Omnibus Election Bill Addresses Candidate Debt Case (Cinkus) and More

Omnibus Election Bill Addresses Candidate Debt Case (Cinkus) and More

  Thursday, May 30, 2013    Julie Tappendorf

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UPDATE 7/29/13 - Governor Quinn signed this bill into law.  For more information, read this post.

The Illinois legislature is expected to consider (and probably pass) HB 2418, an omnibus election bill that amends numerous sections of the Election Code. The press has focused on the online voter registration provisions, which are probably leading the charge to getting this legislation passed.  It is somewhat surprising that another part of this bill that addresses eligibility for municipal office has not gotten much press, particularly given the number of "Cinkus challenges" in the most recent municipal election.

 

For those not involved in election work, the Cinkus case held that candidates for municipal office are not eligible to run for office if they are in arrears on a debt to the municipality. The ruling was based on the following language currently in Section 3.1-10-5(b): 

 

(b) A person is not eligible for an elective municipal office if that person is in arrears in the payment of a tax or other indebtedness due to the municipal or has been convicted in any court located in the United States of any infamous crime, bribery, perjury, or other felony. 

 

The Cinkus interpretation of the above statute resulted in numerous election challenges involving objections filed against candidates alleging the candidates were not eligible to be placed on the ballot because of a delinquent municipal debt. Many candidates were eliminated from the ballot based on the Cinkus case. 

 

So, what does this new bill do to address Cinkus?  

 

First, HB 2418 would modify subsection (b) to state as follows: 

 

(b) A person is not eligible to take the oath of office for a municipal office if that person is, at the time required for taking the oath of office, in arrears in the payment of a tax or other indebtedness due to the municipal or has been convicted in any court located in the United States of any infamous crime, bribery, perjury, or other felony. 

 

The change would mean that candidates with a delinquent municipal debt could run for office but if they win, they would have to pay their delinquent debt prior to being sworn in. This is certainly a clearer rule than that created by the Cinkus court, but some may argue that candidates for office should not be eligible to be on the ballot if they aren't current on their municipal obligations.  

 

The more troubling language is contained in a new subsection (b-5): 

 

(b-5) A person is not eligible to hold a municipal office, if that person is, at any time during the term of office, in arrears in the payment of a tax or other indebtedness due to the municipality or has been convicted in any court located in the United States of any infamous crime, bribery, perjury, or other felony.

 

The ineligibility language in (b-5) would apply to current municipal officers and provide that they are no longer eligible to hold office if they are in arrears to the municipality at any time during the term of their office. 

 

I have a few concerns with this new subsection.

 

First, it does not address who would make a determination of ineligibility. If a municipal officer is ineligible because of a felony conviction, it is a court that makes the determination.  But in the case of ineligibility based on delinquent debt, are the corporate authorities authorized to determine the current officer's eligibility to continue to hold office?  The municipal clerk, treasurer, collector?  Must a quo warranto action be brought? 

 

Second, the bill does not amend the vacancy statute to add this particular disqualification to the list of events upon which a vacancy is created. 

 

Third, the language “at any time” could encourage political games playing.  Let’s say that a village trustee was a few days late paying for her vehicle sticker – under the local ordinance, this could be an arrearage to the municipality.  Because of the language “at any time,” is she now ineligible to continue as trustee even if she cured the delinquency?  For split boards and councils, this provision is certain to be used as a hammer against officials on opposing sides. 

 

I have been told that this bill is going to pass.  So, all you Illinois municipal officials out there?  Pay your bills.

 

Post Authored by Julie Tappendorf, Ancel Glink.

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FOIA Requires Release of Records in "Unlocked" Format

FOIA Requires Release of Records in "Unlocked" Format

  Thursday, May 30, 2013    Julie Tappendorf

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Plaintiff Fagel had filed a FOIA request with IDOT for records relating to IDOT's red light camera enforcement system.  Although IDOT provided the requested information in an electronic Excel file as requested, the Excel file was "locked" so the data could be viewed but not highlighted, selected, sorted, filtered, or otherwise manipulated.  Fagel then filed a complaint with the Public Access Counselor, who issued a non-binding opinion in favor of IDOT finding that it had complied with FOIA.  Specifically, the PAC opinion stated that "FOIA does not ensure that a requester can obtain information in an electronic format that he or she can manipulate, but only that the requester will receive the information in an electronic format." 

 

Shortly thereafter, Fagel filed a complaint in the circuit court, claiming that IDOT had not provided the records in the format requested.  Fagel alleged that IDOT must provide the record in the format maintained by IDOT, with all metadata and other hidden formulas and references.  The circuit court ruled in favor of Fagel, finding that the statute requires production of the public record in the same format in which it is maintained- in this case, an unlocked Excel spreadsheet.  The circuit court also awarded attorneys fees to Fagel in the amount of $12,561.25.  IDOT appealed.

 

In Fagel v. Department of Transportation, the appellate court ruled in favor of Fagel, affirming the circuit court's ruling.  First, the appellate court noted that because the PAC opinion was non-binding, it was not subject to administrative review.  Second, the appellate court rejected IDOT's argument that it fully complied with FOIA by providing an electronic version of the records as requested.  The court interpreted FOIA to require a public body to provide the records in the exact format maintained by the public body.  The court acknowledged IDOT's concerns about manipulation or misuse of the records, but noted that FOIA contains no exemption that would address this concern and left it to the legislature to address that issue.  Finally, the court upheld the attorneys fee award. 

 

Post Authored by Julie Tappendorf, Ancel Glink

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New Article Discusses 6 Possible Outcomes in Supreme Court Wetland Case (Koontz)

New Article Discusses 6 Possible Outcomes in Supreme Court Wetland Case (Koontz)

  Wednesday, May 29, 2013    Julie Tappendorf

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In the May 13, 2013 issue of West's Zoning & Planning Law Report, John Baker and Katherine Swenson provide a compelling argument, or should I say six compelling arguments, for how the U.S. Supreme Court might decide the Koontz v. St. Johns River Water Management District case involving the denial of a wetlands permit.  For those of you who have been waiting 20 years for the Court to weigh in on another land use condition takings case (post Nollan-Dolan), or have been waiting since January when the Court heard oral argument in Koontz, this article is a must-read. 

 

The article first provides a great history of the Nollan-Dolan cases and the two-prong takings test involving nexus + rough proportionality.  The authors then provide a detailed background of the Koontz dispute.  In short, Koontz applied to the Water Management District for dredging permits that would result in the loss of 3.4 acres of wetlands.  The permit application was denied because the District rejected Koontz's proposed mitigation plan.  The District suggested alternative mitigation plans, but those were unacceptable to Koontz, so he filed suit in Florida state court, alleging that the denial of the permit was a taking of his property under the state constitution. The case made its way to the U.S. Supreme Court on Koontz's appeal of the lower courts' decisions. 

 

According to the authors, there are six plausible outcomes for the Koontz case, listed below. 

 

1.  A taking occurred; there is no dirt/cash distinction.

2.  A taking occurred; Nollan and Dolan requirements are good planning policy.

3.  No taking occurred because the permit applications were denied.

4.  No taking occurred because no conditions were finalized.

5.  No taking because direct imposition of conditions would not amount to a taking.

6.  No taking because there was no exaction of a real property interest.

 

You will have to read the article Koontz v. St. Johns River Water Management District: Trudging Through a Florida Wetland with Nine U.S. Supreme Court Justices to get the details on each of these potential outcomes.

 

Maybe we should have an "office/blog pool" to vote on our favorites? 

 

Post Authored by Julie Tappendorf, Ancel Glink.

UPDATE - 6/25/13 Blog Post Summarizes Supreme Court opinion reversing Florida Supreme Court and remanding to lower court to apply Nollan/Dolan takings analysis.

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School Board Violated OMA by Not Discussing Item Prior to Voting

School Board Violated OMA by Not Discussing Item Prior to Voting

  Tuesday, May 28, 2013    Julie Tappendorf

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UPDATE 11/14/13 - Circuit Court overturned PAC ruling, finding that District did not violate OMA by signing agreement in executive session; remands to PAC to investigate further the other alleged violations (failure to discuss and adequately notify public)

In its 7th binding opinion of 2013, the Public Access Counselor of the Illinois Attorney General's office found a Springfield School District in violation of the Open Meetings Act for the following reasons:  (1) the Board members signed an employee's separation agreement in closed session; (2) the Board voted to approve the separation agreement in open session but failed to inform the public of the reasons for the separation agreement or its terms before voting; (3) the Board did not provide a recording for three of its closed sessions; and (4) the Board did not summarize the discussions concerning the separation agreement in the minutes of the closed meetings.   PAC Op. 13-007.

 

The Springfield School District Board held 10 closed sessions to discuss the possible separation of its superintendent from November, 2012 to February, 2013.  At a regular meeting on March 5, 2013, the Board voted in open session to approve a separation agreement.  The action item was listed on the agenda, and the vote was in open session.  However, there was no discussion preceding the vote except for one Board member's statement that she supported the superintendent.  Subsequently, a reporter filed a complaint with the PAC office alleging that the Board violated the OMA when 6 of the 7 Board members signed the separation agreement in closed session in February, prior to its approval in March.   

 

The PAC requested copies of the minutes and verbatim recordings of the closed sessions.  The Board was unable to provide recordings of 3 of the closed sessions because the recordings failed. After listening to the recordings and reviewing the minutes, the PAC determined that although the scope of the discussions about the separation agreement in closed session was proper, the Board's actions in signing the agreement in closed session and failing to record the closed sessions violated the OMA. 

 

In its opinion, the PAC dismissed the rulings in an Illinois Supreme Court case and Illinois appellate court case that both held that a public body can deliberate and sign a decision in closed session so long as the public body votes to approve that decision in open session.  The PAC emphasized that the OMA expressly requires public bodies to inform the public of the nature of matters under consideration and the business being conducted before taking final action. The PAC further stated that describing the nature of the matter under consideration "only in vague, general terms" will not suffice to meet the OMA requirement that the public be informed about the terms of actions being voted on by a public body.  The PAC specifically objected to the public not being informed of the details of the lump sum payment to the superintendent.

 

What does this mean for Illinois public bodies?  Based on this opinion, it would appear that the PAC is reading a requirement into the OMA that there must be a detailed discussion of every agenda item that will be voted on at a particular meeting, including a summary of the terms of each agreement and other action being taken at a meeting. 

 

It's not clear what that means for public bodies that use a "consent agenda" to consolidate votes on multiple "routine" agenda items.  It also isn't clear how much detail will suffice - if a public body is approving a 50 page franchise agreement, must the public body discuss each page, or will an executive summary be enough?  If a public body "misses" disclosing a term that the PAC deems significant, will it be in violation of the OMA?  Unfortunately, this opinion doesn't provide a lot of guidance for public bodies. 

 

Post Authored by Julie Tappendorf, Ancel Glink

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7th Circuit Upholds Signature Requirement for Party Candidates

7th Circuit Upholds Signature Requirement for Party Candidates

  Friday, May 24, 2013    Julie Tappendorf

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Illinois law requires candidates for public office to submit a nominating petition signed by a minimum number of voters to be placed on an election ballot.  That requirement also applies to candidates who did not participate in a primary. When 5 Republican candidates for state legislative seats were denied ballot access for failure to collect the minimum signatures, they filed suit claiming that the statute violated their free speech and association rights under the First and Fourteenth Amendments to the U.S. Constitution. 

 

The 7th Circuit dismissed the candidates' claims in Navarro v. Neal (May 17, 2013).  First, the Court acknowledged that ballot access is a fundamental right.  In this case, however, the statutory restrictions placed on candidates were both reasonable and non-discriminatory.  Party candidates who participate in the primary election are also required to obtain voter signatures, so the law imposes no greater restrictions on party candidates who "skip" the primary election and seek to be placed on the general election ballot.  Second, the Court emphasized that the rationale behind the requirement is to ensure that candidates for public office have a minimal amount of support before being placed on the ballot.  Third, the Court opined that eliminating this restriction could lead to a significant number of "frivolous" candidates on the ballot, resulting in widespread voter confusion and "phone book-sized ballots."  The Court provided a helpful Wikipedia definition of a phonebook for "modern readers" who might not be familiar with such a device. 

 

In short, the Court upheld the Election Code requirement on the basis that it was both reasonable and nondiscriminatory and served an important governmental interest in preventing voter confusion and protecting the integrity of elections.

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Social Media Legal Update from Strategically Social

Social Media Legal Update from Strategically Social

  Thursday, May 23, 2013    Julie Tappendorf

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There have been quite a few legal developments in the social media area lately, which are covered on the Strategically Social blog.  Here is a brief recap and links to these posts.

New Bill Exempts Professional Accounts from Social Media Password Ban
SB 2306 proposes to amend the recently enacted Illinois law that prohibits employers from requiring employees and candidates to turn over social media passwords.  The amendment would clarify that the ban does not apply to “professional accounts,” defined as an “account, service, or profile created, maintained, used or accessed by a current or prospective employee for business purposes of the employer.”

Bill Protects Student Social Media Passwords

HB 64, enacting the Right to Privacy in the School Setting Act, passed both houses of the Illinois General Assembly. The bill protects personal social media passwords of elementary, secondary school, and post-secondary school students, although the law would treat college students differently than other students.

Illinois Passes Law Targeting Violent Flash Mobs
A few recent, widely publicized incidents in Chicago spurred the Illinois General Assembly to enact legislation to toughen penalties on violent flash mob participants.  SB 1005, which passed both houses and was sent to the Governor for signature would increase the penalties for "mob action" from three to six years where the use of electronic communications is involved.

Colorado is 10th State to Adopt Social Media Password Protection Law
Maryland was the first, and Illinois the second to pass a law prohibiting employers from requiring or requesting that job candidates or employees turn over their social media account passwords.  Colorado recently became the 10th state to adopt a social media password protection law. 

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Illinois Passes Storm Water Management Bill

Illinois Passes Storm Water Management Bill

  Tuesday, May 21, 2013    Julie Tappendorf

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On May 16, 2013, the Illinois legislature passed a stormwater management bill (HB1522) targeting two counties hit by recent flooding: DuPage and Peoria County.  If signed, the new law would provide the two counties with authority to develop a county-wide plan for stormwater management and collect fees from landowners to pay for the cost of the administering the plan. The law follows local government’s trend toward “stormwater utilities,” a mechanism for funding stormwater management efforts based on the cost of serving individual landowners. Like your water utility, the stormwater utility fee would be a charge for your use of the local government’s infrastructure.

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U.S. Supreme Court Will Hear Case Involving Prayer at Town Council Meeting

U.S. Supreme Court Will Hear Case Involving Prayer at Town Council Meeting

  Monday, May 20, 2013    Julie Tappendorf

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The United States Supreme Court will hear a case involving prayer at town board meetings this term.  For about a decade, the Town of Greece council had opened its meetings with a Christian-oriented invocation. Residents brought suit, claiming that the town’s policy and practice was unconstitutional as it aligned the town with a particular faith – Christianity. Although the town council invited a few other faiths to participate, the majority of the invocations were of the Christian faith.  The 2nd Circuit Court of Appeals ruled in favor of the residents, finding the town’s practice of opening each meeting with a prayer unconstitutional. According to the appeals court, the town should have made a greater effort to invite people from other faiths to open its monthly board meetings.  Town of Greece v. Galloway. 

 

The town appealed the ruling to the U.S. Supreme Court, which agreed to hear the case today.  The question the town presented to the Supreme Court is as follows:

 

Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

 

The Supreme Court previously weighed in on the issue of prayer at legislative meetings in 1983, when it upheld the Nebraska state legislature’s practice of opening its legislative sessions with an invocation.  Marsh v. Chambers.    

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Workers’ Compensation Act Bill Would Increase Costs for Local Governments

Workers’ Compensation Act Bill Would Increase Costs for Local Governments

  Monday, May 20, 2013    Julie Tappendorf

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Senator Mulroe of Chicago recently introduced an amendment to the Illinois Workers’ Compensation Act, which, if passed, will significantly alter the 2011 changes to the Act and result in higher costs for municipalities.

HB 3390 further modifies many of the changes made in the 2011 amendments to the Act. The most notable change would be to Section 8.1(b). The 2011 amendments provided that the use of the American Medical Association (AMA) impairment ratings is required to determine disability, and greater weight is assigned to the AMA rating factor. However, HB 3390 would allow the Commission to simply give the AMA rating the same weight it gives to other factors considered in is decision-making process.

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DOL Issues FAQ on Applicability of Prevailing Wage Act to Landscape Work

DOL Issues FAQ on Applicability of Prevailing Wage Act to Landscape Work

  Friday, May 17, 2013    Julie Tappendorf

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Last week, the Illinois Department of Labor issued a "FAQ" to address commonly raised questions about the applicability of the Prevailing Wage Act ("Act") to landscape work.  In sum, the DOL states that "hardscape work" and landscaping work in conjunction with a public work project are covered by the Act but that most types of landscape maintenance activities are not.
 

The DOL provides helpful examples to break down these distinctions in the FAQ.  A few of these are listed below:

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New Social Media Blog - Strategically Social

New Social Media Blog - Strategically Social

  Thursday, May 16, 2013    Julie Tappendorf

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For blog readers most interested in posts about social media, you should check out my new blog, Strategically Social, where I write about all things social media, including marketing tips, how-to's, what not to do's, and legal news.  Recent posts include the following:

               6 Social Media Tips for Job Candidates

               9 Tips for Drafting a Social Media Policy

               Social Media Marketing Conference in August

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Louisiana School Voucher Program Held Unconstitutional

Louisiana School Voucher Program Held Unconstitutional

  Thursday, May 16, 2013    Julie Tappendorf

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The Louisiana Supreme Court recently struck down the state’s school voucher program, finding it violated the state constitution because the law (1) diverted public school funds for private education; and (2) violated certain state constitutional procedural requirements for enacting legislation.  Louisiana Federation of Teachers v. State of Louisiana.

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Newly Elected Officials - Don't Forget OMA Training!

Newly Elected Officials - Don't Forget OMA Training!

  Wednesday, May 15, 2013    Julie Tappendorf

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Many newly elected and appointed members of public bodies will be taking office this month, following the April election.  If you are a member of a public body subject to the Open Meetings Act and have not yet completed the training program, you will need to complete the training program within 90 days of taking office.     

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Voting by Secret Ballot a Violation of OMA

Voting by Secret Ballot a Violation of OMA

  Tuesday, May 14, 2013    Julie Tappendorf

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In its sixth binding opinion of 2013, the PAC office of the Illinois Attorney General found the Edgar County Airport Advisory Board in violation of the Open Meetings Act when it held a secret ballot to recommend to the Edgar County Board a candidate to fill a vacant seat on the Advisory Board.  PAC Opinion 13-006 (May 13, 2013). 

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ICSC Economic Development Event - Meet the Retailers

ICSC Economic Development Event - Meet the Retailers

  Tuesday, May 14, 2013    Julie Tappendorf

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Economic development coordinators and other local government officials and employees interested in meeting with retailers should check out the Chicagoland Retail Connection, an event hosted by the International Council of Shopping Centers (ICSC).  The program will include presentations by retailers and developers, as well as a networking reception where developers and government officials and employees can learn more about retailers' expansion plans in their area.  The list of retailers who have participated in this ICSC program in the past is pretty impressive. 

 

You can learn more about the event and register on the ICSC's website. 

Chicagoland Retail Connection Event
Hyatt Regency McCormick Place
2233 South Martin L. King Drive
Chicago, IL 60616-9985
August 7, 2013
1:00 - 5:00 p.m.

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Village Lawsuit for Sinking Community Center Not Timely

Village Lawsuit for Sinking Community Center Not Timely

  Monday, May 13, 2013    Julie Tappendorf

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The Village of Orland Hills sued the architect that designed its new community center building when the concrete floor of the building began sinking because it was built over peat.  The architect claimed the lawsuit was filed after the statute of limitations had run.  The circuit court agreed, ruling for the architect and the Village appealed.  The appellate court also ruled in favor of the architect in J.S. Riemer, Inc. v. Village of Orland Hills, 2013 IL App (1st) 1120106. 

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How One City Engaged the Public Through Online Planning

How One City Engaged the Public Through Online Planning

  Tuesday, May 07, 2013    Julie Tappendorf

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Governing Magazine just published an article titled How Generation X is Shaping Government, about the City of San Mateo, California's recent experiment in "online" public engagement. 

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U.S. Supreme Court Rules in Favor of Virginia in FOIA Case

U.S. Supreme Court Rules in Favor of Virginia in FOIA Case

  Monday, May 06, 2013    Julie Tappendorf

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As reported previously on this blog, Virginia's Freedom of Information Act (FOIA) was challenged by out of state residents who claimed the law was unconstitutional because it grants Virginia citizens, but not others, access to public records.  Both the district court and the Fourth Circuit Court of Appeals ruled in the State of Virginia's favor, and plaintiffs appealed to the U.S. Supreme Court. 

 

On April 29, 2013, the Supreme Court issued its decision, affirming the lower courts' rulings.  McBurney v. Young.  First, the Supreme Court held that the Virginia FOIA did not violate the Privileges and Immunities Clause which protects only fundamental privileges or immunities. The Court recognized that the distinction in FOIA was reasonable because the purpose was to provide citizens and taxpayers with the ability to monitor its own government.  The Court also noted that there is no fundamental constitutional right to obtain information under FOIA or other public records laws.  Second, the Supreme Court held that the Virginia FOIA did not violate the dormant Commerce Clause because it does not prohibit access to an interstate market nor does it impose burdensome regulations on that market.  

 

Post Authored by Julie Tappendorf, Ancel Glink

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2013 Newly Elected Officials Guide Available for Download

2013 Newly Elected Officials Guide Available for Download

  Monday, May 06, 2013    Julie Tappendorf

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Ancel Glink publishes a biennial pamphlet designed to provide information and guidance on various laws and procedures to newly-elected officials of all local governments.  The 2013 Guide for Newly Elected Officials has been released just in time for elected officials taking office following the April 9, 2013 local government election.  

 

The Newly Elected Officials Guide includes two dozen articles on a variety of topics of interest to government officials, including the following, among many others:

• Complying with the Open Meetings and Freedom of Information Act
• Government Ethics, including Conflicts of Interest, Gift Ban Act, and Prohibited Political Activities
• An Outline of the Governmental Construction Process
• A Primer on Labor and Employment Issues
• Dealing with Litigation
• Working with Other Governmental Entities - Intergovernmental Cooperation
• Government Finance 101
• Dealing with Distressed Properties
• Ancel Glink's Top Ten List - How to Deal with 10 of the Most Common Challenges for Newly Elected Officials

Download the 2013 Guide for Newly Elected Officials now or visit Ancel Glink's Resource Center to download other publications in our library. 

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Illinois Granted More Time to Appeal Concealed Carry Case

Illinois Granted More Time to Appeal Concealed Carry Case

  Friday, May 03, 2013    Julie Tappendorf

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As discussed in a previous blog post, last year the Seventh Circuit Court of Appeals declared Illinois' concealed carry ban unconstitutional.  The Court gave the State six months to fix the law consistent with its opinion.  That deadline is fast approaching - June 9th - and the General Assembly still has not passed a law addressing the Court's concerns.   Illinois Attorney General Lisa Madigan recently requested additional time from the U.S. Supreme Court to decide whether the State would appeal the Seventh Circuit ruling.  On May 2, 2013, the Supreme Court granted her request, giving the State until June 24th to file its appeal.  The Supreme Court's grant of extra time for the appeal does not, however, extend the time for the General Assembly to lift the current concealed carry ban.

 

Post Authored by Julie Tappendorf, Ancel Glink

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Court Rules for Candidates in Another Notary Challenge

Court Rules for Candidates in Another Notary Challenge

  Friday, May 03, 2013    Julie Tappendorf

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Candidates in several different jurisdictions around Illinois faced similar objections this election cycle, all based on an allegation that notarial jurats on their statement of candidacy forms were legally insufficient because they failed to contain the language “who to me is personally known.” That language was missing from the template forms provided by the State Board of Elections, causing a number of candidates to have their nomination papers challenged as legally deficient.  However, an Illinois Appellate Court recently ruled that the nomination papers of three candidates from Calumet City were legally valid, despite the alleged notarization flaw, because the statement of candidacy forms were in strict compliance with the mandatory provisions of the Election Code, and they substantially complied with other provisions that are merely directory in nature. Akin, et al., v. Calumet City Municipal Officers Electoral Bd., 2013 IL App (1st) 130441.

 

This decision is in accord with a slightly earlier opinion from the Sixth Division of the same appellate court that held that the nomination papers of nine other candidates from Calumet City were legally sufficient despite the same alleged notarization flaw. As previously reported in Municipal Minute, the an Appellate Court did not find strict compliance with the mandatory provisions of section 7-10 of the Election Code. Nonetheless, it found that substantial compliance was good enough to keep the candidates’ names on the ballot. Cortez, et al., v. Calumet City Municipal Officers Electoral Bd., 2013 IL App (1^st) 130442.

 

The candidates in the Akin case (represented by Ancel Glink) took their arguments one step further than in Cortez by asserting that not only did they substantially comply with the statute’s suggested language, their nomination papers also strictly complied with the mandatory provisions of section 7-10. The law, they argued, is split in two sections, one of which contains mandatory requirements with which strict compliance is necessary, and the other of which contains suggested language for statement of candidacy forms that must be worded “in substantially the following form.”

 

The Akin court agreed with the candidates, holding that the nomination papers were indeed in strict compliance with the mandatory requirement that they “shall be subscribed and sworn to by such candidate before some officer authorized to take acknowledgement of deeds in the State.” 10 ILCS 5/7-10. With respect to the directory provisions - that statements of candidacy forms should include a notary jurat with the “personally known” language - the court held the candidates’ failure to strictly comply with the suggested form did not invalidate the nomination papers because they still strictly complied with the mandatory notarization process and therefore caused no threat to the integrity of the electoral process.

 

The Akin court stated: “We agree with Candidates that their forms were in ‘strict’ compliance with the mandatory elements and that the alleged deficiencies related to directory provisions that provided that the statement of candidacy ‘shall be in substantially the following form.’ However, even assuming arguendo that section 7-10 taken as a whole is a mandatory statute, and applying the doctrine of substantial compliance consistent with the case law noted above, we conclude that Candidates substantially complied with section 7-10’s requirements even though the notarial juriat [sic] did not contain the language that the candidate was ‘personally known’ to the certifying officer.”

 

Post Authored by Adam Lasker, Ancel Glink

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San Francisco in August? Why Not?

San Francisco in August? Why Not?

  Thursday, May 02, 2013    Julie Tappendorf

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For 29 years, the Land Use Institute (ALI-CLE) has presented a land use continuing education program designed for attorneys, planners, public officials, developers, and academics who are involved in land use planning, zoning, permitting, property development, environmental protection, and related litigation. This cutting-edge program, comprising 16 hours of instruction, including one hour of ethics, is taught by preeminent practitioners, academics, and government officials.  Not only does the program provide critical reviews and analyses of the most important new cases, nationwide trends, state-specific concerns, and both routine and complex procedural issues, but it also offers outstanding networking opportunities.

 

Ancel Glink Attorney Julie Tappendorf has been on the Land Use Institute faculty since 2006, and will be presenting at sessions on development and community benefit agreements, First Amendment and signs, environmental issues, and ethics for the land use professional, among other topics.

This year, the program will be held in San Francisco, August 14-16, 2013, at the Le Meridien San Francisco hotel.   You can find out more about the program and register on the ALI-CLE website.

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PAC Finds Cities in Violation Where They Completely Fail to Respond to a FOIA Request

PAC Finds Cities in Violation Where They Completely Fail to Respond to a FOIA Request

  Wednesday, May 01, 2013    Julie Tappendorf

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In two recent binding opinions that will surprise no-one, the PAC found two public bodies in violation of FOIA for a complete failure to respond to FOIA requests for public records.  2013 PAC 23366 (issued April 24, 2013) and 2013 PAC 22996 (issued April 29, 2013).  In both cases, the facts were undisputed that the public bodies did not provide the requested documents, extend the time for response, or deny the request within the statutorily required timeframe for response.  The remedy for noncompliance?  The PAC ordered both public bodies to provide the responsive documents, subject to any permissible redactions.  Nothing groundbreaking here.

 

Post Authored by Julie Tappendorf, Ancel Glink

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