. Patrick Engineering v. City of Naperville, 2012 IL 113148 (Sept. 20, 2012). This is good news for municipalities.

A brief summary 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. 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.

The primary issue before the Illinois Supreme Court was whether the doctrine of equitable estoppel can apply against a municipality based on the alleged apparent authority of its employees. The Illinois Supreme Court stated the rule as follows: "a plaintiff seeking to invoke equitable estoppel against a municipality must plead specific facts that show (1) an affirmative act by either the municipality itself or an official with express authority to bind the municipality; and (2) reasonable reliance upon that act by the plaintiff that induces the plaintiff to detrimentally change its position." The act must be affirmative, but may be either an act by the municipality itself, such as legislation, or an act by an official with express authority to bind the municipality. In applying the factors to Patrick Engineer's complaint, the Court found no allegations to support a delegation of authority to City employees or that Patrick Engineering reasonably relied on the verbal statements of City employees. Consequently, the Court reversed the appellate court on the equitable estoppel count. Two counts (quantum meruit, Local Government Prompt Payment Act) are still pending at the trial court.

Post Authored by Julie Tappendorf, Ancel Glink

Thursday, September 20, 2012

No, a Fraternity House is not a Monastery

Thursday, September 20, 2012 Julie Tappendorf

While I suspect the outcome of this case will not be shocking to any of my readers, an Illinois district court recently rejected an argument that a fraternity house did not require a special use permit under the City of Chicago's zoning code because the proposed use was a "monastery," a permitted use in the zoning district, rather than a fraternity.

In Myers v. City of Chicago (N.D. Illinois 2012), the plaintiff purchased a home near Loyola University in Chicago, intending to rent the home to the Sigma Pi Fraternity. Under Chicago's zoning regulations, a fraternity is a special use. The plaintiff argued that no special use permit was necessary because the fraternity was actually a monastery. Nor surprisingly, the City disagreed with the plaintiff's interpretation, so the plaintiff filed suit, claiming, among other things, that the City violated his equal protection rights.

The court first rejected the plaintiff's argument that Sigma Pi's use of the home would be consistent with a monastery because Sigma Pi’s mission statement was “In the Service of God and Man.” The court then rejected the plaintiff's argument that the City violated his equal protection rights because a nearby sorority house was not required to obtain a special use permit. The court determined that the plaintiff was not "similarly situated" to the sorority because it was approved prior to the zoning code change in 1970 and, therefore, was a legal nonconforming use.

Thanks to RLUIPA Defense for reporting this case.

Land Use and Environmental

Tuesday, September 18, 2012

Ancel Glink Goes to Champaign

Tuesday, September 18, 2012 Julie Tappendorf

On September 19-21, 2012, the Illinois chapter of the American Planning Association (IL-APA) will hold its annual state conference at the Hilton Garden Inn in Champaign-Urbana, Illinois. The conference program is chock-full of sessions, mobile-workshops, and social events that will certainly be of interest to planners, plan commissioners, and other land use professionals throughout the state.

Ancel Glink is a silver sponsor of the conference, and a number of our attorneys will be active participants at the conference, including presenting the planning law update session, described below:

Possibly the Greatest Law Update of All Time

Wednesday, September 19, 2012, 3:30-5:00 p.m.

Ancel Glink attorneys Julie Tappendorf, David Silverman, Brent Denzin, and Dan Bolin will review the latest land use laws, cases, and issues including back yard chickens and front yard gardens, guns, strip joints, signs, floods, illegal hearings, and many other topics of interest to planners.

Ancel Glink is also sponsoring the breakfast on Thursday morning in the Exhibit Ball. Don't forget to stop by our booth in the Exhibit Hall to pick up some "Ancel Glink swag":

We hope to see you in Champaign!

Friday, September 14, 2012

Illinois Supreme Court to Hear Right to Farm Case

Friday, September 14, 2012 Julie Tappendorf

The Illinois Supreme Court will hear argument in Toftoy v. Rosenwinkel, a case involving a nuisance action against an existing cattle farming operation. Plaintiffs claim that the farming operation across the street from their residential use is a nuisance; defendants argue that the Illinois Farm Nuisance Suit Act bars plaintiffs' suit. According to Section 3 of the Act, no farm can be, or become, a private or public nuisance “because of any changed conditions in the surrounding area” as long as the farm has been in operation for a year (unless the nuisance results from the negligent or improper operation of the farm).

The trial court ruled for plaintiffs and issued an injunction against the cattle farm operation requiring certain changes to the farm use to mitigate the nuisance. On appeal, defendants argued that there were “changed conditions” that barred the lawsuit, including that plaintiffs' land was unoccupied when the farm operation began and that plaintiffs' residential use was a change from the original agricultural use and zoning. Nevertheless, the appellate court affirmed, and defendants appealed to the Illinois Supreme Court. The Supreme Court granted leave to appeal and scheduled oral argument for September 19, 2012. We will keep you posted on this case.

Thanks to The Appellate Strategist and Inverse Condemnation for the heads-up on this case.

Land Use and Environmental

Thursday, September 13, 2012

Judge Disqualified for Being "Facebook" Friend of Prosecutor

Thursday, September 13, 2012 Julie Tappendorf

A criminal defendant filed a motion to disqualify the trial judge in his case because the judge was a Facebook "friend" of the prosecutor handling his case. The trial judge denied the motion, and the individual appealed the ruling. The appellate court reversed in Domville v. State of Florida, No. 4D12-556 (September 5, 2012).

The appellate court first looked to an opinion of the Judicial Ethics Advisory Committee that held that the Florida code of judicial conduct precludes a judge from (1) adding lawyers who appear before the judge as "friends" on social media sites and (1) allowing lawyers to add the judge as their friend. The rationale for the ban is that by adding or allowing the "friending" activity, the judge has conveyed the impression that the lawyer "friend" is in a special position to influence the judge. Moreover, a judge's activity on social media sites could undermine confidence in the judge's neutrality. Applying the ethics opinion to the case at hand, the appellate court determined that Domville's motion to disqualify was well-founded because it raised sufficient facts to "prompt a reasonably prudent person to fear that he could not get a fair and impartial trial."

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, September 12, 2012

City Violated Constitution in Seizing and Destroying Property of Homeless

Wednesday, September 12, 2012 Julie Tappendorf

Nine homeless people living in the “SkidRow” district of Los Angeles filed a lawsuit against the City of Los Angeles claiming that the City violated their 4th and 14th Amendment rights by seizing and destroying their unabandoned personal possessions that were temporarily left on public sidewalks. The lower court had issued an injunction against the City preventing it from confiscating or destroying any unabandoned property in Skid Row unless the City has an objectively reasonable belief that the property (1) was abandoned, (2) presented an immediate threat to public health or safety, or (3) was evidence of a crime or contraband. If the City seizes property without evidence of an immediate threat to public health or safety, then it must secure the property for a period of at least 90 days before it can be destroyed. The City appealed the lower court's ruling to the Ninth Circuit Court of Appeals, who affirmed the lower court’s decision. Lavan et al. v. City of Los Angeles, No. 11-56253 (September 5, 2012)

The Court first balanced the invasion of the homeless persons' possessory interests in their personal belongings against the City’s reasons for taking the property, finding that the City acted unreasonably in violation of the 4^th Amendment in collecting and destroying the property, which included family photographs, identification papers, and portable electronics, among other items. The Court determined that the evidence demonstrated that the persons had no intention of permanently abandoning their property when they left it briefly unattended while attending to personal tasks.

The Court rejected the City’s argument that it was justified in seizing the property because the homeless persons violated City ordinances in leaving their property unattended. As the Court noted in its opinion, “the logic of the City’s suggestion would also allow it to seize and destroy cars parked in no-parking zones left momentarily unattended.”

Finally, the Court rejected the City’s request that the Court “declare that the unattended property of homeless persons is uniquely beyond the reach of the Constitution, so that the government may seize and destroy with impunity the worldly possessions of a vulnerable group in our society,” finding that “even the most basic reading of our Constitution prohibits such a result.”

Post Authored by Julie Tappendorf, Ancel Glink

Constitutional Issues

Tuesday, September 11, 2012

Happy Anniversary! A One Year Review of Municipal Minute

Tuesday, September 11, 2012 Julie Tappendorf

It's been a year since we started Municipal Minute with the intention of providing updates on cases, laws, and other legal issues facing local governments. In the past year, we have reported on land use cases from around the country, opinions in the area of FOIA and Open Meetings Act, legal and ethical issues with government social media use, and other matters important to local government officials, employees, and attorneys.

In celebration of our anniversary, we revisit some of the blog's more popular posts, "Twitter-style":

________________________________________________________________________________
Is social media content a public record? 10/12/11

"Social Media in the City" - recently published article in Municipal Lawyer 1/11/12

Texts on private cell phones may be a public record subject to FOIA 11/17/11, 6/25/12

New reporting requirements for government employee salaries and benefits 10/6/11, 7/24/12

New laws restrict employers from asking for employee/candidate Facebook passwords 3/28/12, 4/13/12, 4/20/12

Clicking "Like" on Facebook is not protected speech 9/7/12

Rental inspection ordinance found unconstitutional 1/26/12

Municipalities can collect outstanding debt through local debt recovery program 2/15/12

Telecommunications Act amendment limits local control over collocation of new facilities and removal or replacement of existing facilities 2/27/12

Is an elected official an employee? 3/5/12

PAC issues binding opinions in FOIA and OMA appeals (2010, 2011, and 2012) 12/5/11, 12/6/11, 4/9/12

Monday, September 10, 2012

Property Tax Debt Will Not Disqualify Candidate for Municipal Office

Monday, September 10, 2012 Julie Tappendorf

In Illinois, a person is not eligible for election to a municipal office if he or she owes taxes or is indebted to the municipality. 65 ILCS 5/3.1-10-5(b). In a recent decision by the Illinois Supreme Court, this statute was interpreted to exclude propety taxes owed to the county treasurer. Jackson v. Board of Election Commissioners of Chicago (September 7, 2012).

In this case, a candidate sought election to the office of Chicago Alderman. Her candidacy was challenged based on an alleged ineligibility for homestead exemptions on property owned by the candidate and her husband. The candidate subsequently waived the exemptions on all but one of the parcels, and agreed to pay the Cook County treasurer the additional property tax that would have been due on the parcels had the exemptions not been claimed. The objection to the candidate was first heard by the Chicago board of election commissioners who ruled that the candidate was not disqualified. On appeal, the circuit court affirmed the election board’s decision, but the appellate court reversed, set aside the election board’s decision, and ordered that the candidate's name must either (1) be removed from the ballot, or (2) if the name could not be removed from the ballot, then any votes cast for her would not be counted.

The candidate filed an appeal with the Illinois Supreme Court. The Supreme Court reversed the appellate court, holding that property tax payable to the Cook County treasurer does not constitute “a tax or other indebtedness due a municipality” within the meaning of the statute.

What is interesting about this case is that the election had already taken place prior to the Supreme Court's ruling. Since it was too late to remove the candidate's name from the ballot, the election authorities did not count any votes for the candidate in accordance with the appellate court's ruling. Because the election was over, the objector argued to the Supreme Court that the candidate's appeal was moot. Nevertheless, the Supreme Court chose to resolve the underlying legal dispute under the public interest exception to the mootness doctrine. The Court determined that the issue was likely to recur in future municipal elections, and that a ruling would aid election officials and lower courts in promptly deciding similar disputes in the future and avoid any uncertainty in the election process.

Although technically a "win" for the candidate, the Supreme Court's ruling did not go so far as to grant any specific relief to the candidate. As discussed in some detail in their partial dissent, Justices Freeman and Burke would have remanded the case back to the electoral board with instructions to conduct a special election in accordance with section 2A-1(e) of the Election Code.

Post Authored by Julie Tappendorf, Ancel Glink

Elections / Ethics

Friday, September 7, 2012

Clicking “Like” on Facebook Not a Protected Form of Speech

Friday, September 07, 2012 Julie Tappendorf

A judge for the Eastern District of Virginia ruled against employees who alleged that their employer, an elected sheriff, had fired them in retaliation for exercising their First Amendment right to free speech. Bland et al. v. Roberts. The employees who brought the complaint “liked” the Facebook page of an opponent for the elected sheriff position. The defendant sheriff ultimately won the election, and decided not to retain the employees. In dismissing the case against the sheriff, the judge held “that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection,” because it is not a statement at all. The judge pointed out that courts have only found actual statements posted on Facebook to be constitutionally protected, and the court refused to infer content from the mere click of a button.

The employees have appealed the case to the Fourth Circuit Court of Appeals. Both the ACLU and Facebook, Inc. have filed amicus briefs in support of the employees. In its brief, Facebook asserts that when a Facebook user "likes" a page on Facebook, the user engages in speech protected by the First Amendment. Facebook analogizes the "speech" to traditional campaigning, as follows (citations omitted):

When Carter clicked the Like button on the Facebook Page entitled “Jim Adams for Hampton Sheriff,” the words “Jim Adams for Hampton Sheriff” and a photo of Adams appeared on Carter’s Facebook Profile in a list of Pages Carter had Liked, – the 21st-century equivalent of a front-yard campaign sign. In addition, an announcement that Carter likes the campaign’s Page was shared with Carter’s Friends, and Carter’s name and photo appeared on the campaign’s Page in a list of people who Liked the Page. If Carter had stood on a street corner and announced, “I like Jim Adams for Hampton Sheriff,” there would be no dispute that his statement was constitutionally protected speech. Carter made that very statement; the fact that he did it online, with a click of a computer’s mouse, does not deprive Carter’s speech of constitutional protection.

This case is one worth watching.

Post Authored by Julie Tappendorf, with assistance from Sara Smith

Constitutional Issues / Personnel / Social Media

Thursday, September 6, 2012

Check out this New Blog - RLUIPA Defense

Thursday, September 06, 2012 Julie Tappendorf

Dwight Merriam and Evan Seeman, both of the law firm Robinson & Cole, have just launched a fantastic new blog titled RLUIPA Defense. The site provides practical information and resources for municipalities, attorneys, and others in avoiding and defending against claims brought under the Religious Land Use and Institutionalized Persons Act (RLUIPA), including cases, trial materials, briefs, and scholarly articles. Don't miss it!

Post Authored by Julie Tappendorf, Ancel Glink

Constitutional Issues / Land Use and Environmental

PAC Orders Police to Release Records of 15 Year Old Shooting Victim

Thursday, September 06, 2012 Julie Tappendorf

On August 14^th, 2012, the PAC office of the Illinois Attorney General issued a binding opinion finding that the Illinois State Police (ISP) improperly withheld investigatory records involving the shooting death of a minor pursuant to FOIA. The ISP cited to section 7(1)(a) of FOIA which permits a public body to withhold records when federal or state law specifically prohibits disclosure. In support of its denial of the FOIA request, the ISP had cited multiple sections of the Juvenile Court Act (JCA) which prohibit disclosure of records regarding minors in certain situations.

The ISP's denial was appealed to the PAC. In finding that the ISP had violated FOIA, the PAC determined that the JCA only applied to minors who had been arrested, taken into custody, or in cases in which a juvenile court proceeding was initiated. The minor was neither arrested nor taken into custody, and the PAC refused to extend the statutes despite the ISP’s assertion that had the minor survived, he would have been the subject of criminal charges. The PAC did, however, allow the ISP to redact certain unique identifiers in the requested records, including the names and dates of birth of the victim's family members pursuant to various provisions of FOIA, including the protection of personal privacy and confidential sources.

Based on the PAC's opinion, a minor who commits a crime will be afforded more privacy rights under FOIA than a minor who is the victim of a crime.

Post Authored by Julie Tappendorf, Ancel Glink, with assistance from Sara Smith

Freedom of Information

Tuesday, September 4, 2012

Shameless Self-Promotion Alert - Please Nominate Municipal Minute for the ABA Journal’s 100 Best Legal Blogs

Tuesday, September 04, 2012 Julie Tappendorf

Each year, the American Bar Association publishes a list of the best 100 legal blogs (or blawgs). The deadline for nominating a blog is this Friday, September 7, 2012. I would appreciate my readers' support and consideration in nominating Municipal Minute for the ABA’s best legal blogs of 2012. You can click on this link and follow the directions if you are interested. The url for this blog is http://municipalminute.ancelglink.com/

To all of you, thank you for being such loyal readers of this blog!

Federal Court Lacks Jurisdiction in Zoning Due Process Case

Tuesday, September 04, 2012 Julie Tappendorf

In 2004, neighboring property owners filed a lawsuit in state court claiming that a planned unit development approval for Resurrection Health Care violated the plaintiffs' constitutional rights because the approval was inconsistent with the Chicago Zoning Code. The trial and appellate courts both upheld the ordinance, finding that "The IPD ordinance enacted by the city council in this case is not rendered unconstitutional simply because this municipality, a home rule unit, violated its own self-imposed ordinances in enacting the IPD ordinance." Condominium Ass'n of Commonwealth Plaza v. City of Chicago, 924 N.E.2d 596 (Ill.App. 2010).

Plaintiffs did not stop there, and subsequently filed a lawsuit in federal court. Plaintiffs' Count I of its federal lawsuit claimed that the state court holding that "a home rule municipality may violate its own, duly enacted laws in adopting or amending a zoning ordinance...deprives all property owners...of constitutional due process of law." The district court dismissed Count I pursuant to the Rooker-Feldman doctrine and the remainder of the complaint based on res judicata. Plaintiffs appealed the dismissal of Count I to the Seventh Circuit Court of Appeals, which affirmed the district court dismissal in Condominium Ass'n Condominium Ass'n of Commonwealth Plaza v. City of Chicago (decided August 30, 2012).

The Rooker-Feldman doctrine prevents lower courts from reviewing state court judgments over which only the U.S. Supreme Court has federal appellate jurisdiction. As noted by the Seventh Circuit, no matter how erroneous or unconstitutional the state court judgment may be, federal district courts and circuit courts simply have no jurisdiction to hear "cases brought by state-court losers." Consequently, Plaintiffs attempt to obtain a better result in federal court after losing in state court failed, and the case was dismissed for lack of jurisdiction.

Post Authored by Julie Tappendorf, Ancel Glink

Constitutional Issues / Land Use and Environmental

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