Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Wednesday, September 30, 2015

Seventh Circuit Tackles Weed Ordinances

Discount Inn, a business owner in Chicago, sued the City after it was cited under the City's weed and fence ordinances. Discount claimed that the two ordinances were unconstitutional on two grounds. 

First, Discount alleged that the ordinances were unconstitutional as they imposed "excessive fines" in violation of the 8th Amendment. The appellate court rejected this argument, finding that the maximum fine ($1,200) was far from an astronomical fine that would be excessive in the sense of the 8th Amendment, and that Chicago has a valid interest in weed control that justifies an ordinance forbidding all weeds.

Second, Discount claimed that the weed ordinance is vague and forbids "expressive activity" protected by the First Amendment.  Discount argued that certain native plants might be mistaken for "weeds" based on the definition of weed as "vegetation that is not managed or maintained by the person who owns or controls the property on which all such vegetation is located and which, on average, exceeds ten inches in height." The court acknowledged that the ordinance might be overly broad in scope - as an example, the court noted that trees could fall under the definition of weed as they are not usually managed or maintained and are generally over ten inches in height.

However, the court did not accept Discount's argument that the free speech clause protects it from the weed ordinance, stating as follows:
But the plaintiff's claim that the free-speech clause insulates all weeds from public control is ridiculous...Its weeds have no expressive dimension. the plaintiff just doesn't want to be bothered with having to have them clipped.
The court expressed its concerns about extending "work of art" to weeds, stating that such an interpretation could lead to the following:
Homeowners would be free to strew garbage on their front lawn, graze sheep there, and broadcast Beethoven's Fifth Symphony 24 hours a day through outdoor loudspeakers, all in the name of the First Amendment.
Although the court rejected Discount's claims, it did express concerns about enforcement of the City's weed ordinance and the difficulty in defining what is a "weed" and what is a native plant. As a result, municipalities may want to revisit their weed ordinances to make sure the definition is clear enough for property owners to understand and make sure are in compliance. The court provided an example of what it thinks a weed is:  "a wild plant growing where it isn't wanted."

So, in short, the court upheld the City's weed ordinance.  Discount Inn, Inc. v. City of Chicago (7th Cir. September 28, 2015).

The court also provided some pictures of "native plants" for our viewing pleasure:

Post Authored by Julie Tappendorf

Tuesday, September 29, 2015

Automatic Suspension for Refusal to Take Drug Test Unconstitutional

Section 11-501.6 of the Illinois Vehicle Code provides that a driver who is arrested for a traffic violation related to a fatality or other serious personal injury automatically consents to having his or her blood, breath, or urine tested for the presence of alcohol or drugs. According to the statute, refusal to submit to the testing results in an automatic suspension of the person’s driver’s license. 625 ILCS 5/11-501.6. On September 24, 2015, the Illinois Supreme Court held that his statute was unconstitutional “as applied," upholding a previous circuit court decision. McElwain v. Office of the Ill. Sec. of State, 2015 IL 117170 (Sept. 24, 2015). 

The plaintiff was involved in a traffic accident, in which he collided with a motorcycle. The driver of the motorcycle received substantial injuries, and the passenger died as a result of the injuries she sustained. On the day of the accident, plaintiff was not issued any tickets or asked to take any chemical tests.  However, during their investigation of the accident, the police discovered cannabis paraphernalia in plaintiff’s car.

Two days after the accident, plaintiff was asked to come to the police station, where he was questioned and admitted he smoked marijuana two weeks prior to the accident. The police issued plaintiff a traffic citation and asked him to submit to a drug test, but he refused. Because he refused to take the drug test, the Secretary of State suspended plaintiff’s driver’s license for three years pursuant to Section 11-501.6. After an administrative law judge denied plaintiff’s request to invalidate his license suspension, he filed a lawsuit claiming violations of his due process and fourth amendment rights.

The court first determined that the law did not limit the time in which the drug test must be performed. Second, the court found the law was applied to the plaintiff in an unconstitutional manner, because the police requested the drug test two days after the accident, rather than shortly after the accident. That, the court held, “is obviously much less probative of the question whether the person was driving while impaired, and carries the risk of serious prejudice by possibly indicating impairment at a time other than at the time of the accident.” The court did not, however, draw a bright line as to how soon after the accident the testing must be requested, stating that this was a task best left to the legislature.  

Post Authored by Elizabeth Barton, Ancel Glink

Monday, September 28, 2015

Update on Panhandling Ordinance Case

We posted a few weeks ago about a Springfield panhandling ordinance that was challenged, and partially struck down as unconstitutional.  The court in that case cited to the recent U.S. Supreme Court decision in Reed v. Gilbert that held that a town's sign regulations were unconstitutional as improper content-based regulations of speech. In the Springfield case, the 7th Circuit determined that the city's panhandling ordinance suffered from the same deficiencies as Gilbert's sign ordinance - i.e., that the municipal ordinances regulated speech based on its content - in the case of panhandling, the content or message was a request for money.

The City of Springfield recently went back to the "drawing board" and revised its ordinance to adopt a new regulation on aggressive panhandling.  That regulation would require panhandlers to stay at least 5 foot away from the people they are soliciting money from. The City Council's position is that the court did not invalidate the City's authority to regulate "aggressive panhandling."  

The City had previously asked the 7th Circuit to reconsider its decision, and hear the case "en banc" (i.e., by all of the 7th Circuit judges).  That request was denied, but the City has reported it will appeal to the U.S. Supreme Court.

UPDATE:  A lawsuit has already been filed to challenge the constitutionality of the revised panhandling ordinance. We will keep you posted on this challenge.

Post Authored by Julie Tappendorf

Friday, September 25, 2015

Court Stands by its Interpretation of Catastrophic Injury Under PSEBA

Under the Public Safety Employee Benefits Act (PSEBA), when a public safety officer suffers a catastrophic injury or is killed in the line of duty, the officer's employer is required to pay the entire health insurance premium for the injured employee, spouse, and dependent children. There is significant debate as to what constitutes a "catastrophic injury" under PSEBA. 

In 2003, in Krohe v. City of Bloomington, the Illinois Supreme Court held that "catastrophic injury" was synonymous with an injury resulting in a lien-of-duty disability under the Pension Code.  That issue was raised again in Vernon Hills v. Heelan, 2015 IL 118170, decided yesterday. 

Heelan was awarded a line-of-duty disability pension related to an injury he suffered when he slipped on ice responding to an emergency call. He subsequently filed for PSEBA benefits, but the Village denied the benefits and filed a complaint seeking a declaratory judgment as to whether it was responsible for paying the health insurance premiums. Although the Village acknowledged the holding in Krohe, it argued that the facts and circumstances of Heelan's injury were distinguishable. Both the circuit court and appellate court applied Krohe to Heelan's injury, and held that the Village was required to pay PSEBA benefits. 

The Illinois Supreme Court agreed, holding that a catastrophic injury under PSEBA is synonymous to a line-of-duty disability under the Pension Code.  As a result, once Heelan was awarded a line-of-duty disability pension, he was entitled to PSEBA benefits. The Court declined to depart from its decision in Krohe, and supported its decision by noting that the legislature could have, but has not, amended PSEBA after Krohe.

Post Authored by Julie Tappendorf

Thursday, September 24, 2015

City Prevails in School Bleacher Case

In what can only be reported as good news for municipalities in Illinois, the Illinois Supreme Court issued its opinion today in the high school bleachers case, ruling in favor of the city.  Gurba v. Community High School District.

Regular blog readers will recall that we have written about this case a number of times.  A local high school had installed bleachers at the high school without going through the zoning process. The high school argued that it was not subject to local zoning. Both the city and neighboring property owners challenged the school's position in court, and a circuit court and appellate court ruled in favor of the city. The case was appealed to the Illinois Supreme Court.

The opinion is pretty short, so it's worth a read.  The Court acknowledges that the case turns on the issue of whether a school district is subject to local zoning and land use regulations.  The Court first notes that municipalities have express statutory authority to regulate all land uses within their territory, subject only to "express statutory exclusions.  The court identified a few of these exclusions, including restrictions on the ability of municipalities to regulate political signs and ham radio antennas.  However, the Court noted that there is no statutory provision restricting the authority of a municipality to regulate zoning or storm water management on school property.  As a result, the Court held that under the plain terms of the Municipal Code, school property is subject to municipal zoning laws. The Court also noted that the City had broad home rule authority to zone and regulate land uses.  

The Court rejected the school district's argument that zoning and land use regulations interfere with the district's statutory authority over public education, as well as its attempt to extend the statutory exemption from local building regulations to zoning and land use regulation.

The Court's conclusion was quite simply put:
As a home rule municipality, the City has the power to regulate land use within its jurisdiction through zoning. There is no statute which exempts school district property from the exercise of the City’s zoning laws. Accordingly, we hold that the bleacher construction project undertaken by the Board and the District is subject to the City’s zoning and storm water ordinances.
Post Authored by Julie Tappendorf

Wednesday, September 23, 2015

A Motion to Enter Closed Session for "Personnel" is Not Sufficient

The 7th binding opinion from the PAC office deals with the Open Meetings Act and is the subject of today's blog post.  In PAC Op. 15-007, the PAC found a finance committee of a county board in violation of the OMA relating to a closed session.

The PAC's review of this matter was initiated by a local reporter, who claimed that the finance committee improperly went into closed session at its meeting.  First, the reporter argued that the committee did not state the reason why it was going into closed session. Second, the reporter claimed that the topics discussed in closed session were not appropriate subjects.  The committee responded that it discussed two matters in closed session: (1) a county employee hiring freeze and (2) the termination of an employee position. 

The PAC requested the minutes and recording from the closed session, but the committee could not provide a copy of the verbatim recording because it responded that the recorder was not functioning properly.  In its opinion, the PAC first determined that the committee failed to comply with Section 2a that requires the public body to identify the applicable exemption before going into closed session. The minutes noted that the body made the following motion to go into closed session:
Member Friedrich moved and Member Pitman seconded to enter into executive session to discuss personnel. The motion passed unanimously.
According to the PAC, "a mere reference to 'personnel' does not adequately identify any exception that authorizes a public body to close part of a meeting."  Because the committee failed to adequately disclose what personnel issue it would be discussing (i.e., appointment, employment, compensation, discipline, performance, or dismissal), it violated 2a of the OMA.

Second, the PAC determined that only a portion of the committee's closed session discussion of elimination of a county employee position was a proper discussion - that portion that focused on the evaluation of a specific employee - but that any part of the discussion that related to budgetary reasons to eliminate the position was required to be conducted in open session.

Finally, the PAC rejected the committee's argument that the hiring freeze discussion was appropriate under the "collective negotiating matters" exemption because the county was not currently in any negotiations with union representatives. Instead, the county was discussing a county-wide hiring freeze that is not authorized in closed session.

The lesson to gain from this opinion is that a mere reference to "personnel" as a reason to go into closed session will not cut it with the PAC.  There must be more detail in the motion. For example, if the public body wants to go into closed session to talk about a disciplinary issue with a specific employee, the motion should reference "discipline or performance of a specific employee" rather than simply "personnel."  

Post Authored by Julie Tappendorf

Tuesday, September 22, 2015

FOIA Amended to Address Severance Agreements

Last week, the Illinois General Assembly enacted P.A. 99-0478 amending the Illinois Freedom of Information Act to specifically address severance agreements. Section 2.20 of FOIA previously provided that settlement agreements are public records subject to release under FOIA (except that exempt information within the agreement can be redacted). That section has been amended to treat severance agreements the same as settlement agreements.  The Act also modified the definitions section of FOIA to include a definition of severance agreements as follows: "a mutual agreement between any public body and its employee for the employee's resignation in exchange for payment by the public body."

The law does not take effect until June 1, 2016. However, based on recent decisions by the PAC office, the PAC may already be interpreting "settlement agreement" to include severance agreements.

Post Authored by Julie Tappendorf

Friday, September 18, 2015

Challenge to TIF Rejected by Court

Rarely do the courts issue opinions relating to the Illinois TIF law - maybe because the law itself is so complicated or rarely challenged.  This week, however, an appellate court addressed a challenge that the City of Bloomington failed to comply with provisions of Tax Increment Allocation Redevelopment Act. Specifically, the Devyn Corporation (an owner of property located within the TIF district) filed a lawsuit claiming that the City failed to comply with certain accounting and recordkeeping functions of the TIF law, and that the TIF should be terminated because the redevelopment plan had not been implemented by the estimated date of completion.  Finally, the plaintiff argued that the City violated both the Act and the redevelopment plan by levying and collecting taxes after the estimated date of completion.

The court rejected the plaintiff's argument, ruling in favor of the city on all counts.  First, the court said that plaintiff had other available remedies for his requests for documents, including FOIA. The court also held that the estimated date for completion was just that - an estimate - and did not operate to terminate the TIF or render the City's levy of taxes unlawful.  Devyn Corp. v. City of Bloomington, 2015 IL App (4th) 140819.

Post Authored by Julie Tappendorf

Thursday, September 17, 2015

New Partial Exemption From Overtime Comes to the Aid of Illinois Public Employees

Over the years, the 12 hour shift in police departments has grown in popularity. For officers, working a twelve hour shift translates into an increase in days off throughout the year. For the department, staffing two instead of three shifts a day often results in reduced overtime costs. It’s always made sense that dispatchers should work the same schedule. The only problem is that a 12 hour shift schedule results in employees working under 40 hours in some weeks and over 40 hours in other weeks. Unlike the specific partial exemption under the Fair Labor Standards Act that applies to police and firefighters, dispatchers and other public employees who do not meet the definition for that partial exemption are entitled to time and one-half pay for hours worked over 40 in a week, regardless of whether the employee’s hours were under 40 the week before.

Public safety departments were forced to either keep the dispatchers on a different, eight-hour schedule, than sworn employees, or pay overtime resulting from the 12-hour shifts.

Effective January 1, 2016, an amendment to the Illinois Minimum Wage Law will give many public employers some relief to this dilemma. The amendment creates a new partial exemption as follows:
Any employee who is a member of a bargaining unit recognized by the Illinois Labor Relations Board and whose union has contractually agreed to an alternate shift schedule as allowed by subsection (b) of Section 7 of the Fair Labor Standards Act of 1938. 820 ILCS 105/4a(2)(J).
The alternate shift schedules, as defined in Section 7(b) of the FLSA are as follows:
(1) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees…which provides that no employee shall be employed more than one thousand and forty hours during any period of twenty-six consecutive weeks; or 
(2) in pursuance of an agreement, made as a result of collective bargaining by representatives of employees… which provides that during a specified period of fifty-two consecutive weeks the employee shall be employed not more than two thousand two hundred and forty hours and shall be guaranteed not less than one thousand eight hundred and forty-hours (or not less than forty-six weeks at the normal number of hours worked per week, but not less than thirty hours per week) and not more than two thousand and eighty hours of employment for which he shall receive compensation for all hours guaranteed or worked at rates not less than those applicable under the agreement to the work performed and for all hours in excess of the guaranty which are also in excess of the maximum workweek applicable to such employee under subsection (a) of this section or two thousand and eighty in such period at rates not less than one and one-half times the regular rate at which he is employed.
Although the problem with alternative shift schedules most commonly arises in police and fire departments because they require 24 hour operation, this new legislation will allow public employers greater flexibility to create schedules that work for all of their unionized staff.

Post Originally Authored by Margaret Kostopolus, Ancel Glink

Wednesday, September 16, 2015

City's Mobile Home Park Rent Control Ordinance Survives Challenge

Rancho de Calistoga is a mobile home park in Calistoga, California that was developed in 1970.  In 1984, the City enacted an ordinance that allowed mobile home park tenants to challenge rent increases. That ordinance was amended several times over the years. In 2007, the City adopted a rent stabilization ordinance that restricts any annual rent increase to the CPI or 6% of the base rent. It also establishes an administrative appeal process for park owners to seek a higher rent increase. 

In 2010, Rancho proposed to increase park rent from $471.39 to $625 per month. Through its administrative appeal process, the City rejected the request, but allowed a rent increase to $537.59 per month. Shortly after that ruling, Rancho sued the City, claiming that the application of the rent stabilization ordinance to Rancho violated the Takings Clause and its due process and equal protection rights. 

The case made its way to the Ninth Circuit Court of Appeals, which dismissed all of Ranch's claims in Rancho de Calistoga v. City of Calistoga.

First, the court dismissed Rancho's regulatory takings claims, finding that the ordinance did not rise to the level of a constitutional taking where Rancho could not establish it had an investment-backed expectation to be free from rent control (or any regulation).

Second, the court rejected Rancho's self-styled "private as-applied takings" claim, finding that it was really a thinly veiled facial challenge to the rent control ordinance which was time-barred.

Third, the court dismissed Rancho's due process claims finding that the claim was covered by the Takings Clause, which had already been addressed. 

Finally, the court dismissed Rancho's equal protection claim because the City had a rational basis for adopting and applying the rent control ordinance, and the City's conduct was neither politically motivated or otherwise arbitrary.

Post Authored by Julie Tappendorf

Tuesday, September 15, 2015

No Evidence of Gender or Political Discrimination Where Candidate Did Not Properly Apply for Transfer

A special agent (Agent I) working for the state liquor commission in Cook County sued the state of Illinois after she did not get a transfer position in southern Illinois. She alleged that the state discriminated against her based on her political affiliation (she describes herself as a pro-life conservative, who votes Republican) and her gender. 

Her complaint alleged that after she learned that an Agent II in southern Illinois intended to retire, she purchased a home and then sent a letter to her supervisor requesting that she be transferred to fill this position. Her supervisor responded that plaintiff had to follow the required procedures for requesting a transfer, including filing an official transfer request, submitting a bid form, and an application form. Although she did file a transfer request form, her form was undated, unsigned, and was incomplete. She did not, however, apply for the position when the position was posted, and the position was filled after interviews by a Democrat candidate.

After the position was filled, plaintiff sued the state, claiming violations of her First Amendment right to political affiliation and gender discrimination. The district court and Seventh Circuit ruled in favor of the state, finding that she did not establish either claim.  Instead, the courts noted that her failure to apply for the position or submit a formal transfer request were fatal to her claim because the evidence showed that she did not receive the transfer because she did not apply for the job. Bisluk v. Hamer, (7th Cir. September 9, 2015). 

Post Authored by Julie Tappendorf

Monday, September 14, 2015

Owner not Entitled to Compensation for Relocation of Access Road

The owners of a 686 acre property applied for and obtained PUD approval to develop the property as a mixed use residential and commercial development north of Peterson Road and east of Route 60. Shortly after the PUD approval, Lake County undertook a construction project that relocated Peterson Road about 400 feet to the southeast, renamed it to Behm Lane, and replaced a portion of the renamed road with a dead end cul-de-sac. 

The owners sued, claiming that as a result of the construction project, vehicles could no longer access the new Behm Lane via Route 60, impairing access to the proposed commercial area of the approved development. The owners alleged that the impaired access was an unconstitutional "taking" of their property and they were due compensation. 

The county filed a motion for summary judgment arguing that damages that result from the exercise of police power to regulate and control traffic were not compensable under an Illinois Supreme Court case from 1975. The county also argued that there was no "impairment" of access, just a changed traffic pattern. Plaintiffs countered that vehicles no longer had access directly from Peterson Road and there was no direct access to Route 60.

The trial court ruled in favor of the county, finding that since the owners still had access, no damages were due to the owners. The appellate court agreed, holding that the owners were not due any compensation for the change in access.  First, the court noted that "[n]ot every limitation of access is compensable." The standard is "material impairment of existing direct access."  In this case,because the owners still had access to Behm Lane (former Peterson Road), the relocation of that road did not materially impair the owners' property.  DWG Corporation v. County of Lake, 2015 IL App (2d) 131251  

Post Authored by Julie Tappendorf

Friday, September 11, 2015

Sometimes the Court Uses Common Sense and Gets it Right

We all know that teachers can get a little cynical about their students from time to time. It’s a hard job, even in the best of districts. But, can a teacher talk trash about their students, job and school on the internet and then claim that the comments are protected speech?

That’s what happened with Natalie Munroe and Central Bucks School District in Pennsylvania, where she worked. 

Shortly after Munroe achieved tenure, she created a blog, entitled Where are we going, and why are we in this handbasket? on which she posted all kinds of personal musings and information, like recipes, updates on her children and film preferences. She wrote under the name Natalie M. and between August 2009 and November 2010 she wrote about 84 posts, most of which, according to her, had nothing to do with the school or her students. 

The blog posts that she wrote about her students and the school were sometimes doozies For example: Munroe complained about the rudeness and lack of motivation among her students, referring to them as “jerk,” “rat-like,” “dunderhead,” “whiny, simpering grade-grubber with an unrealistically high perception of own ability level” and “frightfully dim.” She also wrote that parents were “breeding a disgusting brood of insolent, unappreciative, selfish brats.”

Munroe did not use her full name, never identified the school at which she worked and only had less than 10 actual subscribers. Nevertheless, students, parents and the local media became aware of the blog and eventually identified Munroe as well as many of the students to which Munroe specifically referred in her posts. Members of the community reacted with outrage, with many calling the district office and appearing at board meetings to register their complaints over a several month period. Additionally, a number of parents requested to exercise their option provided under the No Child Left Behind Act to request a transfer of their children to avoid assignment to Munroe’s class.  General disturbance in the district as a result of the blog ensued for quite some time. 

The district ultimately discharged Munroe for general poor performance reasons and she filed suit claiming that she was discharged in retaliation for exercising her right to free speech in her blog posts.  The 3rd Circuit Court of Appeals upheld the district court’s grant of summary judgment in favor of the school district, holding again that public employees do not have an unfettered right to free speech. 

The district court held that a public employee's speech is protected when he or she (1) speaks as a private citizen upon (2) a matter of public concern, and (3) the employee's interest in exercising his or her First Amendment rights is greater than the employer's interest in the efficient operation of the public agency. Although each instance of allegedly protected speech should be considered individually, a court must examine the “content, form, and context of a given statement, as revealed by the whole record” to determine whether it relates “to any matter of political, social, or other concern to the community.” Even if otherwise protected by the Constitution, a plaintiff's interest in exercising his or her First Amendment rights “must outweigh the employer's interest in the effective operations of its public services.

The school district in this case was able to show the prolonged disturbance in operations as a result of Munroe’s statements, including diminished trust as evidenced by the number of parents who sought to transfer their children to other schools. Additionally, Munroe failed to persuade the court that her posts were on matters of public concern. Although she occasionally posted information and opinion on the educational system in general as well as criticism of the school district’s administration, the blog posts themselves were largely about her personal life and how she felt personally as opposed to conveying information helpful to the public in general.

Many would say that on a factual basis the court correctly ruled in favor of the school district’s actions since the blog posts seem to evidence a teacher who didn’t really respect students or even like her job much. Overall, this case again is a reminder for employers that a strong social media policy which sets appropriate boundaries for employees is invaluable. While certainly judged on a case by case basis, public employees simply do not have the right to say or write things of personal concern that interfere with the operations of the agency.

Post Originally Authored by Margaret Kostopolus, Ancel Glink

Thursday, September 10, 2015

New Law Restricts Crime Free Ordinances

Recently, the Illinois General Assembly passed a law that restricts municipalities and counties from enforcing their crime-free or chronic nuisance ordinances in a manner that would penalize tenants for contacting police or other emergency services in domestic abuse and sexual violence situations. P.A. 99-441. The pertinent language of the new law is as follows: 
No municipality shall enact or enforce an ordinance or regulation that penalizes tenants or landlords based on:
(a) contact made to police or other emergency services, if (i) the contact was made with the intent to prevent or respond to domestic violence or sexual violence; (ii) the intervention or emergency assistance was needed to respond to or prevent domestic violence or sexual violence; or (iii) the contact was made by, on behalf of, or otherwise concerns an individual with a disability and the purpose of the contact was related to that individual's disability;
(b) an incident or incidents of actual or threatened violence or sexual violence against a tenant, household member, or guest occurring in the dwelling unit or on the premises; or
(c) criminal activity or a local ordinance violation occurring in the dwelling unit or on the premises that is directly relating to domestic violence or sexual violence, engaged in by a tenant, member of a tenant's household, guest, or other party, and against a tenant, household member, guest, or other party. 
The law applies to both home rule and non-home rule municipalities. The law authorizes a tenant or landlord to bring a civil action against a municipality for a violation of the law to seek injunctive relief, compensatory damages, and attorneys fees.
The law appears to target nuisance ordinances (sometimes called disorderly house ordinances, chronic nuisance ordinances, or crime free ordinances) that label a property as a nuisance after it is the site of a certain number of calls for police or alleged nuisance conduct (a category that can include assault, harassment, stalking, disorderly conduct, and many other kinds of behavior).  After they are cited with a violation of the ordinance, property owners (landlords) typically are instructed to "abate the nuisance" or face steep penalties. Opponents to these type of ordinances argue that the effect of these ordinances is to have landlords evict the tenant, refuse to renew their lease, or instruct tenants not to call 911 even in situations where the tenant is a victim of a domestic abuse or sexual assault situation.
The law does not ban crime free ordinances outright, but instead restricts how a municipality can enforce its crime free ordinance where the criminal activity involves domestic abuse or sexual violence or involves a disabled individual.
Municipalities should review their current ordinances to ensure that they are consistent with this new law, which will become effective November 19, 2015. Municipal officials and employees should also be trained about the new limitations, to ensure that any enforcement action does not trigger the law, and result in a lawsuit against the municipality.
Post Authored by Julie Tappendorf

Wednesday, September 9, 2015

Cyberbullying by Prosecutors Leads to Mistrial

Today's lesson for anonymous internet posters - it can cause a mistrial. U.S. v. Bowen (5th Cir. August 20, 2015). 

Five New Orleans police officers who were convicted of shooting unarmed civilians have been granted a new trial because of the online conduct of federal prosecutors.  The shootings occurred right after Hurricane Katrina. According to a recent decision by the Fifth Circuit Court of Appeals, federal prosecutors created an "online 21st century carnival atmosphere" by posting anonymous comments to newspaper articles about the case while it was ongoing. The officers were convicted at trial. However, before they were sentenced, it was revealed that a number of attorneys in the prosecutor's office had been leaking information about the trial and evidence, and making "inflammatory, highly opinionated, and pro-prosecution" comments on newspaper sites and a website called nola.com. The defendant officers moved for a new trial, arguing that the press leaks had inflamed public opinion against them and tainted their right to a fair trial.

The district court granted the officers a new trial, and the government appealed to the Fifth Circuit. The Fifth Circuit first noted that the fact that "three supervisory-level prosecutors committed misconduct...is beyond dispute" and their comments "stirred the pot" and "displayed partiality toward the prosecution." The court concluded as follows:
The online anonymous postings, whether the product of lone wolf commenters or an informal propaganda campaign, gave the prosecution a tool for public castigation of the defendants that it could not have used against them otherwise, and in so doing deprived them of a fair trial.
The court further notes that "[a]nonymity provokes irresponsibility in the speaker" and contributes to the "mob mentality potentially inherent in instantaneous, unbridled, passionate online discourse." The court found that the prosecutor's cyberbullying against the defendants affected the officers' defense of their case, and could have even wider impact on other cases by intimidating witnesses and parties from testifying to avoid being the victim of online cyberbullying.

Post Authored by Julie Tappendorf

Tuesday, September 8, 2015

Church's Claims Against City Partially Dismissed in RLUIPA Case

An Illinois district court recently dismissed some of a religious institution's claims against a city in a RLUIPA case called Church of Our Lord and Savior, Jesus Christ v. City of Markham, Illinois (N.D. Ill. 2015).

The church filed a lawsuit against the City and certain City officials after the City notified the church that it had to comply with City ordinances, including applying for a conditional use permit, or cease operations. The church applied for zoning relief, but was denied relief by the City. The church argued that the City's denial of its permit was a "substantial burden" on its religious exercise, discriminated against the church, violated the equal terms clause of RLUIPA, among other claims. The church also named the mayor and several of the aldermen as defendants.

The district court first dismissed all claims against the individual city defendants, holding that RLUIPA does not authorize relief against public employees.  The court also dismissed the RLUIPA nondiscrimination claims for failure to state a claim. The court further dismissed the church's Open Meetings Act claims as barred by the 60 day statute of limitations.  However, the court allowed the church's substantial burden claim to move forward, as well as the church's RFRA and free exercise claims. The church's "arbitrary and capricious" claim also moves forward.   

You can read a more detailed analysis on RLUIPA Defense at Illinois Federal Court Dismisses Some, But Not All, RLUIPA Claims.

Post Authored by Julie Tappendorf

Friday, September 4, 2015

Doctors' Salary Information Subject to FOIA

The PAC recently released the 6th binding opinion for 2015.  No surprise, the PAC found the public body in violation of FOIA.  PAC Op. 15-006.

In this case, a requester filed a FOIA request with Franklin Hospital for copies of the employment agreements between the hospital and five doctors. The hospital provided copies of the agreements,  but redacted the doctors' salaries, incentives, and bonuses under the personal privacy and private information exemptions. The hospital also argued in the alternative that because the doctors did not have public duties, the agreements were not public records.  The requester appealed to the PAC.

The PAC first disposed of the hospital's argument that the employment agreements were not public records, finding that Franklin Hospital was an Illinois hospital district expressly defined as a "unit of local government" under state law. As a result, the PAC determined that the doctors, who were employees of the hospital, were performing public duties in providing medical care. Thus, their employment agreements fall within the definition of public record under FOIA.

Second, the PAC analyzed the two cited exemptions, "personal privacy" and "private information." 

The PAC rejected the hospital's argument that the doctors' compensation fell within "personal financial information" that is expressly exempt as "private information."  The PAC did uphold the hospital's redaction of the doctors' home addresses as these are expressly protected as "private information" under FOIA, except for the one address which was a P.O. box.

As to the argument that release of the doctors' compensation is an invasion of personal privacy, the PAC held that because the amount of their compensation "bears on the physicians' public duties as employees" of the hospital, there is no invasion of personal privacy in disclosure of this information. Moreover, the PAC stated that the public's "right to know the purposes for which public funds are expended" would trump any privacy rights the doctors might have.

The PAC ordered the hospital to disclose the compensation information to the requester.

Post Authored by Julie Tappendorf

Thursday, September 3, 2015

Notice to All Owners Required for Demolition Order

Section 55-1121 of the Counties Code authorizes a county to demolish an unsafe and dangerous building or structure provided the county follows certain procedural steps, including providing notice to all owners or lienholders and obtaining a court order authorizing demolition. 

In County of McHenry v. Smith, 2015 Ill App (2d) 141165, McHenry County commenced demolition proceedings against the owners of a home that had fallen into disrepair and had been abandoned for many years. The county sent notice to all owners of record, as well as lienholders of record, and then filed a compliant with the circuit court requesting a demolition order. However, both the circuit court and appellate courts denied the county's petition, holding that the county failed to notify all of the owners of the property.  The owners of record were both deceased, and although the county notified three of the deceased owners' children, it failed to provide notice to a fourth child. 

The court acknowledged that the county could have relied on an alternative notice provision in the demolition statute that authorizes notice to be posted at the property and sent to the taxpayer of record if the identity or whereabouts of the owners are not ascertainable "upon diligent search." In this case, the county, however, although the county published notice as an alternative, it did not post it at the property.

Post Authored by Julie Tappendorf

Wednesday, September 2, 2015

Administrative Hearings for Elected Officials in Debt to a Municipality

On August 24th, Governor Rauner signed into law an amendment to the Illinois Municipal Code that establishes a system of hearings for elected officers who are allegedly in debt to their municipalities. PA 99-0449.

The Municipal Code has for many years contained a provision that prohibited a person from holding an elected municipal office if that person was in arrears in the payment of a tax or other debt owed to the municipality. The issue usually came up when a person was elected to office – either the municipality refused to swear the person into office due to the debt, or a quo warranto lawsuit was filed against the official to remove the official from office.

However, in 2008, the Illinois Supreme Court ruled that an arrearage in a municipal debt was proper grounds for an electoral board to remove a candidate’s name from the ballot.  Since the Election Code requires all candidates to file a sworn statement of candidacy form in which the candidate must state, under oath and in the present tense, that he or she is qualified to hold the office sought (not that he or she will be qualified at a later date), the office-holding indebtedness law was also a candidate-eligibility law that can (and did) result in the termination of some municipal candidates’ campaigns prior to election day. Cinkus v. Stickney Muni. Officers Elec. Bd. 

In 2013, the General Assembly amended the Municipal Code to address the Cinkus ruling to remove indebtedness issues from the jurisdiction of electoral boards and to move the timing of enforcement back to where it used to be – at the time of the oath of office, or during the entire term of office.  That provision was further amended last week by enactment of PA 99-0449. The new law now states that an elected official can be disqualified from continuing to hold an office, and the office immediately becomes vacant, only after a hearing officer finds that the official owes a debt to the municipality and the debt is not paid in full within 30 days of the judgment, or within 30 days of a court order affirming the judgment if the official seeks judicial review. 

The law establishes the following procedures:

  • The municipal clerk must provide, by personal service, a written notice to the official stating that he or she is in arrears in a debt to the municipality, that the debt must be paid in full within 30 days, that the official may contest the debt, and that the official must send written notice to the municipal clerk within 30 days if he or she intends to contest the debt.
  • If the official fails to repay the debt within 30 days of receiving the notice and fails to timely request a hearing to contest the debt, the official is automatically disqualified from holding the office and the office immediately becomes vacant.
  • If the official timely submits a notice that he or she is contesting the debt, a hearing shall be conducted within 30 days of receiving the official’s notice.
  • The municipality must appoint a hearing officer to preside over the hearing and to make factual findings and legal determinations based on all testimony and evidence relevant to the proceedings.
  • The hearing officer’s final written judgment must be served on the official during the last day of hearings.
  • Within five days of receiving the final administrative judgment, the municipal official may seek judicial review in the circuit court, which would stay the official’s obligation to repay the debt until after the reviewing court enters a judgment on appeal.
  • If the court affirms the hearing officer’s original judgment, the official then must repay the debt within 30 days of when the reviewing court entered its judgment. 

The statute expressly defines the term “debt” to mean “an arrearage in a definitely ascertainable and quantifiable amount after service of written notice thereof, in the payment of any indebtedness due to the municipality, which has been adjudicated before a tribunal with jurisdiction over the matter. A municipal official is considered in arrears of a debt to a municipality if a debt is more than 30 days overdue from the date the debt was due.”

Post Authored by Adam W. Lasker, Ancel Glink

Tuesday, September 1, 2015

Illinois Business District Law Amended

The Illinois Municipal Code authorizes municipalities to establish business districts for the purposes of furthering economic development in commercial areas. Once a business district is established, municipalities have a wide range of powers within that district,including the power to enter into sales tax rebate agreements, acquire land, demolish structures, construct and finance improvements, among many other powers. The business district authorizing statute was recently amended by the Illinois General Assembly to add a new provision that allows a municipality to use up to 1% of the sales tax and hotel tax revenues received from one business district for eligible costs in another business district so long as the two business districts are either contiguous to one another or separated only by public right of way or forest preserve property.  The amendment is similar to the language already included in the TIF law that allows a municipality to "share" revenues between TIF districts.

You can read the new law here: P.A. 99-452.

Post Authored by Julie Tappendorf