No First Amendment Violation in County's Termination of Employee

No First Amendment Violation in County's Termination of Employee

  Thursday, November 29, 2018    Julie Tappendorf

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A federal appeals court recently ruled in favor of a county being sued by a former employee who claimed the County violated her First Amendment rights by terminating her because of her political affiliation.

The County hired Bogart as its Financial Resources Director in 2007.  Bogart is a Democrat. In 2012, several Republican candidates won election to the County Board, giving the Republicans majority control of the County Board. The Board selected a Republican as the Chairman, who served from 2012 to 2014. At the end of 2014, the Chairman was replaced by another Republican who terminated Bogart within a month of taking that position. Bogart filed suit, claiming the County violated her civil rights by engaging in political retaliation and discrimination when it terminated her.

The district court ruled in favor of the County, finding that because Bogart's position entailed policy-making authority and discretion, the position fell within an exception to the general First Amendment ban on political patronage dismissals. 

Bogart appealed to the Seventh Circuit, which upheld the district court's ruling in favor of the County. The Court acknowledged that the U.S. Supreme Court has held that public employers cannot condition employment on an employee's political affiliation under the First Amendment's right of political association. However, the general rule has an exception known as the "Elrod-Branti" exception that applies when a public employer can show that party affiliation is an appropriate requirement for the effective performance of the public office. Factors such as policy-making authority, the provision of political advice, or access to confidential and politically sensitive thoughts are considered when determining whether a particular position is subject to the exception.

In this case, the Seventh Circuit determined that Bogart's position as the County's Financial Resources Director involved substantial policy-making authority, including developing budgeting and other financial planning documents for the County, making it "effectively a cabinet-level position" in the County, according to the Court. As a result, the County could terminate Bogart without violating her First Amendment rights. Bogart v. Vermillion County (7th Cir. Nov. 26, 2018)

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Township Officials Not Entitled to Anti-SLAPP Act Immunity

Township Officials Not Entitled to Anti-SLAPP Act Immunity

  Wednesday, November 28, 2018    Julie Tappendorf

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Three City officials sued a Township Assessor and Supervisor, and the Township itself, claiming the defendants had defamed them and cast them in a "false light" when the Township Supervisor sent a letter to newspapers, local officials, and others alleging that the City officials engaged in criminal acts in connection with property exemptions. One of the letters from the Supervisor stated that he had "discovered how several current and former public servants used their inside status to scratch their own backs and lower their own property taxes - causing homeowners of Burbank to pay more property taxes."

The defendants argued  they were immune from liability under the state Citizen Participation Act (an anti-SLAPP statute - Strategic Lawsuits Against Public Participation), and asked the court to grant summary judgment to defendants. Specifically, defendants argued that the Act protected the Supervisor's actions because the letter was an act of participation in government. The circuit court denied the motion, finding that there was still a question of fact whether the statements in the letter were true or false and that defendants failed to show the lawsuit was meritless.

Defendants appealed, and the Illinois Appellate Court upheld the circuit court ruling against the defendants in Kainrath v. Gride, 2018 IL App (1st) 112270. Although, the appellate court agreed that the Supervisor's act of sending the letter was a protected act of citizen participation that would qualify defendants for protection under the Act, because defendants failed to show that plaintiffs' defamation and false light claims lacked merit they were not entitled to protection under the state's anti-SLAPP statute.

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Judge's "Friendship" With Attorney on Social Media Does Not Require Disqualification

Judge's "Friendship" With Attorney on Social Media Does Not Require Disqualification

  Monday, November 19, 2018    Julie Tappendorf

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We have written in the past about how court's have interpreted social media "friendship," particularly in the legal or ethical sense when there is a question about bias or impartiality. A Florida Supreme Court recently issued a ruling weighing in on this issue involving an attorney's Facebook "friendship" with a judge who was assigned to one of the attorney's cases. 

A law firm had filed a motion to disqualify the judge in a case because the judge was Facebook "friends" with opposing counsel. The judge denied the motion, ruling that the mere fact that a judge is friends with an attorney appearing before the judge does not, alone, disqualify the judge from a case. That ruling was appealed and made its way to the Florida Supreme Court which upheld the judge's ruling. The Court stated that the fact that a judge and an attorney are Facebook friends, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the attorney. The Court emphasized that a social media "friend" may or may not be a "friend" in the traditional sense, noting that social media users may have thousands of social media "friends" that are more casual and less permanent in nature than traditional friendships. The Court cited numerous bar association and ethics opinions that also ruled that a social media friendship, without more, does not establish bias or influence that would require disqualification.

You can read the opinion here.

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PAC Says Records Involving Juvenile Witnesses and Victims Not Exempt From FOIA

PAC Says Records Involving Juvenile Witnesses and Victims Not Exempt From FOIA

  Friday, November 16, 2018    Julie Tappendorf

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The PAC just issued a binding opinion that sheds some light on how the Attorney General interprets recent changes to the Juvenile Court Act and FOIA.  PAC Op. 18-016.

A law firm that routinely files FOIA requests with municipal police departments for traffic accident reports submitted a request to the Rock Island PD for a particular accident report. The PD denied the request, citing section 7.5(bb) of FOIA and section 1-7(A) of the Juvenile Court Act. The PD argued that the accident report was exempt because the accident involved six minors who were listed as victims and witnesses in the report. The PD pointed to a recent amendment to the Juvenile Court Act that provides that "All juvenile records which have not been expunged are sealed and may never be disclosed to the general public or otherwise made widely available." 

The law firm appealed the denial to the PAC, which found the PD in violation of FOIA for denying the request for the accident report. The PAC first reviewed the Juvenile Court Act and the recent amendment and determined that "juvenile records" was not defined. However, the PAC noted that the legislative history of the new language suggested that the legislature intended to protect "juvenile records" that relate to a minor who has been "investigated, arrested or taken into custody" and not records where the minor is a witness or a victim. 

In short, the PAC found that the Juvenile Court Act protects law enforcement records where a minor is being investigated, arrested, or taken into custody, but does not protect records where the minor is a victim or witness.  

Although not addressed in the opinion, the PD might have redacted the names and identifying information about the minors and cited 7(1)(c) of FOIA which exempts records where the public body can demonstrate that disclosure would be an unwarranted invasion of personal privacy that outweighs any public interest in their release. 

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First Amendment Lawsuit Against Cook County Circuit Court Not Appropriate in Federal Court

First Amendment Lawsuit Against Cook County Circuit Court Not Appropriate in Federal Court

  Thursday, November 15, 2018    Julie Tappendorf

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The Seventh Circuit Court of Appeals reversed a district court's injunction against the Cook County Circuit Court Clerk that ordered the Clerk to provide immediate access to all court filings to a news service. Courthouse News Service v. Brown (7th Cir. Nov. 13, 2018).

Courthouse News Service had filed the federal lawsuit against the Cook County Circuit Court claiming that the Court violated its First Amendment rights when it failed to provide immediate access to newly filed complaints. The district court ruled in its favor and issued an injunction ordering the Circuit Court Clerk to implement a system that would provide access to newly filed complaints contemporaneously with the Clerk's receipt of those complaints.

On appeal, the Seventh Circuit Court of Appeals reversed the injunction granted by the district court. Although the Seventh Circuit did acknowledge that the First Amendment protects the right to access,  the Court determined that federal courts should not be deciding whether state courts have violated a right of access. In sum, the Court held that the district court should not have exercised jurisdiction over this dispute, and the case should be heard in state court.  

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Quorum Forum Episode 13.5 (Part 2 of Our Transgender People Episode) is Now Live!

Quorum Forum Episode 13.5 (Part 2 of Our Transgender People Episode) is Now Live!

  Tuesday, November 13, 2018    Julie Tappendorf

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Part 2 of our Quorum Forum Podcast Episode on Transgender People is now live.  Information about the podcast is below:

13.5:  Transgender People and Public Facilities (Part 2), Live from #IPELRA18!

In part two of their discussion at the 40th Illinois Public Employer Labor Relations Association Annual Conference, transgender panelist Sophie Michaels, Palatine Park District’s Michael Clark, and Ancel Glink’s Keri-Lyn Krafthefer talk about best practices in policy development for all-inclusive public facilities, staff training, and options available to make facilities accommodating to transgender individuals. Specifically, Mike talks about his experience making public facilities accessible to transgender individuals. 

You can access this episode here.

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Appellate Court Says Illegal Use Becomes Legal Upon Annexation

Appellate Court Says Illegal Use Becomes Legal Upon Annexation

  Friday, November 09, 2018    Julie Tappendorf

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In a break from long-established precedent, the First District Appellate Court recently created a new category of legal nonconforming uses in situations involving the annexation of illegal uses. 

In Giannakopoulos v. Adams, No.11 CH 17516 (Oct. 29, 2018), a municipality annexed property containing an excavation business that included the storing and servicing of commercial vehicles and equipment. No annexation agreement was entered into between the parties and the municipality did not rezone the property or grant zoning relief when it annexed the property to the municipality. The use was illegal at its inception in 1954 under the Cook County Zoning Code and remained an illegal use thereafter, first under county zoning and, upon annexation, under the municipality’s residential zoning designation.

 

In 2011, after being unsuccessful in getting the municipality to enforce its zoning regulations, a next door neighbor brought suit against the excavation business under the Adjoining Landowner Act, 65 ILCS 5/11-13-15, seeking to enjoin the operation of the illegal use.  The trial court ruled in favor of the plaintiff, holding that the municipality had no authority as a non-home rule unit of government to legalize the defendants’ use of their property unless it first complied with one of the three procedures set forth in the zoning statutes (map amendment, variance, or annexation agreement).  

On appeal, the First District disagreed, holding that because the illegal use was “established” prior to annexation, it automatically became a legal nonconforming use “as-is” when the municipality annexed the property.  In other words, the appellate court found that annexation, in and of itself, can convert an illegal use into a legal use without the annexing authority needing to comply with state zoning laws.

A petition for leave to file an appeal with the Illinois Supreme Court has since been filed.

Post Authored by David Warner, Ancel Glink

Disclosure:  Ancel Glink attorneys represented the plaintiff before both the trial court and appellate court.

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Age Discrimination Law Applies to State and Local Governments Regardless of Number of Employees

Age Discrimination Law Applies to State and Local Governments Regardless of Number of Employees

  Thursday, November 08, 2018    Julie Tappendorf

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The U.S. Supreme Court weighed in on the application of the federal Age Discrimination in Employment Act (ADEA) to small state and local government employers in the recent decision Mt. Lemmon Fire District v. Guido.

The Court ruled 8-0 that the ADEA applies to state and local governments regardless of the number of employees employed by the unit of government. The ADEA defines “employer” as a “person engaged in an industry affecting commerce who has 20 or more employees” or “(1) any agent of such a person, and (2) a State or political subdivision of a State.” Some government agencies had interpreted the definition to mean that the law only applied to government employers with 20 or more employees. In an opinion written by Justice Ginsburg, the U.S. Supreme Court disagreed, holding that the definition of “employer” separated private employers with 20 or more employees from state and local government employers with any number of employees.

The lawsuit involved a challenge against the District when it laid off two employees who claimed they were terminated because of their age in violation of the ADEA. The District argued that the ADEA did not apply because the District employs fewer than 20 people. The Ninth Circuit disagreed, and the case was appealed to the U.S. Supreme Court which upheld the Ninth Circuit’s ruling in favor of the two employees.

This is a significant ruling for small units of government that may have taken the position that they were not subject to the ADEA because they employed less than 20 people. 

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Service Requirements of Election Code Must Be Strictly Followed

Service Requirements of Election Code Must Be Strictly Followed

  Tuesday, November 06, 2018    Julie Tappendorf

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Doesn't it seems appropriate to report on an election case on Election Day? Quinn v. Board of Election Commissioners for the City of Chicago Electoral Board, 2018 IL App (1st) 182087

A group of citizens filed petitions for two binding referendum questions that would have been placed on today's ballot in Chicago. The ballot questions would have asked voters whether the office of Chicago mayor should be subject to a term limit of two terms and whether Chicago should establish an elected position for a "Consumer Advocate for taxpayer and consumers." Objections were filed challenging the two referenda, and a hearing officer for the Board of Election Commissioners for the Chicago Electoral Board held a hearing on the objections. At the conclusion of the hearing, and based on the hearing officer's recommendations, the Electoral Board issued a ruling that the two referenda not be on the ballot.

Former Governor Pat Quinn and others filed a lawsuit to appeal the Electoral Board's ruling. The objectors filed a motion to dismiss, claiming the court did not have jurisdiction over the lawsuit because the appellants failed to comply with the service requirements that require service on all parties within 5 days. Although the lawsuit was served on the Electoral Board, the Board of Elections, and the attorney for the objectors on September 17th, the objectors were not personally served  until September 19th. The trial court granted the motion to dismiss based on the failure to comply with the service requirements.

The appellate court agreed with the trial court, holding that the service requirements in section 10-10.1 of the Election Code must be strictly followed, and a court has no jurisdiction to review an electoral board's decision if service is faulty. In this case, the objectors were not personally served within the statutory time period, so the circuit court had no jurisdiction to hear the appeal of the electoral board's ruling. 

The appellate court did, however, reverse the circuit court's dismissal of the plaintiffs' mandamus claim in its lawsuit, and remanded that portion of the complaint back to the circuit court. 

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Supreme Court Orders Supplemental Oral Argument and Briefing in Knick v. Township of Scott Case

Supreme Court Orders Supplemental Oral Argument and Briefing in Knick v. Township of Scott Case

  Monday, November 05, 2018    Julie Tappendorf

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We have reported previously on the 5th Amendment takings case Knick v. Township of Scott that is pending before the U.S. Supreme Court. The Supreme Court held oral arguments in this case on October 3rd. Just last week, the Supreme Court scheduled a second oral argument in this case (note that the previous argument took place prior to Justice Kavanaugh joining the Court). Some commentators speculate that the Justices were deadlocked, although the order itself requests that the parties submit briefing on one narrow issue, as follows:

This case is restored to the calendar for reargument. The parties and the Solicitor General are directed to file letter briefs, not to exceed 10 pages, addressing petitioner's alternative argument for vacatur, discussed at pages 12-15 and 40-42 of the transcript of oral argument and in footnote 14 of petitioner's brief on the merits. The briefs are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, November 30, 2018. Reply briefs, not to exceed 4 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, December 21, 2018.

The first round of supplemental briefs are due later this month, and argument will take place sometime in 2019.  

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Talking About the Supreme Court's Janus Decision on GovLove's Podcast

Talking About the Supreme Court's Janus Decision on GovLove's Podcast

  Friday, November 02, 2018    Julie Tappendorf

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For all of you podcast junkies, don't miss Ancel Glink attorney Matt DiCianni's discussion of the U.S. Supreme Court's opinion in Janus v. AFSCME (ruling that mandating payment of union "fair share" fees violates the First Amendment) on ELGL's GovLove podcast titled "Local Government Law, Unions, and the Janus Decision." You can listen here.

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Quorum Forum Podcast Released: Transgender People and Public Facilities

Quorum Forum Podcast Released: Transgender People and Public Facilities

  Thursday, November 01, 2018    Julie Tappendorf

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Ancel Glink just released Episode 13 of its popular podcast, Quorum Forum. This episode, titled "Transgender People and Public Facilities," is part one of a two part series that was recorded live at the 40th Illinois Public Employer Labor Relations Association Annual Conference (IPELRA). In part one, the panel discusses appropriate terminology and definitions to use with transgender individuals. We also hear from our transgender panelist on the challenges she has faced in accessing public facilities. You can access this episode on the Quorum Forum website here.

How do your public facilities accommodate transgender individuals? Tell us about it at podcast@ancelglink.com!

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