May 2015 ~ Municipal Minute

Friday, May 29, 2015

Court Rejects Village's Defense of Commercial Sign Code

Friday, May 29, 2015 Julie Tappendorf

From our friends at the Law of the Land Blog: Fed District Court in IL Denies Motion to Dismiss Claim Challenging Sign Ordinance's Content-Based Restrictions

10 years ago, the Village of Downers Grove amended its sign regulations that relate to commercial signage. The owner of a storage and van company sued the Village in federal court, alleging that the new regulations violated his free speech rights under the First Amendment. Specifically, he said the new regulations would negatively impact his ability to advertise his business, including making several of his large existing signs illegal.

The village filed a motion to dismiss, claiming that the owner did not have standing to bring a facial challenge to the constitutionality of the entire sign code. The village also argued that the sign regulations were proper "time, place, and manner restrictions." The court disagreed with the Village on both arguments, and denied its motion to dismiss. First, the court noted that the case involved an "as-applied" not facial challenge to the constitutionality of the commercial sign regulations. Second, the court said that because the Village distinguished between commercial and non-commercial signs, the regulations were content-based, and the village's justifications for the ordinance were not sufficient. Peterson v Village of Downers Grove, 2015 WL 1929737 (ND Ill. 4/27/2015)

Post Authored by Julie Tappendorf

Constitutional Issues / Land Use and Environmental

Thursday, May 28, 2015

Time to Update Your FOIA Policy?

Thursday, May 28, 2015 Julie Tappendorf

It's been five years since the Illinois General Assembly overhauled the state's Freedom of Information Act (FOIA). Since 2010, there have been a number of amendments to FOIA, some of them pretty significant. For example, FOIA was amended in 2011 to add provisions relating to recurrent requesters and to eliminate the pre-authorization process for using the personal privacy or preliminary document/deliberative process exemptions. Most recently, new provisions were added to FOIA relating to voluminous requests, and the ability for public bodies to refer requesters to their website for public records.

Many of you have adopted FOIA policies and forms to help your FOIA officers administer and respond to FOIA requests that probably need to be updated to reflect these new regulations. Others may be interested in adopting a policy to assist in responding to FOIA requests. Ancel Glink has prepared FOIA policies for Illinois public bodies across the state. These policies include a variety of forms, including requests, denials, extensions of time to respond, notice to narrow the scope of a request, recurrent and voluminous request forms, among others.

If you would like assistance in updating your current policy or preparing a new one, please contact Julie Tappendorf.

This post may constitute advertising material as defined under the Illinois Rules of Professional Conduct.

Freedom of Information

Wednesday, May 27, 2015

Court Upholds Rental Housing Support Fee Imposed by Recorders' Office

Wednesday, May 27, 2015 Julie Tappendorf

The Illinois Supreme Court recently overturned a trial court ruling that the $10 Rental Housing Support Program fee collected by the county at the time a document is recorded was unconstitutional. Marks v. Vanderventer, 2015 IL 116226.

State statute authorizes counties to collect a $10 fee at the time any real-estate related document is recorded with the county recorder of deeds. $1 of the fee is retained by the county, and $9 funds the state rental housing support program. The Marks sued the Lake County recorder of deeds arguing that the $10 surcharge was unconstitutional on various grounds, including equal protection, due process, and the uniformity clause. The trial court certified a a class action of plaintiffs against all county recorder of deeds in the state, and then ruled in favor of the plaintiffs class, finding the fee unconstitutional based on the state constitution's uniformity and due process clauses.

On appeal, the state supreme court rejected the trial court's reasoning that the fee violated the uniformity clause, finding that there is a reasonable relationship between people who have to pay the surcharge and the recording of real-estate related documents because people with a legal interest in real estate benefit from stable real estate values. The supreme court also rejected the trial court's finding that the fee violated the due process clause for the same reason - providing financial stability to vulnerable residents through housing subsidies improves property values, which benefit people who record real estate documents.

Post Authored by Julie Tappendorf

Constitutional Issues / Finances

Tuesday, May 26, 2015

Illinois Supreme Court Hears Bleacher Case

Tuesday, May 26, 2015 Julie Tappendorf

We have an update on the school bleachers case that we have reported on in the past. Gurba v. Community High School District No. 155. This is the case involving a high school district's installation of bleachers on property adjacent to residential backyards without obtaining the necessary zoning approvals. In defense of its actions, the school argued it was exempt from local zoning; the city and neighbors argued that state law does not exempt schools from complying with applicable local zoning. The trial and appellate courts both agreed with the city and neighbors, and the school district appealed to the Illinois Supreme Court, which heard oral argument last week.

At oral argument, counsel for the school district, city, and neighbors presented arguments in support of their positions in the case. The Justices asked very pointed questions of the school district's counsel about local regulatory control, including asking the school district whether its argued local zoning "exemption" would allow it to ignore storm water regulations, construct a 20 story building, or raise cattle on its property all in the name of "school purposes."

If you are as interested in this case as we are, you can watch the video of the oral argument here. It's a little less than an hour long.

We will let you know when the Court issues its ruling in this case. And in case you forgot what the bleachers look like:

Post Authored by Julie Tappendorf

Land Use and Environmental

Friday, May 22, 2015

Court Upholds Ban on Non-attended Displays in Public Parks

Friday, May 22, 2015 Julie Tappendorf

In 1994, the City of Santa Monica banned unattended displays in all its parks. That ordinance was later amended to include an exception for "winter displays.” After it was flooded with requests for winter displays and there wasn’t enough space in the park to accommodate all of the applications, the City implemented a lottery system to divvy up the display space. As a result of the lottery, most of the spaces were used for atheist group displays, and the City decided to go back to its original policy of banning all unattended displays.

After the City adopted the ban, the Santa Monica Nativity Scenes Committee sued, claiming the ban violated its right to free speech by amounting to a prohibited "heckler's veto." The district court disagreed, and dismissed the Committee’s lawsuit. On appeal, the Ninth Circuit Court of Appeals upheld the ban, finding that the heckler's veto doctrine was inapplicable and the ordinance was a content-neutral time, place, and manner restriction that was narrowly-tailored to its legitimate purpose and left open alternative channels of communication. Santa Monica Nativity Scenes Committee v. City of Santa Monica, No. 13-55011 (9th Cir. Apr. 30, 2015).

First, the Court held that the Committee's claim might have had merit if the city had banned all religious displays based on the atheists’ complaints, but it did not do so. The Court also evaluated whether the regulation was a neutral time, place, and manner restriction. The important government interests were protecting the park for aesthetic purposes and conserving the government's resources. The Court also found the ordinance was narrowly tailored, and that it left open alternative channels of communication, including that the Committee could "erect its unattended nativity scenes on private property, and it [could] speak in many other ways in Palisades Park, including erecting one-day, attended displays, leafleting, preaching, holding signs, and caroling."

Post Authored by Julie Tappendorf

Constitutional Issues / Land Use and Environmental

Thursday, May 21, 2015

Case Against City for Injuries Sustained While Walking Dog Continues

Thursday, May 21, 2015 Julie Tappendorf

An appellate court recently addressed the "recreational purposes" provision of the Tort Immunity Act in Fennerty v. City of Chicago, 2015 IL App (1^st) 140679 (May 18, 2015).

Fennerty was injured after she tripped and fell over a metal electrical box in a grassy area while walking her dog one summer evening. The electrical box provided service to the nearby lights along the grassy area where she was walking. She first argued that the city carelessly and negligently (1) constructed and maintained the metal box so that it was a tripping hazard; (2) failed to maintain the surrounding grassy area; (3) failed to provide sufficient lighting; (4) failed to warn of a dangerous and defective condition; and, (5) failed to maintain the surrounding ground to ensure a level surface. She next argued that the city was willful and wanton because it had knowledge of the allegedly defective and dangerous conditions.

The city filed a motion for summary judgment arguing that it was immune from liability because the area where Fennerty fell was "recreational" in nature. Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) states that:

Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury. 745 ILCS 10/3-106.

The court granted the city’s motion for summary judgment, and Fennerty appealed.

The appellate court found there was conflicting testimony as to whether the tree-lined grassy area that is bordered by traffic lanes was used for recreational purposes to fall within section 3-106’s immunity. The court reasoned that the testimony showed that the grassy area could either be a median between the traffic lanes or a parkway and that because of the conflicting testimony, the court remanded the case back to the trial court to determine if the grassy area falls within public property that is intended or permitted to be used for recreational purposes.

The appellate court did agree with the trial court's rejection of Fennerty's "willful and wanton" argument. Although the city’s conduct might be characterized as negligent, there was no support for Fennerty's claim that the city had actual or constructive knowledge of the allegedly dangerous and defective conditions.

Post Authored by Christy Michaelson, Ancel Glink

Wednesday, May 20, 2015

Non-Home Rule Unit May Buy Land in Foreclosure Sale

Wednesday, May 20, 2015 Julie Tappendorf

Sometimes courts have to answer a question that nobody thought was a question. In this case, the question arose from an unusual challenge to the authority of the Cook County Forest Preserve District (“FPD”) to acquire title to real estate.

In the case of Baker, et al. v. Forest Preserve District of Cook County, et al., 2015 IL App. (1^st) 141157, decided May 18, 2015, the Illinois Appellate Court held that the Forest Preserve District, a non-home rule unit, has authority to acquire property in a foreclosure sale.

Plaintiffs had guaranteed a mortgage loan to purchase “Horizon Farms.” The borrowers defaulted on the loan and the property went into foreclosure. FPD purchased the borrowers’ note from the mortgage lender for $14 million, made the highest bid at the foreclosure sale and acquired fee simple title to the property by sheriff’s deed.

Plaintiffs, who had lost title to the property when they defaulted on the mortgage, filed a “taxpayers’ suit” claiming that FPD had no authority to acquire Horizon Farms by purchase of the note and bidding in the foreclosure sale. Plaintiffs’ arguments included the claims that FPD does not have statutory authority to expend public funds in private foreclosure litigation, purchase commercial paper (the borrowers’ note), or to act as a speculative investor, and violated its own policies in acquiring the property. Plaintiffs asked the court to declare the purchase void and order the lender to return the public funds paid by FPD. The circuit court granted FPD’s motion for summary judgment and the appellate court affirmed.

The appellate court began its analysis of the merits of the arguments by noting that FPD, as a non-home rule governmental unit, has only the powers granted to it by statute. The Cook County Forest Preserve District Act (“Act”) authorizes FPD to acquire property by purchase. The court disagreed with plaintiffs’ contention that FPD exceeded its authority to “purchase” property when it bought the mortgage note, because it did not receive a deed for fee simple title in exchange for the public funds paid. The court declined to interpret the Act to require the simultaneous exchange of money and title in order to constitute a purchase. The court disagreed with plaintiffs’ argument that purchase of land in a private foreclosure sale is not acquisition for a “public purpose,” for which the expenditure of public funds is authorized. The court also rejected plaintiffs’ position that FPD’s acquisition of Horizon Farms conflicts with the Eminent Domain Act. Finally, the court refused to overturn FPD’s acquisition on the grounds that FPD had not followed its own code in purchasing the property, holding that, “[C]ourts may not adjudicate actions brought to overrule decisions of a legislative body based upon that legislative body’s alleged failure to follow self-imposed requirements.”

Post Authored by Paul Keller, Ancel Glink

Land Use and Environmental

Tuesday, May 19, 2015

Luxury Tree House Spurs Municipalities and Owners to Review Regulations for Tree Houses and Short-Term Rentals

Tuesday, May 19, 2015 Julie Tappendorf

A nearly 200 square-foot Schaumburg luxury tree house available for rent on Airbnb for $195/night (complete with a fireplace, air conditioning, full size bed and twin sleeping loft, kitchenette with sink, microwave, fridge, wifi, and HDTV (with HBO, Showtime, Cinemax, etc.)) recently made headlines and reminded communities and property owners to review local regulations governing tree houses and short-term rentals. The owner’s Airbnb listing reports that he is permitted to rent a room in his home, and grant guests use of the tree house, in accordance with local zoning laws; however, going forward, the Village of Schaumburg is now considering new zoning regulations pertaining to setbacks, size, location, and height of tree houses in the rear yard.

While renting a room in your house might be allowed in Schaumburg, such activity might be prohibited in other communities’ home occupation restrictions for commercial activity in residential neighborhoods. Other regulations targeting transients may limit uses in residential districts to “permanent resident purposes.” Communities should review their local zoning regulations to consider the impact that sometimes extravagant tree houses might have in a residential area. Additionally, as sites like Airbnb increase in popularity, local regulations for short-term rentals may be increasingly appropriate where regular commercial transient activity might erode the residential character of a neighborhood.

In addition to zoning regulations, there may be tax implications for short-term rentals to consider. The Cook County Assessor’s office, which is in the midst of reclassifying bed-and-breakfasts from residential to commercial property, is reportedly evaluating the property tax implications of the Schaumburg luxury tree house. Additionally, the Illinois Hotel Operators’ Occupation Tax imposes a tax on the occupation of renting, leasing, or renting rooms to person for living quarters for periods of less than 30 days. This state tax is imposed in addition to whatever local hotel taxes are imposed. Anecdotally, Airbnb users simply are not paying the required taxes, but short-term lessors should be cautioned to review their local regulations because the Airbnb terms of service squarely place responsibility for compliance with zoning and tax laws on the user creating the listing. As Airbnb increases in popularity, local governments will need to develop strategies to ensure they are recovering the hotel taxes that are due, at least so local hotels are not put at an unfair disadvantage.

Post authored by Daniel J. Bolin, Ancel Glink

Land Use and Environmental

Monday, May 18, 2015

Candidate Convicted of “Infamous Crimes” Was Ineligible for Office

Monday, May 18, 2015 Julie Tappendorf

Late last year, the Cook County State’s Attorney prevailed in a case against a member of the Board of Education for Thornton Township High School District 205 (in Illinois), when a trial court found the board member ineligible to hold the office based on his conviction for an “infamous crime.” The board member had been convicted of felony forgery in the state of Indiana. Alvarez v. Williams, 2014 IL App (1st) 133443.

On appeal, the board member argued that his due process rights were violated because the term “infamous crime” was vague. Under Section 29-15 of the Illinois Election Code:

any person convicted of an infamous crime as such term is defined in Section 124-1 of the Code of Criminal Procedure of 1963, as amended, shall thereafter be prohibited from holding any office of honor, trust, or profit, unless such person is again restored to such rights by the terms of a pardon for the offense or otherwise according to law.

Under Section 124-1 of the Illinois Code of Criminal Procedure of 1963, an “infamous crime” was defined as:

the offenses of arson, bigamy, bribery, burglary, deviate sexual assault, forgery, incest or aggravated incest, indecent liberties with a child, kidnapping or aggravated kidnapping, murder, perjury, rape, robbery, sale of narcotic drugs, subornation of perjury, and theft if the punishment imposed is imprisonment in the penitentiary.” Ill.Rev.Stat.1983, ch. 38, ¶ 124–1 (repealed by Pub. Act 84–1047, § 2 (eff. July 1, 1986)).

The board member argued that when Section 124-1 of the Code of Criminal Procedure was repealed, Section 29-15 of the Election Code was no longer effective. The court disagreed, finding that the legislature intended to keep individuals convicted of infamous crimes from holding office, and applied the list of “infamous crimes” from the repealed Section 124-1 of the Code of Criminal Procedure to disqualify the board member from holding office based on his forgery conviction.

Months later, the State of Indiana expunged the former board member forgery conviction, and former board member filed nomination papers to be a candidate for his former position on the school board. Objections were filed against the candidate’s nomination papers based on the candidate’s prior forgery conviction. The Cook County Officers Electoral Board struck the candidate from the ballot, and the circuit court denied the candidate’s appeal.

Last week, the Illinois First District Appellate Court affirmed the trial court’s decision. Williams v. Cook Cnty. Officers Electoral Bd., et al., 2015 IL App (1st) 150568. On appeal, the candidate argued that because of his forgery conviction was expunged, he is now statutorily qualified to seek and hold public office. The court disagreed, however, because the candidate failed to show the State of Indiana’s expungement had the same effect as a pardon for the offense, which would have restored the candidate’s eligibility under Section 29-15 of the Election Code.

Post authored by Dan Bolin & Sam Singer, Ancel Glink

Friday, May 15, 2015

Ancel Glink's 2015 Newly Elected Officials Handbook Just Released

Friday, May 15, 2015 Julie Tappendorf

Ancel Glink just released the 2015 edition of its Newly Elected Officials Handbook. You can download the handbook for free from the Resource Center of our website.

The handbook is designed for elected officials serving in all types of local government, including cities, villages, counties, townships, park districts, school districts, libraries, and others. Whether you have just taken the oath of office, or would like a refresher on some of the common issues faced by government officials, you will find something of interest.

The following is a list of just a few of the topics you will find addressed in this handbook:

The Open Meetings Act: Don’t Leave Home Without It
The Freedom of Information Act: Ignore at Your Peril
The Rules Are the Game
Taxing and Spending
Understanding and Avoiding Conflicts of Interest
The Gift Ban Act and Prohibited Political Activities
You’re The Boss Now! Labor and Employment Issues
An Outline of the Governmental Construction Process
Suing, Being Sued and How to Avoid Being Sued
Working Together—The Intergovernmental Cooperation Act
Technology: What a Tangled Web-Page We Weave...
Cooperating on Economic Development
Hard Times for Real Estate Developers and the Impact on Municipalities

Thursday, May 14, 2015

Another Example of Employees Behaving Badly

Thursday, May 14, 2015 Julie Tappendorf

In yet another example of "employees behaving badly" on social media, a recently hired employee was terminated before she even started her job after her new employer learned that she had posted the following on Facebook:

I start my new job today, but I absolutely hate working at day care.

Yep, her employer was a day care center.

Post Authored by Julie Tappendorf

Wednesday, May 13, 2015

Court Interprets Dangerous Animal Defense of Provocation

Wednesday, May 13, 2015 Julie Tappendorf

The City of Chicago sent a "letter of determination" to Wortham that her three Rottweilers were deemed to be "dangerous animals" under the City Code. The notice came after the three dogs broke away from their leash and attacked another dog, resulting in significant injuries to the other dog.

At the hearing, Wortham argued "provocation" in defense of her dogs - i.e., that the injured dog was the aggressor. However, the administrative judge rejected that argument, finding that the provocation defense only applies when a dog is provoked by a person, not another dog, under the clear language of the city code. The court agreed with the administrative judge and upheld the City's determination that the dogs were "dangerous animals" under the city's ordinance. Wortham v. City of Chicago, 2015 IL App (1st) 131735

Post Authored by Julie Tappendorf

Tuesday, May 12, 2015

Illinois Attorney General Limits Local Government Powers

Tuesday, May 12, 2015 Julie Tappendorf

The Illinois Attorney General has been quiet on the FOIA/OMA front, having issued only 3 binding opinions in 2015. The Attorney General has, however, issued a couple of other opinions that restrict the authority of local governments, including home rule units.

The Illinois Attorney General issued an opinion that units of local government, whether home rule or non-home rule, have no power to establish local "right-to-work" zones. In the Attorney General's view, these local regulations are preempted by the federal National Labor Relations Act. Ill. Att'y Gen. Op. 15-001.

The Illinois Attorney General also issued an opinion that units of local government, whether home rule or non-home rule, cannot "opt out" of the requirements of the Prevailing Wage Act. Ill. Att'y Gen. Op. 15-002.

Post Authored by Julie Tappendorf

Finances / Personnel

Monday, May 11, 2015

What is a Censure?

Monday, May 11, 2015 Julie Tappendorf

Recently, a city council member was censured for a shoplifting incident from about a year and a half ago. The city council voted on a resolution at a council meeting that publicly "censured" her for her past conduct. So, what is a censure and what does it mean to the censured?

The authority of a municipality to censure one of its own members is not set out in the Illinois Municipal Code or elsewhere in state statute. Nor is it usually established by local ordinance, although it could incorporated into a government body's rules of procedure or code of conduct.

Robert's Rules of Order includes a few references to motions to censure members - for example, a motion to censure is deemed a "main motion" that is subject to debate. However, Robert's Rules does not contain any details about the type of conduct or activity that justifies its use or the process for employing this procedural motion.

A censure is defined in Merriam-Webster dictionary as follows:

1. a judgment involving condemnation

2. archaic: opinion, judgment

3. the act of blaming or condemning sternly

4. an official reprimand

Since it is not authorized by state statute, and there is little reference in Robert's Rules of Order, what does the act of censure mean? The act of censuring a member is an expression of the government body's displeasure in one of its members. A censure does not, however, have any legal effect on the member's ability to continue to serve on a particular government body. It does not recall, remove, or impeach a member from office. It does not involve the imposition of any monetary or other penalties on the censured member. It is simply a public reprimand by the government body against one of its members. In short, while it can certainly have political overtones, it has very little, if any, legal impact at least not in the State of Illinois.

Post Authored by Julie Tappendorf

Friday, May 8, 2015

Illinois Pension Reform Law Unconstitutional

Friday, May 08, 2015 Julie Tappendorf

The Illinois Supreme Court issued an opinion today finding the state's pension reform law unconstitutional. In Re Pension Reform Litigation v. Pat Quinn, 2015 IL 118585. We had written about the challenges to the legality of this law in previous posts, including this one,

The Supreme Court's ruling is worth a read, especially for its historical analysis of the Illinois constitution's pension protection clause, and the decades-long (almost a full century) failure by the state to fund its state pension systems. The Court's references to the debates on the pension reform bill are also interesting, as it sheds some light on the legislators' views of alternative methods for funding the state pensions.

The Court considered the following three issues in finding the law unconstitutional.

First, the Court considered whether the law violated the pension protection clause of the Illinois constitution. The Court noted that this issue was easily resolved. The language of that clause states that public pensions are an "enforceable contractual relationship, the benefits of which shall not be diminished or impaired." In the Court's view, the pension reform legislation clearly diminished the pension benefits by reducing retirement annuity benefits.

Second, the Court considered the state's argument that even if the law did violate the constitution, it could still be upheld as a proper exercise of the state's police power. The state made this argument as an "affirmative defense" to the challenge to the constitutionality of the law, arguing that state finances had become so dire, that the state legislature was "compelled" to override the constitutional protections for the "greater public good." The Court rejected the state's arguments, finding that the economy is always subject to fluctuations, which the state should have taken into account and avoided had it adequately funded its pension funds. Moreover, the Court determined that there were less drastic measures available to deal with the pension crisis, including amortizing unfunded liabilities or raising taxes. While the Court did not minimize the "gravity of the State's problems or the magnitude of the difficulty facing our elected representatives," it was bound to uphold the law.

Third, if portions of the law were held invalid, the Court considered whether these invalid provisions (the annuity reduction provisions of the law) could be severed from the remainder of the statute. Although the statute did contain severability provisions, the Court found that severing the retirement annuity provisions from the remainder of the law was unworkable because those provisions were not only central to the law, but the "very reason for being." As a result, the Court concluded that the entire statute was void and unenforceable.

Post Authored by Julie Tappendorf

Finances / Personnel

Use of Photos Without Permission Costs $8,000

Friday, May 08, 2015 Julie Tappendorf

From Strategically Social: Use of Photos Without Permission Costs Lawyer $8,000

Now, here's an interesting (and maybe a little ironic) case out of D.C. involving use of stock photos without permission. The plaintiff company claims that the defendant used two of the company's photos on the defendant's website without the company's permission. The suit sought $150,000 for each instance. The irony is that the defendant happens to be a patent lawyer. Upon notice of the alleged infringement, the lawyer removed the photos, but didn't respond to the company's efforts to settle so the company filed the complaint. The case eventually did settle, to the tune of $8,000.

Lesson? You can't just copy or upload photos on your own site without permission - just because they are already on the internet does not necessarily make them fair game to everyone.

Post Authored by Julie Tappendorf

Thursday, May 7, 2015

Court Rejects Land Use Applicant's Equal Protection Claim

Thursday, May 07, 2015 Julie Tappendorf

The 7th Circuit Court of Appeals dismissed a "class of one" equal protection claim filed by an applicant who was denied her application for zoning approval for a residential development in the City of Monona, Wisconsin. Miller v. City of Monona (7th Cir. 2015).

Miller initially applied for approval of a four-unit condo project on a lot she owned in Monona, but subsequently modified her application to a 10-unit project after buying adjacent land. The review process took a couple of years, and stalled in 2006 when negotiations and the relationship with the former mayor (an adjacent landowner) became strained and asbestos was found on the property. Miller was also cited with numerous code violations by the City. She corrected the code violations (and 3 of the 4 were dismissed in municipal court) and removed the asbestos and obtained a clean final inspection. When City refused to allow her to continue with her development, she filed a lawsuit claiming the City had violated her equal protection rights, among other claims.

The district court dismissed her equal protection claim, and she appealed to the 7th Circuit, which affirmed the dismissal. The Court first noted that it isn't enough for a plaintiff to suggest improper motive. If there is a reasonably conceivable rational basis for treating a plaintiff differently, that will defeat a plaintiff's class of one claim. In this case, the City had a legitimate basis for its actions - the asbestos and building code problems on her property. In light of the "great deference we afford to discretionary local decisions regarding land use" and the existence of these rational reasons for the City's actions against Miller, the court concluded that Miller's class of one claim must fail.

Post Authored by Julie Tappendorf

Constitutional Issues / Land Use and Environmental

Wednesday, May 6, 2015

Court Questions City DUI Administrative Fee Program

Wednesday, May 06, 2015 Julie Tappendorf

Many Illinois municipalities have adopted ordinances imposing an administrative fee when police tow and impound a vehicle in connection with a DUI arrest. These ordinances have been challenged in the past, and upheld by Illinois appellate courts. Recently, however, an appellate court questioned the DUI administrative fee ordinances adopted by a number of Illinois cities. Although the court did not go so far as to invalidate the ordinances, it did reverse the circuit court's dismissal of the cases that challenged the legality of the ordinances and sent the matter back to the circuit court for further proceedings. Carter v. City of Alton, et al., 2015 IL App (5th) 130544. For municipalities that have passed similar ordinances (and many of you have), this will be a case to follow.

The fees in the challenged ordinances ranged from $100 to $500. All were imposed as an "administrative" fee that had to be paid to retrieve a towed and impounded vehicle following a DUI arrest. The plaintiffs (who had been arrested for DUI's and been assessed the fee) challenged the constitutionality of the ordinances on the basis that the fees had no reasonable relationship to the stated purpose of the ordinance and, therefore, violated their substantive due process rights.

The cities filed motions to dismiss on various grounds, including that (1) previous appellate decisions upheld these fees and (2) the fees were reasonable in light of the costs incurred by the cities in arresting drunken drivers, booking them into jail, filling out paperwork, and towing and impounding the vehicles. The circuit court dismissed the cases, and the plaintiffs appealed.

The appellate court acknowledged the many cases that had previously upheld similar administrative fees. However, the court distinguished those cases, finding they did not address the specific issue raised by plaintiffs in this case - whether the amount of the fee bears some reasonable relationship to the actual costs the fee is intended to recoup. In the court's opinion, the plaintiffs' complaint sufficiently plead this issue and should not have been dismissed.

Although the court remanded the case back to the circuit court for a final determination on whether the ordinances were constitutional, it did offer its own opinion on that issue. For example, the court noted that many of the costs incurred by the cities and used to justify the fee (1) duplicate other fees (i.e., towing company charges; (2) are not unique to vehicle offenses (i.e., booking costs and processing evidence); and (3) would have been incurred anyway (i.e., police officer salaries).

Although the court concluded by stating that it expresses "no opinion as to the ultimate question of whether the fees charged by these ordinances are reasonably related to the costs incurred by the defendants", in my opinion, it spent many pages doing just that, which the concurrence noted as well. In any event, on remand, the cities will need to support their own DUI fee programs with evidence of actual costs incurred in administering that specific program, and not just general arrest and booking costs.

Post Authored by Julie Tappendorf

Constitutional Issues

Tuesday, May 5, 2015

Supreme Court Upholds Judge's Campaign Donation Ban

Tuesday, May 05, 2015 Julie Tappendorf

In a decision that surprised many, the U.S. Supreme Court last week upheld a Florida state law that prohibits judicial candidates from soliciting campaign donations. Williams-Yulee v. The Florida Bar. The outcome was surprising because this is the first opinion in some time from the high court that restricted (rather than expanded) free speech rights. For example, compare this decision to the Court's rulings in favor of violent video games for children and Westboro Baptist Church protests at soldier funerals.

The case involved a Florida code of conduct for judges prohibits judicial candidates from personally soliciting campaign funds. A Florida judicial candidate violated the code after she sent out a mass mailing asking for campaign donations, which she also posted on her campaign website. At her disciplinary hearing, she defended her actions by arguing that she had a First Amendment right to ask for campaign donations. She lost that argument, and her case made its way to the U.S. Supreme Court. Last week, the Supreme Court also rejected her argument, finding that the state had an important government interest in protecting the public confidence in the integrity of judges and judicial elections.

Interestingly, Florida judicial candidates are not prohibited from accepting campaign contributions - they just can't individually solicit or seek campaign contributions. A judge's committee can also solicit donations. In the Court's view, therefore, candidates for judicial office still had plenty of options to get their messages across and raise money, so long as they don't personally ask someone for money.

30 states have campaign limitations similar to Florida's ban, so the case has a broader impact than just to uphold Florida's law.

Post Authored by Julie Tappendorf

Constitutional Issues / Elections

Monday, May 4, 2015

Court Upholds Practice of Placing Parking Tickets on Windshield

Monday, May 04, 2015 Julie Tappendorf

We previously reported on the 2012 case of Senne v Village of Palatine, 695 F.3d 597 (7^th Cir. 2012) where the court held that placing a parking ticket on the windshield of a car is a “disclosure” of private information within the meaning of the Driver’s Privacy Protection Act, 18 U.S.C. 2721. The court remanded the case to determine if private information on a ticket placed face down on a windshield constituted a permissible use under the Act.

In Senne v Village of Palatine, No. 13-3671 decided April 28, 2015 the 7^th Circuit affirmed the longstanding practice of placing parking tickets on vehicle windshields. The court said that even though the ticket contained private information as defined under the Act, the disclosure of this private information was allowed because the information is for use in connection with an administrative proceeding and for use by a law enforcement agency in carrying out its functions. Both of these uses are permitted under the Act 18 U.S.C. 2721(b)(1) and (b)(4).

Relying on the deposition testimony of the Palatine Police Chief, the court identified numerous lawful uses for the private information contained on the parking ticket. Personal information such as name, address, height and weight increases the likelihood that the person will pay the ticket because the police know the person’s identity and address and will have no difficulty locating the person. The information also supports the Village policy of voiding tickets for out of town visitors. The information may also be used to help a person with limited English proficiency to communicate with a police officer if subsequently stopped. The person can just show the police officer the ticket to communicate identity. Finally the information on the ticket enables drivers to correct errors in the state motor vehicle records.

The court concluded by saying that this limited disclosure of personal information has not resulted in any known harm, such as stalking, identity theft or invasion of privacy to the persons receiving a parking ticket.

Municipalities may continue to issue windshield parking tickets based on this case, but should continue to exercise caution when gathering or disclosing private information subject to the Driver’s Privacy Protection Act.

Post Authored by Steve Mahrt, Ancel Glink

Constitutional Issues / Freedom of Information

Friday, May 1, 2015

Coach "Benched" for Tweet

Friday, May 01, 2015 Julie Tappendorf

From Strategically Social: Coach Fired for Tweet

A high school softball coach was fired for posting the following "tweet" on her personal Twitter account:

The tweet was apparently a response to earlier statements made by restaurant owners to the press that "If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no." Although the coach has since deleted the tweet, it lives on in "screen caps" as well as the many replies and forwards of her tweet.

The Indiana coach had been serving a suspension since April 1st, but the school district superintendent confirmed that she was officially terminated earlier this week.

Post Authored by Julie Tappendorf

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