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Tuesday, June 30, 2015

Case Against Mayor for Political Firings Continues

After Kevin Smith became Mayor of Anderson, Indiana, he replaced many members of the City staff with his political supporters or others he deemed trustworthy.  11 of the fired workers filed a civil rights lawsuit against the Mayor and the City of Anderson claiming that the discharges violated the First Amendment. The district court held that the Mayor had qualified immunity with respect to 9 of the 11 claims, and allowed the other two claims to continue. Both the City and Mayor appealed to the 7th Circuit. 

The 7th Circuit limited its appeal to determining whether the district court was correct in denying the Mayor qualified immunity with respect to the two remaining plaintiffs.  These two plaintiffs included Allman, the former office manager for the utility department and Baugher, a customer service supervisor in the utility department.  

With respect to Allman, the court held that there were disputed facts as to whether Allman was actually a manager or a cashier. A week before Smith was sworn in as Mayor, she exercised her seniority to move to an open cashier position int he utility department. Upon taking office, Mayor Smith promoted her back to manager, and then fired her.  Because it was not clear whether she held a position that might be exempt from First Amendment protections (office manager) or not (cashier), the issue was remanded to the district court.

As to Baugher, the 7th Circuit considered the Supreme Court's rulings in Elrod and Branti, which established the standards to apply in determining whether a particular employee was exempt from First Amendment protections for termination on political grounds. These include the supervisory nature of the position, whether the position has any significant discretion over matters of high political value, and whether the position has any policy-making authority. In this case, the 7th Circuit held that a customer-service supervisor is not a position that entails political discretion.  As a result, the district court did not err in denying qualified immunity to the Mayor for terminating Baugher, and Baugher's case against the Mayor will continue. Allman v. Smith (7th Cir. June 24, 2015)

Post Authored by Julie Tappendorf

Monday, June 29, 2015

Don't Forget About New Audit Disclosure Requirements!

It's audit time for local governments, and we wanted to remind you of the new statutory disclosure obligations for municipalities and counties. Last year, we posted about P.A. 98-0738, which amended the Illinois Municipal Code and Counties Code to establish certain disclosure requirements for municipal and county audits. 

The new law (which became effective January 1, 2015) requires the auditor conducting the municipal or county audit to provide a copy of any management letter and audited financial statements to each member of the corporate authorities within 60 days of the close of the audit. The auditor is also required to present the audit information to the corporate authorities either in person or electronically at a public meeting. Municipalities and counties with websites must post this information on their websites. 

Post Authored by Julie Tappendorf

Friday, June 26, 2015

Hotel Records Ordinance Unconstitutional

The U.S. Supreme Court has been active this session in cases involving local governments. Unfortunately, the decisions have not been very favorable to local governments, including today's case striking down a city's hotel records ordinance.  City of Los Angeles v. Patel, et al.

The City of Los Angeles adopted an ordinance requiring hotel operators to record and keep information about their guests, including name, address, vehicle information, date and time of arrival, room number, rate, and method of payment. In addition, any guest without a reservation or who pays for their room in cash must also present a photo ID at check-in. The ordinance requires hotel operators to make this information available to LA police upon request. Violation of the ordinance is punishable by 6 months in jail and a $1,000 fine. 

A group of hotel operators sued the City challenging the constitutionality of the police inspection provision of the ordinance, claiming that a police officer's non-consensual inspection of hotel records was an unlawful "search" under the Fourth Amendment to the U.S. Constitution. The Ninth Circuit Court of Appeals agreed, and struck down the ordinance as unconstitutional. This week, the U.S. Supreme Court affirmed, finding the ordinance facially unconstitutional because it penalizes hotel operators for declining to turn over their records without providing any review or appeal opportunity. The Court was particularly concerned with a police officer's ability to arrest a hotel owner on the spot if he or she refuses to give the officer access.

Post Authored by Julie Tappendorf

Thursday, June 25, 2015

PAC Issues 4th Opinion of 2015

It's been a slow year in the PAC office, with the issuance of only the 4th binding opinion of 2015 just coming out. In PAC Op. 15-004, the PAC found a public body in violation of FOIA for denying a request for a copy of an agreement that settled a lawsuit between the City and an employee. The public body had denied the request, citing the personal privacy exemption and that the non-disclosure provisions in the settlement agreement prohibited release.

The PAC rejected that argument on three grounds. First, the PAC found that section 2.20 of FOIA mandated that all settlement agreements are public records. Second, the PAC noted that the non-disclosure provision in the agreement only prohibited disclosure by the former employee, not the City. Third, the PAC stated that the personal privacy exemption does not apply to information that "bears on the public duties of public employees." The PAC rejected the employee's concerns that release of this information would lead to an "uncomfortable work environment" with her co-workers, finding that release of the agreement outweighed any expectation of privacy she might have in keeping the terms of her settlement with the City private.

Post Authored by Julie Tappendorf

Wednesday, June 24, 2015

Raisin Set-Aside Program is an Unconstitutional Taking

The U.S. Supreme Court issued one of its final cases this term, ruling against the government in a Fifth Amendment takings case. Horne v. Department of Agriculture, No. 14-275 (June 22, 2015). This case involved a challenge to the federal government’s raisin set-aside program that requires raisin growers to set aside a particular percentage of their crops “for the account of” the government. The purpose of the set-aside program is to stabilize raisin prices. The raisin growers had challenged the program, arguing that it constituted an illegal taking without just compensation under the Fifth Amendment of the U.S. Constitution. The Supreme Court agreed, finding that the set-aside was a “physical appropriation” of the growers’ property that constitutes a taking. As a result, the government must pay the growers just compensation for the taking. 

“The government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home." Based on the holding in Horne, the government’s duty to pay just compensation under the Fifth Amendment applies to personal property as well as real property.

Justice Sonia Sotomayor dissented, arguing that since the raisin growers retained a right to some payment for disposition of the set-aside raisins, there was no taking.

Post Authored by Julie Tappendorf

Tuesday, June 23, 2015

Anonymous Poster's Identity Must be Released in Defamation Case

Last week, the Illinois Supreme Court decided a case involving anonymous internet posters. The case involved certain online comments to a newspaper article about Bill Hadley, a candidate for county board office. Hadley v. Subscriber Doe a/k/a Fuboy, 2015 IL 118000. Specifically, an anonymous poster called "Fuboy" had posted the following comment (among others) to the online article:
Hadley is a Sandusky waiting to be exposed. Check out the view he has of Empire [a local grade school] from his front door. 
Hadley filed a defamation lawsuit against the newspaper. As part of the litigation, the newspaper provided Hadley with the IP address acquired from Comcast from which  "Fuboy's" comments originated. Hadley then sought a court order to require Comcast to release the identity of the subscriber of the IP address. Counsel for the subscriber filed a motion to quash the subpoena, and while the motion was pending, Hadley filed an amended complaint naming "Subscriber Doe a/k/a/ Fuboy" as a defendant to the defamation action. Both the circuit court and appellate court ordered Comcast to turn over the subscriber's identity, and the subscriber appealed to the Illinois Supreme Court.

The Illinois Supreme Court affirmed the lower courts' decisions that the subscriber identity should be released to Hadley. Rule 224 provides that a plaintiff is entitled to ascertain the identity of the individual who may be responsible for damages against the plaintiff. The rule has been applied in defamation cases where the plaintiff can show that discovery of the individual's identity is "necessary" and where the plaintiff has presented sufficient allegations of a defamation claim to overcome a motion to dismiss. 

To state a cause of action for defamation, a plaintiff must show facts showing that the defendant made a false statement about the plaintiff, the defendant made an unprivileged publication of that statement to a third party, and the publication caused damages. Here, the Supreme Court held that Fuboy's statements impute the commission of a crime to Hadley by referring to the Sandusky sexual abuse scandal, which at the time the comment was posted, had dominated the news for weeks. That statement, the Court noted, could reasonably be interpreted to mean that "Hadley was a pedophile or had engaged in sexual acts with children." 

The Court rejected Fuboy's argument that the comment could be susceptible to an innocent interpretation. The Court also rejected Fuboy's argument that the statement was not a factual assertion, but simply opinion. First, the comment had a precise and readily understood meaning, could be readily verified, and conveyed some personal familiarity from Fuboy that suggested it had factual content. 

As a result, the Court agreed that Comcast must turn over its subscriber's identity to Hadley, in furtherance of his defamation case.

Lesson?  Nothing is ever truly anonymous on the Internet.

Post Authored by Julie Tappendorf

Monday, June 22, 2015

Court Dismisses Due Process and Ethics Claims Involving Zoning Decision

From our friends at the Law of the Land blog:  7th Circuit Court of Appeals Upholds Dismissal of Due Process and Ethics Claims Arising Over Approvals for Retail Center

After property across the street from a residential homeowner was granted a conditional use permit to build a retail center, the homeowner sued, alleging various due process, equal protection, and First Amendment claims against the Village. Specifically, the homeowner alleged that the Village ignored local procedures in conducting the public hearings on the developers' zoning application, and that Village officials and developers had engaged in insider dealings. The lawsuit also claimed that some of the Village officials were represented by the same law firm that employed the Village attorney, creating a conflict of interest. Finally, the complaint alleged that the zoning decision violated his equal protection rights by rezoning the property across the street from him out of spite. The Village sought to dismiss the due process and First Amendment claims. The district court dismissed his case, and he appealed to the Seventh Circuit.  

The Seventh Circuit upheld the dismissal of his case, finding that his due process claims were not ripe under the U.S. Supreme Court's decision in Williamson County for failure to exhaust his administrative remedies (i.e., file an appeal with the zoning board of appeals, and then bring his case to the state courts rather than the federal courts). The Seventh Circuit also found a rational basis for the Village's zoning decisions. 

You can read more about the case on the Law of the Land blog.  The case can be found at Jackson v Village of Western Springs, 2015 WL 2262703 (7th Cir. 5/15/2015).

Post Authored by Julie Tappendorf

Friday, June 19, 2015

Supreme Court's Sign Case May Require Sign Code Amendments

As we noted yesterday, the Supreme Court finally issued its ruling in the sign case involving a local church's challenge to the Town of Gilbert, Arizona's sign regulations. Reed v. Town of Gilbert, Arizona (USSCT, June 18, 2015).  In a nutshell, the Supreme Court held that the Town's sign code was a content-based regulation that could not survive the strict scrutiny required by the First Amendment. This case is certain to have an impact on how local governments regulate signage within their community, and is likely to require most communities to review and revise their current sign regulations to bring them into conformity with the Supreme Court's decision.

The facts are fairly straightforward. The Good News Community Church wanted to advertise the time and location of their Sunday services. They did not have a regular site for services, so held them at various locations in or near the Town of Gilbert. To inform the public about the services, they posted 15-20 temporary signs around the Town of Gilbert that included the name of the church, and the time and location of the upcoming service. After the church was cited by the Town for violating the Town's sign code, the church sued the Town, arguing that the sign code violated their freedom of speech rights under the First Amendment. The Ninth Circuit Court of Appeals ruled in favor of the Town and upheld the sign code as a content-neutral regulation. The U.S. Supreme Court disagreed, however, finding the sign regulations content-based.

According to the Supreme Court, a government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. Thus, a court must consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Acording to the Court, the Town's sign code is content based on its face because the Town treats temporary directional signs, political signs, and ideological signs (all temporary signage) differently, depending "entirely on the communicative content of the sign."  For example, ideological signs (signs communicating noncommercial messages that are not directional political, garage sale, or construction signs) are treated most favorably of the three categories. Political signs, on the other hand, are treated somewhat less favorably (stricter time limits and size restrictions) than ideological signs. And directional signs relating to events are treated even less favorably, with much more restrictive size and time restrictions. In the Court's view, singling out a specific subject matter for differential treatment, as evidenced by the way the Town treated these three categories of signs, is the perfect example of content-based discrimination.

Because the sign code imposes content-based restrictions on speech, they could only be upheld if they can survive strict scrutiny. That means that the Town had to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." The Town's two arguments in favor of a governmental interest (aesthetics and traffic safety) were not, according to the Court, a sufficiently compelling reason to treat directional event signs less favorably than other temporary signs. For example, there was no evidence that the type of directional signs placed by the church posed any greater threat to traffic safety than ideological or political signs. There was also no evidence that limiting directional signs but allowing larger ideological signs for a longer period of time would protect the aesthetics of the Town.

The opinion raises a number of questions, including what a municipality can legally do to regulate signs.  The majority opinion does not provide much guidance, except to say that its decision "will not prevent governments from enacting effective sign laws." The Court stated that the Town has a variety of "content-neutral" options available to protect aesthetics and traffic safety, such as regulating the size, building materials, lighting, and other aspects of signs that have nothing to do with the sign's message. The Court also noted that the Town could completely ban signs from public property, so long as it is done in an evenhanded manner. What the Town could not do, however, was treat similar signs differently based on the message on the sign.

Justice Alito wrote a concurring opinion, joined by Justices Kennedy and Sotomayor, attempting to provide guidance to local governments as to what type of sign regulations would not be content-based, including the size, lighting, electronic vs. static, location, total number of signs along a roadway, and time limits for signs advertising a one-time event. However, the Town of Gilbert's temporary signs included many of these same regulations, but those were struck down because they differed between categories. Does that mean that a municipality can limit the size of signs, but that limitation must apply to all signs, regardless of type or function?

Justice Kagan also wrote a concurring opinion, joined by Justices Ginsburg and Breyer, acknowledging that many sign ordinances are now in jeopardy due to the Court's decision. Specifically, Justice Kagan noted that a municipality may have to repeal sign exemptions for warning, caution, and similar signs to ensure the code does not discriminate based on the message of the sign. Although Justice Kagan agreed with the majority that the Town of Gilbert's code could not survive strict scrutiny, she cautioned that the broad scope of the majority's ruling will result in striking down other entirely reasonable laws because they simply cannot survive a strict scrutiny review.

So, what does this mean for municipal sign codes? Many, if not most municipalities regulate categories of signs in a way that would subject them to the same content-based analysis used by the Supreme Court  to strike down Gilbert's sign code. Political signs are a very good example, particularly in Illinois, where state law prohibits municipalities from restricting the number and time limits for political signs installed on residential property. Does that mean that a municipality must eliminate restrictions on time limits and number of signs for all temporary signs or risk a challenge that it is treating other temporary signs less favorably than political signs?  Maybe.

There are plenty of other questions that municipalities will have to answer following this decision, which will certainly impact the way sign codes treat categories of signage with similar characteristics (like temporary signs). It is very likely that most municipalities will need to modify their codes, or risk a challenge that their own codes are unconstitutional.

Post Authored by Julie Tappendorf

Thursday, June 18, 2015

UPDATED POST - Reed v. Town of Gilbert

The link to the opinion in the previous blog post was incorrect.  This post has the correct link. 

Many of you have been waiting for the U.S. Supreme Court to issue its ruling in the Town of Gilbert case involving a local church's challenge to the constitutionality of the Town's sign code. The church (which had been cited under the Town's sign code for placing certain temporary directional signs throughout the town) claimed that the Town's sign code was a content-based regulation that violated the First Amendment. The Ninth Circuit Court of Appeals had ruled in favor of the Town, finding the regulation content-neutral. The church appealed. This morning, the Supreme Court reversed the Ninth Circuit, and held that the challenged sign provisions were content-based regulations that could not survive strict scrutiny as required by the First Amendment. Reed v. Town of Gilbert, Arizona (USSCT, June 18, 2015).

We will post a more detailed analysis of this case tomorrow, but I wanted to get the word out to my fellow land-use nerds who follow these cases.

Post Authored by Julie Tappendorf  

Officer Not Protected by First Amendment for Actions at Anti-Abortion Demonstration

After a police officer was discharged for conduct during demonstrations at an abortion clinic, he sued the city claiming violation of his civil rights.  Specifically, he claimed that the city retaliated against him for his protected speech, among other allegations.  The Seventh Circuit recently ruled against him on his retaliation claim in Lalowski v. City of Des Plaines.

In 2006, a group of demonstrators gathered outside of an abortion clinic. The officer approached the demonstrators and told them he would arrest anyone who impeded traffic or stopped anyone from entering the clinic.  There was some dispute as to what happened next - one of the demonstrators testified that the officer used profanity and threats against the demonstrators, and was generally intimidating and "out of control."  The officer acknowledged that the confrontation was adversarial, but denied he threatened anyone. 

After the officer went off-duty, he returned to the abortion clinic in plain clothes and his personal car. He approached one of the demonstrators who he had spoken with earlier in the day and called her a "sinner of gluttony" and various other names.  He approached other demonstrators and accused them of using intimidation tactics like the Taliban, and called many of them names.  He testified that he was simply trying to get them to take down their signs.  Complaints about the officer's conduct were filed with the police department. Charges were filed, and he was eventually terminated for conduct unbecoming a police officer, and violation a variety of other police rules and regulations. 

The officer alleges that he was terminated for exercising his First Amendment speech rights. The court disagreed, however, finding that none of the officer's speech rights were protected under the First Amendment.  Most of his statements at the demonstration did not address matters of public concern.  Even the few statements that did touch on matters of public concern (his expression of disapproval of the use of aborted-fetus signs) was outweighed by the City's interest in maintaining discipline and harmony within the department, and fostering a relationship of respect and trust with the public. The court also considered the manner in which he expressed his speech - i.e., by ridiculing the protesters, as well as his history of disciplinary actions for similar interactions with the public. In sum, the court held that the City's interest in running an efficient and effective police department outweighed any interest the officer had in expressing his opinion to the demonstrators.

Disclosure:  Ancel Glink represented the City in this case.

Post Authored by Julie Tappendorf

Wednesday, June 17, 2015

Attorney General Files Brief in OMA Case

You may recall in 2013 and then in 2014, the Attorney General issued two opinions finding an Illinois school district in violation of the OMA because the school board members (1) signed a separation agreement in closed session and (2) failed to adequately discuss the substance of the separation agreement at a later open session where the board voted to approve the agreement. In both cases, the school board appealed the decisions of the Attorney General, and the circuit court overturned the AG.  The AG appealed to the appellate court, and although I don't have a decision to report to you today, I wanted to share a copy of the Attorney General's brief in support of its appeal. The Illinois Municipal League is filing an amicus brief in support of the circuit court's decision, which I will share in a future post.

The first opinion of the AG related to the board members' signing of the agreement in closed session. The district argued that it did not violate the OMA because the board approved the agreement at a later meeting, in open session. The AG, however, argued that the mere signing of the agreement constituted "final action" which violated the provision of the OMA that prohibits any final action in closed session. 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. You can read about the AG's first opinion here.  

In its second opinion about this case, the AG interpreted Section 2(e) of the OMA, which requires a public recitation of the nature of the matter being discussed prior to a vote on an agenda item. The AG held that this required the school board to "provide a verbal explanation of the significance of its action to members of the public who are present at the meeting before the public body can proceed to consider action taken." Although the school board had, in fact, engaged in a discussion prior to voting on the agreement, the PAC found the board in violation of this section of the OMA for failing to explain to the public the significance of approving the separation agreement. You can read about the AG's second opinion here.  The court overturned the AG, finding no support in Illinois law for "such an expansion of the requirements of Section 2 (e) of the Open Meetings Act." The court noted that not only did board members engage in discussion before voting, they had also posted a copy of the agreement five days before the meeting. We reported on the court decision here.

In its appellate brief, the AG relies on a couple of Illinois decisions that involved a public body taking final action to approve an agenda item in closed session. In the AG's view, the signing of the agreement was itself "final action." The AG rejects the board's argument that the final action was actually taken in open session, at a subsequent meeting, because the board failed to adequately inform the public of the action it was taking before it voted. The AG acknowledged that the board president announced the agenda item before it was voted on, and that there was some discussion before the vote. The AG also acknowledged that the agreement itself was posted on the board's website in advance of the meeting. Nevertheless, that was not enough to inform the public who attended the meeting of the substance of the agreement that was voted on. The AG does not provide any guidance to a public body as to what would be "enough" to satisfy the AG that the public was informed about an item before it was voted on.

The circuit court rulings were a good result for public bodies and the the right decisions. The PAC's expansive reading of the OMA to require an explanation of the significance of an agenda item prior to voting is simply not consistent with the OMA nor common practices of public bodies. That interpretation also creates uncertainty for public bodies in their use of consent agendas. We certainly hope the appellate court agrees, and will keep you posted on this case as it moves forward.

Post Authored by Julie Tappendorf

Tuesday, June 16, 2015

Colorado Supreme Court Rules Against Employee Fired For Marijuana Use

The Colorado Supreme Court issued a ruling this week addressing employer rights over employee use of marijuana. Coats had been fired from his customer service job at Dish Network after testing positive for marijuana in a random drug test.  He had been prescribed medical marijuana for pain suffered after a car accident left him paralyzed.  He sued Dish Network, arguing that his medical marijuana use was protected by a Colorado law that provides that employers may not fire workers for “any lawful activity” outside the workplace. The state supreme court disagreed, however, holding that because marijuana use was still illegal under federal laws, it was not protected by this state statute.  Coats v. Dish Network

The California Supreme Court had previously issued a similar ruling in a case involving a military veteran who had been prescribed marijuana for chronic back pain stemming from an injury he sustained while serving in the Air Force.  The employee was fired a week after he started a new job at RagingWire Telecommunications Inc. after a drug test revealed he had used marijuana.  He then sued the company, claiming that it did not accommodate his disability. Although the lower courts ruled in his favor, the Supreme Court held that employers may fire employees for using medical marijuana off duty, even with no evidence that the use had any effect on job performance.  The Court held that the Act did not restrict the actions of employers, who have a “legitimate interest in whether an employee uses the drug.”  Ross v. Raging Wire Telecommunications, Inc.

Post Authored by Julie Tappendorf

Monday, June 15, 2015

Keeping the Verbatim Record Secure in the Digital Age

11 years ago, the Illinois General Assembly amended the Open Meetings Act to require public bodies to keep a "verbatim record" of their closed sessions.  The record could take the form of an audio or video recording (I would love to hear from any Illinois public body that does the latter).  The closed session recording must be retained for 18 months, and can then be destroyed so long as the public body has approved written minutes for the closed session.  

While controversial at the time, the bill has not created a lot of legal issues for public bodies. Most have adopted policies for regular destruction of the recordings after 18 months, and have procedures in place to make sure the recordings are kept secure and confidential, as provided under the OMA.

So, why a blog post about this law now?  Recently, I attended a breakfast meeting where a question came up about the security of these recordings.  It used to be pretty easy to keep the records secure - the clerk, secretary, or other designated government employee would tape the meeting, and then lock up the tapes for 18 months until they could be destroyed. That practice was pretty commonplace and worked well for a time, at least until government bodies began replacing their "tape" recorders with digital recording devices. Now that there are no tapes to lock up, the following question arises - how do we secure these digital records?

There may be little security risk where the digital recording remains on the device because the device itself is capable of being secured. But, what if the digital recording is saved on a computer network or server? That creates the potential for access by someone other than the authorized keeper of the recordings. Even if the keeper of the recording simply uses the computer as a "pass-through" to save the digital recording on a flash drive that is then secured like the tapes used to be, that digital recording has probably been archived on the computer's network or server. While password protection on the file or file folder can provide some security, the file could still be vulnerable to a hacker, cyber attack, or even a disgruntled employee with network/server password access (i.e., IT department) who wants to listen to the recording of the closed session that discussed the employee's performance. Even deleting the file after 18 months is not likely to permanently eliminate all traces of the file, as most files are archived on a regular basis and can be retrieved.  

At our meeting, we talked about a variety of ways around this potential security issue.  One option was to purchase a dedicated computer with no server/network access to use to store these files or as a pass-through to saving the file on a flash drive. The computer and/or the flash drives could then be secured. Another option that was raised was the use of a digital recording device that has the capability of transferring files directly to a flash drive or other storage device without the need for a computer pass-through.  There may be other methods of protecting this data, and I'd love to hear from any of my readers who have implemented one of them.

As technology advances, we all have to consider changing past practices to address the unintended consequences.  Or, consider buying up all of the mini-cassettes we can find on Amazon.com. I checked, and they are still available, at least for now...

Post Authored by Julie Tappendorf

Friday, June 12, 2015

Elected Officials Protected by Immunity for Refusing to Reappoint Employee

In a recent case, the 3rd Circuit Court of Appeals ruled against an employee who claimed that he was not reappointed to his position because he objected to a variety of decisions by the elected officials who had authority over his appointment. Werkheiser v. Pocono Township (3d Cir. 2015).

Werkheiser was as an elected member of the Pocono Township Board of Supervisors.  The Township Board had the authority to appoint a "roadmaster" for the Township, an employee position respnosible for the supervision of the road and parks department of the Township. Members of the Board of Supervisors are permitted to also serve as roadmaster, and Werkheiser was appointed, and served, in that position from 2008-2012.  In 2012, he was replaced, and he sued the Township and the other two members of the Board of Supervisors who voted to replace him, claiming that they violated his First Amendment rights by denying his reappointment as roadmaster.  He alleged that he had voiced objections to the hiring and compensation of the Township Administrator, and a new grant-writer.  

The two other Board members filed a motion to dismiss the case, claiming that they were entitled to qualified immunity from the First Amendment claim and that because Werkheiser's "speech" was made in his official capacity, it was not protected by the First Amendment under the Supreme Court's decision in Garcetti v. Ceballos. Therefore, the elected officials were protected by immunity for its actions.  The Third Circuit accepted this argument, and held that the two Board members who voted not to reappoint Werkheiser were shielded from liability from the First Amendment claim.  The Court also rejected Werkheiser's argument that he was retaliated against when he was not reappointed.  The Court noted that Werkheiser's position on the Board of Supervisors was not affected by the Board's actions to remove him from his roadmaster position.  Thus, the Board members were immune from liability for any alleged retaliatory actions as well.

Post Authored by Julie Tappendorf

Thursday, June 11, 2015

The Florida Legislature Blesses Koontz

In the estimation of the Florida legislature, a United States Supreme Court decision just isn’t enough to make a point on protecting certain property rights: to wit, the Florida legislature recently adopted House Bill 383 – Private Property Rights (“HB383”).

This bill codifies the U.S. Supreme Court’s holding Koontz regarding development exactions. Specifically, HB383 opens an avenue for property owners to recover damages from government for imposition of exactions that are found to not have an essential nexus (Nollanto a legitimate public purpose  or if the exaction is not roughly proportionate (Dolan) to the impacts of the proposed use. The bill creates a process for property owners to assert their claims and establishes the respective burdens of proof between the property owner and government. 
  •  A property owner seeking damages for a prohibited development exaction must file advanced notice of its intent to do so with an estimate of those damages;
  • The government must respond with why the exaction is proportionate or reduce or remove the exaction;
  •  If the matter goes to trial, the government has the burden of proving both the nexus and proportionality of the exaction and the property owner has the burden of proving its damages; and
  • The court may award attorneys fees and costs to the government, but must award these fees and costs to the property owner if the exaction has no nexus to a legitimate public purpose.
The bill does clear up one important issue that arose from the Koontz decision: the nexus and rough proportionality provisions do not apply to statutorily authorized impact fees or statutorily authorized ad valorem property assessments.

HB383 gives Florida property owners a powerful, property rights friendly avenue to litigate imposed development exactions through the Florida courts system. It remains to be seen whether other states will follow Florida’s lead, but the trend in takings law engendered by Koontz suggest that the clarity on takings analysis from the U.S. Supreme Court’s 2005 Lingle decision is getting murkier and government’s ability to control the external effects of development more difficult to navigate.

Post Authored by David Silverman, Ancel Glink

Wednesday, June 10, 2015

RLUIPA Case Involving SRO's Sent Back to Trial

The 7th Circuit Court of Appeals ruled last week that a religious institution's lawsuit against the City alleging violations of RLUIPA (the federal religious land use statute) can move forward, reversing the district court's ruling in favor of the City. World Outreach Conference Center v. City of Chicago, (7th Cir. June 1, 2015)

As the 7th Circuit discusses in the case, this lawsuit has been going on for quite some time, and had been the subject of an earlier opinion by the 7th Circuit that World Outreach's lawsuit against the City should not have been dismissed. After the dismissal was overturned, the case continued for almost 10 years before again reaching the 7th Circuit on World Outreach's appeal of the district court's grant of summary judgment to the City.  

The case involved the City's denial of licenses to allow World Outreach to use a portion of its building for SRO (single-room occupancy) units. Although the YMCA had previously used the property for the same purposes pursuant to City license, World Outreach was denied licenses based on the City's interpretation of its zoning ordinance to require World Outreach to obtain special use permit approval before it could operate the SROs. Eventually, the City did grant the licenses, but the lawsuit continued, including World Outreach's claims that the City's actions constituted a "substantial burden" on its religious activities. The case made its way to federal court, where the district court judge granted summary judgment to the City on various grounds, including that the delay in licensing was the fault of World Outreach, not the City.

On appeal, the 7th Circuit reversed the grant of summary judgment to the City, finding that there were too many factual issues in dispute to resolve the case before trial.  The Court rejected the district court's ruling that the delays were not the fault of the City, based on evidence that the aldermen showed animosity towards World Outreach and that the code enforcement activities against World Outreach were out of the ordinary. The court did, however, question World Outreach's damages claims, stating that the evidence "leaves us uncertain whether World Outreach can recover substantial damages" for its claims.  The Court then remanded the case back to the district court to conduct a trial.

Post Authored by Julie Tappendorf

Tuesday, June 9, 2015

Taxpayers Get Refund Because of 3-2 Vote on Tax Levy Ordinance

Last year, a group of taxpayers filed a tax objection lawsuit in McHenry County circuit court to request a refund of a portion of the property taxes due and paid in 2014.  They argued that the City of Crystal Lake's tax levy ordinance was invalid because it was not approved by the requisite number of votes. In December of 2013, the City Council had voted to approve the tax levy ordinance by a vote of 3-2. The minutes of that meeting indicate that the motion to approve the tax levy ordinance passed. However, in their lawsuit objecting to their taxes, the taxpayer plaintiffs argued that four affirmative votes were required to pass the tax levy. The circuit court agreed, ruling in favor of the taxpayers, and ordering McHenry County to refund the City portion of the property taxes due and paid in 2014 to the taxpayer plaintiffs.  Taxpayer, WKS Crystal Lake, LLC v. Miller, 14 TX 10 (April 7, 2015).

Given the significant impact on City revenues, it comes as no surprise that the City has filed a notice of appeal. It will be interesting to see how the appellate court deals with this case.  There is  no discussion about the difference between the statutory language in 65 ILCS 5/3.1-40-40 (requiring a concurrence of a majority of members holding office) and the City Code language (requiring the affirmative vote of the elected members).  These distinctions may be important in the appeal.  

What was surprising is the circuit court's refusal to validate the City Council's subsequent ratification of the ordinance. The court questioned the City's power to ever ratify a defective ordinance because there is no statute or ordinance that expressly authorizes this.  Yet, there are cases where a court has recognized a public body's ratification of an action. See e.g., Branigar v. Village of Riverdale396 Ill. 534 (1947).  It's not clear if this "no ratification authority" position is limited to tax levies or all municipal actions.   

The court's decision impacts not only the City's revenues, but also the Crystal Lake Public Library's property tax levy. By statute, a municipal public library levy is included in the municipality's tax levy ordinance.

Post Authored by Julie Tappendorf

Monday, June 8, 2015

HB 2745 - Administrative Adjudication Enforcement Options

Illinois HB 2745 was recently sent to Governor Rauner for review makes significant changes in the enforcement of administrative adjudication judgments for non-home rule municipalities.  Currently a non-home rule municipality must file an action in circuit court to enforce an administrative adjudication judgment.  If signed into law, HB 2745 would provide as follows: 
  1. An administrative adjudication decision would be enforceable in the same manner as a court order or judgment.
  2. Any expense that the municipality incurs in enforcing an administrative adjudication decision (including attorney’s fees, court costs, property demolition costs) can be collected against the defendant after the costs are fixed by the hearing officer or court.
  3. The recording of the judgment will also be a lien against the real estate or personal estate, or both, of the defendant.
HB 2745 also grants authority to the hearing officer to set aside default judgments upon application and good cause shown.

This bill will assist non-home rule municipalities in code enforcement.  Interested municipal officials may want to encourage the Governor to sign this legislation.

Post Authored by Steve Mahrt, Ancel Glink

Friday, June 5, 2015

Wearing of Hijab Protected by Supreme Court

From The Workplace Report with Ancel Glink: Wearing of Hijab Protected by Supreme Court:

In an eight to one decision, the United States Supreme Court reversed a Court of Appeals decision and reinstated a $20,000.00 jury award against Abercombrie and Fitch for religious discrimination. Abercombrie and Fitch had refused to hire Samantha Elauf, a seventeen year old Muslim woman who wore the traditional hijab or head scarf. Abercombrie and Fitch said her appearance clashed with its corporate dress code.

In announcing the Court’s decision from the bench, Justin Antonin Scalia said, “This is really easy.” He said Abercombrie and Fitch at least suspected the Ms. Elauf wore the head scarf for religious reasons. The decision not to hire Ms. Elauf was motivated by a desire to avoid accommodating her religion (a requirement under federal law). It was not a defense that Ms. Elauf never explicitly stated that she wore the hijab for religious reasons, nor a defense that she did not ask for a religious accommodation. Title VII prohibits religious discrimination whether the employer acts based on “actual knowledge, a well founded suspicion, or merely a hunch.”  The employer’s motive is the key inquiry, not the employer’s knowledge.  For instance an employer may know that attire is worn for religious reasons, but as long as an employment decision is not motivated due to that attire, no religious discrimination occurs.  Conversely, where an employer makes a decision based on religious attire, religious discrimination occurs even where the employee does not affirmatively inform the employer that the attire is worn for religious purposes.  

Given the diversity of religious expression, employers should exercise caution in making employment decisions that could be perceived as based on religious expression. Under the Abercombrie and Fitch decision, employers take a risk if they do not inquire as to the reason a person wears a scarf, a beard, or religious attire. If a person wears clothing for a recognized religious purpose then employers have an obligation under state and federal law to reasonably accommodate such religious expression.  
Post Authored by Steve Mahrt

Thursday, June 4, 2015

Let’s Meet For Happy Hour!

That’s right, you and your squad will soon be able to utter those words in Illinois and have them really mean something.

You may not have noticed, but in 1989 the General Assembly banned Happy Hours at licensed establishments. The purpose of the ban was to curb binge drinking. Licensed establishments got around the Happy Hour ban by having all day drink specials, which may be one reason you never noticed Happy Hour missing. Evidence collected since 1989 demonstrated that the ban had little to no effect on binge drinking. In a triumph of evidence-based public policy-making over government directed social controls, Happy Hour can now be put back on the menu, assuming the Governor signs Senate Bill 398, which recently passed both houses..

The bill, if enacted, would make several amendments to the Liquor Control Act, 235 ILCS 5/1-1 et seq. (“Act”), including reinstituting Happy Hour.  A new Section 6-28.5 would allow licensed establishments to “discount any drink…during a specified time period”, in other words “Happy Hour”. The Happy Hour allowance comes with the following restrictions:

1. The price of a drink during Happy Hour cannot be changed;
2.  Happy Hour is limited to four hours per day;
3.  Happy Hours may not exceed 15 hours per week, but the time may be divided in any manner over the course of the week;
4.  Happy Hour may not occur after 10 P.M.; and 
5.  Happy Hour times and pricing must be posted at a licensed establishment or on its website at least seven days prior to the Happy Hour event.

Certain drink specials will still be prohibited, including two drinks for the price of one (a.k.a. “two-fers”) and jumbo specials (e.g. large volume drinks for the price of standard drinks). However, licensed establishments will be able to sell pitchers, buckets, carafes, and offer liquor bottle service.

One question municipalities and counties will likely have is whether they can further restrict or prohibit Happy Hour under the local powers in Section 5/4-1 of the Act. Those powers are fairly extensive and are designed to ensure for strong local control of licensed establishments, including the power to determine the kind and number of liquor licenses available in the municipality (or county) as well as the power to further regulations and restrictions upon the issuance of and operations under local licenses. The new Happy Hour provisions do not contain an express preemption of local control on the scope of regulations they may impose on licensees wanting to have Happy Hours, which conceivably could include an outright ban on Happy Hours. 

Post Authored by David Silverman, Ancel Glink

Wednesday, June 3, 2015

OMA Amendment Passes Both Houses

House Bill 175 just passed both houses of the Illinois General Assembly and is off to the Governor. This bill is one of many proposed bills this session to amend the Open Meetings Act.  In this case, the bill would modify the existing 60 day limitation period to file a complaint with the Public Access Counselor of the Attorney General's office alleging a violation of the OMA.  Currently, an individual has 60 days from the date of the alleged violation to file a complaint.  Under the new bill, an individual would have 60 days from the date that they discovered the violation (but no later than 2 years after the alleged violation) to file a complaint with the PAC.  

Interestingly, the bill does not change the 60 day statute of limitation for bringing an action in circuit court alleging an OMA violation.  

Post Authored by Julie Tappendorf

Tuesday, June 2, 2015

USSCT Issues Ruling in Facebook Threat Case

The United States Supreme Court issued a decision in a social media case yesterday. Elonis v. United States (June 1, 2015).  You might recall that we posted about this case on the blog previously.  This case involved a Pennsylvania man who had been convicted after he posted several violent messages on Facebook after his wife left him. The federal statute he was convicted of violating was 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”  The Court overturned his conviction, holding that negligence alone is insufficient in a criminal threat case.

The lower court had convicted him based on the “reasonable person” standard – i.e., the jury was told the standard was whether a "reasonable person" would have understood his Facebook posts to be a threat. The question before the Court was whether the statute also requires that the defendant be aware of the threatening nature of the communication, and—if not—whether the First Amendment requires such a showing. The Court rejected the government's argument that evidence of an intent to make a threat was not required because the express language of the law did not require it. The Court held that "The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” Because the jury was instructed that the government need prove only that a reasonable person would regard Elonis’s communications as threats, without evidence of his mental state or intent, his conviction could not stand. 

Examples of some of his posts are below:

In a post about his wife, he wrote:  
There's one way to love you but a thousand ways to kill you.
In another post he wrote:  
That’s it, I’ve had about enough I’m checking out and making a name for myself. Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a Kindergarten class The only question is . . . which one? 
Post Authored by Julie Tappendorf

Monday, June 1, 2015

Police Body Camera Bill Goes to Illinois Governor

Police-involved shootings have been a frequent subject of the news lately, leading some states to consider legislation to encourage an increased use in police body cameras.  Illinois is no exception. Just last week, the Illinois Senate approved House amendments to SB 1304, which establishes the "Law Enforcement Officer-Worn Body Camera Act." 

The bill does not mandate that police departments require their officers to wear body cameras, but it does establish certain guidelines for their use and requires local police departments to adopt policies consistent with those statutory guidelines.  A few of these guidelines are summarized below:

1.  The cameras must be capable of recording at least the 30 seconds prior to camera activation.

2.  The camera must be capable of recording for at least 10 hours.

3.  The camera must be turned on at all times when the officer is in uniform and is responding to calls or engaged in any law enforcement-related encounter or activity that occurs while the officer is on-duty.  This requirement contains a number of exceptions to protect witness confidentiality, etc.

4.  The camera must be turned off when the officer is engaged in community caretaking functions.

5.  The officer must notify a person of the recording if that person has a reasonable expectation of privacy.

6. Access to recordings is restricted, although they might be subject to release under FOIA in limited circumstances.

7.  Recordings must be retained for 90 days.

8. Recordings cannot be used in officer disciplinary proceedings except in certain limited circumstances.

Now that the bill has received approval by both houses, it has gone to the Governor.  You can read the bill here.

Post Authored by Julie Tappendorf