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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

Monday, February 29, 2016

Friday, February 26, 2016

Police Officer's Termination Upheld Under "Garrity Rule"

In Homoky v. Ogden (7th Cir. 2016), the Seventh Circuit Court of Appeals recently dealt with the "Garrity Rule" which states that incriminating answers given during any examination of a public employee during an internal investigation of the employee’s official conduct cannot be used against him in a criminal proceeding. 

The Hobart Police Department was investigating official misconduct allegations against Officer Homoky and as part of the investigation, demanded that Homoky submit to a voice stress test. The Department informed Homoky it would not use the results in any criminal proceeding, invoking the Garrity Rule. Homoky refused to take the test, however, and the Department ultimately terminated him. He sued, claiming various due process and other constitutional violations, including a violation of his Fifth Amendment rights.

The Seventh Circuit rejected Homoky's arguments, including his allegation that his termination for refusal to submit to the voice stress test violated his Fifth Amendment right to keep silent. The Court held that a police department may, without violating the Constitution, compel a police officer to answer incriminating questions and prohibit him from invoking his Fifth Amendment right when it warns the officer that it will not use the information gained in any future criminal prosecution under the Garrity Rule.

Post Authored by Julie Tappendorf

Thursday, February 25, 2016

FOIA Bill Would Expand "News Media" to Include Social Media Users

The Illinois legislature has introduced HB 4383 that would amend FOIA in a couple of ways, most significantly by changing the definition of "news media" under the Act as follows:
"News media" means a newspaper or other periodical issued at regular intervals whether in print or electronic format, a news service whether in print or electronic format, a radio station, a television station, a television network, a community antenna television service, or a person or corporation engaged in making news reels or other motion picture news for public showing, or any individual or entity that publishes content for public viewing, regardless of whether the individual or entity earns any income.
Under this new definition, anyone with a social media presence (Facebook, Twitter, Instagram, etc.) or a blogger would qualify as "news media." 

So, what does that mean? Under FOIA, news media are treated differently than other requesters in a number of respects. For example, news media are exempt from the "recurrent requester" and "voluminous request" regulations of FOIA. News media also do not qualify as "commercial requesters" in most instances. In addition, news media receive special treatment for deciding fee waivers or reductions. Finally, news media are able to inspect or receive copies of GIS records that members of the public are not entitled to. 

Since about 70% of Americans have a social media account or presence, this proposed expansion of the definition of news media nearly eliminates the distinction between media and the general public at least under FOIA. All a requester needs to show is that they have a Facebook account and they are no longer subject to the recurrent or voluminous request provisions of FOIA. Those rules are rendered almost completely ineffective through this new definition. 

The legislation also would require public bodies to provide a verified statement of its search parameters for all categorical requests for records. Finally, if passed, the proposed legislation would require a court to provide a detailed factual explanation for its ruling on a FOIA challenge but only if the court rules against the requester.

Post Authored by Julie Tappendorf

Wednesday, February 24, 2016

Molly's Law Would Significantly Increase Penalties for FOIA Violations

The Illinois General Assembly recently introduced HB 6083 that would amend FOIA to increase the penalties that a court can assess against a public body for a willful and intentional violation of the Act. Currently, FOIA authorizes a court to impose a maximum fine of $5,000 for a willful and intentional violation. This legislation, if passed, would raise the maximum fine to $10,000. It would also allow a court to increase that fine by $1,000 per day if the public body fails to comply with the court's order within 30 days.

The proposed legislation, called Molly's Law, also amends the Wrongful Death Act to increase the time period for bringing a wrongful death lawsuit. The legislation followed a court's dismissal of a civil suit filed by the family of a college student because the case was not brought within the 2 year statute of limitation for wrongful death claims.

Post Authored by Julie Tappendorf

Tuesday, February 23, 2016

Local Governments and the Identity Protection Act

From Ancel Glink's labor & employment blog, The Workplace Report with Ancel Glink: Protect Your Employees' Social Security Numbers!

Identity theft is one of the fastest growing crimes in the United States. One of the primary ways that identity theft occurs is through the misuse of another person’s Social Security Number. To protect against this misuse, the Illinois General Assembly passed the Identity Protection Act (5 ILCS 179/10) in 2010. The Identity Protection Act requires employers, including local governments, to protect social security numbers, and  makes it a crime for employers to do the following:
  • Publicly post an individual’s Social Security Number;
  • Print an individual’s Social Security Number on any card required to access products to services;
  • Require a Social Security Number to be transmitted over the internet unless the connection is secure of the social security number is encrypted;
  • Mail any materials containing an individual’s Social Security Number;
  • Require an individual to use his Social Security Number to access the internet.

In addition, before releasing a public record in response to a FOIA request, a local government must redact any Social Security Numbers included in the requested record.  

The Act also requires both state and local governments to create an “identity-protection policy.” This policy must contain a plan to train employees on the protection of Social Security Number. It also must detail who is allowed to access documents containing Social Security Numbers, and should only allow those who need to see a document containing Social Security Number to have access to it. The plan also must require that a statement of the purpose for which Social Security Number is being collected to be transmitted to be given to anyone providing their Social Security Number.

If you are a local government employer and you do not have an identity protection policy or plan in place, we encourage you to do so ASAP.  

Originally Authored by Matthew DiCianni, Ancel Glink

Monday, February 22, 2016

Chicago's Taxi Regulations Not a "Taking"

The Seventh Circuit Court of Appeals issued an interesting ruling last week in response to a Chicago cab driver's lawsuit against the City of Chicago claiming that the City of Chicago's taxi fare regulations (1) were an unconstitutional "taking" of her property and (2) violated the minimum wage laws. The Court acknowledged the uniqueness of the cab drivers' claims, but ultimately ruled in the City's favor.  Callahan v. Chicago (7th Cir., Feb. 17, 2016)

The Court first determined that the cab drivers' takings claims should be dismissed because the cab driver did not own any asset that had been reduced by the City's regulation of taxi fares.  She didn't own her own cab or medallion, and instead leased these from others. In the Court's view, the only asset she has is her time, and she could choose to use that time driving a cab or doing some other job.  
Even if she had owned her own cab and medallion, the Court found that the City's fare structure had not, historically, impacted the price or value of medallions. In 2007, a taxi medallion sold for $64,000, but in 2013, new medallions sold for $360,000.  As a result, even owners of these assets could not show a negative impact on their assets from the City's fare structure.

The cab driver's second argument was that the City's taxi regulations effectively reduced her compensation below the minimum wage and the City was liable to pay the difference to her. The Court rejected her argument on the basis that the City was not her employer and could not, therefore, be held responsible for payment of minimum wages to taxi drivers. In short, the Court concluded that extensive regulation by a government does not make that government an employer of the regulated parties.

Post Authored by Julie Tappendorf

Friday, February 19, 2016

Webcast— Rules of the Game: A Framework for Fair and Effective Zoning Hearings

Don't miss this upcoming webinar on effective zoning hearings hosted by the Planning & Law Division of the American Planning Association:  

Rules of the Game: A Framework for Fair & Effective Zoning Hearings

March 17, 2016
1:00 – 2:30 pm ET (Noon to 1:30 pm Central Time)

This webinar will cover the legal requirements for public hearings, including constitutional due process considerations, and provide tips on how to more effectively manage these hearings. 

Speakers include David S. Silverman and Daniel J. Bolin of Ancel Glink in Chicago, Illinois. 

Registration is $20 for PLD members and $45 for nonmembers.

CM 1.50
L 1.50
CLE credits also will be available

Thursday, February 18, 2016

Bill Would Supplement Illinois' Social Media Password Privacy Law

The Illinois General Assembly introduced HB 4999 last week proposing to amend the "Right to Privacy in the Workplace Act." If enacted, the bill would make it illegal for an employer or prospective employer to:

  • ask or require an employee or job candidate to access a personal online account in the presence of the employer;
  • require an employee or job candidate to invite the employer to join a group affiliated with a personal account of the employee or candidate; or
  • require an employee or job candidate to join an online account established by the employer.
  • discharge, discipline, discriminate against, retaliate against, or otherwise penalize an employee, or refuse to hire a job candidate, who refuses or declines to provide the employer with the prohibited information or access.
These changes would supplement the Act's already existing ban on an employer requiring or requesting an employee or job applicant to provide his or her social media passwords or other related social media account information.  

We will let you know if this bill is passed by the state legislature.

Post Authored by Julie Tappendorf

Wednesday, February 17, 2016

Bill Would Disqualify Members of Public Body for Failure to Complete Online OMA Training

As many of you know, the Open Meetings Act requires members of a public body to complete an online OMA training program within 90 days of being elected or appointed to the public body. Under the current law, the failure of any member of the public body to complete the training does not invalidate any action taken by that public body. Under a proposed bill, HB 4664, the OMA would be amended to add a "penalty" for noncompliance. Specifically, a member's failure to complete the training within 30 days of receiving notice from the public body that he or she has failed to complete training will disqualify the member from further service as a member of the public body.

The bill does not provide any process for removal of the member from the public body. Would this require the public body to declare the office vacant? Must the public body follow any applicable statutory procedures for removing an appointed officer? What authority does the state legislature have to remove an elected official from office? 

I don't expect this bill to gain much traction, but it's worth mentioning as we summarize some of the new legislation pouring out of the Illinois General Assembly recently.

Post Authored by Julie Tappendorf

Tuesday, February 16, 2016

Bills Would Provide Options for Publication Notices

There are a number of Illinois laws that require notices to be published in local newspapers - for example, notice must be published in advance of hearings on zoning applications, as well as certain budget and tax levy hearings, among many others. Almost every legislative term, we see a bill or two introduced that would provide alternative options for governments to provide notice to members of the public of government actions and upcoming meetings and events. This term is no exception. 

Just last week, HB 6098 and HB 6092 were introduced in the Illinois House. If enacted, either bill would allow local governments to post required notices either on the government's website (HB6092) or on the ITAP or CMS websites (HB6098) rather than in newspapers. 

Here is the proposed language for HB 6098:
50 ILCS 205/25 (new)
Sec. 25. Publication by internet posting; digital maintenance of public records.
Notwithstanding any other  provision of law: 
(a) Any requirement for a school district or a unit of  local government to publish any notice, agenda, record, or other information or material in a newspaper by law including, but not limited to, the Open Meetings Act, the Illinois Municipal Budget Law, the Intergovernmental cooperation Act, the Counties Code, the Township Code, the Illinois Municipal Code, the Election Code, the School Code, the Airport Authorities Act, or the Civic Center Code, may instead publish such notice, agenda, record, or other information on its website or on the Illinois Transparency and Accountability Portal under Section 405-335 of the Department of Central  Management Services Law of the Civil Administrative Code of Illinois. 
(b) Any requirement that a school district or unit of local government store or maintain any public record in microfilm or microfiche form shall be satisfied by the school district's or unit of local government's maintenance of such public record in digital form.  
Here is the proposed language for HB 6092:
(715 ILCS 5/2.2 new)
Sec. 2.2. Electronic publication.
(a) Whenever a governmental unit, community college district, or school district is required to provide notice by publication in a newspaper by law, order of court, or contract, the governmental unit, community college district, or school district may publish the notice on an official government website instead of in a newspaper.
(b) The governmental unit, community college district, or school district, or the host of the notice website, shall enter into a service-level agreement with an Internet service provider that guarantees the site is accessible to the public over the Internet at least 98% of the time, 24 hours a day, 365 days a year.
(c) The governmental unit's, community college district's, or school district's official Internet website shall prominently display a link to the notice web page, which be an index web page, containing a list of all current legal notices of the unit or district, with links to the full text of  those notices. The index web page shall also contain a search function and other features that improve public accessibility to legal notices.
(d) Whenever an individual is unable to access an electronic publication of a legal notice, the issuing governmental unit, community college district, or school district shall provide a copy of the notice to the individual free of charge.
(e) Notices shall remain available on the website at least until the last posting date required by law has expired or until the event described in a notice has taken place, whichever is later.
We will keep you posted on these and similar bills.

Post Authored by Julie Tappendorf

Monday, February 15, 2016

Post Mortem Photographs Not Exempt Under FOIA

It's February, and the PAC is just releasing its second binding opinion for 2016. That is pretty consistent with prior years - we typically see about a dozen or so PAC binding opinions each year. Consistent with so many other binding opinions, this one doesn't provide any helpful guidance on the issues most commonly faced by public bodies.  Instead, this one falls into the "one-off" category of opinions we've been seeing come out of that office.

In PAC Op. 16-002, the PAC found the Illinois State Police in violation of FOIA when it denied a FOIA request filed by the decedent's estate for post-mortem photographs of a decedent  (including death-scene, autopsy, and other photographs) in the possession of the ISP. The ISP cited 7(1)(c) of FOIA in support of its denial of the request. That exemption protects from release certain personal information that, if released, would constitute a clearly unwarranted invasion of privacy. 

The PAC rejected the ISP's denial of the FOIA request, holding that an individual's personal privacy interests cease to exist upon death. The PAC directed the ISP to release the death-scene and autopsy photographs to the requester.

This opinion doesn't offer any new advice to public bodies. Last year, the PAC issued a similar opinion finding IDOT in violation of FOIA for failing to turn over videos depicting a fatal accident to a requester in PAC Op. 15-009.  

Post Authored by Julie Tappendorf

Friday, February 12, 2016

See you at the Illinois Local Government Lawyers Association Conference!

On Monday, February 15, 2016, local government lawyers from around Illinois will convene at the NIU Naperville Campus for the 23rd Annual Illinois Local Government Association Conference

Ancel Glink’s Ellen K. Emery and Daniel J. Bolin will be there to provide an overview of the Police and Community Relations Improvement Act, and a package police reform laws adopted by the General Assembly last year. Many of these laws became effective on January 1, 2016, and as previously discussed on this blog, these laws will cause local police departments to consider new policies governing officer-involved deaths, officer-worn body cameras, FOIA, use of force, and more. We look forward to seeing everyone at the conference!

Post Authored by Dan Bolin, Ancel Glink

Bill Would Authorize Recall of Mayors

It's been a busy week in Springfield, with dozens of new bills introduced on all sorts of topics. Next week, we will report on some proposed changes to notice requirements. Today, we report on a bill that would authorize voter "recall" of mayor or village president.

HB 5993, introduced yesterday, would amend the Illinois Municipal Code to establish a procedure for an election to recall mayors and village presidents. That process would require the following steps:

  • The filing of a referendum petition by voters equal to 15% of the total votes cast for that office in the preceding election. (in Chicago, at least 50 signatures must come from each ward)
  • At least 150 days prior to filing the petition, a "notice of intent" must be filed with the local election official (usually the village or city clerk) evidencing the intent to circulate petitions. That notice of intent must be by affidavit and can be filed no sooner than 6 months after the president or mayor's term of office commenced. (In Chicago, the affidavit must be signed by at least 2 aldermen in addition to the recall proponent).
  • If properly filed, a special recall election must be called by the clerk (or in Chicago, the board of election commissioners) to occur not more than 100 days after certification of the recall petition. 
  • If the recall referendum passes, a special successor primary election must be held 60 days after the special recall election. If triggered, a special runoff election may also be required.
  • During the interim between the passage of the recall referendum and the election of the successor president or mayor, the vice mayor or other individual selected by the city council/village board will serve as the acting mayor/president.
The bill requires quite a few "special" elections, all of which will incur costs for municipalities and counties, although that is not addressed in the legislation. This bill seems to be more of a political rather than legal maneuver, in light of recent developments in Chicago. We'll keep you posted.

Post Authored by Julie Tappendorf

Thursday, February 11, 2016

Regulation of Short-Term Rentals

As AirBNB, HomeAway, and VRBO (Vacation Rentals by Owner) become as popular as Uber and Lyft, municipalities are starting to encounter a whole host of new legal issues, particularly in the zoning and building regulatory arena. Neighbor complaints are forcing municipalities to review their current zoning and building regulations to determine (1) whether these uses are allowed, and if so, (2) how they are regulated. Some communities are finding that existing ordinances may not provide simple answers to these questions, leading many to consider amendments to specifically address these short-term rentals. 

If you haven't used one of these short-term rental sites, you may be interested in how they work. AirBNB, VRBO, and HomeAway operate websites that allow guests to reserve a private home, condo, or apartment on a nightly, weekly, or weekend basis. The websites charge a fee or percentage of the rental amount to the property owners who list their private homes, condos, or apartments on their websites. It's sort of like a dating site for property owners and potential guests.

The Village of Lincolnwood, Illinois is considering enacting an ordinance to regulate short-term rentals.  Lincolnwood had received a couple of complaints from residents that neighboring homes had been rented out on a nightly or weekend basis through these websites. The neighbors raised concerns about the business nature of the use in principally residential areas, a variety of safety concerns, and that one of the homes had been rented out to host a large Super Bowl party. 

Other Illinois communities have adopted different approaches to regulating these short-term rentals. For example, the Village of Lincolnshire adopted an ordinance allowing these uses, provided rentals in the residential districts are no less than 3 months in duration and limiting the number of rentals in a 12 month period to no more than 2.  The City of Evanston requires the owner to apply for and obtain a license to rent out a home on a short-term rental basis. The City of Chicago is also considering a licensing ordinance.

Post Authored by Julie Tappendorf

Wednesday, February 10, 2016

Illinois Bill Would Make it Illegal to Post Fighting Video on Social Media

We previously posted about a Kentucky bill that would, if passed, make it illegal to post about serious traffic accidents on social media for at least one hour. The sponsor of the Kentucky bill subsequently withdrew the bill after objectors raised First Amendment concerns with the proposed legislation. 

Now, an Illinois legislator has proposed similar legislation that would make it illegal to post videos of fights on social media. Representative Terri Bryant of Murphysboro sponsored the bill after being made aware of a video on Facebook that showed a 12-year-old on the ground while another boy tried to stomp him, with classmates standing by, circling the two and recording the fight on their phones. Critics of the bill raise concerns about the effect of the bill on First Amendment speech rights, similar to those raised in Kentucky. For example, a representative of the American Civil Liberties Union of Illinois said "We think this proposal is overly broad and unconstitutional." 

Under the proposed legislation, a person would commit disorder conduct if he or she knowingly:
Uploads a video of a crime being committed, a gang-related fight, a battery committed with the intent to cause a person to be made unconscious, or other display of violence to a social media website or social networking website with the intent to promote or condone that activity or refuses to provide a law enforcement agency or peace officer with that uploaded video upon request of that agency or officer.  
You can read House Bill 4419 here.

Post Authored by Julie Tappendorf

Friday, February 5, 2016

Chicago Public Nudity Ban Survives Federal Court Challenge

On Monday, a court upheld a Chicago ordinance banning public nudity in a challenge that the ban violated First Amendment and Equal Protection protections in Tagami v. City of Chicago et al.  

In August 2014, Sonoko Tagami participated in a “Go Topless Day” protest organized by an organization that advocates for the right of women to appear bare-chested in public. Tagami was cited in violation of Chicago’s public nudity ordinance, which provides that:

Any person who shall appear, bathe, sunbathe, walk or be in any public park, playground, beach or the waters adjacent thereto, or any school facility and the area adjacent thereto, or any municipal building and the areas adjacent thereto, or any public way within the City of Chicago in such a manner that the genitals, vulva, pubis, pubic hair, buttocks, perineum, anus, anal region, or pubic hair region of any person, or any portion of the breast at or below the upper edge of the areola thereof of any female person, is exposed to public view or is not covered by an opaque covering, shall be fined not less than $100.00 nor more than $500.00 for each offense. Municipal Code of Chicago § 8-8-080.
In October 2014, Tagami appeared before an Administrative Law Judge and was found liable for violating the Ordinance. Tagami filed a lawsuit in federal court. The case alleged, among other things, that the City Ordinance violated her First Amendment right to freedom of expression and her equal protection rights by creating a sex-based classification. The Court dismissed both of Tagami’s constitutional claims. 

First, the court dismissed her freedom of expression claim because Tagami failed to provide any message through her act of public nudity. The Court noted that public nudity is not inherently expressive and, and found a lack of facts showing that “in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”

Second, the court dismissed her equal protection claim because Tagami did not show that the Ordinance created any sort of “artificial restraint” or that it “perpetuated an assumption of inferiority: that the sight of a female’s breast is offensive in a way that the sight of a male’s breast is not.” 

Although the case provides support for municipal authority to regulate public nudity, municipalities should take care to ensure their ordinances serve other important government interests and are not solely designed to prohibit possibly expressive conduct.

Post authored by Daniel J. Bolin and Douglas E. Spale

Thursday, February 4, 2016

Selective Enforcement of City Code Not an Equal Protection Violation

The City of Rockford cited a property owner for 14 housing code violations. The City conducted an administrative hearing, which was continued from time-to-time at the request of the owner. After nearly a year, the hearing officer denied any further continuances, and found the owner in violation. He imposed a fine of $15,000, or $50 per violation per day. The owner then appealed to the court, which upheld his conviction. Kavonius v. City of Rockford, 2016 IL App(2d) 150188-U.

First, the owner argued that the City violated his equal protection rights by "selectively enforcing" the the City's housing code requirements. He alleged that the City had taken no action against neighboring property owners whose properties were in similar conditions to his. In rejecting his argument, the court held that proof of selective enforcement, on its own, does not constitute an equal protection claim without evidence that the selective enforcement was due to some personal animosity or vindictive conduct by the City. Here, plaintiff had provided no evidence of personal animosity against plaintiff. While the court acknowledged plaintiff's frustration that he was prosecuted and not his neighbors, it concluded that a "routine case of selective enforcement" was not actionable as a violation of equal protection.

Second, the owner argued that the City violated his due process rights by denying his requests for continuance. The court also rejected this argument, finding that the hearing officer had continued the hearing numerous times to allow the plaintiff to complete the work. There was also no evidence that the plaintiff was not able to participate in the hearings.

Post Authored by Julie Tappendorf

Tuesday, February 2, 2016

PAC Dives into First Amendment Again in Public Comment Opinion

A reader contacted me recently about an advisory opinion from the Public Access Counselor regarding public comment at meetings. Although not binding, the opinion does offer public bodies additional guidance on how the PAC interprets the public comment provision of the OMA.

In 2015 PAC 37391, a member of the public filed a complaint with the PAC alleging that the Cahokia Village Board violated the OMA when the Mayor refused to allow a member of the public to speak because she had not submitted her request 7 hours in advance of the meeting as required by the Board's ordinance. The complaint also alleged that the individual was improperly removed from the meeting.

First, the PAC rejected the Board's argument that the individual filing the complaint had no standing since she was not the individual removed from the meeting. The PAC noted that anyone who believes a public body has violated the OMA can file a complaint against a public body.

The PAC then reviewed the Board's public comment rules that require an individual to fill out a form and submit it by noon the day of the meeting in order to speak at the meeting. The form required the person to identify themselves and their address and phone number, as well as the subject or list of questions. Although the PAC acknowledged other courts that had upheld advance sign up rules, it struck down Cahokia's practice because it "may create a chilling effect on speech at public meetings." The PAC seemed most concerned about the requirement that speakers identify the subject of their comments in advance and provide their addresses and telephone numbers, finding these requirements to be unreasonable restrictions under 2.06(g) of the OMA.

Finally, the PAC determined that removal of the individual from the meeting was an "unreasonable rule to infringe on the woman's statutory right to address the Board," in violation of the OMA.  The PAC did acknowledge a public body's right to curtail public comment "if a speaker acts in an insulting or unruly manner that disrupts the order and decorum of a meeting." That right does not, however, allow a public body to curtail the public's right to express criticism according to the PAC.

The PAC again acknowledged that the OMA does not require a public body to conduct question and answer sessions or answer any questions for that matter since 2.06(g) of the OMA only deals with public comment. Because of that, the PAC did not have an issue with the requirement that questions be submitted in advance of a meeting. 

The opinion, while only advisory, offers some additional insight into how the PAC interprets the public comment provision of the OMA.  
  • Requiring an individual to sign a form in advance of a meeting in order to speak during public comment will likely not be tolerated. 
  • Requiring an individual to provide personal information as a condition to speak at a meeting is also not allowed. 
  • Requiring an individual to disclose the content of their comments cannot be a prerequisite to speaking to a public body. 
  • 2.06(g) does not require a public body to answer questions, so a requirement that questions be submitted in advance does not violate the OMA.
  • The PAC will continue to weigh in on constitutional matters even though the PAC's authority under state statute does not include the authority to decide violations of the First Amendment or any other constitutional provision. 
Post Authored by Julie Tappendorf

Monday, February 1, 2016

Illinois Supreme Court Abolishes Public Duty Rule

Last week, the Illinois Supreme Court issued an opinion that will affect how local governments defend lawsuits involving the provision of governmental services. In Coleman v. East Joliet Fire Protection Dist., 2016 IL 117952, the Illinois Supreme Court abolished the long established common-law "public duty rule." That rule provided that a local government entity and its employees owe no duty of care to individual members of the public to provide governmental services (including police and fire protection services). 

In 2008, a 911 call came into the Will County 911 operator from Coretta Coleman who claimed she could not breathe and needed an ambulance. Will County dispatch transferred the call to Orland Central Dispatch, and hung up the phone as soon as Orland responded. The Orland dispatcher received no response to questions to the caller, and called an ambulance to go to the address. An East Joliet Fire Protection District ambulance arrived at the residence, but there was no response to knocks on the door. Neighbors explained that an elderly couple lived in the home, and the woman would be unlikely to answer the phone. The responders determined that a forced entry could not be made, and left after reporting to dispatch that there was no patient. Neighbors then called 911 and a second ambulance was dispatched. Shortly after the second ambulance arrived, Coretta's husband came home and let the responders into the home. Coretta was found unresponsive, and later died of cardiac arrest.

The husband filed a wrongful death lawsuit against the District, the County, and the dispatchers. The defendants filed a motion for summary judgment, arguing they owed no duty to Coretta under the public duty rule and, even if they did owe a duty, they were immune from liability under the Emergency Medical Services (EMS) Systems Act because their conduct was not willful and wanton. The defendants also asserted absolute liability. The trial court and appellate court ruled in favor of the defendants under the public duty rule. Coleman appealed to the Illinois Supreme Court.

The Illinois Supreme Court first reviewed the origins of the common law "public duty rule." The court found the rule was grounded in the principal that local government owes a duty to the community as a whole, and not to individual members of the community. The court acknowledged the rule was long-standing and widely accepted. However, the court noted that over time, a number of exceptions to that rule had been developed by courts, including the "special duty exception." The court also noted that the Illinois legislature had enacted a comprehensive scheme of immunity to protect local governments.

The court concluded that "the time has come to abandon the public duty rule and its special duty exception."  The court gave 3 reasons for abolishing the public duty rule:

First, the court held that case law had been inconsistent in applying the rule and its exceptions. In many cases, courts had skipped the duty analysis altogether and gone right to addressing the issue of whether the questioned government actions were protected by statutory immunity.

Second, the court held that the public duty rule was incompatible with the statutory grant of limited immunity in cases of willful and wanton conduct. The court acknowledged that in some cases, courts have precluded a plaintiff from pursuing a case of action for willful and wanton misconduct because the plaintiff could not first establish that the government had a duty to plaintiff.

Third, the court determined that the legislature's enactment of statutory immunity protection had rendered the public duty rule unnecessary. 

This ruling will certainly impact how future Illinois courts consider and decide cases involving claims against local government in its provision of governmental services.

Post Authored by Julie Tappendorf