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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 28, 2017

Court Finds the Election Code’s “Full-Slate Requirement” Unconstitutional

During the 2012 election, the Libertarian Party of Illinois attempted to field a candidate for county auditor in Kane County.  The Libertarian Party was considered a “new party” under Illinois election laws rather than an “established party” because at the previous election it did not poll more than 5% of the entire votes cast within the political subdivision.  Unlike an established party, the Illinois Election Code requires that a new party file “a complete list of candidates of such party for all offices to be filled in the state, or such district or political subdivision as the case may be, at the next ensuing election.” Effectively, the full-slate requirement allowed the Libertarian Party to field a candidate for county auditor only if it also proposed candidates for circuit clerk, reorder, prosecutor, coroner, board chairman, and school superintendent.  

The Libertarian Party challenged the full-slate requirement in federal court, arguing that it violated its right of political association under the First and Fourteenth Amendments. The lower court found for the Libertarian Party, and the state appealed to the 7th Circuit Court of Appeals

The 7th Circuit first determined that a restriction on a political party’s access to the ballot must be narrowly tailored to serve a compelling state interest because voters can only assert their preferences through candidates or parties. The court rejected the state’s argument that the full-slate requirement was justified by the state’s interest in political stability, preventing ballot overcrowding, and avoiding voter confusion, finding that “we have little difficulty concluding that the full-slate requirement severely burdens the First Amendment rights of minor parties, their members, and voters.” The court held that by creating unwanted candidates, the full-slate requirement actually increased political instability, ballot overcrowding, and voter confusion.  The court noted that Illinois' new party law was the only one of its kind in the country. Finally, the 7th Circuit concluded that a party’s failure to field a full-slate candidate could not preclude a party’s candidate from accessing the ballot and held that the full-slate requirement of the Illinois Election Code was unconstitutional.

Although the 7th Circuit found Illinois' statutory "full slate" requirement for new party candidates was unconstitutional, it did not strike down the other statutory requirements for new parties, including the minimum signature requirements.  Libertarian Party of Illinois v. Scholz (7th Cir. Sept. 22, 2017)

Post Authored by Jessi DeWalt & Julie Tappendorf, Ancel Glink

Tuesday, September 26, 2017

New Law Affects Certain Police Investigations

The Illinois General Assembly recently enacted the "Law Enforcement Criminal Sexual Assault Investigation Act" that will impact local police departments in Illinois.  

P.A. 100-515 requires all law enforcement agencies (including municipal police departments) to adopt a written policy regarding the investigation of criminal sexual assaults involving officers employed by the agency or department. The Act also establishes certain requirements for these investigations, including that each investigation be conducted by at least 2 investigators who have completed a state approved training program. The investigators cannot be employed by the law enforcement agency that employs the officer being investigated, although the state police and Chicago are exempt from this particular limitation. 

All Illinois police departments should make sure they have a policy in place prior to the effective date of this new law, which is January 1, 2018.

Post Authored by Julie Tappendorf

Friday, September 22, 2017

Court Upholds Chicago's "Anti-Puppy Mill" Ordinance

The City of Chicago adopted an ordinance that restricts the sale of dogs, cats, and rabbits at pet stores. Specifically, the ordinance requires pet stores to obtain their animals only from animal control or care centers, kennels operated by local, state or federal governments, or humane societies. The ordinance, commonly referred to as the "anti-puppy mill" ordinance was challenged by two pet stores and a Missouri dog breeder. The complaint argued that the ordinance was unconstitutional under both the state constitution (as exceeding the City's home rule powers) and the U.S. Constitution's Commerce clause.  
The case made its way to the Seventh Circuit Court of Appeals, which issued its opinion yesterday upholding the ordinance. First, the Court determined that the City's home rule powers allowed it to regulate animal control and welfare and was not preempted by state law. Second, the ordinance did not violate the U.S. Constitution's Commerce Clause because it did not discriminate against interstate commerce since all large-scale breeders, whether based in Illinois or elsewhere, were treated the same under the ordinance.
Post Authored by Julie Tappendorf

Thursday, September 21, 2017

Court Finds Copyrighted Data Exempt Under FOIA

An Illinois appellate court recently held that real property assessment data was exempt from disclosure under FOIA due to copyright protections. In Garlick v. Naperville Township, the requester sought an electronic copy of the Township’s real property database, in its native file format.  The Township did not provide the copy, but directed the requester to its website where he could search for the records by parcel. The requester sued, arguing that the website did not provide him reasonable access to the data. 

The trial court ruled in favor of the Township, and Garlick appealed. On appeal, the court also ruled in favor of the Township, ruling that the requested data was exempt under FOIA because the Trade Secrets Act and federal copyright laws prevented disclosure of the data in its native format because the software vendor did not consent to the disclosure. The court also noted that the Township had a contractual duty not to disclose this information under the license agreement.    

It is important for public entities to be aware of these situations where copyright or contractual obligations may prevent disclosure of records under FOIA.

Post Authored by Erin Pell, Ancel Glink

Wednesday, September 20, 2017

Illinois Municipal League Conference 2017

Later this week, the IML's Annual Conference will take place and Ancel Glink attorneys will present a variety of engaging and educational sessions.

Be sure to stop by:

Total Request Live: Night Meeting Edition
Friday, September 22 at 1:00 pm
Ancel Glink Presenters: Stewart Diamond, Keri-Lyn Krafthefer, Julie Tappendorf, Dan Bolin & Kurt Asprooth

Fight Blight Right: Smart Strategies for Nuisance Structures
Friday, September 22 at 3:30 pm
Ancel Glink Presenters:  Dan Bolin & Mark Heinle

What Every Clerk Needs to Know About Employment Issues
Saturday, September 23 at 9:15 am
Ancel Glink Presenters: Keri-Lyn Krafthefer

Public-Private Partnerships - How to Determine if P3 is Right for Your Community

Saturday, September 23 at 10:30 am
Ancel Glink Presenters: Derke Price

Stop by and say hello if you are attending the conference!

Tuesday, September 19, 2017

Federal Judge in Chicago Blocks New Requirements For Grants Affecting Sanctuary Cities

A federal judge in Chicago recently blocked the U.S. Justice Department from denying grant funds to “sanctuary cities” – cities that have declined to cooperate with federal immigration enforcement – finding the Department had exceeded its legal authority by requiring cities to either comply with immigration officials or face losing public safety grant funds. 

Attorney General Jeff Sessions imposed new requirements on the Justice Department’s Byrne Justice Assistance Grant program. That program funds state and local law enforcement initiatives. The new requirements would have allowed federal immigration authorities access to local jails. They would also require cities to provide 48 hours notice before they release an immigrant who was in the country illegally in order to allow time for them to be apprehended by federal immigration authorities. Any cities that refused to comply would have had their Byrne funds withheld.

Chicago Mayor Rahm Emanuel filed suit arguing that Chicago would not “be blackmailed” into changing its values as a “sanctuary city” that is welcoming of immigrants.  Enacting the Justice Department requirements would, claimed Emanuel, “drive a wedge of distrust” between the immigrant community and police forces.  Prior to the new requirements, Chicago had requested $1.5 million in Byrne grant funds for next year, all of which would presumably be withheld due to its status as a “sanctuary city.”

Finding that Congress provided no authorization for the Attorney General to add the new conditions to the Byrne program, the federal judge placed a temporary nationwide injunction on the new requirements in order to prevent the Justice Department from withholding grant money until there is a final determination in the suit. 

Post Authored by Jessi DeWalt, Ancel Glink

Monday, September 18, 2017

New Disclosure Law Applies to Park District Volunteers

The Illinois General Assembly recently enacted P.A. 100-0472. The Act amends the Park District Code to mandate that park districts require volunteers to submit an application prior to beginning any work as a volunteer for the park district. That application must include a question whether the volunteer has been convicted of or found to be a child sex offender. The law also prohibits a park district from knowingly hiring a volunteer who has been convicted of or found to be a child sex offender. Finally, the law requires any current volunteer to disclose any such conviction to the park district.
Post Authored by Julie Tappendorf

Wednesday, September 13, 2017

New Law Impacts Townships' Ability to Accumulate Funds

Townships need to be aware of Illinois House Bill 1896, recently enacted as P.A. 100-474. This new law, which became effective on September 8, 2017,  amended the Township Code to include a new section that specifies that townships may not accumulate funds (excluding the township’s capital fund), that exceed 2.5 times the township’s annual expenditures from the previous three fiscal years. While this law does not impact accumulations in townships’ corporate funds, it will impact all other funds, including general assistance, IMRF, etc. 

Post Authored by Keri-Lyn Krafthefer, Ancel Glink

Tuesday, September 12, 2017

Eighth Circuit Dismisses Free Speech Lawsuit Regarding Activity in City Arena

Ball was arrested and cited by the City for trespassing while passing out leaflets in the Plaza Area of the Pinnacle Bank Arena. The City claimed he was violating the Arena’s Exterior Access and Use Policy.  Ball sued, claiming the City violated his First Amendment free speech rights. The district court dismissed the case, and Ball appealed to the Eighth Circuit Court of Appeals, which also ruled in favor of the City.  Ball v. City of Lincoln, Nebraska

Ball argued that the Plaza Area was a public forum for purposes of free speech under the First Amendment. The Court applied three factors to determine whether the Plaza Area was a public or nonpublic forum:

(1) the Plaza Area’s physical characteristics;
(2) the use, function, and purpose of the Plaza Area; and
(3) the City’s intent in constructing the space.

The Court noted that a public forum is public property that is available for public expression, citing streets, sidewalks, and public parks as examples, as distinguished from a nonpublic forum, which are government properties that are not “by tradition or designation a forum for expressive activities by the public.” A restriction on expressive activity in a nonpublic forum only needs to be reasonable to be constitutional.

The Court addressed the first factor by looking at the physical characteristics of the surroundings, such as unique sidewalks that distinguished the Plaza Area from adjacent public sidewalks. As to the second factor, the Court noted that the Plaza Area functioned as a venue for commercial use by Arena tenants and was meant to facilitate safe and orderly access to the Arena, stating “that members of the public are permitted to come and go at will does not transform the Plaza Area into a public forum.” 

The Court addressed the third factor by considering the City’s intent, purpose, and policy to determine whether the Plaza Area was a public forum. The Court found no evidence the City intended it to be open to the public for expressive activities and that the purpose of the Plaza Area was to protect the contractual rights of the tenants and allow for crowd management. Considering these factors, the Court determined that the Plaza Area was a nonpublic forum.  

The Court next addressed whether the Arena’s Exterior Access and Use Policy that restricted speech in the Plaza Area was permissible. The Court noted that a restriction on speech in a nonpublic forum is permissible if it is viewpoint neutral and reasonable in light of the purpose which the forum at issue serves.  In this case, the Court found that the policy was viewpoint neutral on its face because it broadly prohibited specific expressive activity without regard to the content of the speech. 

Post Authored by Jessica DeWitt, Ancel Glink

Monday, September 11, 2017

Library Law Updates

2 new laws amend certain provisions relating to Illinois libraries, as follows:

Advisory Referenda

P.A. 100-0462 amends the Illinois Local Library Act and the Public Library District Act to add language in those Acts to authorize members of the respective library boards to place an advisory question (referendum) on the ballot. The authorization to place an advisory question on the ballot must be approved by vote of the majority of the library board members. 

If approved by a local library, the question would be placed on the ballot at the next regularly scheduled election in the city, village, incorporated, town, or township in which the public library is located. 

If approved by a library district, the question would be placed on the ballot at the next regularly scheduled election in the district.

Local Library Reporting

The Illinois Local Library Act requires the library to submit a report to the city, town, village, or township (as the case may be) within 60 days after the end of the fiscal year. That report must contain information about library revenues and expenditures, property, and various other information. P.A. 100-0245 modifies the reporting requirements to change the time-frame for a public library's submission of a statement of its financial requirements to be included in the municipality's appropriation and tax levy ordinances to require submission no less than 60 days prior to when the municipal tax levy ordinance must be certified.  

Post Authored by Julie Tappendorf

Friday, September 8, 2017

Judge Finds Incompatibility of Office at Parkland Community College

A trial court judge recently found that an associate professor at Parkland Community College could not also serve as a trustee on the Parkland College Board. Harden was an associate professor at Parkland when she decided to run for a position on the Board of Trustees after the Board decided not to rehire several faculty members. After being sworn in, Parkland’s attorney informed Harden that she could not simultaneously serve as a faculty member and on the Board of Trustees.  

The issue was whether Harden could legally serve as both a trustee on the Parkland Community College Board and an employee of Parkland Community College. The judge determined that she could not, finding that an incompatibility of office existed between the two positions. One of the standards for determining whether there is an incompatibility between two positions is whether one position (the Board of Parkland Community College) has extensive responsibilities over the operation of the other position (an employee of Parkland Community College). 

Interestingly, the judge gave Harden the option of remaining on the Board or continuing as an associate professor. Previous courts have found that where an incompatibility exists, acceptance of the second position is ipso facto a resignation from the first position, meaning Harden would have resigned her teaching post when she was sworn in as trustee. 

Post Authored by Jessica DeWalt, Ancel Glink

Thursday, September 7, 2017

Town Ordinance Unconstitutional as Restriction on Commercial Speech

On August 22, 2017, the Second Circuit Court of Appeals held that a Town’s Ordinance regulating solicitation by day laborers violated the First Amendment as a content-based restriction on speech. You can read the case here.

In 2009, the Town of Oyster Bay in Long Island enacted an Ordinance prohibiting anyone standing on the sidewalk to solicit employment and barring drivers from stopping to solicit or hire employment. The Town’s stated reason behind this Ordinance was to make sidewalks and streets safer for both pedestrians and traffic, creating a legitimate town interest for enactment. However, the Second Circuit noted in its decision that the record indicated the actual reason for the enactment of such an Ordinance was to regulate day laborers who are seeking employment in Oyster Bay. The court also highlighted the fact day laborers have made their living soliciting work in the Town for years, and the Ordinance passed in 2009 was an attempt to remove them from the sidewalks where they would look for their employment.

Using the test from Central Hudson, the court looked at 4 factors: 

1.  whether the Ordinance restricts speech that concerns lawful activity, 
2.  whether the Town’s asserted interest is substantial, 
3.  whether the Ordinance directly advances that interest, and 
4.  whether the Ordinance is more extensive than necessary to serve that interest. 

The Court of Appeals primarily focused on the last prong of this test. In order to pass this step, the court held that the Ordinance would have to be narrowly drawn to further the Town’s interests. The court concluded that although the stated purpose of the Ordinance was that of legitimate public interest, there were several other ways an individual could solicit employment without causing a threat to public safety. Also, because the Ordinance would apply to other lawful activities, such as students soliciting cars for a high school car wash fundraiser, it restricted a far greater variety of constitutionally protected speech than that posing a threat to both pedestrian and traffic safety.

The court also determined that the Ordinance was an overbroad restriction on lawful commercial speech because it would require Town officials to monitor and evaluate speech made by those who are stopping drivers to determine whether the content of such was permissible or not. The court noted it would not apply to the most common forms of solicitation, that being stopping of vehicles on public rights of way for reasons such as as hailing a cab or a bus. Rather, the Town’s clear principal interest was to suppress speech of a particular type, and not to advance the interests in traffic and pedestrian safety. 

Post Authored by Katherine Takiguchi & Julie Tappendorf, Ancel Glink

Wednesday, September 6, 2017

New Laws Relating to Government Contracts

2 new Illinois laws were recently enacted to modify statutory provisions relating to public contracting requirements and procedures, as summarized below:

Prevailing Wage Amendment

P.A. 100-0154 amends the Prevailing Wage Act to give public bodies the option to post the prevailing rate of wages on their website, rather than publish the prevailing rate of wages in the newspaper. The statute allows the alternative "publication" if (1) the Department of Labor ascertains the prevailing rate of wages for the public body and (2) the public body posts on its website a notice of its prevailing wage determination with a hyperlink to the prevailing wage schedule for that locality that is published on the Department of Labor's website.

Competitive Bidding Amendments

The Illinois Municipal Code requires municipalities to competitively bid any public project if the expense will exceed $20,000.  P.A. 100-0338 increases that amount to $25,000. 

The Public Act makes similar changes to the Illinois Local Library Act and the Public Library District Act to increase the public improvement expenses to trigger competitive bidding from $20,000 to $25,000.  

Post Authored by Julie Tappendorf

Tuesday, September 5, 2017

Municipal Minute Turns 6!

It has been six years since we published our first post on Municipal Minute. I can't believe we've been around that long! 

Our first post was titled Tweeting into Trouble, and was published on September 3, 2011 - a couple of days before Labor Day.  Since then, we have published more than 1,200 articles on Municipal Minute informing our readers about new legislation, court cases, and trending topics of interest to local government officials and employees. Our most popular (read and shared) articles generally fall into two categories: (1) employees behaving badly on social media and (2) FOIA and OMA opinions issued by the Illinois Public Access Counselor. That is no coincidence as the author has a key interest interest in both topics, which means our readers are going to hear about these issues!

We are happy and proud our little local government blog has been read, shared, tweeted, liked, and forwarded so many times since that first post went live in 2011. We hope you stick around for another six years because it doesn't look like we are going to run out of things to talk about any time soon.

Thank you,
Julie Tappendorf
Ancel Glink

Friday, September 1, 2017

Upcoming Webinar: Solar Planning

On September 11, 2017, the Planning and Law Division of the American Planning Association is hosting the webinar “Solar Planning 101: Opportunities & Obstacles.”  Attendees will learn how to integrate solar energy into planning, zoning, and historic preservation processes from two law professors who specialize in these issues. The program will highlight Hartford, Connecticut, a DOE SolSmart Gold community, which has dramatically reduced barriers to solar and serves as a model for other cities.

Here are the details:

Monday, September 11, 2017, 11:00 a.m. – 12:30 p.m. Eastern (10:00 a.m. - 11:30 a.m. Central)

CM | 1.50 | Law
CLE 1.50 through Illinois State Bar

You can learn more about the webinar and register here