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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

Thursday, September 29, 2016

The IHSA is Not a Subsidiary Body Under FOIA (part 3)… The Saga Continues

Last year, we reported on a circuit court decision ruling that the Illinois High School Association (IHSA) was not a public body for purposes of the Illinois Freedom of Information Act.  Over the summer, we wrote about this case again when the Illinois Appellate Court affirmed that ruling, denying the Better Government Association’s (BGA) appeal. The BGA then filed a Petition for Leave to Appeal to the Illinois Supreme Court, which recently agreed to hear the case. 

The Illinois Supreme Court will be tasked to determine whether the Appellate Court was correct in finding that the IHSA was not a "subsidiary public body" under FOIA.  As you may recall, the appellate court looked to the three part test used by the Open Meetings Act in applying the definition of “public body:”

(1)  whether the entity has a legal existence independent of government resolution;
(2)  the nature of the functions performed by the entity; and
(3)  the degree of government control exerted.

Under that test, the court found that the IHSA, a non-profit 501(c)(3) organization, has an independent legal existence separate from its member schools. It further determined that the IHSA does not perform public, governmental functions, and that the IHSA does not receive governmental funding, leading the appellate court to determine what the IHSA was not a “subsidiary public body” and not subject to FOIA.

We will continue to watch the developments in this case and keep you posted on the Illinois Supreme Court proceedings. This case will likely provide public bodies with more definitive guidance on how courts will interpret the "subsidiary public body" language in both the OMA and FOIA.

Post Authored by Erin Baker, Ancel Glink

Tuesday, September 27, 2016

Local Changes May be Required to Comply with Changes to Cannabis Control Act

In late July, Governor Rauner signed into law Public Act 99-697, amending the Cannabis Control Act, 720 ILCS 550/1, et seq, the Drug Paraphernalia Control Act, 720 ILCS 600/1, et seq. and a variety of other laws to relax some of the penalties surrounding cannabis possession. This law specifically modifies how low-level state possession offenses are treated but also may affect municipal ordinance violations for similar offenses.

The law has not changed the fact that possession of cannabis, even in small quantities, remains illegal.  Under the amended law, however, possession of less than ten (10) grams of cannabis is no longer treated as a criminal offense. Instead, it is a civil violation that carries with it a fine of $100 to $200, similar to a traffic citation.  Likewise, possessing drug paraphernalia only in connection with having up to 10 grams of cannabis is now downgraded from a misdemeanor to a non-criminal fine-based penalty. 

Another important piece of this new law is that any local police records related to tickets issued for cannabis possession at this lowest level of up to 10 grams, as well as any tickets issued for drug paraphernalia seized along with the less-than-10-grams pot threshold, must be expunged (destroyed) twice each year (January 1 and July 1). This requirement becomes effective 6 months after the effective date of the law, so municipalities have time to put together policies for compliance with this new expungement obligation.

In addition, the misdemeanor and penalty schedules for greater amounts of cannabis possession were also relaxed. Under the new law, possession of 10 to 30 grams of cannabis (previously qualifying as a Class A misdemeanor with up to one year in jail and fines ranging from $750 to $3,250) now qualifies as a lesser Class B misdemeanor, punishable by up to six (6) months in jail and a fine of up to $1,500.  Possession of greater amounts of cannabis has also been ratcheted downward, with someone now having to possess 100 grams of cannabis to qualify for a first-offense felony. 

Finally, the law allows local governments to establish its own fine schedule for low level offenses relating to possession of cannabis when tickets are written under its own ordinances that can vary from the state established fines. However, non-home rule governments are more restricted in how they treat drug paraphernalia offenses, even under local ordinances.

Many municipalities will have to review their current ordinances to determine whether they are consistent with the new state law, and decide whether they will process low-level cannabis offenses on a local level (i.e., through municipal court or administrative adjudication) or through the state court system. The latter approach may be less desirable for many municipalities because of the required distribution of fine proceeds set out in the new law.

Post Authored by Mark Heinle, Ancel Glink

Monday, September 26, 2016

Court Dismisses Campaign Disclosure Act Case

It's election season, so we are going to see a lot more election-related cases over the next few months. In Streit v. Illinois State Board of Elections, the court addressed an alleged violation of the Campaign Disclosure Act. 

The Campaign Disclosure Act requires, among other things, that any political committee that makes an expenditure for any communication that is (1) directed at voters and (2) mentions the name of a candidate in an upcoming election must include language in the communication identifying the name of the political committee that paid for any part of the communication. Streit (a Trustee in the Village's Third District) had filed a complaint with the State Board of Elections alleging that a registered political committee had violated the Act when it mailed a letter to residents of the Third District endorsing his opponent over him without including language identifying who paid for the mailing. 

The Board conducted a hearing, at which Streit produced a copy of one of the alleged letters addressed to a Village resident. In defense, the committee produced copies of other letters that were sent out that expressly included the language "Paid for by Sandra Bury for Mayor of Oak Lawn." The Board considered the evidence produced by both sides, and dismissed Streit's complaint, finding that it was filed without justifiable grounds. 

Streit appealed, and the appellate court upheld the dismissal of Streit's complaint. The court determined that Streit's complaint relied solely on one exhibit (the letter allegedly sent to a resident), which had not been authenticated or verified. On the other hand, Bury had testified under oath that the mailings sent out to residents contained the "paid for" language. 

Streit also argued that the Board violated the OMA because it made its decision in closed session, without publicly articulating the reasons for the dismissal of his complaint. The court rejected that argument, finding it was waived because Streit didn't raise this issue until his reply brief.

Although the court found no violation of the Act in this case, it is a good reminder to candidates to make sure they comply with applicable disclosure requirements.

Post Authored by Julie Tappendorf

Friday, September 23, 2016

Case Against Park District For Firework Injuries Dismissed

In Perez v. The Chicago Park District, Perez went to West Lawn Park to celebrate Independence Day.  While there, two men illegally set off fireworks, one of which exploded next to her.  The explosion caused injuries that required the amputation of her right foot and part of her lower leg.  Perez sued the Chicago Park District.  After amending her complaint three times, her case was dismissed with prejudice.  Perez asked if she could amend her complaint a fourth time, which was denied.  Perez then appealed, but the dismissal of her case was upheld by the appellate court. 

Since the Chicago Park District is a public entity, Perez tried to base her claims on the Local Governmental and Governmental Employee Tort Immunity Act.  Under the Act, local government entities and employees are provided immunity from the operation of government.  However, some sections provide exceptions to immunity if the government entity or employees is found to be willful and wanton. Citing Sections 3-106, 3-108, and 3-109 of the Act, Perez argued that the Chicago Park District was willful and wanton and thus liable for her injuries.  However, the court held that the facts she provided did not add up to willful and wanton conduct, meaning that she failed to bring a cause of action.  Furthermore, Perez’s proposed amendments to her complaint would not have cured this major defect.  As a result, her case against the park district was dismissed. 

Post Authored by Amanda Riggs and Julie Tappendorf, Ancel Glink 

Wednesday, September 21, 2016

Petition to Consolidate Round Lake Municipalities Struck From Ballot

Last week, an Illinois trial court judge ruled that a referendum petition seeking to unify three Lake County villages into a new consolidated city was legally deficient because it was filed late and because the petitioner failed to timely published a mandatory public notice. As a result of the court’s dismissal, the proposed referendum will not be presented to voters in those villages on the November 2016 general election ballot.

A ballot-initiative committee named One Round Lake filed a petition in the Circuit Court of Lake County on August 8, 2016, seeking to place a consolidation referendum on the November ballots in the villages of Round Lake, Round Lake Beach and Round Lake Park. If approved by the voters, the referendum would have unified those three villages into a single new municipality named the City of Round Lake. The village governments would have been dissolved, remaining in name only as “boroughs” of the newly formed city, which would have been governed by a single mayor and city council.

The Illinois Election Code contains two different filing deadlines for public questions that have any legal effect (i.e., binding referenda). The general rule is that binding referenda petitions must be filed no later than 92 days prior to the election in which the question is to appear on the ballot. 10 ILCS 5/28-2(a). However, a second deadline applies only to a “referendum which proposes the creation or formation of a political subdivision” and requires those petitions to be filed no less than 122 days prior to the election. 10 ILCS 5/28-2(b). 

The consolidation petition was filed only about 92 days prior to the November 8 election. The three named Round Lake-area villages and a few voters who reside in those villages filed an objection, arguing that the court lacked subject-matter jurisdiction over the petition because the petitioners failed to comply with the 122 day deadline. The objectors also alleged the court was required to dismiss the case because the petitioner failed to timely publish a public notice of its intent to file the petitions, and that it failed to include with its court filings an affidavit proving the notice had been published. 

The petitioner responded that the unification of the three existing municipalities would not actually “create” or “form” a new political subdivision and, therefore, the 122-day filing deadline should not apply, even though all parties agreed the proposed “City of Round Lake” does not currently exist in Illinois. 

The circuit court disagreed with the petitioner, and found that both the 122-day deadline and the public-notice requirement applied to the referenda petition. Because the petition was deficient, it was dismisssed.

Disclosure: Ancel Glink represented the Village of Round Lake Beach in this case. 

Post Authored by Adam Lasker, Ancel Glink

Tuesday, September 20, 2016

Municipality’s Failure to Follow its Own Zoning Ordinance Not Fatal to PUD Approval

A recent decision by an Illinois Appellate Court has reaffirmed the general rule in Illinois that a court will not overturn a municipality’s zoning decision based solely on the failure of the municipality to follow its own zoning ordinance.

In Hanlon v. The Village of Clarendon Hills, two neighboring property owners filed suit against the Village of Clarendon Hills challenging the approval of a planned unit development (PUD). The PUD at issue involved a multi-unit condominium building in the Village’s B-1 Retail Business District, which was located near the entrance to the Village’s downtown area.  Six months after the preliminary approval of the PUD, the plaintiffs challenged the PUD approval on several grounds, including the failure of the Village to strictly follow the requirements of its own zoning ordinance during the PUD approval process.

The Village approved the preliminary PUD in October of 2013.  The Village’s zoning ordinance contained a provision requiring an applicant to file an application for final PUD approval or a request for an extension within one year of the preliminary PUD approval.  If an applicant failed to do so, the preliminary approval of the PUD would become null and void. In this case, the developer failed to file a final PUD application or request an extension within one year of the preliminary PUD approval.  The developer claimed that the failure to comply with this requirement was due to the uncertainty caused by the plaintiff’s lawsuit.  The Village proceeded to grant the developer final PUD approval in April of 2015, well over a year after the preliminary PUD approval. The Village included in its approval a waiver of the one year filing period and a retroactive extension of time for the developer’s final PUD application in the Ordinance approving the final PUD.

The Plaintiffs alleged that the Village’s failure to strictly follow this one year requirement to file a final PUD application or request an extension of time caused the preliminary PUD approval to become null and void. The plaintiffs also claimed that the Village failed to follow certain setback requirements for transitional uses required under the Village’s zoning ordinance. The plaintiffs contended that, as a non-home rule municipality, the Village must comply with its own zoning ordinance.

In upholding the Village’s approval of the PUD, the court reiterated the general rule that a municipality’s zoning enactment will not be invalidated based solely on the municipality’s failure to follow its own self-imposed requirements. The court emphasized the distinction between the failure of a municipality to comply with its own zoning ordinance and the failure to comply with state statutes governing the municipal zoning process. The court noted that the plaintiffs had not alleged any violation of state statute, only violations of the Village’s own zoning ordinance.  The court therefore held that, even if the Village did fail to follow its own zoning ordinance, such a failure was not sufficient to invalidate the PUD approval. 

The plaintiffs also argued that the general rule regarding a municipality’s failure to follow a self-imposed zoning ordinance applied to home rule units only, and was therefore not applicable to the Village.  The court disagreed, referring to those cases that established this general rule which involved non-home rule municipalities.

This case now confirms that the zoning decisions of both home rule and non-home rule units in Illinois may not be challenged solely on the grounds that the municipality failed to comply with self-imposed requirements. 

Post Authored by Kurt Asprooth, Ancel Glink

Monday, September 19, 2016

Reminder - IML Conference Next Week

The Illinois Municipal League Conference is just around the corner, and you don't want to miss all of the great sessions that Ancel Glink attorneys will be participating in at this year's conference. You can learn more about the conference on the IML's conference website page here.

Below is a summary of Ancel Glink's sessions:

Thursday, September 22, 2016

Demystifying the Transgender Laws: How to Prevent Bathroom Battles from Becoming an Issue in Your Municipality
Attorneys Session (Moderator Steve Mahrt, Ancel Glink)
3:15 p.m., Continental B & C
Speaker: Keri-Lyn Krafthefer, (Ancel Glink)

Sharing with Care: Regulations for Responsible Short-Term Rentals (AirBnb and VRBO)
4:00 p.m., Stevens Salon A-4
Speakers:  David Silverman & Dan Bolin (Ancel Glink)

Friday, September 23, 2016

Police and Community Relations Improvement Act Overview
10:30 a.m., Stevens Salon A-4
Speakers: Ellen Emery & Dan Bolin (Ancel Glink)

Vacant Building Ordinances: Strategies for Confronting Challenges
10:30 a.m., Marquette
Speakers:  Brent Denzin (Ancel Glink), Lou Bednarek (South Chicago Hts), Adam Gross (BPI), Lawrence Kerestes (Park Forest)

Illinois Municipal Handbook Q&A
1:00 p.m., Stevens Salon A-5
Speakers: Rob Bush, Stewart Diamond, Keri-Lyn Krafthefer, Julie Tappendorf, and Steve Mahrt (Ancel Glink)

Saturday, September 24, 2016

Keeping the Peace During the Municipal Electons
9:40 a.m., Stevens Salon A-5
Speaker: Keri-Lyn Krafthefer (Ancel Glink)

Ancel Glink will also be the sponsor of the Thursday coffee break from 2:00 p.m. to 5:00 p.m., Stevens Salon C & D.

We hope to see you at the conference!

Wednesday, September 14, 2016

Candidates Lack Standing to Challenge Police Lateral Hiring Ordinance

For an individual to bring a lawsuit before the court they must have what is known as standing - in other words, the person must show that he or she has been or is about to be injured by the defendant.  In a recent case, the an Illinois appellate court found that the plaintiffs had no standing to bring a lawsuit against the Village of Bellwood for failure to hire the plaintiffs as police officers. Burdi v. Village of Bellwood, 2016 IL App (1st) 152548-U.

Both Burdi and Carr applied for jobs on Bellwood’s police force through the Board of Fire and Police Commissioners, who had sole hiring authority.  The strict process required that each applicant be ranked and tested in order to be considered for hire.  Burdi was ranked number 1 and Carr number 11. However, due to “unfavorable” results from the testing, Burdi was told he would not be hired.  Soon after, the Village enacted an ordinance that allowed the mayor to laterally hire any trained and certified police officers from another jurisdiction.  After the ordinance was adopted, Carr was told by a member of the Board of Fire and Police Commissioners that he was to be hired but he never received the confirmation call from the police chief.  The ordinance has since been repealed.

Burdi and Carr filed suit against the Village claiming that the enactment of the lateral hiring ordinance was invalid and prevented them from being hired by the police department.  The trial court ruled in favor of the Village and both Burdi and Carr appealed. 

On appeal, the appellate court found that both Burdi and Carr lacked standing because neither of them sustained or were about to sustain injury due to the enactment of the lateral hiring ordinance. Burdi lacked standing because the decision not to hire him stemmed from his failure to pass the required tests, not from the enactment of the ordinance.  Carr, on the other hand, lacked standing because he was number 11 in the ranking, suggesting he would not have been hired even if the ordinance had never been enacted.  In the end, neither plaintiff was injured by the enactment of the ordinance because the Village's decision not to hire them resulted from factors unrelated to the ordinance and, therefore, they lacked standing.

Post Authored by Amanda Riggs and Julie Tappendorf, Ancel Glink

Tuesday, September 13, 2016

Independent Maps Proposed Referendum Struck Down By Illinois Supreme Court

On August 25, 2016, the Illinois Supreme Court issued a decision in Hooker, et al. v. Illinois State Board of Elections, et al., commonly known as the “Independent Maps” case.  This case involved a citizen-initiated ballot initiative that was slated to appear on the November 8, 2016, ballot and would have asked the voters to weigh in on how Illinois’ legislative districts are mapped. Governor Rauner supported the ballot initiative appearing on the ballot. However, legal challenges were filed against the ballot initiative and ultimately, the Supreme Court decided that it violated the Illinois State Constitution and it would not appear on the ballot. 

Article XIV of the Illinois State Constitution allows for changes to the constitution to be effected through three different methods, one of which is a ballot initiative.  In May 2016, Independent Maps, the proponent of the above ballot initiative, filed a petition to place a proposed amendment to Article IV, Section 3 of the Illinois Constitution to provide new methods for redistricting legislative districts in Illinois. 

The redistricting system proposed by Independent Maps would have fundamentally restructured the current redistricting system.  The current system essentially allows for the General Assembly to remap the legislative districts every ten years (post-census) and has been criticized at different times by members of both political parties as a tool for gerrymandering.  The proposed ballot initiative would eliminate the General Assembly’s role in the process and place the primary responsibility for drawing these maps in the hands of a new “Independent Redistricting Commission” whose members would be selected by the Auditor General through a process involving very little legislative input. 

After the ballot initiative was filed, a “taxpayer suit” was filed by the “People’s Map” political action committee.  The suit sought to invalidate the proposed ballot initiative and to enjoin the defendants from disbursing public funds to determine the petition’s compliance with the election code.  The main issues were whether the ballot initiative violates (1) Article XIV, Section 3, which provides that only “structural and procedural” changes to Article IV, Section 3 may be made this way, and (2) the “free and equal” clause (Article III, Section 3) of the Illinois Constitution.

The Illinois Supreme Court ultimately found that the proposed initiative violated the Illinois Constitution for the following reasons:

1.  The proposed amendment inserted the Auditor General into the redistricting process despite the clear constitutional mandates outlining the Auditor General’s duties and responsibilities; according to the court, this amounted to more than “structural and procedural changes,” as provided in Article XIV of the Constitution; and
2.   The new duties assigned to the Auditor General by the proposed amendment would change Article IV, Section 3 by adding the Auditor General to the redistricting process; according to the Court, this also went beyond procedural and structural changes.

While the Court declined to address the “free and equal” clause arguments, it acknowledged that there may be other methods to achieve redistricting but this ballot initiative.  The Court even suggested that there were other nonlegislative actors capable of filling the duties outlined in this proposal or individuals that are unencumbered by the limitations in Article XIV. 

The dissent disagreed with the majority's opinion. "The Illinois Constitution is meant to prevent tyranny, not to enshrine it,” Justice Robert Thomas wrote. “Today... four members of our court have delivered, as a fait accompli, nothing less than the nullification of a critical component of the Illinois Constitution of 1970... the majority has irrevocably severed a vital lifeline created by the drafters for the express purpose of enabling later generations of Illinoisans to use their sovereign authority as a check against self-interest by the legislature.” 

As is evidenced by the split court and the multiple dissenting opinions filed, this is a hot-button issue that is not likely to go away anytime soon.  In fact, more redistricting petitions are currently circulating and Governor Rauner has even appeared in commercials supporting redistricting reform.  The framers of the next question on redistricting, or any other constitutional change, will have to look to the letter of the law to ensure compliance and to avoid having the question being removed from the ballot.  

Post Authored by Tiffany Nelson-Jaworski, Ancel Glink

Monday, September 12, 2016

New Sick Leave Law in Illinois

From our sister blog, The Workplace Report:  New Law Expands Use of Employee Sick Leave

One employment trend gaining traction recently is mandatory paid sick leave benefits for employees. A number of municipalities, including Chicago, and a handful of states have passed laws requiring employers of a certain size to provide paid sick leave days to their workers. Now the state of Illinois is joining in on the subject by mandating permissible uses of paid sick leave benefits.

Effective January 1, 2017 the Employee Sick Leave Act (P.A. 099-0841) ensures that employees may use sick leave benefits for not only their own personal medical needs, but also for the illness, injury or medical appointments of a broad spectrum of family members. While the Act does not itself require employers to provide paid sick leave, it does require employers who do provide that benefit to allow employees to use that leave time for absences resulting from the illness, injury or medical appointments of the employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent or stepparent. 

The Act also provides that the benefit use for family members must be reasonable and “on the same terms upon which the employee is able to use sick leave for the employee’s own illness or injury.” Although employers now must extend the permissible use of sick leave benefits to family members, they can limit the number of days used for this purpose to half of that which the employee accrues in a year (not half of which has been accrued in that year). Additionally, the Act specifically states that it does not extend the amount of sick leave benefits granted, nor does it extend the maximum leave allowable under FMLA.

Employers who grant sick leave to their workers should ensure that their sick leave policy conforms to this new law no later than the first of the year.   

Post Originally Authored by Margaret Kostopulos

Friday, September 9, 2016

Day Care Entitled to Hearing After License Revoked

Rebirth Christian Academy Daycare, Inc., a day care facility in Indiana, was notified by the state of Indiana that it was in violation of state day care registration laws. When the agency terminated Rebirth’s registration without any hearing, Rebirth filed suit against the agency and two agency officials in their individual and official capacities, alleging that Rebirth’s constitutional rights were violated when its registration was terminated without a hearing. The district court dismissed the individual-capacity claims against the two state workers, although the court allowed the case against the agency to proceed. On appeal to the Seventh Circuit Court of Appeals, the appellate court reinstated the individual claims against the state workers, finding that Rebirth was deprived of its due process rights in Rebirth Christian Academy Daycare, Inc. v. Brizzi and Gargano.

There are many federal cases that relate to the rights of a person or company to have a hearing either before or after a license or registration is taken away from them.  In some limited cases, courts have held that a post-deprivation hearing is adequate.  In other cases, such as for example, a water shut-off by a governmental body when the dispute involves more than the non-payment of a bill, the courts have required an opportunity of a hearing before the governmental body takes the action.  What is somewhat unusual and rather scary about this case is that the two officials working for the state perfectly followed existing state law.  Indiana state law dealing with daycare centers for non-religious entities, requires a license which cannot be terminated without a hearing.  An easier path is established for daycare centers run by religious organizations that are not required to get a license but only a registration.  However, the legislature failed to deal with the rights of a religious organization when the state feels that it has violated some of the limited requirements that go along with the easier to acquire registration.

In this case, even though the two individuals in question specifically followed state law and gave the childcare center two notice letters before terminating their registration, both the trial court and the appellate court found that even though these officials did not act contrary to clearly-established law, they could not issue a revocation without some type of administrative hearing and it was their obligation to put such a hearing in place. 

Rebirth, however, was not satisfied with this result and it appealed the district court’s dismissal of the individual-capacity damage claims against the two state workers.  The workers claim that they were entitled to qualified immunity because they were following the statute.  They agreed that they had actually violated Rebirth’s constitutional rights, but they argued that the constitutional issue at question was not clearly established at the time of the violation.

The appellate court then discusses dozens of cases which make a distinction between the deprivation of rights which can be accomplished with only the ability for a post-deprivation hearing.  The appellate court decided that “(T)his is a case in which due process clearly requires some pre-deprivation opportunity to be heard and the appellees provided no opportunity for a hearing, though nothing prevented them from doing so.” The court concluded that the two officials “were personally involved in depriving Rebirth of an opportunity for a pre-deprivation hearing…” 

The cautionary tale of this case is that in rare situations, even public officials who follow a statute to the letter may find themselves the subject of a lawsuit.  These officials and their lawyers needed to pay close attention to the letter from the facility they were about to close demanding a hearing.  Such demands cannot be ignored out of hand.  Since the case does not deal at all with the alleged deficiencies of the daycare center, it may well be that an independent Administrative Hearing Officer would have decided that the termination of registration was entirely justified.  Sometimes, it is necessary to recall that our constitutional protection of “due process” really relates more to the process granted than to an unambiguous and compelling final result.

Post Authored by Stewart Diamond, Ancel Glink

Thursday, September 8, 2016

City’s Impoundment Ordinances Constitutionally Upheld

In Bell v. City of Chicago, a recent case from the 7th Circuit Court of Appeals, the court upheld Chicago's impoundment-related ordinances, despite plaintiffs’ allegations that the ordinances were facially invalid under the Fourth Amendment.  

The case arose when Bell was arrested by Chicago Police Officers for possession of a controlled substance.  At the time of his arrest, Bell was driving Sprink’s vehicle.  Sprink’s vehicle was impounded pursuant to the City’s municipal code under § 7‐24‐225, which allows officers to impound a vehicle if they have probable cause to believe the vehicle either contained a controlled substance of was used in an illegal drug transaction.  Two days after Bell’s arrest, Sprink challenged the impoundment before an administrative law judge, who found that there was probable cause at the time of the impoundment since the vehicle contained illegal drugs. The administrative law judge subsequently found that Sprink violated § 7‐24‐225, assessing a $2,000 penalty and $180 in storage and towing fees. 

Bell and Sprink filed suit against the City and a district court dismissed the case. On appeal, plaintiffs argued that the impoundment ordinances were unconstitutional because the ordinances permit warrantless seizures of vehicles in all instances and allow a City administrative law judge, a non-judicial officer, to determine whether there is probable cause to keep a vehicle impounded. 

The 7th Circuit first noted that, when making a facial challenge to an ordinance under the Fourth Amendment, plaintiffs have the burden of “establishing that a law is unconstitutional in all of its applications.”  In analyzing the challenge to the impoundment ordinance, the court balanced the government interest against the private interest. Here, the court found that the warrantless seizures authorized under the City’s ordinances were no different than those authorized by the U.S. Supreme Court. Warrantless seizures are not unreasonable under the Fourth Amendment when an officer has probable cause to believe that the vehicle was used to violate the law. 

The 7th Circuit also found that the City's use of administrative law judges was a post-seizure procedure that did not implicate the Fourth Amendment.  

This case not only reminds us of the importance of a well-plead complaint, but as an example of the heavy burden that plaintiffs  face when making a facial challenge under the Fourth Amendment. 

Post Authored by Katie O'Grady, Ancel Glink

Wednesday, September 7, 2016

65 ILCS 5/11-13-25 Does Not Provide Independent Cause of Action for Zoning Challenge

Many municipalities have an "abandonment rule" for legal nonconforming uses. A legal nonconforming use is one that was allowed by a community's zoning regulations at the time it was established, but becomes nonconforming because of a zoning change (text or map amendment). A legal nonconforming use is generally allowed to continue, unless it is substantively modified, expanded, or abandoned for a period of time. The abandonment rule is the subject of a recent appellate court case.  Conaghan v. City of Harvard, 2016 IL App (2d) 151034.

Conaghan owned a home in Harvard, Illinois that he rented out to separate tenants. The rental use was a legal nonconforming use. When the home was damaged, Conaghan hired a contractor to rehabilitate the property, but the permit lapsed and the property remained vacant for more than a year. The City notified Conaghan that his previous nonconforming use was not longer permitted because it had been abandoned for more than 12 months, per the City's zoning code. Conaghan applied for a special use permit to allow the rental use, but the City denied the application and Conaghan sued under 65 ILCS 5/11-13-25.

The City filed a motion to dismiss the complaint, arguing that 65 ILCS 5/11-13-25 does not provide an individual with an independent cause of action to challenge a zoning decision. The City argued that 65 ILCS 5/11-13-25 was enacted in response to the Illinois Supreme Court's decision in Klaeren v. Village of Lisle, which had held that a municipality's decision on a special use permit is quasi-judicial rather than legislative. 65 ILCS 5/11-13-25 clarified that challenges to all zoning decisions (including special uses) were to be reviewed under legislative standards.

The appellate court ruled in favor of the City, and dismissed Conaghan's challenge to the City's denial of its special use request. The court reviewed a number of cases interpreting 65 ILCS 5/11-13-25, and concluded that this statute did not provide a plaintiff with a cause of action, but simply clarified the standard of review. Since Conaghan did not bring any other challenge (i.e., declaratory relief, constitutional claims) and relied solely on 65 ILCS 5/11-13-25 as his basis for the lawsuit against the City, his case was dismissed.  

Post Authored by Julie Tappendorf

Tuesday, September 6, 2016

Court Applies "No-Party-Switching Rule" To Keep Candidate Off Ballot

Illinois law has a "no-party-switching rule" that prohibits a candidate from running for office as an independent in a general election if that same candidate had either (1) filed a statement of candidacy for a partisan office in the preceding primary election or (2) had voted for an established political party at the preceding general election.  That rule was established in 2012, and was recently applied to disqualify a candidate for Lake County Coroner. 

Thomas Rudd sought office as an independent candidate for Lake County Coroner. His candidacy was challenged and an electoral board removed him from the ballot based on the "no-party-switching rule." Specifically, the electoral board found that because Rudd had filed nominating papers for the Democratic primary, he was disqualified from running as an independent in the general election.

The appellate court agreed with the electoral board, and ordered Rudd's name off the ballot. Rudd v. Lake County Electoral Board, 2016 IL App (2d) 160649. The court rejected Rudd's argument that since he had withdrawn his primary candidacy, he was eligible to file for the general election. The court held that there was no such exception in the Election Code. The court also rejected Rudd's constitutional arguments (Free Speech, Equal Protection), and found the statute constitutional. The court concluded that it was not a significant burden for Rudd to not file in the primary as a party candidate and not vote in the primary, as the "no-party-switching rule" merely requires a candidate to "think ahead one full year before becoming an independent candidate." As a result, Rudd was ineligible to appear on the ballot as an independent candidate.

Post Authored by Julie Tappendorf

Thursday, September 1, 2016

Court Expresses Concerns Over Judge's Social Media Postings

We've reported quite a bit about the impact employee social media use can have on the employee's job and the employer. Recently, a New Mexico Supreme Court cautioned a district court judge about his Facebook activities as they related to a case pending before the judge. State of New Mexico v. Thomas.

The case involved a trial where the court found the defendant guilty of murder and kidnapping. The defendant had appealed his convictions on numerous grounds, including that the judge violated the judicial code of conduct by demonstrating bias in his social media postings. Specifically, the judge has posted the following on his judicial campaign Facebook page:
I am on the third day of presiding over my 'first' first-degree murder trial as a judge.
In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers.
The Supreme Court reversed the defendant's convictions, although it did not base its decision on the defendant's claim of judicial bias. Nevertheless, the Supreme Court did take the opportunity to express its concerns over the use of social media by judges in the opinion, as follows:
While we make no bright-line ban prohibiting judicial use of social media, we caution that "friending," online postings, and other activity can easily be misconstrued and create an appearance of impropriety. Online comments are public comments and a connection via an online social network is a visible relationship. regardless of the strength of the personal connection.
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We clarify that a judge who is a candidate should post no personal messages on the pages of these campaign sites other than a statement regarding qualifications, should allow no posting of public comments, and should engage in no dialogue, especially regarding any pending matters that could either be interpreted as ex parte communications or give the appearance of impropriety.
While the judge's postings were seemingly innocuous, the Court seemed more concerned about the appearance of impropriety when a judge comments on a case before him or her. 

Post Authored by Julie Tappendorf