Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Wednesday, October 31, 2012

From RLUIPA Defense - Beatings of Cult Members Not Protected by First Amendment

Our friends at RLUIPA Defense cover an interesting case involving the First Amendment's free exercise clause this week.  In Ondrisek v. Hoffman (8th Cir. 2012), a cult leader tried to justify beating members of his cult by claiming he was simply exercising his religious beliefs.  Not surprisingly, the Eight Circuit disagreed, upholding his battery conviction. 

Tuesday, October 30, 2012

City Not Liable for Alderman's Knock-Out Punch

Today's case involves an elected official's fist and a constituent's face.  How is this a municipal case, you ask?  Read to find out...

The facts:  A City of Harvey alderman received various phone calls from residents complaining about parked cars creating a safety hazard.  He drove to the site to investigate and saw that a number of cars were parked illegally in front of a repair shop.  He asked the employee of the repair shop to move the cars, but the employee refused to do so.  The discussion turned into a confrontation, and the alderman punched the employee in the face and head, knocking him unconscious.  The employee filed a lawsuit seeking damages from the alderman and the City.  The City filed a motion for summary judgment on the basis that it was not liable for the alderman's conduct because he was not a City employee under the Illinois Tort Immunity Act. 

The ruling:  The Illinois appellate court agreed with the City.  Wilson v. City of Harvey, 2012 IL App (1st Dist.) 110393-U (October 25, 2012).  While the appellate court recognized that public entities are liable for tortious acts committed by its employees, the court held that the alderman was not a City employee for a number of reasons.  First, the city did not exercise any control over his duties as alderman. Second, the alderman did not receive direction from the mayor, members of the city council, or any other official.  Third, the City lacked the authority to train, supervise, or discipline the alderman, who answered directly to the electorate.  Even if the alderman could be an employee of the City, the court held that he was acting outside the scope of his aldermanic duties when he delivered the knock-out punch to one of his constituents.

According to the court, "there is no question of fact that punching a constituent serves no legislative function."  Thus, the City was not liable for its alderman's conduct.

Post Authored by Julie Tappendorf, Ancel Glink.

Monday, October 29, 2012

Park District Has Immunity for Snow Removal Activities

A participant in a park district class was injured stepping over a pile of snow in a park district parking lot that had accumulated because of recent plowing by the district.  She suffered complications in surgery to repair a fractured femur, and her estate sued the district under various causes of action.  The park district argued it was immune from the suit based on section 3-106 of the Illinois Tort Immunity Act.  That statute protects a local public entity such as the park district from liability where an injury is incurred based on the "existence of a condition of any public property intended or permitted to be used for recreational purposes."  The trial court and appellate court ruled in favor of the plaintiff, finding that an unnatural accumulation of snow and ice was not a "condition of any public property" as referenced in the Tort Immunity Act.  The park district appealed and the Illinois Supreme Court reversed, finding in favor of the park district in Moore v. Chicago Park District, 2012 IL 112788 (October 18, 2012).

The Court first determined that section 3-105 of the Tort Immunity Act did not apply to this situation.  That section states that a local public entity has no duty to remove natural accumulations of ice and snow but requires the public body to exercise due care if it does undertake snow-removal operations. The Court held that whether the condition was natural or unnatural is irrelevant under section 3-106 (the recreational purposes section).  The question for the Court was whether the existence of snow and ice was a "condition" of the property that would provide the park district with immunity.  The Court answered yes, finding that it was the snowy and icy condition of the parking lot that caused the decedent's injury, not the park district's actions in shoveling and plowing snow.  The "condition" need not be a permanent element or "affixed to the property" in any way to provide immunity.  The Court also noted that its holding was consistent with the statute's purpose -- to encourage the development and maintenance of parks rather than to divert those funds to pay damages claims stemming from the resulting condition of the public property.

Justices Kilbride and Freeman dissented, arguing that the majority's decision expands immunity beyond what the legislature intended. 

Post Authored by Julie Tappendorf, Ancel Glink.

Tuesday, October 23, 2012

Determining Full-time Employees under the Health Care Act

In August of this year, the U.S. Departments of Labor, Treasury, and Health & Human Services issued new guidance to employers regarding their "shared responsibility" requirements under the Patient Protection and Affordable Care Act (the "ACA"), commonly known as "Obamacare." IRS Notice 2012-58 and IRS Notice 2012-59 are particularly important in terms of the assessments and choices employers must make in determining which employees are considered to be full-time employees under the ACA. While the guidance provided by these notices is not yet final because the Departments are still seeking public input, it is important for employers, especially those employing part-time and seasonal employees, to become familiar with the rules and choices so that they will be prepared for the expected implementation date of January 1, 2014.

Under the ACA, "large employers" are liable for "assessable payments" for full-time employees who are not covered by insurance, or are covered by insurance that does not meet minimum standards or is unaffordable. A large employer is defined as one that has 50 or more full-time-equivalent ("FTE") employees. If an employer is a large employer, and the employer provides no insurance coverage on or after January 1, 2014, the employer must make assessable payments in lieu of insurance.

For a complete analysis of the new requirements, please click to view the full article authored by Ancel Glink attorneys Don Anderson and Adam Simon.

Thursday, October 18, 2012

Appellate Court Returns County Board Candidates to Ballot

The Illinois Appellate court recently considered an appeal filed by candidates for county office whose nomination papers had been invalidated by an electoral board based on an allegedly improper process for filling candidate vacancies.  The appellate court reversed that decision and ordered the candidates' names to be returned to the ballot for the November election in Carlasare v. Will County Officers Electoral Board, (September 19, 2012).  
Following the March 2012 primary election, multiple districts in Will County were left with vacancies in nomination for the Will County Board.  The Election Code provides that where no candidate is set forth on the primary election, a district committee for each county board district must designate a candidate.  Pursuant to this statute, the Democratic Central Committee selected candidates to fill the vacant spots for Will County Board in a meeting in May, 2012.  Thereafter, the selected candidates obtained the required signatures and filed the necessary nomination forms to run for the county board.  
 The following month, a group of objectors filed a challenge alleging that the nomination papers of the candidates were invalid.  The objectors argued that the designation process was fatally flawed because a proper district committee was not formed to make the designation.  They alleged that the precinct committeemen for each district were not given reasonable and timely notice that candidates would be selected during the May meeting.  Additionally, they argued that the procedure was improper because the central committee chairman served as de facto chairman of each district committee during the process, even though he was only a precinct committeeman for one of the districts.  The objectors further contended the designations made by subcommittees of the district committees were improper, as they were wrongly appointed by the entire central committee, rather than by the district committees.
The electoral board held in favor of the objectors, determining that the designation process was improper and that the nomination papers of the candidates were invalid.  On appeal by the candidates, the trial court affirmed the board's decision.
The Illinois Appellate Court then reversed the board’s decision, finding nothing improper about the procedure followed by the committee or the selection of the district subcommittees.  Although the electoral board found that the district subcommittees must be nominated or appointed by the district committees and not the central committee itself, the Appellate Court determined that no such limitation exists in the Election Code.  Rather, the Court specified that the Electoral Code only requires that the designation be made by a committee composed of precinct committeemen for that particular district.  In light of this interpretation, the court found that because the district subcommittees were comprised of volunteers from the appropriate districts, the selection of the subcommittees was proper.  Additionally, the court found that it was proper for the precinct committeeman to serve as the de facto chair of each district committee because political parties are allowed to follow their own internal rules.  Ultimately, the Illinois Appellate Court ordered the candidates' names returned to the ballot for the November 2012 election.
Post Authored by Erin Baker, Ancel Glink.

Wednesday, October 17, 2012

New Case Discusses PSEBA, Catastrophic Injuries, and Medicare

In Pyle v. City of Granite City, a former firefighter filed suit to challenge the City's denial of health insurance benefits under the Public Safety Employee Benefits Act (PSEBA).  The trial court had ruled that Pyle was entitled to the PSEBA payments for life.  The City appealed, arguing that Pyle was not catastrophically injured pursuant to PSEBA and the City was not required to pay the premiums for Pyle's supplemental Medicare coverage.

The appellate court reversed in part and affirmed in part.  First, the court determined that Pyle was "catastrophically injured" and that the City was required to pay Pyle's health insurance premiums.  However, the court determined that the City was not required to pay for Pyle's supplemental Medicare coverage once he became Medicare eligible.

With respect to Pyle's "catastrophic injury," the appellate court relied on the Illinois Supreme Court's ruling in the 2003 case Krohe v. City of Bloomington that a catastrophically injured firefighter is synonymous with a firefighter who, due to injuries, had been forced to take a line-of-duty disability.  Although Granite City argued that the Supreme Court's interpretation did not comport with the commonly understood meaning of "catastrophic," the appellate court declined the City's invitation to "overrule" the Supreme Court's decision in Krohe.  Thus, because Pyle suffered a line-of-duty injury, he qualified for PSEBA benefits.

Next, the appellate court agreed with the trial court's determination that Pyle was entitled to payment of PSEBA benefits for his lifetime.  However, the appellate court determined that those benefits are reduced or may, in some cases, cease when a person becomes Medicare eligible because the statute expressly provides that health insurance benefits "payable from any other source shall reduce benefits payable" under PSEBA.  In this case, once Pyle reached age 65 and became Medicare eligible, the City's payment of PSEBA benefits were "reduced" in their entirety, meaning the City no longer was required to pay his health insurance premiums.  

Finally, the appellate court rejected Pyle's contention that the City was responsible to pay for supplemental Medicare coverage offered by the City's group plan, finding no such statutory requirement. If Pyle wanted to participate in the City's group insurance plan supplemental Medicare coverage, then he would have to pay for it.

Post Authored by Julie Tappendorf, Ancel Glink.

Monday, October 15, 2012

ADA May Require Reassignment of Disabled Employee to Vacant Position

Last month, the Seventh Circuit Court of Appeals held that employers must establish policies to reassign employees to vacant positions when their disability prevents them from continuing in their current positions.  EEOC v. United Airlines.  This case overturned the court's previous position that the ADA does not require employers to reassign employees whose disability would cause them to lose their position. 

In this case, the EEOC brought suit against United Airlines in an effort to show that United's policy regarding transfers violated the ADA.  That policy established Reasonable Accomodation Guidelines that individuals with disabilities who faced job loss due to their disability would have to compete for vacant positions.  The district court had dismissed the EEOC's case based on a previous Seventh Circuit case Humiston-Keeling.  However, in its appeal of the dismissal, the EEOC argued that the U.S. Supreme Court's ruling in U.S. Airways v. Barnett controlled. 

The Seventh Circuit, hearing the case en banc, agreed with the EEOC.  The Court reviewed language contained in the ADA that “reassignment to a vacant position” is a possible “reasonable accommodation” for disabled employees. The EEOC contended that “reassignment” under the ADA requires employers to appoint employees who are losing their current positions due to disability to a vacant position for which they are qualified.  However, the Seventh Circuit had previously held in Humiston-Keeling that the ADA has no such requirement.  Based on the Supreme Court's more recent decision in Barnett, however, the Seventh Circuit reversed and overturned Humiston-Keeling, holding that the ADA does mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that the accommodations would be ordinarily reasonable and would not present an undue hardship to that employer. The Court remanded the case with instructions that the district court determine if there were fact-specific considerations particular to United’s employment system that would render mandatory reassignment unreasonable in this case. These exceptions might include a violation of an established seniority system or other provision in a collective bargaining agreement.

What does this mean for government employers?  Based on this ruling, public employers should review their employment policies and procedures and determine whether changes are needed to bring those practices into compliance with this ruling.  In addition, before making a determination on reassignment of an employee with a disability, public employers may want to consult with their counsel to make the determination whether reassignment would be unreasonable due to a particular undue hardship or required based on the circumstances. 

Post authored by Julie Tappendorf, Ancel Glink

Friday, October 12, 2012

County's Property Tax Records Fee Violated FOIA

On October 5, 2012, the Fifth District Appellate Court held that a fee charged for production of real estate records violated Section 6 of the Illinois Freedom of Information Act (FOIA).  Sage Information Services v. Humm, 2012 IL App (5th) 110580 (October 5, 2012).

Sage Information Services filed a FOIA request to compel Franklin County to release “a copy, on CD or similar electronic media” of current real property assessment records for the entire county for the 2009-2010 tax year.  Upon receipt of plaintiff’s request, the county assessor refused to comply until Sage paid $0.05 for each of the 32,188 real estate records, or $1,609.40.  The county argued that the fee was authorized by Section 9-20 of the Property Tax Code, which allows a county assessor to charge a “reasonable fee” beyond actual costs.  Plaintiff refused to pay the requested amount and sued the county, alleging that the fee was a violation of FOIA.  The circuit court rejected plaintiff’s argument, holding that the fee was permitted by the Property Tax Code.

On appeal, the Illinois Appellate Court reversed the circuit court decision and directed the county assessor to release the records electronically at no additional fee beyond the cost of producing the electronic media.  The court found that Section 6 of FOIA prohibits a fee for reproduction of electronic records in excess of the cost of the electronic medium, unless such a fee is expressly provided by another statute.  The court examined both FOIA and the Property Tax Code, ultimately holding that the language in FOIA allowing for cross-referencing to other statutes only exists for paper records. 

In the opinion, Justice Welch emphasized the importance of following expressed legislative intent and the public policy interest in prohibiting restraints on access to information in all but a few limited exceptions.  The court determined that the substantial fee demanded by the county constituted a restraint on access to information.  The court stated that it has a duty to liberally construe FOIA to allow interested citizens easy access to public records.

Post Authored by Erin Baker, Ancel Glink

Thursday, October 11, 2012

Illinois Municipal League Conference, October 18-20, 2012

Each year, the Illinois Municipal Conference holds its annual conference for municipal officers and employees across the state.  The conference offers substantive sessions, workshops, and other educational opportunities, as well as networking events and receptions.  Ancel Glink attorneys will be participating in a number of the municipal law sessions, including the following:

Thursday, October 18, 2012

2:15 p.m. – 3:15 p.m.
The municipal election season raises many technical and, at times, controversial issues for municipalities. This session will provide a refresher on rules related to processing nomination papers, convening electoral boards, certification of ballots, expenditure of public funds for referenda, regulation of political signs, qualifications of candidates for office, establishment of compensation of newly-elected officials, incompatibility of offices, campaign-free zones, and changes in the laws related to voting and elections.
PRESENTER:  Keri-Lyn Krafthefer, Ancel Glink

3:30 p.m. – 4:30 p.m.
In tough economic times, municipalities are trying to save legal fees by having staff handle more responsibilities. In some municipalities without staff, officials perform many tasks themselves. This session will provide the basics of how to draft ordinances and resolutions that are legal with minimal involvement from your municipal attorneys.
PRESENTER: Julie Tappendorf, Ancel Glink

Friday, October 19, 2012

First, don't forget to stop by the Exhibit Hall on Friday around 10:15 a.m. for a coffee break sponsored by Ancel Glink before heading to your Friday sessions.

10:30 a.m. – 11:30 a.m.
Public works construction projects are fraught with potential pitfalls. This session will address the legal processes for bidding the project, selecting engineers and architects, negotiating construction contracts, navigating prevailing wage issues, change orders, and handling problems that arise during construction.
PRESENTERS: Derke J. Price and John P. Christensen, Ancel Glink

PART 1 - 2:15 p.m. – 3:15 p.m.
PART 2 - 3:30 p.m. – 4:30 p.m.
Is your mayor a bully? Is your clerk obnoxious? Are your trustees crazy? Seasoned officials and newly elected officials alike will benefit from this review and refresher of who has the power to do what within a municipal government, fundamental municipal laws and procedures, voting and vetoing, vacancies and appointments, parliamentary matters, conflicts, and related issues. This session is presented by the authors of the Illinois Municipal Handbook. Bring your questions!
PRESENTERS: Stewart H. Diamond, Robert K. Bush, Keri-Lyn Krafthefer, Derke J. Price, and Julie Tappendorf, Ancel Glink

Saturday, October 20, 2012

FOIA/OMA/Agendas/Minutes/Postings Update
IMRF Total Compensation
Municipal Elections
9:35 a.m. – 11:30 a.m.
PRESENTERS: Stewart H. Diamond, Robert K. Bush, Keri-Lyn Krafthefer, and Heather Kimmons, Ancel Glink

1:30 – 2:30 p.m.
PRESENTER:  David S. Silverman

Monday, October 8, 2012

Illinois Campaign Finance Disclosure Laws Constitutional

Illinois law requires that anyone who accepts contributions, makes expenditures, or sponsors electioneering communications in any amount over $3,000 must make regular financial disclosures to the State Board of Elections.  The Seventh Circuit recently upheld these campaign finance disclosure laws as constitutional. Center for Individual Freedom v. Madigan, 2012 WL 3930437. 

The Center for Individual Freedom wanted to sponsor mass media advertisements for candidates in the 2010 Illinois elections.  However, because the Center was concerned that it would have to register as a PAC and disclose its election-related expenditures and the identity of its donors, it filed a lawsuit against the state.  The Center argued that the disclosure requirements were unconstitutionally vague and overbroad in violation of its First Amendment protection of speech.  The district court ruled against the Center, who then appealed to the Seventh Circuit.

The Seventh Circuit affirmed, finding that unlike campaign contribution and expenditure limits, disclosure laws “do not prevent anyone from speaking.”  In upholding the constitutionality of the state disclosure laws, the Seventh Circuit held that campaign finance disclosure laws must strike a balance between protecting individual speakers from invasions of privacy and harassment, while enabling transparency and accountability in political campaigns. In this case, the Court found that the disclosure requirements were substantially related to the state’s significant interest in ensuring an informed electorate and struck the appropriate balance to be constitutional.

Post Authored by Heather Kimmons and Julie Tappendorf, Ancel Glink

Thursday, October 4, 2012

School Avoids Attorneys Fees But Not $2,500 Penalty in FOIA Case

Yesterday, the Second District Appellate Court denied a newspaper’s request for attorneys’ fees under the Illinois FOIA but granted the newspaper’s request for a civil penalty against a school district that initially refused to release a letter in response to the newspaper’s FOIA request.  Rock River Times v. Rockford Public School District, 2012 IL App (2d) 1108798 (October 3, 2012).

The dispute involved a newspaper’s request for a copy of a letter written by a school principal in response to a reprimand by the superintendent, referred to as the “rebuttal letter.” Initially, the school cited two exemptions in denying the newspaper’s FOIA request: (1) “personal privacy” and (2) the Personnel Record Review Act.  In accordance with the requirements of FOIA at that time, the school sent a letter to the PAC requesting permission to deny based on “personal privacy.”  The PAC denied the pre-authorization request, but the school continued to rely on the second claimed exemption.  The newspaper filed an appeal, and the PAC concluded that the second exemption also did not apply.  When the school subsequently claimed a third exemption (adjudication of an employee grievance or disciplinary case), the newspaper filed a lawsuit.

While the case was pending in the trial court, the school released the rebuttal letter to the newspaper and filed a motion to dismiss the newspaper’s case based on mootness.  The newspaper responded with a request for award of attorneys’ fees and a civil penalty against the school.  The trial court first looked at the statutory attorneys’ fee provision that had been recently amended to state that if the requester “prevails in a proceeding under this Section, the court shall award such person reasonable attorneys’ fees and costs.”  Previously, the language had stated that a court “may award” fees if the requester “substantially prevails.”  In this case, the court found that the newspaper was not entitled to attorneys’ fees because it had not achieved “judicially sanctioned relief.  However, the court did impose a penalty of $2,500 against the school because the school asserted a third exemption once its original position was found to be incorrect.  According to the trial court, the “continued withholding” of the rebuttal letter by the school constituted a willful and intentional violation of the FOIA, justifying the imposition of a civil penalty.   

The appellate court affirmed the trial court on both the denial of the newspaper’s attorneys’ fees and the imposition of the civil penalty against the school. 

First, the appellate court determined that FOIA requires nothing less than court-ordered relief in order for a party to be entitled to attorneys fees under FOIA. Because the school had released the rebuttal letter before the court ordered any relief, the newspaper was not a prevailing party under FOIA. 

Second, the court interpreted FOIA to require the imposition of a penalty for a willful and intentional failure to comply with FOIA.  In this case, in raising a third exemption after the first two were rejected by the PAC, the school did not act in good faith, and the civil penalty was justified.

Based on this ruling, a public body might avoid an attorneys’ fee award if it releases the requested records prior to an adverse court ruling.  However, that action may not avoid the imposition of a civil penalty, which at a minimum will set the public body back $2,500.

Wednesday, October 3, 2012

Zoning Amendment Did Not Moot Church's RLUIPA Claim

In Opulent Life Church v. City of Holly Springs, Mississippi, (5th Cir. Sept. 27, 2012), a church leased property in the city’s downtown square, pending zoning approval.  The city’s zoning ordinance at the time singled out “churches” for unfavorable treatment.  The church filed suit in federal district court, alleging that the church-specific provisions in the ordinance were a violation of RLUIPA.  The district court denied the church’s request for a preliminary injunction to stop the city from enforcing its zoning ordinance.  The church then appealed to the Fifth Circuit Court of Appeals.

On the night before oral arguments were heard, the city amended the ordinance to ban “[c]hurches, temples, synagogues, mosques, and other religious facilities” from its downtown square.  The city argued that the church suffered no harm as it could have asked for a variance from the ordinance before filing suit.  The city also argued that its repeal of the original ordinance rendered the case moot.  

The Fifth Circuit, however, rejected the city’s arguments, concluding that the outright ban in the second ordinance presented an even weaker case for mootness.  According to the court, "Holly Springs has already repeated its allegedly wrongful conduct. Instead of imposing special burdens on Opulent Life before it can occupy its leased property, Holly Springs has doubled down and banned Opulent Life from the property altogether. This may present an even weaker case for mootness...the case is not moot."

Additionally, the Fifth Circuit held that the church suffered irreparable harm when it was unable to use the building it had leased.  A unanimous three-judge panel concluded that the church had outgrown its current location and the city’s actions frustrated its religious mission.  Ultimately, the Fifth Circuit vacated the district court decision and remanded the case to determine the likelihood the church will succeed on its challenge to the validity of the new ordinance, the harm caused to each party by a preliminary injunction, the amount of actual damages suffered by the church, and whether the church is due attorneys fees.

Had the city amended its zoning code to expand its list of prohibited uses in the downtown square to include non-religious assembly uses (such as libraries, museums, art galleries, which the court noted were permitted), the court may have decided this case very differently. 

Post Authored by Erin Baker and Julie Tappendorf, Ancel Glink

Tuesday, October 2, 2012

Trustee's Abstention Did Not Count as Vote in Favor of Agreement to Settle His Lawsuit Against the Board

Bertrand was a trustee on a three-member school board.  People v. Bertrand, 2012 IL App (1st) 111419 (September 28, 2012).  Bertrand had filed a civil rights lawsuit against the school board when the previous board members refused to seat him as a trustee on the board.  He prevailed on his claim to be seated as a trustee, and the parties negotiated a draft settlement of the remaining claims that would involve payment to the defendant of $220,000.  On June 10, 2010, only two members of the board were present at the meeting at which the proposed settlement was scheduled for approval.  The other member of the school board voted in favor of the settlement and Bertrand abstained. 

Several members of the public expressed dissatisfaction with the process and alleged that the vote was void because the defendant's abstention should not have counted as an affirmative vote.  So, another meeting was held to put the settlement agreement to a second vote, this time before all three trustees on the school board.  One member voted to approve the agreement, another voted against the agreement, and Bertrand again abstained.  Bertrand declared that the motion passed, and plaintiffs filed this lawsuit shortly after the vote, seeking a declaration from the court that the settlement agreement was void.  The Illinois Attorney General intervened as a plaintiff.  The trial court ruled in favor of the plaintiffs, finding that the settlement agreement was void because it was not properly approved by the school board.  The school board appealed.

The appellate court first looked at the conflicts of interest statutes in the Prohibited Political Activities Act.  According to plaintiffs, Bertrand had a clear conflict preventing him from voting on a settlement agreement in which he had a financial interest. (50 ILCS 105/3(a)). That section is designed to deter public officials from placing themselves in positions where their private pecuniary interests conflict or may conflict with their official public duties.  In this case, the appellate court agreed with the plaintiffs that the settlement agreement was a prohibited contract under this section. The court also rejected Bertrand's argument that his vote to abstain counted as a "yea" vote under the Prosser rule because such an interpretation would "create an end-run around the statute, allowing public officials to cast affirmative votes for contracts in which they had an interest by voting to abstain."  Thus, Bertrand's abstention was interpreted as having the same effect as a "nay" vote, meaning that the settlement agreement was not properly approved.

Post Authored by Julie Tappendorf, Ancel Glink

Monday, October 1, 2012

Enforcement of Ordinance Against Protester Violates First Amendment

During a protest against the war in Iraq, a protester was arrested after he refused a police officer’s order to move from the street onto the sidewalk.   Police arrested the protester pursuant to an ordinance that criminalizes an individual’s behavior when he “knowingly . . . [f]ails to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm.” The protester sought to enjoin the city from enforcing the ordinance, arguing that the ordinance was unconstitutional based on the First and Fourteenth Amendments.  The district court dismissed the claim based on a lack of standing.

On appeal to the Seventh Circuit, the protester argued that the ordinance was overbroad and vague, in violation of the First Amendment.  Bell v. Keating (September 10, 2012). Additionally, he alleged that the ordinance invites arbitrary and discriminatory enforcement as it fails to provide definitive notice regarding the type of behavior criminalized.     

The Seventh Circuit agreed that the ordinance violates the First Amendment.  However, in deference to the legislature, the Seventh Circuit concluded that completely invalidating the ordinance was not necessary as the constitutional problems of the ordinance could be fixed.  The Court partially invalidated those portions of the ordinance that permitted arbitrary enforcement where a possibility for “serious inconvenience, annoyance, or alarm" exists but upheld that portion of the ordinance that authorized the police to order people to disperse where a possibility for "substantial harm" is present.  The court held that certain portions of the ordinance could be either rewritten or construed to avoid facial unconstitutionality.

Post Authored by Erin Baker, Ancel Glink