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Friday, December 28, 2012

2012 Municipal Minute in Review

2012 has been a big year for municipal law, and Ancel Glink has been there to keep you updated every step of the way. As the year comes to a close, we summarize the biggest stories of the year, in 140 characters or less:

Court rejects constitutional challenge to red-light cameras. 3/27
Municipal ordinances imposing administrative towing fees authorized by amendments to Illinois Vehicle Code. 1/16

Government Transparency
5th Circuit upholds Texas Open Meetings Act, ruling that criminal penalties in the Act do not violate the 1st Amendment. 9/27 
Village board violated Open Meetings Act when discussing budget issues in closed session. 7/19 
New law amends Open Meetings Act to require more specificity for agenda items. 7/20
Text messages between public officials pertaining to public business are subject to release under FOIA, even if sent on private cell phones. 6/25
Public bodies must identify public employees by name, not job title, when posting salary and compensation information. 12/3 

Gun Control
The 7th Circuit finds Illinois’ concealed carry ban unconstitutional. 12/11 
Court strikes down another part of Chicago's gun ordinance. 6/26

Land Use
The Supreme Court rejects a blanket temporary flooding exception to the Takings Clause, overturning a decision by the Federal Circuit. 12/5 
ADA does not prohibit municipalities from closing medical marijuana dispensaries, according to the 9th Circuit. 5/23 
Telecommunications Act Amendments limit local government control over cell phone towers. 2/27 

City must pay health insurance premiums for catastrophically injured firefighter, but not required to pay for supplemental Medicare coverage. 10/17 
Is an elected official an employee? It depends… 3/5 
City not liable after its alderman punched one of his constituents in the face, knocking him out. 10/30 

Enforcement of Illinois eavesdropping law blocked after Supreme Court denial of certiorari leaves injunction barring the law in place.11/26 
Tickets on windshields may violate Driver’s Privacy Protection Act, potentially imposing massive liability on municipalities. 8/17 

Property Maintenance and Inspections
Illinois General Assembly passes bill to help local governments clean up abandoned homes and prevent new foreclosures. 12/12 
Park districts have immunity for snow removal actions, and have no duty to remove natural accumulations of ice and snow. 10/29 
Ordinance requiring inspection and rental occupancy permit prior to occupancy of rental units held unconstitutional. 1/26 

Social Media
District court judge rules that clicking “like” on Facebook is not speech protected by the 1st Amendment. 9/7 
Lawsuit claims that city’s Facebook page is a public forum, and that city cannot remove comments posted on the page due to their content. 8/23 
New laws prohibit employers from forcing employees and job applicants to disclose their social media passwords. 4/20, 4/13, 3/28
New article provides municipalities with recommendations in their use and control of social media communications. 1/11

Happy New Year!

Authored by Julie Tappendorf and Matt DiCianni, Ancel Glink

Wednesday, December 26, 2012

Gun Regulations Under the New Second Amendment

In light of the recent Seventh Circuit decision in Moore v. Madigan (overturning Illinois' concealed carry ban), local government officials must consider the effect of expanding rights under the Second Amendment when regulating handguns, including gun shops, firing ranges, and home occupations.

In an article recently published in the American Bar Association's The Urban Lawyer, Ancel Glink attorneys Dan Bolin and Brent Denzin review the emerging constitutional framework, and how communities can permissibly regulate gun-related land uses.  In When All Heller Breaks Loose, local government and land use officials learn that more evidence will be needed to support a gun regulation when that regulation strikes closer to the core Second Amendment right -- the right to possess a handgun for self-defense. Check out When All Heller Breaks Loose:  Gun Regulation Considerations for Zoning and Planning Officials Under the New Second Amendment, 44 Urb. Law. 677 (2012).

Thursday, December 20, 2012

Reminder - Tax Levy Filing Deadline Early This Year

Under Illinois law, taxing bodies must file their tax levy ordinances with their respective county clerks' offices no later than the last Tuesday in December.  This year, the last Tuesday falls on Christmas Day.   The Department of Revenue has advised county clerks that, unlike with other statutes, the filing deadline does not get extended to December 26th, the day after the holiday.  Instead, taxing bodies must file their levies before December 25th. 

Some county offices are closed on both Christmas Eve and Christmas Day this year.  In those counties, taxing bodies must file their levy ordinances no later than December 21st.  As an example, Lake County, Illinois is closed both December 24th and 25th, so the last day to file a tax levy in Lake County is tomorrow, December 21st.  You should check with your county clerk's office to ensure that your tax levy ordinance is timely filed.

City Access to Employee's Text Messages Does Not Violate Stored Communications Act

The Fifth Circuit Court of Appeals recently held that a municipality's access to and dowloading of text messages and images from a police dispatcher's cell phone did not violate the federal Stored Communications Act.  Garcia v. City of Laredo.  The dispatcher had filed suit against the City after she was terminated for violation of police department rules and regulations because of the nature of the images and text messages retrieved from her cell phone. The district court had dismissed the case, and she appealed to the Fifth Circuit.

Congress passed the Stored Communications Act (SCA) in 1986 as part of the Electronic Communications Privacy Act to protect potential intrusions on individual privacy that were not addressed by the Fourth Amendment.  The SCA prohibits accessing without authorization any "facility" that provides electronic communication services in order to obtain access to an electronic communication in electronic storage.  The dispatcher had claimed that the City's access to her private cell phone violated the SCA.  The City countered that the SCA does not apply to data stored in a personal cell phone.  The Fifth Circuit agreed with the City.  First, the intent of the SCA is to apply to telephone companies, Internet or e-mail service providers, and bulletin board services.  Second, the Court found that a personal cell phone is more like a home computer, and courts had previously held that access to a home computer was not covered by the SCA. 

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, December 19, 2012

Why You Should Read a Social Media Site's TOS

It started in February with a blog post by an attorney and photographer who said she would "quit" Pinterest because of her concerns of legal liability by "pinning" photographs from the web to her Pinterest page.  Pinterest is a social networking site that allows users to create pages and "inspiration boards" where they can "pin" photos and other images to their virtual corkboard.  She was concerned with two issues relating to Pinterest's terms of service (TOS).  First, the TOS required all users to represent and warrant that all material pinned on Pinterest is owned by the member user.  Second, the TOS required all users to indemnify, defend, and hold Pinterest harmless if any lawsuit was filed against Pinterest for copyright violations.  She was concerned about the lack of any mention of a "fair use" exception, as well as the broad nature of the indemnification provision and decided to delete her inspiration boards from her Pinterest page.  This would not have created much buzz, except she wrote about her experience on her blog and the Wall Street Journal picked up the story. Ultimately, she kept her Instragram account, but deleted her inspiration boards.  

Fast forward 10 months and now the issue is with proposed changes to Instragram's terms of service.  Instragram is a social networking site where users post photos for others to see, "like," and share comments.  Instragram announced this week that it will modify its TOS to allow Instragram to use, display, or sell its members' user names, likenesses, photos, and activities for paid or sponsored content or promotions.  No compensation will be paid to members for the use or sale of their content.  Instragram will also be able to share users' information with Facebook, which company now owns Instragram. These changes would be effective January 16, 2013, so users have less than a month to decide whether they are ok with the possibility that their photos may be sold and used for commercial purposes, without their consent and without payment of any compensation.

In response to an outpouring of opposition to the proposed changes, Instragram appears to be backing off from its initial proposal to change its TOS.  Late Tuesday afternoon, Instragram posted on its blog that it would revisit the proposed changes to make it clear that it has no intention of selling users' photos. 

While social media users are getting used to the proliferation of ads on social networking sites and elsewhere on the internet, social networking sites will need to tread carefully in instituting changes that affect a user's expection of privacy and ownership of the content the user posts on FB, Instragram, and other popular social networking sites.

Post Authored by Julie Tappendorf, Ancel Glink

Tuesday, December 18, 2012

Upcoming Webinar on Development Agreements

On January 22, 2013, the American Bar Association will host a webinar on development agreements, presented by the authors of the newly released book "Development by Agreement: A Tool Kit for Land Developers and Local Governments."  The program will be of benefit to local governments and developers/property owners who want to stimulate development in difficult economic times.  A description of the program and details about the authors are below and you can also find out more about the webinar on the ABA's website
Program Description:
Land owners and local governments often enter into agreements with the objective of fixing, if not increasing, public benefits while simultaneously reducing the uncertainty often associated with proposed but not yet built development.  This program will provide an overview of the tool kit of agreements typically available to local governments and developers to solve community problems while providing increased development certainty in uncertain economic times.  Such agreements include, for example, those needed to finance community benefits, provide affordable housing, assure school impact mitigation, or simply provide a period of time and process for exclusively negotiating the terms of such agreements.  The panel will delve into the statutory and judicial authority for such agreements, even when the required "nexus" between the agreed upon benefits and the development may fall short of that required when an agency is simply imposing conditions of approval, fees or exactions.  This program is a must for those looking to stimulate development in their communities.
David L. Callies, FAICP, is a Benjamin A. Kudo Professor of Law at the University of Hawaii School of Law and coeditor of the annual Land Use and Environment Law Review.
Cecily T. Barclay is a partner with Perkins Coie LLP in San Francisco and is co-author of the annual Curtin's California Land Use and Planning Law.
Julie A. Tappendorf is a partner with Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, P.C. in Chicago, an adjunct professor at the John Marshall Law School, and the author of this blog.

Thursday, December 13, 2012

Ancel Glink Defense E-News Just Released

Ancel Glink's litigation group just released a new edition of Ancel Glink Defense E-News (4th Quarter). The Defense E-News is an electronic newsletter that focuses on the latest court decisions and legislative changes in litigation which may affect our local government clients.  You can read the Defense E-News in the Resource Center on Ancel Glink's website.

New Municipal Laws Taking Effect January 1st

The Illinois Municipal League has released a list of new laws that municipalities should be aware of that take effect January 1, 2013.  You can read more about the list on the IML's website and some of the new laws are summarized below:

Deadline for filing candidate nomination petitions moved from Dec. 24th to Dec. 26th (PA 97-1044)

Employers cannot require or request employee or candidate social media passwords (PA 97-875)

Employers no longer must notify contractors of changes to prevailing wage rates (PA 97-964)

Meeting agendas must contain the "general subject matter" for action items. (PA 97-827)

Notices/agendas must be continuously available for public review for 48 hours before meeting (PA 97-827)

Reports concerning sales tax rebate agreements must be filed with the Dept. of Revenue (PA 97-976)

New notice and hearing requirements must be followed for the establishment of SSAs (PA 97-1053)

Items seized by police during a traffic stop must be returned to the Secretary of State (PA 97-743)

Police now required to issue tickets for illegal parking in spaces reserved for the disabled (PA 97-845)

IDOT must provide notice to municipality of projects causing lane closure of 5 days or more (PA 97-992)

Use of DUI funds now expanded to include equipment, training, and safety checks (PA 97-1050)

Post Authored by Julie Tappendorf, Ancel Glink

Wednesday, December 12, 2012

Foreclosure Bill Passes Illinois General Assembly

Last week, the Illinois General Assembly passed Senate Bill 16 (House Amendment 8) to help local governments clean up abandoned homes and prevent new foreclosures. The bill is intended to generate revenue for foreclosure prevention and neighborhood stabilization programs and streamline the foreclosure process for abandoned homes. 

Details of the bill include provisions to:
  • fast track the foreclosure process for abandoned homes.  It is expected that the new process will reduce the timeline for the foreclosure process from the current 21 months to about 3 months.
  • require a new foreclosure fee that will be placed in two funds:  the Foreclosure Prevention Fund (FPF) and the Abandoned Residential Property Municipality Relief Fund (ARPMRF). 
  • fund grants (through the RPF) to local governments to maintain and secure abandoned homes, including $28 million in grants to local governments.
  • fund grants (through the ARPMRF) for housing counseling agencies to assist homeowners in preventing foreclosures.
Senate Bill 16 now heads to the Governor for his signature. 

Post Authored by Julie Tappendorf, Ancel Glink.

Tuesday, December 11, 2012

Illinois' Concealed Carry Ban Found Unconstitutional

In a Second Amendment challenge to the constitutionality of Illinois’ ban on carrying concealed guns, the Seventh Circuit Court of Appeals found that the state failed to meet its burden to provide “more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety.” Moore v. Madigan, Nos. 12-1269, 12-1788 (7th Cir. Dec. 11, 2012).  Illinois was the only remaining state that maintained a flat ban on carrying ready-to-use guns outside the home.

As we discussed in June, the Supreme Court decision in District of Columbia v. Heller, first recognized a personal right to possess a handgun for self-defense, especially in the home. 554 U.S. 570 (2008).  In Moore v. Madigan, the district court had concluded that, based on Heller, the core Second Amendment right only exists inside the home. On appeal, the Seventh Circuit disagreed.  

The Seventh Circuit noted that Heller simply indicated that the need for defense of self, family, and property is most acute in the home.  Therefore, “[a] right to bear arms this implies a right to carry a loaded gun outside the home.” In applying this right to the ban on carrying concealed weapons outside the home, the Court concluded that the state failed to make the required “strong showing” of empirical evidence to show that its gun ban was vital to public safety.  Bans that focus on particular places or dangerous people can be upheld with less evidence. 

The Seventh Circuit’s decision is stayed 180 days to allow the Illinois General Assembly an opportunity to craft a new gun law consistent with the Court’s opinion. The Court had some suggestions, stating that “Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.” These might include:

  • allowing “open carry” of guns in public;
  • “minimal” permit restrictions;
  • bans limited to particular places and obviously or empirically dangerous people;
  • training requirements; and
  • requiring applicants to demonstrate a need for a handgun to ward off dangerous persons.
While Second Amendment jurisprudence is still developing, it is increasingly clear that local governments should be prepared to produce evidence that their local gun regulations actually accomplish their asserted public safety goals.

Post Authored by Dan Bolin, Ancel Glink

Monday, December 10, 2012

Seventh Circuit Rejects Challenge to Wind Farm Ordinance

County officials amended a zoning ordinance to make it easier for residents to build wind farms.  Plaintiff owns three tracks of land zoned agricultural in the county, and brought suit in federal court out of concern that a wind farm on adjacent property would damage her land because of the potential for interference with electronic communication, lightning damage, and electromagnetic radiation.  Plaintiff alleged that County officials violated the takings clause of the U.S. Constitution and the Illinois Constitution, as well as the due process clause.

The district court dismissed the lawsuit for failure to state a cause of action.  The Seventh Circuit affirmed.  Muscarello v. Winnebago County Board, Nos. 11-2332 & 11-3258 Cons. (December 7, 2012).  First, the Seventh Circuit held that plaintiff failed to prove a taking pursuant to the U.S. Constitution because the ordinance does not transfer possession of any of her property or limit its use.  Further, the Court found that plaintiff did not assert a valid argument for a taking pursuant to the Illinois Constitution because no wind farms have even been built within the county and no physical disturbance of property has occurred.  The Court also rejected plaintiff’s due process argument, finding that merely allowing residents to build wind farms is insufficient to establish a deprivation of property.  The court also acknowledged that even a nuisance suit would fail as plaintiff had not actually suffered any harm.  Merely the possibility that a wind farm might someday be built nearby is not enough to establish sufficient harm.   

Post Authored by Erin Baker, Ancel Glink.

Wednesday, December 5, 2012

Supreme Court Rejects Blanket Temporary Flooding Exception to Takings Clause

We previously reported on an appeal to the U.S. Supreme Court involving a claim that flooding caused by the federal government resulted in a Fifth Amendment "taking" requiring payment of just compensation. Yesterday, the Supreme Court issued its opinion in Arkansas Game and Fish Comm'n v. United States, No. 11-597 (Dec. 4, 2012), reversing the Federal Circuit’s previous ruling that there was no taking because the flooding was not "permanent or inevitably recurring."
The plaintiff had argued that actions taken by the Army Corps of Engineers in releasing water from a dam caused sustained flooding during tree-growing season, and that the cumulative impact of the flooding caused the destruction of timber and a substantial change in the character of the terrain, necessitating costly reclamation measures. The federal government had defended its actions by arguing that there is an exception to the takings clause for temporary flooding actions by the government, which argument was accepted by the Federal Circuit Court.

The Supreme Court rejected any blanket temporary-flooding exception to the Fifth Amendment takings clause, stating that "[w]hile we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases." The Court did not rule on the actual takings claim presented by the plaintiff, however, instead remanding the case to the lower court to apply the Court’s takings analysis to the specific facts of the case.
Post Authored by Julie Tappendorf, Ancel Glink.

Tuesday, December 4, 2012

Aldermen’s Opposition to Officer's Appointment Not A Free Speech Violation

The Seventh Circuit recently held that a group of aldermen did not violate the First Amendment when they refused to confirm a Commissioner’s appointment for his lack of political support.  In Embry v. City of Calumetplaintiff, the Commissioner for the Department of Streets and Alleys, supported the mayor and a group of aldermen running as a slate in the municipal election.  The aldermen then defected from the team of candidates and pressured plaintiff to support a rival candidate.  When plaintiff refused to support the rival, the aldermen threatened to oppose ratification of his appointment as commissioner of a new department, which encompassed the old Department of Streets and Alleys.  The mayor then appointed another person as commissioner of the new department and plaintiff lost his job.

Plaintiff sued the City, aldermen, and Director of Personnel in federal district court, alleging that the aldermen’s opposition to his appointment was a violation of free speech.  The district court noted that while political patronage dismissals generally violate the First Amendment, the Elrod-Branti exception applied.  The exception states that for policy-making positions, “the government employer’s need for political allegiance… outweighs the employee’s freedom of expression.”  The court found the exception applicable as it applies to “patronage dismissal when one faction of a party replaces another faction of the same party.”

On review, the Seventh Circuit affirmed, agreeing that the Elrod-Branti exception was applicable because plaintiff’s role as Commissioner was a policy-making job.  The court noted that plaintiff’s job closely resembled other public work jobs that involved policymaking, as his duties included planning and overseeing construction of public ways, supervising department employees, and managing the budget.  The Seventh Circuit further noted that plaintiff failed to allege any particular speech that led to his non-appointment.  The court found that it was not enough to solely allege that he was fired based on his political allegiance to the mayor. 

This ruling is consistent with other rulings in the Seventh Circuit and other circuits so it is unlikely to be reversed if appealed.

Post Authored by Erin Baker, Ancel Glink.

Monday, December 3, 2012

Governor Quinn Signs New Law Moving Last Day for Petition Filing for April Elections to December 26th

Last week, we reported that Senate Bill 3338 was passed by both houses of the General Assembly.  Governor Quinn has now signed this bill into law.  Public Act 97-1134, effective immediately, amends Section 1-4 of the Election Code to specify that, for the 2013 consolidated election period, local election officials have until December 26th to accept candidates’ petitions or certificates of nomination.  Under this amendment, all local governments must accept candidate petitions until December 26, 2012 at 5:00 p.m.  Public bodies have no discretion to refuse to accept petitions on December 26th.  The deadline is extended for all Illinois units of local government.  We have received several questions related to this new law:

1.         If we already published notice that we are accepting petitions on Christmas Eve, can we just leave it as it is and not accept petitions on December 26th if we are closed that day?  No.  If your governmental body is open on December 24th, you may remain open.  However, this changes the last day for filing for everyone to December 26th.

2.         Can we have reduced hours on December 26th or do we have to be open all day?  The law does not require governments to be open all day but they are required to remain open until 5:00 p.m. on December 26th.  You must remain open for some period of time until 5:00 p.m.  If December 26th is a regular work day for your public body, you can be available during those hours, provided that you must remain open until 5:00 p.m.   If your public body is closed on December 26th, you must open for a reasonable amount of time to accept petitions, and you must be available until 5:00 p.m.  We believe it would be reasonable to be open from 3:00 p.m. to 5:00 p.m. It is important to provide advance notice of the hours you will be accepting filings. 

3.         Are we still required to be open on December 24th for any period of time?  No.  If your body is otherwise open, you can still accept petitions on the 24th just as you would accept them other days during the filing period.   

4.         How do we calculate the objection period since the New Year’s holiday falls in the middle of it?  Objections must be filed five business days after the last day for filing candidate petitions, which is now December 26th.   The Election Code specifies that a “business day” is any day that your public body’s office is open for at least 7 hours.  Because New Years Eve and New Years Day fall within the objection calculation period, it is possible that different local governments may have different deadlines for objections, depending on whether your public body is open for 7 hours on Christmas Eve.  School districts that are closed immediately after December 26th begin the calculation of the objection period when they return to school and their offices are open for at least 7 hours. 

Our advice to local election officials is to issue a press release specifying the location, dates and hours that petitions will be accepted, as well as posting a notice of this information where they usually post this information.  We recommend that you also publicize the last day for objections.    In addition, we strongly encourage local election officials to provide all known candidates who will be filing for the consolidated elections with actual notice of the change in the filing periods.  While none of these measures are required by the new law, we believe that greater dissemination of this information will result in less confusion to candidates. 

For additional information regarding this new law, please contact Keri-Lyn J. Krafthefer at 312-604-9126.

Salary Posting Must Identify Public Employees by Name

According to a recent advisory opinion issued by the Illinois Public Access Counselor, public bodies must identify public employees by name (and not by job title) when posting salary and compensation information required by Section 7.3(a) of the Open Meetings Act. 2012 PAC 19808.

As we reported on October 6, 2011, P.A. 97-0609 amended the OMA (effective January 1, 2012) to require IMRF employers to post the total compensation package for the following public employees: 

·     each employee receiving a total compensation package that exceeds $75,000 a year within six days after approving its budget.

·     each employee with a total compensation package equal to or in excess of $150,000, at least six days before an IMRF employer approves the package.

Because the statute does not expressly require public bodies to identity each employee by name, some public bodies have complied with the new law by identifying individual employees by job title or position rather than by name.  According to this recent PAC opinion, however, failure to identify employees by name is a violation of the OMA. 

The PAC acknowledged that the statute is silent as to whether employees must be identified by name.  The PAC took the legislative "silence" to mean the statute was ambiguous.  The PAC then looked to the legislative debates surrounding a completely different bill that dealt with pension "spiking."  In the debate of the pension legislation, legislators discussed the need to detect pension abuses of individual public employees. That debate led the PAC to read a new requirement into this OMA amendment to require a public body to post the salaries of individual employees, by name.

The opinion also noted that a public body cannot refer a requester to its website when a requester asks for an electronic form of a record.

This opinion is non-binding and applies only to the public body found in violation.  However, it is likely the PAC would render the same opinion in similar circumstances.

Post Authored by Julie Tappendorf, Ancel Glink.