Court Dismisses Challenge to Zoning Ordinances

Court Dismisses Challenge to Zoning Ordinances

  Wednesday, January 30, 2013    Julie Tappendorf

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A recent decision by the 3rd Circuit Court of Appeals reminds us of the importance of bringing claims in a timely manner.  In CMR D.N. Corp. v. City of Philadelphia, No. 11-4362 (3^rd Cir. January 14, 2013), plaintiff owned waterfront property in a neighborhood situated on the Delaware River.  For two decades, plaintiff attempted to develop a large commercial and residential real estate project on the land.  In 2006, the city adopted an ordinance extending construction restrictions to plaintiff’s property that placed a height restriction on plaintiff’s property, essentially making him unable to construct his proposed project.

Plaintiff sued the city in federal district court, claiming that the ordinance violated both the federal constitution and state law.  Shortly thereafter, the city rescinded the height restriction of the ordinance and sought to dismiss the constitutional claims as moot.  Plaintiff then tried to file an amended complaint to challenge the constitutionality of a width restriction still in effect in the 2006 ordinance.  He also attempted to add an additional claim regarding an ordinance enacted in 2009 that imposed additional requirements on waterfront construction.  He claimed that the 2009 ordinance was unconstitutionally vague for not defining the phrase “development appropriate in scale, density, character, and for use in the surrounding community.”

The district court ruled in favor of the city, finding that the 2009 rescission of the height restriction mooted plaintiff’s constitutional claims, and denying plaintiff’s motion to amend the complaint. 

Plaintiff then appealed to the 3rd Circuit, which affirmed the district court.  The 3rd Circuit first held that plaintiff’s challenges to the height restriction were moot after the 2009 rescission because a court cannot strike down a law that is no longer in effect. The court then determined that the district court did not abuse its discretion in denying leave as plaintiff engaged in undue delay in asserting his challenge.  Next, the 3rd Circuit held that the waterfront construction restrictions were not vague as a developer of reasonable intelligence would be able to determine what would be appropriate based on similar structures in the area. 

Post Authored by Erin Baker, Ancel Glink

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Illinois Parks Conference January 24-26, 2013

Illinois Parks Conference January 24-26, 2013

  Monday, January 28, 2013    Julie Tappendorf

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On January 24-26, 2013, the IAPD/IPRA held its annual conference at the Hyatt Regency in Chicago. The conference featured more than 200 educational sessions, an exhibit hall where more than 300 exhibitors showcase their latest and greatest products and services, and a variety of networking opportunities.

This year, Ancel Glink participated in a number of sessions, including the following:

Legal & Ethical Issues Using Social Media, Julie Tappendorf (handout & slides)

Transitioning Executive Level Employees, Keri-Lyn Krafthefer (slides)       

Intergovernmental Agreements, Scott Puma & Adam Simon (slides)

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Indiana Law Banning Sex Offenders from Social Media Sites is Unconstitutional

Indiana Law Banning Sex Offenders from Social Media Sites is Unconstitutional

  Monday, January 28, 2013    Julie Tappendorf

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Indiana recently passed a law prohibiting registered sex offenders from using social media.  Specifically, the law prohibited all registered sex offenders from “knowingly or intentionally using a social networking web site, instant messaging, or chat room program that the offender knows allows a person who is less than eighteen years of age to access or use the web site or program.”  Indiana Code §35-42-4-12(e).  A violation was a Class A misdemeanor, but subsequent violations would be a Class D felony.    

 

A group of registered sex offenders challenged the law, arguing that it was unconstitutional under the First Amendment.  The group argued that there is nothing dangerous about a sex offenders’ use of social media so long as it is not used to communicate improperly with minors.  Further, the group contended that illicit communication makes up a miniscule amount of social media activity.  The district court upheld the law, finding it served a significant state interest and left open alternative channels of communication.  The court reasoned that the statute was narrowly tailored as “the vast majority of the internet is still at Mr. Doe’s fingertips.”

 

The 7th Circuit Court of Appeals reversed, holding the statute was unconstitutional on First Amendment grounds.  Although the court found the statute to be content neutral, because it unnecessarily prohibited substantial amounts of protected speech, the law was overly broad and not sufficiently tailored to meet the state’s interest in protecting minors from harmful online communications.  Despite it’s holding, the Seventh Circuit made it clear that the Indiana legislature was free to draft a new statute to address similar concerns, without offending the First Amendment.  Doe v. Prosecutor, Marion County, Indiana, No. 12-2512 (January 23, 2013).

 

Post Authored by Erin Baker, Ancel Glink

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HB 943 Would Expand Definition of Public Body under FOIA

HB 943 Would Expand Definition of Public Body under FOIA

  Thursday, January 24, 2013    Julie Tappendorf

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A new bill was introduced today that would amend the Illinois Freedom of Information Act to expand the definition of "public body" to include "any association of units of local government or any not-for-profit corporation with membership consisting of units of local government."  If enacted, this legislation would require councils of government, municipal leagues, mayors and managers organizations, insurance risk pools, and various other associations comprised of local government members to comply with the Act. That means that these organizations and associations would have to appoint a FOIA officer to oversee the FOIA program for the association or organization and to respond to requests for public records as set out by the Act. 

We will keep an eye on this bill and let you know if any action is taken. You can read the bill here.

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7th Circuit Upholds Wisconsin Public Employee Union Law

7th Circuit Upholds Wisconsin Public Employee Union Law

  Wednesday, January 23, 2013    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently issued an opinion upholding Act 10, the Wisconsin law that changed that state's public employee labor laws for some public employees.  Wisconsin Education Association Counsel v. Scott Walker (January 18, 2013). The law, requiring annual recertification votes and prohibiting payroll deductions of union dues, was controversial from the start, resulting in protests at the Wisconsin state capital and causing a number of Wisconsin state legislators to hide out in Illinois in an effort to block a vote on the legislation. 

Public employee unions had filed suit to challenge Act 10 on a variety of grounds, including claims that the Act violated the Equal Protection Act because it treats public safety employees and other employees differently and the First Amendment because the Act targeted employees that were not political supporters of Governor Walker.  The district court found certain provisions in the Act unconstitutional including the recertification requirements and the prohibition on payroll deductions.

On appeal, the Seventh Circuit upheld the entire Act, reversing the district court’s invalidation of the recertification and payroll deduction provisions.  Despite the Seventh Circuit’s ruling, the future of Act 10 is still in question after a Wisconsin court struck down parts of the law last fall.  The state case is now before the Wisconsin Court of Appeals.

Post Authored by Julie Tappendorf, Ancel Glink

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Social Media and Libraries - Article in the ILA Reporter

Social Media and Libraries - Article in the ILA Reporter

  Tuesday, January 22, 2013    Julie Tappendorf

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The February 2013 edition of the Illinois Library Association Reporter contains an article titled “Legal Issues Relating to Online Social Networking,” written by Julie Tappendorf, the author of this blog. The article addresses legal and ethical issues that can arise for libraries and their employees in their use of social media.  The article emphasizes the importance of having a well-crafted social media policy in place to address issues such as employee usage, moderation of comments, and the applicability of open records and open meetings laws.  You can access the article on the ILA's website.   

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Storm Water Transfer Not a Discharge of Pollutants

Storm Water Transfer Not a Discharge of Pollutants

  Thursday, January 17, 2013    Julie Tappendorf

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The U.S. Supreme Court recently reaffirmed its position in South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95 (2004), that the transfer of polluted water between two parts of the same water body does not constitute a discharge of pollutants under the Clean Water Act.   Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., 568 U.S. (2013).

The Los Angeles County Flood Control District operates a municipal storm sewer system that collects, transports, and discharges storm water that is often heavily polluted.  Storm water flows from one portion of the river system, through a concrete channel, and then back into a lower portion of the river system. The Natural Resources Defense Council brought suit, alleging that its Flood Control District violated the State Pollutant Discharge Elimination System permit by allowing storm water runoff to flow into the Los Angeles and San Gabriel rivers.  The Council alleged that the storm water runoff caused the water-quality standard to be degraded by mercury, arsenic, lead, cyanide, and fecal bacteria, in violation of the permit. The Flood Control District responded that several sources had discharged into the river system and there was no way to know who was responsible.

The 9^th Circuit held in favor of the Council, finding that the Flood Control District had violated its permit.  On appeal, the U.S. Supreme Court reversed, unanimously holding that the Flood Control District did not violate the permit by transferring already polluted water from one part of the river to another part of the same river. The Supreme Court looked to the Clean Water Act, which requires a permit for any “discharge of pollutants” into a river.  The Court then addressed whether the Clean Water Act’s permitting requirements are applicable when water flows from one portion of a navigable river through a concrete channel, and then back into a lower portion of the river. After reviewing precedent case law, the Supreme Court unanimously held that the Clean Water Act does not regulate movement of water from one part of a river, through a concrete channel, into a lower portion of the same river. 

Environmental groups have expressed dissatisfaction with the Supreme Court’s ruling, arguing that the Flood Control District should not be excused from mitigating water pollution.

Post Authored by Erin Baker, Ancel Glink

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New Book - "Social Media and Local Governments: Navigating the New Public Square"

New Book - "Social Media and Local Governments: Navigating the New Public Square"

  Wednesday, January 16, 2013    Julie Tappendorf

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The ABA Section of State and Local Government Law is releasing a new book called "Social Media and Local Governments:  Navigating the New Public Square."  The book is co-authored by Municipal Minute author Julie Tappendorf and Patricia Salkin, Dean of Touro Law School. 

You don't want to miss this practical guide to the legal and ethical issues faced by local governments in their use (and their employees' use) of Facebook, Twitter, and other forms of social media.  You can pre-order the book on the ABA's website or using this order form. 

A brief description of the book is below:

Social media offers tremendous opportunities in the public sector. Governmental entities can use it to communicate with the public, interested stakeholders, and each other. The promise of greater transparency and public participation, however, is not without risk. Local governments must consider the reliability and source of posted information,professional ethical obligations, and a host of other legal issues. Social Media and Local Governments provides practical information to government attorneys and officials in their use of social media in the government context. The authors provide concrete examples of how communities across the country implement social media; explore First Amendment issues, Sunshine Laws, and copyright and privacy concerns, among other legal considerations; examine public employee usage of social media, whether at or away from the workplace; and explore ethical issues faced by public officials. The book concludes with sample social media policy forms and a checklist for creating and implementing a new social media policy.

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Supreme Court Says Houseboat is Not a Vessel

Supreme Court Says Houseboat is Not a Vessel

  Tuesday, January 15, 2013    Julie Tappendorf

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Today, the Supreme Court ruled that a houseboat is not a “vessel,” meaning that a municipality had no authority to seize and destroy the “home” under U.S. maritime law.  Lozman v. City of Riviera Beach, Florida.

The houseboat owner had sued the City of Riviera Beach, Florida after the City seized Lozman's houseboat for failure to pay $3,040 in dockage fees.  When the City couldn’t sell the houseboat, it destroyed the houseboat.  The case turned on the definition of “vessel”, which the Supreme Court determined did not include Lozman’s floating home that was permanently moored to the City’s marina.  According to Justice Breyer, who wrote the majority opinion:

Not every floating structure is a 'vessel’.  To state the obvious, a wooden washtub, a plastic dishpan, a swimming platform on pontoons, a large fishing net, a door taken off its hinges, or Pinocchio (when inside the whale) are not 'vessels'.

The case goes back to the lower court where Lozman can now seek compensation for the seizure and destruction.

In an interesting side note, the Court included a picture of the houseboat in the appendix to the opinion.  Maybe you can figure out what the difference is between this particular houseboat and any other floating vessel.

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IHDA Proposes Rules to Implement Affordable Housing Act

IHDA Proposes Rules to Implement Affordable Housing Act

  Tuesday, January 15, 2013    Julie Tappendorf

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Many of you may recall the controversy when the Illinois General Assembly adopted the Affordable Housing Planning and Appeal Act in 2004.  That Act required Illinois municipalities to adopt affordable housing plans by April of 2005.  The Act also included an appeals procedure for developers who were denied approval to construct affordable housing in a municipality.  Those appeals would be heard by the Illinois Housing Appeals Board.  Municipalities meeting the statutory minimum requirement for affordable housing stock would be exempt from the Act.  Because the Act did not preempt home rule authority, it only applies to non-home rule municipalities. 

 

The Act authorizes the Illinois Housing Development Authority (IHDA) to promulgate rules to implement the Act, including authorizing the Illinois Housing Appeals Board.  Recently, the IHDA issued proposed rules, a copy of which can be found here.  The rules should be of concern to Illinois municipalities who are not otherwise exempt from the Act, as discussed in more detail on the Illinois Municipal League's website.  In sum, the rules attempt to expand the reach of the Act to home rule municipalities.  They also impose penalties for noncompliance without statutory authorization.  More concerning to municipalities is the shifting of the burden of proof in an affordable housing appeal from the developer to the municipality, in direct conflict with language in the Act. 

 

Thanks to the IML for reporting on this important development.

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7th Circuit Addresses Use of FOIA in Government Litigation

7th Circuit Addresses Use of FOIA in Government Litigation

  Thursday, January 10, 2013    Julie Tappendorf

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A party in litigation is entitled to obtain the other side’s evidence through what is called “discovery.”  There are a variety of exceptions or privileges that might apply to certain evidence, including attorney-client work product or attorney-client privilege.  Governmental bodies are subject to discovery requests like any other party in litigation.  Governmental bodies are also subject to either a state or federal Freedom of Information Act.  Those statutes require governmental bodies to release public records upon request, subject to a variety of exemptions.  Governments often find themselves in a situation where an opposing party attempts to use FOIA instead of discovery to obtain litigation records.  It is an open question in Illinois whether a litigant can use FOIA as a substitute for discovery to obtain government records in litigation.  The U.S. Court of Appeals for the 7^th Circuit recently addressed this issue in Appleton Papers, Inc. v. Environmental Protection Agency and the U.S. Department of Justice. 

In this case, the federal government alleged that Appleton and other companies caused $1,000,000,000 in contamination in the Fox River near Green Bay, Wisconsin.  The government lawyer hired a consultant to prepare reports on the company’s responsibilities for the contamination.  Appleton unsuccessfully sought discovery of the reports, and then filed a FOIA request for the same records, which was also denied based on "attorney work product."  The trial court ruled in favor of the government, and Appleton appealed to the 7^th Circuit.

The Court first determined that the requested records were “attorney work product,” finding that, the court “must protect against the disclosure of the mental impressions, conclusions, opinions or legal theories of a party’s attorney.”  The Court rejected Appleton’s argument that because the government allowed certain portions of the material to be included within a consent decree, it waived all parts of the reports.  To adopt the rules suggested by Appleton would discourage governments from settling with some defendants in a lawsuit for fear that by entering into consent decrees, they would have to release all information to future litigants.  It would also disadvantage governments in settling cases because it would require the disclosure of information that would otherwise be confidential. 

Although the case deals specifically with the federal FOIA and not any particular state statute, it is of interest to local governments for two reasons.  First, the ruling stands for the proposition that if a sensible argument asserting “attorney/client privilege” can be made, a court will uphold it.  In some cases, an entire document will be protected under the work product rule, avoiding the need for governments to separate out “opinion” material from “purely factual” material within a particular document.  Second, the Court specifically stated that a FOIA request “is not a substitute for discovery.” Federal decisions interpreting the federal FOIA have been used in the past to interpret similar provisions in state FOIA laws where no state case provides guidance.  This issue continues to plague local governments in Illinois, where litigants routinely use FOIA to circumvent otherwise applicable discovery rules. 

Post Authored by Stewart Diamond and Julie Tappendorf, Ancel Glink

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Attorney General Asks for Rehearing in Illinois Gun Case

Attorney General Asks for Rehearing in Illinois Gun Case

  Wednesday, January 09, 2013    Julie Tappendorf

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Last month, we reported on the 7th Circuit's decision striking down the Illinois law preventing the carrying of ready-to-use firearms in public as unconstitutional.  Moore v. Madigan, Nos. 12-1269, 12-1788 (7^th Cir. Dec. 11, 2012).  That ruling was issued by a three member panel of the 7th Circuit.  Yesterday, Attorney General Lisa Madigan announced that she has filed a petition for rehearing of the concealed carry case before the full U.S. 7th Circuit Court of Appeals (en banc).  In a press release, Madigan issued the following statement:

“In ruling that Illinois must allow individuals to carry ready-to-use firearms in public, the 7th Circuit Court’s decision goes beyond what the U.S. Supreme Court has held and conflicts with decisions by two other federal appellate courts. Based on those decisions, it is appropriate to ask the full 7th Circuit to review this case and consider adopting an approach that is consistent with the other appellate courts that have addressed these issues after the U.S. Supreme Court’s landmark Heller and McDonald decisions.”

In its December decision, the 7th Circuit Court of Appeals set a 180-day deadline for the Illinois legislature to draft and enact new laws relating to carrying ready-to-use firearms in public.  The Attorney General's petition for rehearing "en banc" will not affect that deadline.

Post Authored by Julie Tappendorf, Ancel Glink

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Bill Would Allow State To Borrow From Local Sales Taxes

Bill Would Allow State To Borrow From Local Sales Taxes

  Monday, January 07, 2013    Julie Tappendorf

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The IML just reported that the Illinois House Executive Committee approved SB 2580 as amended that would allow the state to borrow money from sales-tax proceeds for cities and counties.  The bill transfers $9.6 million from the Local Government Tax Fund (sales tax revenue) to the Illinois State Medical Disciplinary Fund and requires the money to be paid back after two years. The money is being transferred to avert significant staff layoffs among those involved in regulating the medical profession at the Department of Financial and Professional Regulation.

More information on this legislation is available on the IML website.

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New Labor and Employment Laws for 2013

New Labor and Employment Laws for 2013

  Thursday, January 03, 2013    Julie Tappendorf

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As usual, the New Year brings with it new laws that impact employers and employees.  The following three new laws impact most employers and took effect on January 1, 2013:

1.   Social Media Passwords

In response to an issue that certainly received its 15 minutes of fame in mid-2012, legislation took effect on January 1, 2013 that prohibits an employer to request or require current or prospective employees to provide any account information, including passwords, that would allow the employer to gain access to the employee’s social networking or other personal websites to which it would otherwise not have the ability.  The new law does not prohibit employers from reviewing public information on social networking websites or other electronically accessed information, nor does it prohibit employers from having a strong social networking policy in their employee handbooks. As always, though, take precautionary measures when conducting electronic reference checks on candidates, such as ensuring that you do so uniformly; that you inform candidates beforehand that you will perform that type of investigation; and allow candidates the chance to explain any negative information you discover before you reject their application.

2.  Employer Health Plans

The IRS has made two changes that affect employee health plans. Initially, as of January 1, 2013, the maximum non-taxable contribution that an employee can make to a IRS § 125 plan (a flexible spending account or cafeteria plan) is $2,500 for health care costs. This limit does not apply to contributions made for child care costs. Accordingly, a cafeteria plan that fails to comply with this new limitation for plan years beginning after December 31, 2012 is not a § 125 cafeteria plan and the value of the taxable benefits that an employee could have elected to receive under the plan during the plan year is includible in the employee’s gross income, regardless of the benefit elected by the employee.

Additionally, the IRS changed its contribution limits for HSA accounts for 2013.  It has increased the contribution amounts as well as the minimum deductibles to qualify as high deductible plans and maximum out of pocket amounts as follows: 

 

Contribution and Out-of-Pocket Limits for Health Savings Accounts and for High-Deductible Health Plans
	For 2012	For 2013		Change
HSA contribution limit (employer + employee)	Individual: $3,100 Family: $6,250	Individual: $3,250 Family: $6,450	Individual: +$150 Family: +200
HSA catch-up contributions (age 55 or older)*	$1,000	$1,000	No change**
HDHP minimum deductible amounts	Individual: $1,200 Family: $2,400	Individual: $1,250 Family: $2,500	Individual: +$50 Family: +$100
HDHP maximum out-of-pocket amounts (deductibles, co-payments and other amounts, but not premiums)	Individual: $6,050 Family: $12,100	Individual: $6,250 Family: $12,500	Individual: +$200 Family: +$400

3.   Release of Sealed Criminal Records

Finally, Illinois has enacted a new law regarding the dissemination of sealed criminal records.  Prior to January 1, 2013, sealed criminal records could be disseminated to certain agencies or entities, which included park districts, schools, fire and police departments.  The new law prohibits such dissemination of sealed records.  Employers who perform criminal background checks will still receive records that have not been sealed or expunged.  By enacting this law, the Illinois Legislature hopes to remove barriers to employment that may exist if an employer were to obtain the sealed records. This move is consistent with the EEOC guidance issued in 2012 addressing possible unlawfulness of rejecting employment applicants simply because of the fact of a criminal conviction of the applicant.  

If you have any question or concerns or if you believe that this may be a good time to have your personnel policies and procedures reviewed, please do not hesitate to contact us.

Post Authored by Margaret Kostopulos and Robert McCabe, Ancel Glink.

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Ancel Glink Question of the Month - January 2013

Ancel Glink Question of the Month - January 2013

  Wednesday, January 02, 2013    Julie Tappendorf

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Question: Can a municipality prosecute vehicle drivers for violations of the Illinois Vehicle Code?

  

Answer: Not without written permission from the State's Attorney in the local county. In a recent Illinois appellate court decision, a police officer wrote four tickets under the Illinois Vehicle Code. At trial, the municipal prosecutor, apparently with the oral approval of the local State's Attorney's Office, made a motion to substitute the municipality in place of the "People of the State of Illinois," which was a designation on the tickets as the prosecuting entity. The defendant was convicted and appealed. The court reversed the convictions.

Although the defect may be considered to be "technical," state law makes it very clear that, if a municipal police officer is to write tickets for violations of the Illinois Vehicle Code, the municipal attorney may only prosecute if it receives written permission from the State's Attorney. Among other reasons, the court pointed out that state charges often carry stronger penalties, and if the charging entity is changed to the municipality, but the violations of state statutes are not converted to equivalent ordinances charges, it is unclear what penalties are to be applied. This error in procedure is easy to correct and all police officers and local prosecutors should be aware of the newly-stated rule. 

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