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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, March 29, 2018

No OMA Violation to Require Public To Leave Building During Closed Session

Recently, the Illinois Attorney General issued an advisory opinion ruling in favor of a public body in  connection with a complaint that the public body violated the Open Meetings Act. 2014 PAC 28285

A resident filed a complaint claiming that a city council violated the OMA in two respects: (1) in requiring members of the public to leave the council chambers and wait outside while the city council conducted a closed session and (2) when the council amended a motion to consider the purchase of property during open session at that same meeting.  

The PAC did not find a violation on either count. First, the PAC acknowledged that an appellate court had previously ruled that it was not a violation of the OMA to require the public to leave the building during a closed session. In that case (In re Foxfield Subdivision), the closed session had lasted from 7:10 pm to 1:15 am, and according to the court, it was a cold and blustery night. The PAC noted that the time period the public had to wait outside in this situation was shorter (about 40 minutes). Second, the PAC determined that the manner in which a public body makes motions, including amending those motions, is not governed by the OMA, so the PAC declined to address that issue. However, the PAC did find that the council's agenda on this item did comply with the OMA requirement of listing the general subject matter of the action.

Full disclosure: Ancel Glink represents the public body that was the subject of this complaint.

Monday, March 26, 2018

Creation of New Records Not Required By FOIA

The Illinois Appellate Court recently addressed the issue of the creation of new records under FOIA.  In Martinez v. Cook County State’s Attorney’s Office, Martinez submitted a FOIA request to the State's Attorney's Office (SAO), seeking “each instance in which information obtained using a cell site simulator… was used in a criminal prosecution….”  The SAO denied the request, claiming that FOIA does not require a public body to release nonexistent records, and even if the records did exist, compliance would be unduly burdensome.  The SAO contended there was no way of knowing if any cases exist or the identity of criminal cases where a cell site simulator was used to obtain evidence. 

In response to the denial, Martinez requested that the SAO send an email to every attorney in the office, asking them to identify any cases in which such evidence was obtained.  He also requested that the SAO conduct a server-wide search of emails.  The SAO again responded with a denial, arguing that the request was unduly burdensome.  The SAO offered to discuss narrowing the requests and Martinez subsequently narrowed his requests to only “terrorism and narcotics cases.”  The SAO again denied the narrowed request as nonexistent, unduly burdensome, and exempt under attorney-client privilege, attorney work product, and the deliberative process exemption.   

Martinez then sued the SAO  alleging violations of FOIA.  The trial court ruled in favor of the SAO , and the Appellate Court affirmed. The Appellate Court found that the first request sought “instances,” not actual records.  The Court has previously held that the requested records must be reasonably identified as a record, and not a request for data, information, or statistics which an agency may not generally create.  The Court found that the SAO's denial was proper as FOIA does not require a public body to create new records in response to a FOIA request.  As for the second request, the Court noted that the request was presented as a question, and FOIA does not require the public body to answer questions.  Further, the Court noted that the second request sought a search, not a public record.  As such, the Court found that both denials were warranted. 

Post Authored by Erin Pell, Ancel Glink

Tuesday, March 20, 2018

Public Employee Wage Records Subject to Release Under FOIA

In PAC Op. 18-005, the PAC found a public body in violation of FOIA for denying a request for employee compensation records. The requester had filed a FOIA request for a copy of records identifying the salaries paid to all city employees for a two year period. The city denied the request, arguing that the records were exempt from release under 7(1)(c) as release would be an invasion of personal privacy. The denial was appealed to the PAC, which rejected the city's argument, finding that the salary information of public employees is subject to release under FOIA. 

This ruling is consistent with previous PAC opinions finding that the public is entitled to access salary and compensation records of public employees.

Monday, March 19, 2018

Termination for Violation of Residency Requirement Upheld

The Seventh Circuit Court of Appeals recently addressed a municipality's residency requirement for firefighters in Cannici v. Village of Melrose Park

Cannici lived in Melrose Park until 2008 when he and his family purchased a home in Orland Park. According to the opinion, Cannici lived in the Melrose Park home during the week, and his family lived in the Orland Park home. In 2013, Cannici rented out the Melrose Park home, but reserved a portion of the home in the basement for his exclusive use in order to maintain residency. However, Cannici slept at his Orland Park home from 2013 to 2016, when the Village brought charges against him for violating the residency requirement. The Village conducted a hearing to hear testimony and arguments relating to his residency, and at the conclusion of the hearing, terminated him.

Cannici then sued the Village in federal court, arguing that his termination violated his due process and equal protection rights. The Seventh Circuit held that his procedural due process rights were not violated where he had sufficient relief under the Administrative Review Act. The Court also rejected his claim that his equal protection rights were violated where the Village followed the statutory procedure prior to termination in providing him with written charges, a hearing, and the opportunity to present evidence. 

Post Authored by Julie Tappendorf 

Thursday, March 15, 2018

City Preliminarily Enjoined From Evicting Residents From Group Home

The City of Springfield imposes zoning restrictions on family care residences that require a distance of at least 600 feet between these uses. That zoning regulation was the subject of a federal lawsuit that argued that the City discriminated against three disabled individuals living in a residence located within 600 feet of an existing disabled group home. 

When the city learned that a particular home was being used as a group home and that it was located across the street from another group home it notified the second home that it would need to cease the group home use or obtain a conditional permitted use (CPU). The owners applied for the CPU, but the city denied it after a hearing at which a number of neighborhood residents objected to the use. Following that denial, plaintiffs sued, claiming that the city discriminated against disabled persons in violation of the Fair Housing Act, Americans With Disabilities Act, and the Rehabilitation Act of 1973.

Plaintiffs' theories of liability were as follows: (1) the 600 foot spacing requirement discriminates against disabled persons because there is no similar spacing requirement for non-disabled persons; (2) the spacing requirement has a disparate impact on disabled persons; and (3) by denying the CPU, the city failed to make a reasonable accommodation.

The trial court granted plaintiffs an injunction against the city from evicting the residents while the case proceeded. The city appealed, arguing that plaintiffs did not meet the injunction standards because they failed to show a reasonable likelihood of success on their theories of liability.

The Seventh Circuit agreed with the trial court on one basis - that the plaintiffs had a reasonable chance of success on their "reasonable accommodation" theory. Specifically, the Seventh Circuit determined that the request by plaintiffs that the city approve a CPU to allow their group home was a reasonable request that could support an argument that it was a reasonable accommodation. As a result, the Seventh Circuit upheld the preliminary injunction while the merits of the case continue. Valencia v. City of Springfield (7th Cir. March 1, 2018)

Post Authored by Julie Tappendorf

Wednesday, March 14, 2018

No Bias Shown to Disqualify Electoral Board Member

Jan McDonald filed petitions to run for Cook County Clerk in the March 20th primary election. Objections were filed, and the Cook County Electoral Board convened to hear the objections. McDonald filed a motion with the Electoral Board to disqualify Cook County Clerk David Orr from serving on the Board (under state law, the Cook County Clerk, States Attorney, and Circuit Court Clerk make up the Electoral Board). She argued that Orr should be replaced with a public body member appointed by the Chief Judge.

Two days after she filed her motion to disqualify Orr with the Electoral Board, she filed a lawsuit seeking the same relief. The trial court ruled against her, finding that Orr's continued participation on the Electoral Board did not violate Section 10-9 Election Code because he was not a current candidate for the County Clerk position. Section 10-9 of the Election Code provide that a member of the board who is a candidate for an office for which an objection has been filed is disqualified from serving on the Electoral Board that hears that particular objection - but, since Orr was not a candidate for that office, this section did not apply.

The court also rejected McDonald's arguments that Orr or Orr's replacement, which by statute would be the County Treasurer had a personal or political interest and conflict under Cook County General Order No. 21. The court determined that the mere fact that Board members may be political allies or opponents does not constitute the type of bias to support disqualification. As a result, the court rejected McDonald's argument for disqualification of Orr and other Electoral Board members.  McDonald v. Cook County Electoral Board, 2018 IL App (1st) 180122-U.

In a related decision issued a day after this decision, the appellate court also remanded McDonald's appeal of the Electoral Board's decision to remove her from the ballot for alleged widespread alteration of petition sheets in her nomination papers. McDonald v. Cook County Electoral Board, 2018 IL App (1st) 180406.

Post Authored by Julie Tappendorf

Tuesday, March 13, 2018

Lawsuit Challenging Recapture Ordinance Barred Because it Was Untimely

Property owners filed a lawsuit against a municipality challenging the legality of a recapture ordinance that imposed recapture fees on future subdivision of their property. The municipality filed a motion to dismiss the case, arguing that the case was filed after the statute of limitations expired, so it was not timely and that the recapture ordinance was valid. 

The recapture ordinance was approved by the village board in 2011. Under the recapture ordinance, the village sought to recover its costs of putting in certain public improvements that benefited properties near these improvements. The trigger to pay the recapture was subdivision of the benefited properties.

Six years after the recapture ordinance was approved, plaintiffs filed a complaint against the village claiming that the recapture agreement was unenforceable because it was signed only by the village, plaintiffs had no notice of it, and because plaintiffs were the only property owners subject to the recapture payments. 

The village first argued that the five year statute of limitations had passed, so the suit should be dismissed. The court agreed, finding that the five year statute of limitations for actions to "recover damages" applied. The court determined that the approval of the ordinance was the trigger for the statute of limitations, and the time period for challenging the ordinance expired 5 years after the ordinance was passed.

Because the case was not filed within the 5 year statute of limitations, the court did not address plaintiffs' claims that the village did not have authority to adopt the ordinance. Mikenas v. Village of Westmont, 2018 IL App (2d) 170539-U.

Post Authored by Julie Tappendorf

Monday, March 12, 2018

Upcoming Legal Program For Elected Officials

Elected officials may be interested in attending an upcoming training program offered by the College of DuPage titled "10 Best Legal Practices Every Elected Official Should Know!" Julie Tappendorf (blog author) will be the presenter.  Here is information about the program:

Topic:  10 best legal practices every elected official should know!

Date and Time:
Wed, April 11, 2018
5:30 PM – 7:30 PM CDT

College of DuPage
425 Fawell Blvd
Homeland Security Education Center Room 1022
Glen Ellyn, IL 60137

5:30pm Registration and networking
6:00pm Presentation
7:00pm Q&A

Presenter: Julie Tappendorf, Ancel Glink


Friday, March 9, 2018

Zoning Challenge to Planned Parenthood Dismissed

Almost 10 years ago, Fox Valley Families Against Planned Parenthood filed a lawsuit against Planned Parenthood and others claiming that Planned Parenthood's use of property violated local zoning. The case bounced back between the trial and appellate court. Ultimately, the court granted the defendants' motion to dismiss the case, and the case was appealed.  

In Fox Valley Families Against Planned Parenthood v. Planned Parenthood of Illinois, 2018 IL App *(2d) 170137, the appellate court upheld the dismissal of the case. The issue before the appellate court was whether Planned Parenthood's use complied with the city's zoning ordinance. 

Plaintiffs argued that the use was prohibited in the underlying zoning district because it was a "nonprofit use" that required a special use permit.  Defendants, on the other hand, argued that the use was permitted by-right in the underlying zoning district under the category "Offices, business and professional, including medical clinics," consistent with the City of Aurora's interpretation of its zoning ordinance.

The court analyzed the zoning ordinance and accepted defendants' interpretation that the use was permitted as a medical clinic. The court determined that the non-profit nature of a proposed medical clinic use was irrelevant as the zoning ordinance did not distinguish between the two. Because Planned Parenthood's use fell within the medical clinic category, a use that is permitted by-right in the zoning district in which the property is zoned, the court concluded that plaintiff's zoning challenge was properly dismissed.

Post Authored by Julie Tappendorf

Thursday, March 8, 2018

PAC Rejects "Trade Secret" Exemption in Binding PAC Opinion

The PAC recently found a public body in violation of FOIA when it failed to release public records relating to redevelopment project costs in response to a FOIA request.  PAC Op. 18-004.

A newspaper reporter filed a FOIA request with a municipality seeking a copy of the "latest revised redevelopment cost budget" submitted by a private developer to the municipality. The city denied the request under section 7(1)(g), which protects trade secrets and commercial or financial information, where that information is furnished under a claim that it is proprietary, privileged or confidential and release would cause competitive harm. 

The requester filed a complaint with the PAC. The city argued that the private developer had submitted the budget cost information to the city with the belief that the information would remain confidential. The PAC rejected the city's argument, finding that even if the developer had furnished the financial information to the city under a claim of confidentiality, the city failed to establish that disclosure of this information would cause competitive harm to the developer. The PAC noted that the exemption in 7(1)(g) required the city to establish that the information was provided under a claim of confidentiality and that disclosure would cause competitive harm - harm that must be "substantial" in nature, according to the PAC. Because the city failed to provide facts or evidence to demonstrate how disclosure would result in competitive harm to the developer, that exemption did not apply. The PAC acknowledged that the city provided information about how release would harm the city by dissuading developers from doing business with the city, but that was not relevant to the PAC. 

In sum, the PAC rejected the city's use of section 7(1)(g) to deny the FOIA request for financial information submitted by a private entity.  

Post Authored by Julie Tappendorf

Tuesday, March 6, 2018

Embedding Photo Could Violate Copyright Act

The rapid rise of social media has created a number of new legal questions and, in most cases, the law is slow to catch up with technology. One example is the Copyright Act, which does not reference "tweet," "viral," or "embed" - all of which were at issue in a recent federal case out of New York. Goldman v. Breitbart News Network, LLC, et seq.

This dispute involved the use of a copyrighted photo. Goldman had snapped a photo of Tom Brady in East Hampton in 2016. After he loaded the photo to his Snapchat account, the image went "viral" on a number of social media platforms, including Twitter. Defendant Breitbart and other news outlets and blogs published a variety of articles featuring Goldman's photo of Tom Brady. None of these outlets copied and saved the photo on their own servers, but instead all "embedded" the image through Twitter's social media platform's program. 

Goldman's lawsuit claims that all of the defendant news outlets violated the Copyright Act by embedding his copyrighted photo without his permission or consent. The news outlets argued that  because they did not copy and store the photo on their own servers, there was no infringement of Goldman's copyright. Defendants claim that "embedding" the photo did not display it, but merely provided instructions for the user to navigate to the page where the photo resided.

The court rejected the news outlets' argument that to establish a Copyright Act violation, Goldman had to show that the outlets actually "possessed" the image on their own server. Instead, the court determined that the "Server Test" was not the standard that would be applied to decide copyright cases involving the use of online images and photographs. 

Obviously, this case could have far-reaching implications for social media users who routinely embed copyright-protected material through their own sites and accounts. The case is not over yet, however, because the court acknowledged that the news outlets still have a number of potential defenses to Goldman's copyright claims, including "a very serious and strong fair use defense." So, this case will move forward and, hopefully, provide guidance on what potential defenses are available under the Copyright Act to protect social media users who link and embed photos and other images.

Post Authored by Julie Tappendorf

Thursday, March 1, 2018

Green Party Candidate Removed from Ballot for Petition Inconsistencies

A candidate filed nomination papers to run for the office of Cicero Township committeeman. An objection was filed based on the grounds that the nomination petitions filed by the candidate stated that the petition signers were electors in Oak Park Township, not Cicero Township. The Cook County Electoral Board denied the objection, and the trial court affirmed. 

The objector appealed to the appellate court, and the appellate court ruled in favor of the objection, and ordered the candidate's name removed from the ballot. Neal v. Cook County Electoral Board, 2018 IL App (1st) 180321. The appellate court determined that the reference to the wrong township created a "basis for confusion" as to whether the signatures were proper. The court also determined that the signatories never asserted they were affiliated with the Green Party, meaning they had no authority to nominate the candidate to run as the Green Party candidate. As a result of these inconsistencies, the court ordered the candidate's name be removed from the March 20, 2018 primary ballot.