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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

Friday, September 28, 2018

City Owes No Duty To Pedestrians Exiting Taxis

Unsurprisingly, in an unreported opinion, the Court has again refused to expand the duty owed by a municipality to pedestrians exiting vehicles, specifically taxis. Decker v. City of Chicago, 2018 IL App (1st) 171066- U

Decker claims he was injured when he exited a legally stopped taxi and stepped onto a crumbling and eroding curb and sued the City of Chicago. The City filed a motion to dismiss arguing that the curb where Decker fell was located outside of the sidewalk, so Decker was not an intended user of the curb. The Court agreed with the City, and dismissed the case and Decker appealed.

As background, Section 3-102 (a) of the Local Governmental and Governmental Employees Tort Immunity Act (“Tort Immunity Act”) imposes a duty on municipalities only where the person injured is an intended and permitted user of the property controlled by the municipality. The general rule in Illinois is that a municipality does not owe a duty to pedestrians who walks or crosses in a public roadway outside of a crosswalk. The reasoning is that streets are intended for cars and not for pedestrians. The Supreme Court has, however, recognized a very narrow exception which concerns only the permitted and intended use of the street immediately around a legally parked vehicle by its exiting and entering vehicle operators and passengers.  Decker argues that the taxi stopping to drop him off was essentially a legal stopped vehicle, meaning he fell within this narrow exception and the City was liable for his injuries. The Court disagreed.

The following factors are considered in determining whether a duty is owed by a municipality: (1) the foreseeability that the municipality’s conduct will result in injury; (2) likelihood of injury; (3) magnitude of guarding against it; and, (4) the consequences of placing that burden upon the defendant. The Court here ultimately concluded that while it was entirely possible that an injury like Decker’s would occur to people getting into or getting out of a taxi, the burden of requiring municipalities to maintain the areas surrounding a legally stopped taxi would be unduly expensive and burdensome. Plus, taxis can stop anywhere and by expanding the duty to any location a taxi decides to stop would swallow the intended user rule of Section 3-102(a) because it would allow taxi cab drivers to create a municipal duty of care where one does not exist every single time they drop off a passenger.

Decker v. City of Chicago is not the first, nor will it be the last case to try and convince the Court to expand the narrow rule involving the duty owed to a person exiting and/or entering a vehicle. Stay tuned…

Post Authored by Christy Michaelson, Ancel Glink

Thursday, September 27, 2018

New Quorum Forum Podcast on Elections Just Released

It’s time for a new Quorum Forum podcast episode - Election Special! Local Election Officials

In this "special meeting" episode, we discuss how local election officials can prepare for the 2019 local government election cycle. In addition to sharing our top election tips, we have also provided a useful “Receipt for Filing Nominating Papers” form, available on the episode page at quorumforum.ancelglink.com.

Don’t forget to share your questions and show ideas with us at podcast@ancelglink.com.

Wednesday, September 26, 2018

Ordinance Prohibiting Homeless from Sleeping in Public Places is Unconstitutional

A federal court of appeals recently found a City ordinance that made it a crime to camp on public and private property to be in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.  Martin v. City of Boise, No.15-35845 (9th Cir. Sept. 4, 2018).

A Boise, Idaho ordinance outlawed the use of any streets, sidewalks, parks, or public places for camping as well as occupying, lodging or sleeping in any private or public building without the permission of the owner.  It was later amended to apply only on nights when there were no available beds in local shelters.  After plaintiffs were arrested under the ordinance, all of whom were homeless at the time, they filed a lawsuit claiming that the law was unconstitutional because it criminalized the mere conduct of sitting, lying and sleeping in public. 

The Ninth Circuit Court of Appeals agreed, finding such conduct to be a universal condition of being human and an unavoidable consequence of being homeless.  The court relied on the United States Supreme Court’s decision in Robinson v. California which declared unconstitutional a state statute making it a crime to be addicted to narcotics because it criminalized the status of being an addict, rather than the conduct emanating from the addiction.  Similarly, the Boise ordinance punished individuals for engaging in activities that were unavoidable on nights when there were no other available alternatives due solely to their status as homeless persons.  

While this decision applies only in the Ninth Circuit, it mirrors decisions in other federal district courts and may be instructive as to how the Seventh Circuit might treat challenges to similar municipal ordinances in Illinois, including cases brought under the State’s Bill of Rights for the Homeless Act.

Post Authored by David Warner, Ancel Glink

Monday, September 24, 2018

Cook County $750 Political Contribution Limit Upheld

Cook County has enacted an ethics ordinance governing various activities involving Cook County elected and appointed officials and employees. That ordinance also places a $750 cap on political contributions by individuals and companies that do business with Cook County. After being fined by the Cook County Ethics Commission for receiving political contributions in excess of the ethics ordinance, Cook County Assessor John Berrios filed a lawsuit to challenge the ordinance, claiming that the ordinance exceeded the County's home rule powers, infringed on First Amendment protected speech, denied candidates due process, and violated public policy, among other allegations.

The circuit court ruled in favor of the County, rejecting Berrios challenges to the ethics ordinance. Berrios appealed, and the appellate court also upheld the ordinance. Berrios v. Cook County Board of Commissioners, 2018 IL (1st) 180654. The appellate court found the ordinance did not violate or impinge on any First Amendment protected rights. The court also found the County was not preempted by state election law in enacting its own stricter political contribution limits. Finally, the court determined that the ordinance did not violate Berrios' due process rights, rejecting his "selective enforcement" argument.

Post Authored by Julie Tappendorf

Wednesday, September 19, 2018

Reminder of Deadline to Modify Elected Official Compensation

We have reported on this issue in the past, but wanted to send another reminder this year since we are approaching the deadline to change your elected official's compensation in time for next spring's election.
Section 2 of the Local Government Officer Compensation Act states that the compensation of elected officers “shall be fixed at least 180 days before the beginning of the terms of the officers whose compensation is to be fixed.”  50 ILCS 145/2.  While the 180 day calculation seems simple, the actual date will differ depending on the type of government unit.

For example, for townships, it is easy to calculate the 180 days, because all township officials, except assessors, take office on the third Monday in May (May 20, 2019), so the deadline to set compensation for elected township officials is November 21, 2018.  60 ILCS 1/50-15.  

The deadline for setting compensation is more complicated with other local governments that do not have fixed dates for their officers taking office. 

For municipalities, the Illinois Municipal Code states that terms for municipal elected officials commence “at the first regular or special meeting of the corporate authorities after receipt of the official election results from the county clerk…unless as otherwise provided by ordinance,” but then that ordinance cannot fix the date later than the first regular or special meeting in the month of June after the election.  65 ILCS 5/3.1-10-15. So, the date on which new municipal officers will take office will vary from municipality to municipality, depending on local ordinances, meeting dates, and other factors. As a result, a municipality might want to act soon if it wants to change the compensation for its elected officials to ensure that the action takes place at least 180 days prior to the new officers taking office, which could be in April, May, or June.

Post Authored by Julie Tappendorf

Tuesday, September 18, 2018

FCC Releases Small Wireless Facilities Draft Order

On September 5, the Federal Communications Commission (FCC) released a draft Declaratory Ruling and Third Report and Order, focusing on state and local management of small wireless facilities infrastructure deployment. The draft order is scheduled for the FCC’s September 26 open meeting, and if approved would enact substantial new limits on local wireless siting review.

You can read more about the draft order on the Illinois Municipal League's website here

Monday, September 17, 2018

A New Take on Takings?

Rose Mary Knick was not happy with her local township. The township passed an ordinance requiring the owners of private cemeteries to open them to the public. A township official inspected Knick’s property, determined that certain stones were grave markers, and issued a violation for failing to hold open the cemetery to the public. Knick disputed that a cemetery existed on her property, and filed suit alleging that the ordinance was an unconstitutional taking of private property. However, Knick’s federal lawsuit was dismissed on longstanding Supreme Court precedent, as she had not yet sought “just compensation” under state law.

Under the Fifth Amendment, governments are prohibited from taking private property for public uses “without just compensation.” Takings under the Fifth Amendment are a concern whenever local governments physically occupy private property or enact laws that restrict how private property can be used.  

The Supreme Court case of Williamson County v. Regional Planning Commission v. Hamilton Bank of Johnson City (1985) has long governed Fifth Amendment takings claims. In Williamson County, The Supreme Court held that a property owner has not been denied “just compensation” for its property unless they have exhausted their state law remedies to obtain compensation. Now, Knick’s case may upend over 30 years of Supreme Court precedent.

On appeal to the Third Circuit, Knick argued that her facial takings claim was exempt from the exhaustion requirement, and, even if it wasn’t, the court should overlook Williamson County.  The Third Circuit disagreed, finding that her takings claim was not an underlying challenge to the validity of the township’s ordinance, but only a claim for just compensation.  Knick did not allege that that the taking by the township was invalid (i.e, for lack of a public purpose). If she had, her takings claim would be exempt from the state law exhaustion requirement and she could file directly in federal court. The Court held that state law inverse-condemnation mechanisms are better equipped to value what compensation Knick was owed, and that she needed to exhaust those remedies first.

Knick has now brought her dispute with her township to the highest court in the land, and oral arguments are set for October. While Knick’s case turns on seemingly mundane procedural issues, the outcome could have a significant impact on local governments. If the Supreme Court sides with Knick, it will become much easier for property owners to challenge land use regulations as takings. A property owner could file suit directly in federal court, even when the government has not yet refused to pay just compensation. State law remedies (eminent domain/inverse-condemnation proceedings), already exist to ensure just compensation is paid. Allowing these claims to proceed in a second forum may result in a proliferation of takings lawsuits.  It will all turn on Knick and her supposed cemetery.

Post Authored by Kurt Asprooth, Ancel Glink

Thursday, September 13, 2018

FOIA Denial Letters: Don’t Forget to Include Citations and Reasons for Denial!

In Blanco v. Joliet Police Department, after Blanco was arrested by the Joliet Police Department, he sent a FOIA request to the PD asking for any documents and recordings related to his arrest. The PD denied his request under the Juvenile Court Act, and Blanco sued.

Blanco claimed that the PD failed to cite a FOIA exemption and did not prove that the requested records were exempt.  He sought the release of the records and a civil penalty of up to $5,000.  In response, the PD argued that the Juvenile Court Act applied because Blanco was with two minors at the time of his arrest.  The PD also stated that the records contained exempt personal information under 7(1)(c) and 7(1)(d)(iv) of FOIA. The PD further cited 7(1)(a) which prevents disclosure of information prohibited by law and 7(1)(bb), which prevents disclosure of information prohibited by the Juvenile Court Act.  The Circuit Court agreed with the PD and dismissed the case.

Blanco appealed, arguing: 1) the PD failed to comply with FOIA’s requirement that the denial letter include a specific exemption claimed and a detailed factual basis and citation, 2) the PD should have been fined a civil penalty for failing to disclose the requested documents, and 3) the Juvenile Court Act does not prohibit the disclosure of these documents. 

The Court acknowledged that the PD’s denial letter raised questions of whether it complied with FOIA by specifying the exemption and specific reason for the denial. However, the Court noted that even assuming that the denial letter did not comply with FOIA, it is not automatic that the requester would be entitled to have the documents released to him. The Court found that without the record or transcripts on appeal (Blanco failed to provide those to the Appellate Court), it had no way of knowing what happened in the circuit court, so it upheld the Circuit Court's ruling in favor of the PD. 

While the PD was able to get out of possible penalties because of Blanco's procedural deficiencies, this case is a reminder to public bodies of the importance of including the citation for the applicable exemption and detailed factual reasons why it denied the request (whether in whole or in part) when it issues the written denial letter.

Post Authored by Erin Pell, Ancel Glink

Tuesday, September 11, 2018

PAC Issues Binding Opinion on Failure to Respond to FOIA Request

In its 11th binding opinion of 2018, the PAC found a public body in violation of FOIA for failing to respond to a FOIA request, and failing to respond to the PAC's request for review. This opinion doesn't offer any new guidance to public bodies beyond what we've reported on in the past in summarizing similar binding opinions issued by the PAC. PAC Op. 18-011.

Monday, September 10, 2018

Drone On! New Quorum Forum Podcast Episode Released

Whether you think drones are pretty cool, or really creepy, they are increasingly used in commerce and recreation. In our latest podcast episode of Quorum Forum, we discuss how local governments can regulate drones, and appropriately use drones. We also review new laws affecting local government employers and more. 

Tune into this latest podcast episode at Drone on!

If you have ideas for future podcast topics, email us at podcast@ancelglink.com. 

Friday, September 7, 2018

New State Law Preempts Local Government Regulation of Drones

Just last month, the Illinois General Assembly passed a law preempting local government regulation of unmanned aircraft systems (commonly referred to as drones). 

In P.A. 100-735, the state declared that the regulation of drones is an "exclusive power and function of the State." The new law prohibits any unit of local government, including home rule units (except Chicago), from enacting any ordinance or resolution that regulates unmanned aircraft systems. The law became effective August 3, 2018.

So, what does this mean for Illinois local governments? The law does not seem to prohibit units of local government from controlling or regulating drones that fly over their own government-owned property, which would be more of an "ownership" exercise of authority rather than "regulatory" exercise. But, the law does appear to hinder a local government from regulating drones through its exercise of zoning or other powers over private property.

It will be interesting to see how the FAA will react to this state law given that the FAA has enacted a substantial number of regulations on unmanned aircraft systems. 

For more information about this new law and how it affects local government regulation and control of drones, stay tuned for an upcoming episode of our podcast Quorum Forum, titled Drone On. We will update you as soon as that episode is released.

Tuesday, September 4, 2018

7 Years of Municipal Minute!

7 years ago, on September 3, 2011, Municipal Minute went live with its first post:  "Tweeting into Trouble." More than 1,400 posts later, and we are still reporting on new cases, legislation, and issues of interest to local government officials and employees. 

We welcome suggestions from our readers on future topics, and particularly appreciate it when readers alert us to PAC opinions or cases they find interesting and relevant to Municipal Minute.

Thanks for continuing to check in with us at Municipal Minute - we look forward to at least another 7 years of reporting on local government news.

Thanks again!
Julie Tappendorf
Ancel Glink