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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, December 29, 2016

Illinois Court Rejects Religion-Based Challenge to Community College’s Vaccination Policy

Nicholas George sued Kankakee Community College (KCC) and Presence Hospitals PRV (Presence) alleging violations of his constitutional rights to religious freedom, equal protection, and due process, among others after George (a student enrolled in KCC’s paramedic program) was prohibited from participating in the mandatory clinical portion of a paramedic course operated by Presence because he refused vaccinations against influenza, hepatitis B, measles, mumps, and rubella (MMR). The vaccinations were required by the Presence-operated hospital policy.  Although George had informed the hospital that he was objecting to the vaccinations on religious grounds, he was placed on academic warning and his request for an exemption to the vaccination policy was denied. After George’s complaint was initially dismissed, he appealed to an Illinois appellate court.

With respect to George’s claim that his religious freedom rights were violated, the court found that Presence’s policy did not discriminate against religion since it required all persons interacting with patients receive the MMR vaccination. Although the Illinois constitution protects religious opinions, state actors are permitted to impose regulations that could restrict religious freedom if those restrictions promote the safety interests of the state, as was the case here.

George also alleged that his equal protection rights were violated because other individuals were allowed to work or take classes in the hospital without receiving vaccinations. The court found George’s complaint insufficient since he did not allege that other students in his paramedic course were allowed to participate in clinical rotations without receiving the proper vaccinations.  Even if George could show he was treated differently than other students enrolled in a hospital course, students seeking entry into clinical rotations are not members of a protected class and therefore the court would apply the rational basis test.

George also claims that his procedural due process rights were violated because Defendants failed to give him with notice and a hearing before disqualifying him from the paramedic course. The court also rejected this claim based on its earlier determination that his free exercise rights were not violated.

In short, the appellate court affirmed the trial court’s dismissal of George’s complaint. George v. Kankakee Community College.

Post Authored by Katie O'Grady, Ancel Glink

Wednesday, December 28, 2016

Court Interprets Tort Immunity Act in Connection with Bike Death at Forest Preserve

The estate of Molly Anne Glynn sued the Forest Preserve District of Cook County following Glynn’s death after she was stuck by a tree limb while riding her bicycle on one of the District’s paved bicycle paths. The District claimed it was immune from liability under the Local Government and Governmental Employees Tort Immunity Act. Section 3-107(b) provides immunity for an injury caused by a condition of “[a]ny hiking, riding, fishing or hunting trail,” while section 3-106 provides immunity from ordinary negligence “where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities.”

Plaintiff responded that although the bicycle path itself was recreational property, the tree that struck Glynn was about 7 feet from the bike path in an area of Erickson Woods that was not permitted to be used for recreational purposes, so the District could not rely on the Tort Immunity Act.

The trial court had certified two questions to the Illinois appellate court which were addressed in Foust v. Forest Preserve District ofCook County.

The first question was: 
(1) Does a tree whose base is located about seven feet from the edge of a forest preserve bicycle path, and that has a limb overhanging the approximate width of the path which breaks off and falls onto a cyclist on the path, constitute a condition of property intended or permitted to be used for recreational purposes pursuant to Section 3-106 of the Tort Immunity Act?
The appellate court first analyzed whether Erickson Woods was permitted or intended for recreational purposes as a whole or whether the intended use of the specific location of the tree was relevant. The court relied on the District’s brochure, which stated that Erickson Woods was suitable for “picnicking, hiking, cycling, inline skating, cross-country skiing, and fishing”, among other activities, to find that the property as a whole was intended or permitted to be used for recreational purposes. As a result, 3-106 immunity applied.

The second question certified by the trial court was: 
(2) Does a tree whose base is located about seven feet from the edge of a forest preserve bicycle path, and that has a limb overhanging the approximate width of the path which breaks off and falls onto a cyclist on the path, constitute a condition of a trail pursuant to Section 3-107(b) of the Tort Immunity Act? 
With respect to immunity under section 3-107(b), the court determined that the District was not immune because the tree limb was not a condition of the riding trail since it was hanging about the trail and did not fall until it hit the rider. The court stated that had the facts been different (i.e. had the tree limb fallen to the ground and the rider collided with it), it could have been a condition of the path under those facts.  But, since the tree limb was not a part of the trail under these circumstances, the District was not covered by 3-107(b) immunity.

Post Authored by Katie O'Grady, Ancel Glink

Tuesday, December 27, 2016

City Ordinance May Have Established Employment Contract

In 2007, Anthony Boswell was hired as the Executive Director of the City of Chicago’s Office of Compliance.  Prior to this period, the City of Chicago had been involved in a series of lawsuits later known as the Shakman litigation, which resulted in the City's agreement to eliminate political consideration from employment. The federal courts eventually adopted the City’s hiring plan which included Boswell, as the head of the Office of Compliance.  Boswell was appointed for a fixed term to be the head of the Office of Compliance and could not be removed except for cause.

Boswell resigned in 2010 and two years later sued the City of Chicago for breach of contract and promissory estoppel.  Boswell argued his work was met with “resistance and hostility” and he was often subject to “a campaign of petty and overt harassment.”  

The trial court dismissed the case, but the appellate court reversed, finding that Boswell's argument that the City's ordinance created a contract for the executive director position was sufficient to move forward.  In the court's view, the ordinance specified the intent to create a contract with the executive director and the intent of by the city council to set the executive director apart from every other city employee. The court also held that the executive director of an independent compliance office is not a typical "at-will" employee and should be able to rely on some contractual rights in order to exercise independence, discretion, and latitude necessary for this type of position. So, the court reversed the dismissal of Boswell's claims, and the case moves to the next stage where Boswell will have to show that the City's ordinance actually created a contract. 

The court also addressed Boswell’s promissory estoppel claim. It acknowledged that estoppel against public bodies is generally disfavored and allowed in only in rare circumstances, when necessary to prevent fraud and injustice. Here, however, Boswell's claims that the City promised that his office would be independent from political pressures and that he would be in control over his office were sufficient to move his estoppel claim forward. Boswell v. City of Chicago, 2016 IL App (1st)150871.

Post Authored by Megan Mack, Ancel Glink

Wednesday, December 21, 2016

FOIA Lawsuit Not Properly Brought Against Individuals

Linda Korner filed a FOIA request with the Illinois Department of Financial and Professional Regulation in 2013, asking for copies of an "investigative file" regarding complaints she had filed with the Dept. against veterinarians who treated her dog. The Department denied her request. Two months later, a new law was passed making complaints and investigatory materials confidential. 

Korner filed suit shortly thereafter, naming the Attorney General, the Department Secretary, and the Public Access Counselor as defendants. Her complaint asked the court to declare that the defendants violated Korner's rights under FOIA by withholding the documents she requested. She argued that since the confidentiality law did not come into effect until August of 2013, two months after the Department denied her FOIA request, the Department was obligated to provide her with her requested documents.

The defendants filed a motion to dismiss, arguing that her FOIA lawsuit was not properly filed because it only named individuals as defendants. The court agreed, and dismissed her suit because she failed to name any public body as a defendant. Korner v. Madigan, 2016 IL App (1st) 153366 

Post Authored by Julie Tappendorf

Wife's Auto-Forwarding of Husband's Emails May Violate Wiretapping and Electronic Surveillance Act

The federal Wiretapping and Electronic Surveillance Act makes it unlawful for anyone to intercept any wire, oral, or electronic communication. The 7th Circuit Court of Appeals recently interpreted this Act to prohibit a wife's "interception" of her husband's emails that were then used in the couple's divorce proceeding. Epstein v. Epstein (7th Cir. 12/14/16)

According to the court decision, the wife had placed an auto-forwarding "rule" on her husband's emails that would automatically forward all of his email messages to her email account. Her husband learned of the interception when her attorney disclosed certain of the emails in discovery in the divorce proceeding. He filed a lawsuit against her and her attorney, alleging violations of the Wiretapping and Electronic Surveillance Act. 

The 7th Circuit dismissed the husband's claims against his wife's lawyer. However, the court allowed his claims against his wife to proceed to trial, finding that he stated a valid claim that her placement of the auto-forwarding rule could be considered an "interception" under the Act. The case was remanded for the district court to determine whether the email forwarding meets the Act's requirement that an interception be "contemporaneous." 

Post Authored by Julie Tappendorf

Tuesday, December 20, 2016

Liquor Store Owner's Claims of Government Harassment Can Move Forward to Trial

The 7th Circuit Court of Appeals recently heard an appeal in a case filed against a municipality and its mayor by a liquor store owner who claimed that he suffered from a "campaign of harassment and outright violence." Brunson v. Murray, (7th Cir. 12/13/16). The case is lengthy and includes a number of constitutional challenges, but in summary, the court allowed the store owner's equal protection and due process claims to proceed to trial.

Brunson owned the only package liquor store in Bridgeport, Illinois. According to the court's opinion, the mayor had also bid on the purchase of the liquor store, but was outbid by Brunson. The mayor also had an interest in other liquor establishments in town that competed with Brunson's liquor store. Brunson filed an application to renew his liquor license. The mayor, as the local liquor commissioner, has the statutory authority to approve renewals, but instead of approving or denying Brunson's application, he simply held on to the application and Brunson was forced to close his business. 

Brunson then contacted the state liquor commission, which issued a written order that the mayor had no authority to sit on the renewal application indefinitely, and that Brunson was allowed to operate the store pending a hearing before the mayor. Shortly before the hearing, the mayor renewed the license and backdated it.

According to the court's decision, Brunson was then subjected to a variety of harassment from the mayor and his employees, including break-ins and an assault at his store that ultimately ended in Brunson being arrested. 

Brunson then filed suit against the mayor, police chief, state's attorney, the city, and others alleging claims of (1) false arrest; (2) equal protection and (3) due process violations, as well as state law claims. The district court rejected all of Brunson's claims, and he appealed to the 7th Circuit.

The 7th Circuit agreed with the district court on its dismissal of the false arrest claim. However, the court reversed the dismissal of Brunsons' equal protection and due process claims. 

On Brunson's equal protection claim, the court held that Brunson had provided sufficient evidence of a pattern of discriminatory behavior on the part of the city, had shown hostile intent and animus, and that there had been no rational basis for refusing to renew the liquor license. The court acknowledged that "class of one" equal protection claims must be handled carefully to avoid "turning every squabble over municipal services...into a federal constitutional case." Nevertheless, in this case, the harassment against Brunson was sufficient to move the claim forward to trial.

On Brunson's due process claim, the court refused to extend absolute immunity to the mayor in his actions in failing to renew Brunson's liquor license application. The court distinguished between revocation/suspension of a liquor license (in which the mayor has broad discretion and, therefore, absolute immunity) from the "pro forma" renewal process (in which the mayor has little to no discretion). In this case, Brunson's due process claims against the mayor could proceed to trial, although the court did dismiss the due process claims against the city itself.

The case is long, but it does provide a lot of guidance to local governments on how the federal courts will address equal protection and due process claims against municipalities and municipal officials. 

Post Authored by Julie Tappendorf

Monday, December 19, 2016

PAC Finds FOIA Violation Where Public Body Doesn't Respond

In its 11th binding opinion of the year, the Public Access Counselor (PAC) office of the Attorney General found a public body in violation of FOIA for failing to "appropriately respond" to a FOIA request.  PAC Op. 16-011.

In July, Glotz submitted a FOIA request to the Housing Authority of Cook County asking for communications between a housing developer (Buckeye) and its representatives, copies of applications submitted by Buckeye, and any "negative remarks" or tenant complaints about Buckeye projects. In August, the Authority contacted the requester to let him know that the Authority had not located any responsive records and asking for clarification about his request. The requester clarified his request, but the Authority failed to respond, and in September, Glotz filed a complaint with the PAC. The Authority did not file a response to the complaint.

The PAC found the Authority in violation of FOIA by not responding to the initial FOIA request within 5 business days. Although the Authority did work out a clarification of the request with the requester, the PAC found the Authority in violation for failing to respond to the clarified request either. 

Unfortunately, as with almost all of the PAC's binding opinions, there is no new guidance for public bodies in this binding opinion as it simply reminds public bodies that they must comply with FOIA within the statutory time-frame.

Post Authored by Julie Tappendorf

Friday, December 16, 2016

New Sick Leave Legislation May Require Policy Revisions

Paid sick leave is one of the hottest employee benefits this year, with a number of municipalities, including Chicago, some counties, including Cook County, and a handful of states enacting 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 Illinois Employee Sick Leave Act (P.A. 099-0841) will require employers to allow employees to use their 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." In other words, an employer cannot impose greater restrictions on the use of sick leave for family members than it imposes for an employee's personal medical conditions. Therefore, if an policy currently allows sick leave use in half day increments for the employee's illness, injury or medical appointment, then it should impose that same requirement if the sick leave use is for an eligible family member.

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). In other words, if an employee accrues 12 days of sick leave each year, he or she may use six of those 12 days for eligible family member use, even if, for instance, the employee only has six days of sick leave in their bank at the time.

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.

Many local governments have maintained sick leave policies that restrict the use of sick leave to the employee only or to family members which do not include all relatives identified in the legislation. Those policies will need to be revised prior to January 1st. 

Post originally authored by Margaret Kostopulos, Ancel Glink

Thursday, December 15, 2016

Facebook Posts Used As Evidence at Trial

In another installment of "be careful what you post," a federal appeals court convicted a Chicago man for illegal gunrunning based, in part, on evidence the man posted on Facebook. U.S. v. Lewisbey (7th Cir., 12/9/16).

Lewisbey was a Chicago-based gunrunner who used a fake Indiana ID to buy guns at Indiana gun shows and bring them back to Illinois to sell.  After discovering Lewisbey's Facebook posts bragging about his gunrunning exploits, federal agents set up a sting and arrested and charged him with unlawfully transporting and dealing firearms. He was convicted by a jury.

Lewisbey appealed to the 7th Circuit Court of Appeals arguing, among other things, that his Facebook posts and text messages should not have been admitted at trial.  He claims they should have been excluded as hearsay and because they were not properly authenticated.

The 7th Circuit rejected Lewisbey's arguments. First, and most importantly, Lewisbey admitted at trial that the admitted Facebook posts were made by him. In addition, his Facebook page listed his nickname, date of birth, and his place of residence. The email address associated with his Facebook page was linked to Lewsibey's iPhone. The Facebook page included 100s of photos of Lewisbey. Finally, messages on his Facebook page specifically discussed Lewisbey's trips to gun shows in Indiana on dates where gun shows actually occurred. In short, the court found adequate evidence to support the trial court's admission of the Facebook evidence at trial. 

Post Authored by Julie Tappendorf

Wednesday, December 14, 2016

Illinois Appellate Court Clears Ambiguity after Review of a Board of Election Decision

In a recent case, an Illinois appellate court found that a candidate who signed nominating petitions for Democratic candidates (including herself) and a Republican candidate could still appear on the ballot.  Schmidt v. The Illinois State Board of Elections et al.  

Julie Schmidt filed an objection with the Illinois State Board of Elections claiming that Anna Moeller, a Democratic candidate for the office of Illinois Representative for the 43rd Representative District, should be barred from running in the March 15, 2016 primary election ballot. Schmidt argued that Moeller’s nominating papers were invalid because, during the same election cycle, Moeller signed her own statement of candidacy as a Democratic Party candidate, as well as the nominating petition of a Republican Party candidate running for the office of Kane County Recorder. 

Schmidt objector’s petition relied on section 8-8 of the Election Code (10 ILCS5/8-8 (West 2014)), which provides that “[a] ‘qualified primary elector’ of a party may not sign petitions for or be a candidate in the primary of more than one party.”  Moeller responded that she was not ineligible to run for office under Watkins v. Burke, which states that “when a person signs for more than one political party at the same election, the first signature in time is valid and all subsequent signatures for a different political party are invalid.”

The court acknowledged that Moeller signed petition sheets in support of her own nomination on September 5, 2015 and then signed the Republican candidate’s nomination papers on September 26, 2015.  Moeller then filed her own nomination papers with the Board on November 23, 2015.  Moeller conceded that her signature on the Republican petition was invalid, since she affiliated herself with the Democratic Party prior to signing the Republican candidate’s nominating petition.  However, she argued that her own nominating paper were valid since the papers were signed first in time.

The court found that although Moeller violated section 8-8 of the Election Code by signing petitions or being a candidate in the primary of more than one party, there was no specific penalty in the Election Code for a violation.  The court then applied Watkins and upheld her candidacy since her signature on her own nomination papers preceded her later signatures on the petition for a Republican candidate. 

Post Authored by Katie O'Grady, Ancel Glink

Tuesday, December 13, 2016

Court Interprets "Sore Loser" Candidacy Rule

We are likely to see a lot of election cases over the next few months, as the local election season is under way. In today's case, the appellate court takes a look at the "sore loser" law in the Election Code. That law states that a candidate who files nomination papers as a partisan candidate in the primary election and is defeated cannot then file to be a write-in candidate in the general election for that same position. The question in this case was whether the "sore loser" law applies to just any office or the same office for which the candidate filed at the primary. In Ahmad v. Board of Election Commissioners of Chicago, 2016 IL App (1st) 162811, the court held that the law applies only to the same position (or in that case, vacancy).

Maryam Ahmad ran as a Democratic candidate for election to fill the judicial vacancy of Judge Brim. She was defeated at the primary election. She subsequently filed as a write-in candidate for the judicial vacancy of Judge Hopkins for the general election. The Chicago Board of Elections rejected Judge Ahmad's write-in declaration, finding that she was disqualified under the "sore loser" law because she had been defeated at the primary election. She appealed, and the court issued an expedited ruling to allow her to be listed as a write-in candidate.

The case returned to the appellate court when another candidate for the same vacancy appealed this determination. The appellate court again ruled in favor of Ahmad, finding that her second candidacy did not give Ahmad a "second bite at the apple" because her first loss was not for the same race as her second candidacy.  In short, the court stated that multiple vacancies in a judicial subcircuit are different positions, and the sore loser rule did not apply in these circumstances. 

Post authored by Julie Tappendorf

Monday, December 12, 2016

Tribune Sues Chicago Police Department for Failure to Respond to FOIA Request After McDonald Shooting

Our loyal followers will recall that this past August, we reported on PAC Opinion 16-006, a binding opinion that found the Chicago Police Department in violation of FOIA when it failed to provide the requester, CNN, with copies of emails sent/received by Chicago police officers on their private accounts and devices that related to the Laquan McDonald shooting. Now, the Chicago Tribune has filed a lawsuit making similar allegations against the CPD that it violated FOIA by failing to produce requested emails relating to the Laquan McDonald shooting.

Specifically, the complaint alleges that the Tribune submitted a FOIA request for emails related to the shooting on December 17, 2015.  The Tribune then received responses from the CPD that the request was unduly burdensome.  The Tribune alleges that on March 22, 2016, the CPD promised to produce 375 emails, but failed to do so.  The Complaint further alleges that the denial amounts to retaliatory motivation against the Tribune reporter who submitted the request as she had previously been involved in a separate lawsuit by the Tribune against CPD. 

The case has been set for an initial case management conference on April 4, 2017.  We will continue monitoring this case and keeping you updated.

Post Authored by Erin Baker, Ancel Glink

Thursday, December 8, 2016

Illinois Appellate Court Upholds Denial of PSEBA Benefits

In a recent Illinois case, a court affirmed a Village's denial of PSEBA benefits, finding that the firefighter applicant failed to show that he was responding to what was reasonably believed to be an emergency.  Wilczak v. The Village of Lombard, 2016 IL App (2d) 160205 (December 5, 2016).

A firefighter for the Village of Lombard injured his shoulder while lifting a disabled patient.  Following treatment, he had a number of complications and was unable to continue working. He was granted line-of-duty disability benefits the Illinois Pension Code. He then applied for health insurance benefits under PSEBA, but the Village denied his request. The firefighter filed a complaint for declaratory judgment that he was entitled to PSEBA benefits. He argued that he was entitled to PSEBA benefits because his injury occurred during what he reasonably believed to be an emergency.  The trial court granted the Village’s motion for summary judgment, and the firefighter appealed. 

On appeal to the Illinois Appellate Court, the Village acknowledged that the firefighter suffered a “catastrophic injury” under PSEBA.  The main issue then before the appellate court was whether the injury was sustained in response to what the firefighter reasonably believed to be an emergency.  The Illinois Supreme Court held in Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL 110012, that an emergency under PSEBA is an unforeseen circumstance involving imminent danger to a person or property requiring an urgent response.  

In applying that definition to these facts, the Illinois court found that it was not reasonable for the firefighter to believe that he was responding to an emergency and affirmed the denial of PSEBA benefits.  The court noted that the record showed that the injury occurred while dispatched for an invalid assist, which the firefighter should have known did not involve an emergency from the beginning of the call. While the court acknowledged that the firefighter may have subjectively believed there was an emergency initially, once he arrived at the scene, he could have confirmed that it was not an emergency as the patient was not injured and did not require medical attention.  The court pointed out that there was no immediate danger to the patient or the firefighter and that no unforeseen circumstances arose.  

Post Authored by Erin Baker, Ancel Glink

Wednesday, December 7, 2016

Chicago Prevails in Food Truck Lawsuit, Validates Different Treatment for Brick-and-Mortar Restaurants

This week, the City of Chicago prevailed in a lawsuit challenging its food truck regulations, confirming that municipalities may regulate food trucks differently than traditional restaurants. LMP Services v. City of Chicago.  

In 2012, Chicago City Council passed a food truck ordinance, including requirements that food trucks must have a GPS system installed in their trucks for city monitoring, and that food trucks must stay more than 200 feet away from retail food establishment. Shortly, after the ordinance was enacted, the owner of the “Cupcakes for Courage” food truck, filed a lawsuit arguing that the 200-foot rule and the GPS requirement violate the due process and search and seizure provisions of the Illinois Constitution. The Court said the lawsuit “pits the interests of the traditional brick-and-mortar restaurant against the young rising pop star-the food truck.”

The food truck business claimed that the 200-foot rule violates its due process rights, specifically the right to pursue a trade or business free from arbitrary and irrational regulation. However, the Court found at least two rational bases for the City’s 200-foot rule: balancing the interests of both restaurants and food trucks, and managing sidewalk congestion. The Court distinguished a 1960 Illinois Supreme Court case, which struck down a 650-foot proximity limit between gas stations, finding that food trucks and restaurants are different types of businesses. Additionally, the Court found that the 200-foot rule is rationally related to the City's goal to reduce sidewalk congestion, although the rule does not solve all sources of pedestrian congestion.

Cupcakes for Courage also claimed that that the GPS requirement was an unlawful search and seizure, but the Court concluded that the requirement was not a search because it was not surreptitious, and only applied when the food truck is open for business or being serviced at a commissary. Even if the GPS requirement were a search, it would be reasonable because it satisfied the standards for warrantless searches of closely regulated businesses, such as food service. Finally, the Court found that the business, operating in public, did not have a reasonable expectation of privacy.

While the Cupcakes for Courage crew plans to appeal, this decision offers guidance to Illinois municipalities, and supports different sets of rules for mobile food vendors and traditional restaurants.

Authored by Daniel J. Bolin and Amanda Riggs, Ancel Glink