Court Rejects Objection to Candidate's Dual Nomination Papers

Court Rejects Objection to Candidate's Dual Nomination Papers

  Thursday, February 28, 2019    Julie Tappendorf

---

In a recent Illinois Appellate Court decision, the court considered a challenge to a candidate's nomination papers where that candidate had withdrawn previously filed papers and submitted a second set prior to the filing deadline. McCaskill v. Harvey MOEB.

A candidate originally circulated, and then filed, nomination papers to run as a Democrat for the office of 6th ward alderman on the first day of filing for the February primary election. After filing, he learned that the City does not hold partisan primaries, so he filed a second set of papers designating himself as a nonpartisan candidate for the same office. At the same time, he filed a document withdrawing his first candidate filing.

An objection was filed to challenge the candidate's nomination papers on 2 grounds: (1) that he was prohibited from filing 2 petitions for the same office in the same election and (2) he violated the "dual circulation" prohibition because he circulated petitions for both a partisan and nonpartisan candidate in the same election. 

A hearing was held before the City's electoral board, which overruled the objections and upheld his candidacy. That decision was appealed to the circuit court, which reversed, ordering that the candidate's name be removed from the ballot. That decision was also appealed, this time by the candidate, to the appellate court.

The appellate court rejected the objector's argument that the candidate filed multiple petitions for the same office, finding that section 10-6.2 of the Election Code states that if a candidate files multiple sets of nominating papers for the same office, he or she will be given the option to cancel the prior set of petitions, so long as that is done within the filing period. Since the objection did not challenge whether the candidate complied with this section, the court found that the electoral board properly denied the first objection.

The court also rejected the objector's "dual circulation" argument finding that it "makes absolutely no senses" in a non-partisan election. The purpose of this prohibition is to thwart political gamesmanship in partisan elections, which is not relevant in a non-partisan election. 

In short, the appellate court denied the objection, and ordered that the candidate's name be placed on the ballot.

Read More

Bill Undercuts Municipal Annexation Authority

Bill Undercuts Municipal Annexation Authority

  Wednesday, February 27, 2019    Julie Tappendorf

---

Currently, individuals that want to annex property into a community must file an application that is signed by the property owner and a majority of the voters residing on the property. If passed, HB 2157 would alter longstanding and settled annexation procedures by introducing additional mandates, including requiring annexation applicants to attest that:

1. The annexation would solely benefit the property owner and any voters living on the property; and
2. The annexation application was not filed to help a municipality involuntarily annex property in the future.

The bill also creates additional criteria that a municipality must satisfy before involuntarily annexing property, significantly upending municipal authority to annex property, control municipal boundaries, and promote economic development. 

As drafted, the bill creates a host of problems. First, annexation commonly benefits more than just a property’s owners and residents. Annexation also benefits the annexing municipality, which receives increased regulatory control and tax revenue; parties that wish to develop the property, but may not yet own it; prospective residents that do not have an ownership interest in the property; and neighboring property owners that, as a result of the annexation, may be able to receive city services by annexing their properties. The bill would apparently invalidate annexations that benefit any of these parties.

Second, its unclear how an annexation applicant could confirm that its application would not help a municipality involuntarily annex property in the future. Annexation applicants generally aren’t aware of a community’s annexation plans (if any such plans exist). A law requiring an annexation applicant to attest to a municipality’s unknown future plans seems designed only to chill otherwise valid efforts to annex and develop property.

This bill comes on the heels of an annexation lawsuit we previously reported on involving Bolingbrook, a village located in Will County. The Bolingbrook case featured unusual facts that prompted the court to invalidate a voluntary annexation that facilitated a subsequent involuntary annexation.  At first blush, this bill appears to respond to the Bolingbrook case, albeit in a way that may create serious unintended consequences.

We’ll update our readers as the bill progresses.

Post Authored by Greg Jones, Ancel Glink

Read More

Upcoming Webinar on Cannabis and Land Use

Upcoming Webinar on Cannabis and Land Use

  Tuesday, February 26, 2019    Julie Tappendorf

---

The APA Planning and Law Division is hosting an upcoming webinar that will be of interest to planners and land use professionals. Information about the webcast and registration are below.

Webcast — How Land Use and Natural Resource Regulations are Shaping the Legal Cannabis Industry

Thursday, March 21, 2019 | 2:00–3:30 p.m. ET (1:00 - 2:30 p.m. central)

CM | 1.50 | Law; CLE through Illinois State Bar

This webinar will explore how various land use and natural resource regulations shape the development of the legal cannabis industry. The scope of the conversation will range from regulatory options municipalities may consider as the legal cannabis industry develops to how individual businesses are fostered or stifled as a result of certain regulations. One goal of this webinar is to help practitioners identify key cannabis industry issues they should consider in working with either government officials or business owners.

Speakers include Erin Lapeyrolerie, PLD’s 2018-19 Curtin Fellow, Karla Chaffee, Esq., Counsel for Robinson & Cole LLP in Boston, Sunshine Lencho, Esq., Senior Associate at Hinman & Carmichael LLP in San Francisco, Joanna Hossack, Esq., Associate at Clark Neubert LLP in Sacramento and San Francisco, and Christina Sava, Managing Attorney at Anthony Law Group in Oakland.

Register

Read More

PAC Finds Public Body in Violation of FOIA For Not Responding to Request

PAC Finds Public Body in Violation of FOIA For Not Responding to Request

  Monday, February 25, 2019    Julie Tappendorf

---

The Public Access Counselor of the Illinois Attorney General's office released its 3rd binding opinion for 2019 last week. In PAC Op. 19-003, the PAC found a public body in violation for FOIA for failing to respond to a FOIA request. As we have learned from a number of similar binding opinions, it is a violation of FOIA to not respond to a FOIA request within the statutory time-frame (5 business days unless the request is for commercial purposes).

Read More

Seventh Circuit Upholds Ordinance Enforcement Against Union Rat

Seventh Circuit Upholds Ordinance Enforcement Against Union Rat

  Friday, February 22, 2019    Julie Tappendorf

---

From Ancel Glink's labor and employment law blog, The Workplace Report: The Rat Got Ticketed

While labor disputes often result in litigation, rarely, if ever before, has the ubiquitous rat itself become the subject of a lawsuit.

Employers are all aware of the rat. Unions often inflate a balloon type rat to stir emotion against an employer and to signify to the passing public that workers are embroiled in a labor dispute with a particular employer in hopes that the employer will feel pressured to capitulate to the union’s demands in order to avoid general association with the generally disliked rat. Simple concept. Some employers dread its appearance; some dig their heels in further when they see it.

In Grand Chute, Wisconsin, a town outside of Appleton, the rat itself became the subject of an ordinance violation. The union, feeling frustrated with the course of labor relations, inflated a 12-foot balloon rat in protest of the company, tethering the rate to the ground with stakes. It turns out that the rat was on the public way and violated the municipality’s sign ordinance which prohibited signs which are secured to the ground on the public way because they not only present a hazard but can create a disturbance to passersby. The police issued an ordinance violation to the rat (really to the union) and ordered its removal.

Nearly five years of litigation ensued over whether the union had the right to keep the rat in its location. While the municipality argued that the rat was being treated as any other sign and was subject to the sign ordinance, the union argued that the rat was an expression of free speech. Last week the 7th Circuit Court of Appeals sided with the municipality’s ordinance. Construction and General Laborers Union No. 300 v. Town of Grand Chute.

The court noted that “a municipality is entitled to implement a nondiscriminatory ban of all private signs from the public roads and rights-of-way” but that “even a neutral ordinance can violate the First Amendment if it is enforced selectively, permitting messages of which [the Town] approves while enforcing the ordinance against unions and other unpopular speakers.” The court concluded that there was no evidence before it to show that the sign ordinance was enforced selectively, and therefore ruled against the union.

Employers should note that if vexed with an appearance of the rat, do not ignore the simple solution of investigating whether its location violates local ordinances.

Original Post Authored by Margaret Kostopulos, Ancel Glink

Read More

Chicago's Ordinance Restricting Contact Near Abortion Clinics Upheld

Chicago's Ordinance Restricting Contact Near Abortion Clinics Upheld

  Thursday, February 21, 2019    Julie Tappendorf

---

In 2009, the City of Chicago adopted an ordinance that prohibits any person from approaching within 8 feet of another person in the vicinity of an abortion clinic if their purpose is to engage in counseling, education, protest, or similar activities. Pro-life sidewalk counselors sued the City of Chicago to challenge the "bubble zone" ordinance, claiming that the ordinance violates their freedom of speech. The district court upheld the ordinance, citing a U.S. Supreme Court case from 2000 (Hill v. Colorado) that upheld a nearly identical law. 

Plaintiffs appealed to the Seventh Circuit, relying on subsequent Supreme Court cases to argue that the Seventh Circuit should not rely on Hill v. Colorado. The Seventh Circuit disagreed, finding that the Hill case was still valid and had not been overruled in the subsequent cases. Price v. City of Chicago.  Since the City of Chicago's "bubble zone" ordinance was narrower than the Colorado regulation (Colorado restricted contact within 100 feet of the clinic entrance, Chicago restricts contact within a 50 foot radius), the Court upheld the ruling in favor of the City that the ordinance was not unconstitutional.

It is important to note that the Seventh Circuit acknowledged that other cases have struck down contact restrictions at abortion clinics, including a state-wide restriction adopted by Massachusetts. However, the Court determined that the restriction at issue in this case (Chicago's bubble zone ordinance) was similar to, and more narrow, than the restriction upheld in the Hill v. Colorado case, which the Court noted had not been overruled.

Read More

Short-Term Rentals Ordinance Challenge May Host New Parties

Short-Term Rentals Ordinance Challenge May Host New Parties

  Friday, February 15, 2019    Julie Tappendorf

---

A challenge to Chicago’s short-term rental regulations could continue after the Seventh Circuit held the plaintiffs may need new parties to establish standing.

In 2016, the City of Chicago passed a “Shared Housing Ordinance” in June 2016 to regulate short-term housing arrangements like those offered through sites such as Airbnb. The Ordinance requires interested hosts to register with the City and acquire a business license before listing units for rent online.

Six individuals and “Keep Chicago Livable,” an Illinois non-profit with the goal of educating Chicago hosts about local home-sharing laws, challenged the constitutionality of the ordinance. The case made its way to the Seventh Circuit, which vacated the rulings.

The Seventh Circuit sent the case back to the district court because there was no clear indication that any of the named plaintiffs have standing to challenge the Ordinance. In order to establish standing, a plaintiff must demonstrate (1) an injury in-fact; (2) that is fairly traceable to the defendant’s action; and (3) capable of being redressed by a favorable decision from the court.

The Seventh Circuit concluded that under this three-pronged test, it is unable to say with confidence that any of the named individual plaintiffs have standing due to changes in circumstances for each of the six individual plaintiffs. From the time of the filing of their most recent complaint to the case on appeal, each of the plaintiffs had either sold their property in Chicago or stopped using home sharing sites like Airbnb to rent out their properties. As a result, the Court found that since plaintiffs either no longer own property in the City, no longer use home-sharing sites, or allege how out-of-town renters are inhibited from visiting Chicago, none of the plaintiffs currently have standing to sue the City and challenge the Ordinance.

Similarly, the Seventh Circuit found that Keep Chicago Livable had not alleged a sufficient injury to the organization itself that could be addressed by the Court. The Court further concluded that even if Keep Chicago Livable brought suit on behalf of its members in a representative capacity, the organization had not identified an individual plaintiff with standing to bring any claim.

The Seventh Circuit indicated that the lower court has substantial discretion to move forward with the proceedings, including allowing new parties to sue that might have standing and by allowing those plaintiffs to file an amended complaint. Finally, the Seventh Circuit observed that if the district court determines a plaintiff does have standing, the court should allow the plaintiff the opportunity to move forward with the case and a request that the Court issue a preliminary injunction against the City's enforcement of the Ordinance. As a result, this challenge to Chicago’s short-term rental regulations might continue with the addition of new parties.

The Seventh Circuit’s opinion in Keep Chicago Livable v. City of Chicago is available here.

Post authored by John Reding and Daniel J. Bolin

Read More

Court Upholds Electoral Board's Decision in Challenge to Nomination Papers That Exceed Maximum Signatures

Court Upholds Electoral Board's Decision in Challenge to Nomination Papers That Exceed Maximum Signatures

  Thursday, February 14, 2019    Julie Tappendorf

---

A recent Illinois Appellate Court decision provides some insight on how electoral boards can address objections to candidate nominating petitions that exceed the maximum number of signatures under state law. Ghiles v. MOEB, 2019 IL App (1st) 190117.

Section 10-3 of the Illinois Election Code sets out the signature requirements for certain types of candidates for local office. That section requires a candidate to file nomination papers signed by not less than 5%, nor more than 8% (or 50 more than the minimum, whichever is greater) of voters in the last election who voted for local elected officers. 

A candidate for mayor filed nomination papers containing 736 signatures. The minimum number of signatures required for that office was 139, and the maximum number was 221, based on the above-statute. An objection was filed to challenge the candidate's nomination papers on various grounds, which was heard by the local electoral board. In reviewing the nomination papers to determine whether the objection was valid, the electoral board only reviewed challenges to 221 signatures (the statutory maximum), and disregarded all of the remaining signatures. In deciding which of the 221 signatures to review, the electoral board started at the bottom of the 81 pages of nomination petition, counting from the last signature on the last page and working backwards. After the electoral board struck invalid signatures from the 221 it reviewed, the board concluded that the candidate did not have enough signatures to remain on the ballot. As a result, the electoral board ordered the candidate's name to be struck from the ballot.

The candidate sued, challenging the electoral board's decision. Specifically, the candidate argued that the electoral board should have started its review of the first 221 signatures filed, and not the last signatures. 

The case made its way to the Illinois Appellate Court, which upheld the electoral board's decision, finding no error in the board disregarding the excess signatures and drawing from the bottom of the stack of petitions. The Court did note that an electoral board should not strike all of the nomination papers solely because the petitions exceed the statutory maximum number of signatures, but that it was fair and reasonable for the electoral board to disregard the excess signatures.

Read More

Bill Would Amend FOIA to Increase Burden on Public Bodies

Bill Would Amend FOIA to Increase Burden on Public Bodies

  Wednesday, February 13, 2019    Julie Tappendorf

---

Every year or so, someone introduces legislation to amend FOIA to increase the penalties on public bodies for violations. This session is no exception. Last week, SB 1216 was introduced to modify the FOIA statute as follows:

1. To require a public body that denies a record under one of the FOIA exemptions to prove that release of the record would harm an interest protected by the asserted exemption. This is in addition to the current requirement that a public body prove by clear and convincing evidence that the record is exempt.

2.  To mandate that a court impose a civil penalty against a public body for any violation of FOIA (not just for willful and intentional violations as provided in the current statute). 

We'll keep our readers posted on this bill as it moves forward.

Read More

Federal Court Finds Child Sex Offender Residency Restrictions Unconstitutional

Federal Court Finds Child Sex Offender Residency Restrictions Unconstitutional

  Tuesday, February 12, 2019    Julie Tappendorf

---

Last year we reported that the Illinois Supreme Court upheld a state statute making it unlawful for a sexual predator or a child sex offender to knowingly be present in any public park or on real property comprising any public park. Illinois law also makes it unlawful for a child sex offender to reside within 500 feet of a school, playground, or any facility providing programs or services exclusively directed toward people under age 18.  Recently, however, a federal district court case found unconstitutional a municipality’s attempt to impose stricter residency restrictions on child sex offenders.  While the case is not directly applicable in Illinois, the decision is instructive for those local governments seeking to impose similar restrictions.

In 2016, the Village of Pleasant Prairie, Wisconsin adopted an ordinance prohibiting child sex offenders from residing within 3,000 feet of schools, day care centers, parks, trails, playgrounds, places of worship, athletic fields used by minors, or any other place minors were known to congregate.  The ordinance also prohibited offenders from moving into the Village unless they were already domiciled there, restricted offenders from living within 500 feet of one another, and prohibited offenders from leasing property.  The effect of the ordinance made more than 90% of the Village off-limits to child sex offenders with most of the available property in rural locations.

In Hoffman v. Village of Pleasant Prairie, a federal district court found these restrictions retroactively punished offenders and violated equal protection.  The prohibition on leasing property to offenders and the 90% ban on available locations effectively banished offenders from the Village.  Without making any individualized assessment of a particular offender’s conduct or undertaking any objective studies, the court found the Village’s laws had a criminal rather than civil purpose effectively punishing the offenders a second time for the same offense.

The court also found the ordinance treated the same class of offenders differently, allowing those domiciled in the Village to stay while banning others.  Even though the offenders were not a protected class, and the Village only had to provide a reasonable basis for the distinction, because the Village could provide no evidence to justify the distinction the court found it had violated plaintiffs’ right to equal protection under the law.

The case does not establish bright-line limits regarding what types of residency restrictions a municipality may impose.  Instead, it holds that even ordinances having a clear public purpose, in this case protecting children against the risks of recidivism by convicted child sex offenders, must still be supported by evidence in the record supporting restrictions that infringe on constitutional rights.

Post Authored by David Warner, Ancel Glink

Read More

Quorum Forum New Episode: Silver Tsunami!

Quorum Forum New Episode: Silver Tsunami!

  Monday, February 11, 2019    Julie Tappendorf

---

A new Quorum Forum podcast episode has been released! The "Silver Tsunami" has arrived for employers and local governments, so management of increasing numbers of older employees is on the agenda. Ancel Glink attorney Matt DiCianni joins us from Ancel Glink's Workplace Report to discuss the latest age discrimination cases. Then, Ancel Glink attorney Jim Rock talks retirement, IMRF, and his time at the 2019 IAPD/IPRA Soaring to New Heights Conference. 

You can access this new episode (and past podcast episodes) on the Quorum Forum website here.

How is your organization helping its most experienced employees? Tell us about it at podcast@ancelglink.com! 

This podcast is provided as a service to our public and private sector clients and friends. It is intended to provide timely general information of interest, but should not be considered a substitute for legal advice. Read our full disclaimer: ancelglink.com/disclaimers

Read More

Release of Complaint Registry Under FOIA Renders Appeal Moot

Release of Complaint Registry Under FOIA Renders Appeal Moot

  Friday, February 08, 2019    Julie Tappendorf

---

In Fraternal Order of Police v. City of Chicago and Chicago Tribune, the Chicago Police Department (CPD), notified the Fraternal Order of Police (FOP) that, in respond to FOIA request by the Chicago Tribune and Chicago Sun Times,  it intended to release lists of complaint registry (known as CR) files against all CPD officers since January 1, 1967. The FOP then filed a motion for preliminary injunction and a complaint asking a court to enjoin the release of the registry files on the basis that release of the records would violate Section 8 of the Illinois Personnel Records Review Act, which prohibits release of personnel records or disciplinary action over 4 years old.  The FOP also argued that release would violate the collective bargaining agreement, the Illinois Public Labor Relations Act, and Section 6 of the Personnel Records Review Act.

The trial court ruled in the FOPs favor, barring the release of the registry files. That ruling was appealed by defendants. The Appellate Court vacated the trial court orders barring release of the CR records, finding that Section 8 of the Personnel Records Review Act did not categorically exempt CR files from disclosure under FOIA because they did not relate to disciplinary or personnel files.  The Court also found that the collective bargaining agreement’s provisions regarding destruction of files was against public policy and unenforceable.  After the Court’s decision, CPD released the CR files pursuant to the original FOIA requests.

The proceedings continued as the trial court addressed the amended complaint, ultimately dismissing the amended complaint because the Appellate Court previously found that no FOIA exemptions applied to the registry files.  On appeal to the Appellate Court, the case was dismissed as moot, as the documents had already been released under FOIA.

Post Authored by Erin Pell, Ancel Glink

Read More

Court Finds That City Conducted Reasonable Search for Records

Court Finds That City Conducted Reasonable Search for Records

  Thursday, February 07, 2019    Julie Tappendorf

---

In Sonya Blackman and Oily Thomas v. City of Chicago,  Requesters filed a FOIA request with the City of Chicago, seeking police records for an investigation of a homicide for which plaintiff Thomas was convicted.  The Chicago Police Department released the homicide file to plaintiffs in response.  Upon receipt, plaintiffs noticed that certain documents were missing based on the inventory ledge in the file.  Plaintiffs then requested the City provide an index under Section 11(e) of FOIA, and locate the missing document or provide blank forms if the originals could not be found.  The FOIA Officer attempted to locate the missing documents, but then informed plaintiffs that the documents could not be found.  The FOIA Officer provided plaintiffs with an index listing the documents provided and explaining any redactions.  Plaintiffs then filed a lawsuit, alleging that the City did not comply with FOIA by failing to provide an adequate index, failing to provide blank copies of missing forms, and failing to look for documents in good faith.  The trial court ruled in favor of the City, finding (1) that the allegations under 11(e) were moot as the City had responded with an index and (2) that the plaintiffs did not sufficiently challenge an affidavit by the City’s FOIA Officer certifying that she conducted a diligent search.

On appeal, the Appellate Court also ruled in the City's favor, noting that the City supported its argument with the affidavit of the FOIA Officer, but that plaintiff failed to file any counter-affidavit in response. Further, plaintiffs failed to show that a more diligent search would have yielded the missing records.  The Court noted that a public body is not required to recreate or reacquire a document no longer within its possession.

Post Authored by Erin Pell, Ancel Glink

Read More

FOIA Requires Release of Records Not in Possession of Public Body

FOIA Requires Release of Records Not in Possession of Public Body

  Wednesday, February 06, 2019    Julie Tappendorf

---

A recent Illinois Appellate Court case reiterated the need for a public body to obtain records from agencies with which it contracts to perform governmental duties under FOIA. 

In Rushton v. Department of Corrections, Rushton and the Illinois Times filed a FOIA request with the Department of Corrections asking for a copy of a settlement agreement regarding a prisoner who allegedly died from inadequate medical care.  Wexford, a company that provides health services to prisoners in the Department, had entered into a confidential settlement agreement with the estate of the prisoner. Upon receipt of the FOIA request, the DOC asked Wexford for an unredacted copy of the Agreement, but Wexford refused to release it. Wexford later provided a redacted copy of the settlement agreement to the FOIA requesters and the DOC.  The requesters then filed a complaint against the DOC asking that it release a copy of the unredacted settlement agreement.  Wexford then intervened in the lawsuit and argued that the DOC did not have an unredacted version of the settlement agreement and that the agreement was not a public record under FOIA.  The trial court agreed with Wexford, finding that the settlement agreement did not “directly relate” to a governmental function.

On appeal, the Illinois Appellate Court reversed, finding that the settlement agreement “directly related” to a governmental function. The Court cited Section 7(2) of FOIA, which provides as follows: 

A public record that is not in the possession of a public body but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the public body, and that directly relates to the governmental function and is not otherwise exempt under this Act, shall be considered a public record of the public body, for purposes of this Act.   

The Court found that the agreement “directly related” to a governmental function because Wexford performed a governmental function when it contracted with the DOC to perform medical services.  The Court reasoned that the agreement involved a governmental function because it involved a claim arising out of the DOC's rendering of medical care.  The Court remanded the case to the trial court to consider whether any partial redactions would be appropriate.

Post Authored by Erin Pell, Ancel Glink

Read More

More New Bills Introduced That Would Affect Local Governments

More New Bills Introduced That Would Affect Local Governments

  Tuesday, February 05, 2019    Julie Tappendorf

---

The Illinois General Assembly is busy introducing hundreds of new bills, a few of which we have already reported on.  A few more that may be of interest to local governments are summarized below:

Gardening and Zoning

HB 1612 would amend the Municipal Code and Counties Code to expressly ban municipalities from prohibiting a private homeowner from gardening on his or her own property. The bill includes a home-rule preemption. The bill does not provide any guidance as to what constitutes "gardening" so presumably municipalities and counties can still regulate gardening on residential properties, including establishing restrictions on the scope and location of gardening activities so long as the regulation does not constitute an outright prohibition.

Open Meetings Act

SB 196 would amend the Open Meetings Act to allow public bodies to go into closed session to discuss the appointment, employment, compensation, discipline, performance, or dismissal of specific independent contractors or volunteers. Currently, that exception is limited to the discussion of employees or legal counsel of the public body.

Employee Expenses

HB 1621 would prohibit municipalities and counties from using funds received from the LGDF for travel, lodging, or dining expenses. This bill is similar to a number of bills that were introduced last session but were not approved.

Electronic Publication of Notices

SB 189 would amend various provisions of state law to allow municipalities and other units of local government to publish notice on their own websites rather than in local newspapers. Similar bills have been introduced over the past few years but have not been enacted.

Read More

Grand Jury Records Not Releasable Under FOIA

Grand Jury Records Not Releasable Under FOIA

  Monday, February 04, 2019    Julie Tappendorf

---

We have a lot of FOIA cases to report on this week, starting with this one decided by the Illinois Supreme Court:

The Illinois Supreme Court recently found that grand jury documents were exempt from disclosure under FOIA and once again stated that protective orders take precedence over disclosure under FOIA.

In In Re Appointment of Special Prosecutor, the Better Government Association (BGA) sent a FOIA request to the City of Chicago and the Office of Special Prosecutor, asking for grand jury documents regarding a 2004 death and allegations of whether employees of the City suppressed and concealed evidence. The FOIA request asked for: 1) documents to show the names of everyone interviewed by the special prosecutor, 2) statements and communications between Mayor Daley’s family members, their attorney, and the City’s corporate counsel at the time, and 3) invoices and billing records.  The City and the OSP denied the FOIA request under Section 7(1)(a) of FOIA, stating that disclosure was prohibited by state law. Specifically, they argued that disclosure was prohibited by Section 112-6 of the Code of Criminal Procedure which prohibits release of grand jury matters. The City further argued they could not release the grand jury records as they were placed under seal by a protective order.

The Illinois Supreme Court reviewed the denial and noted that the rule of secrecy around grand jury proceedings is a fundamental part of criminal procedural law.  The Court reviewed the policy reasons for maintaining grand jury secrecy, including preventing the flight of persons under investigation, protecting grand jurors from undue influence or intimidation, preventing subornation of perjury, encouraging witnesses to testify, and protecting the innocent from exposure. 

In short, the Illinois Supreme Court concluded that the requested information was prohibited from disclosure under the Code of Criminal Procedure and FOIA because release of the documents would disclose matters occurring before the grand jury. In ruling in favor of the City, the Court rejected the BGA’s argument that protective orders from the criminal court were not a basis to withhold documents under FOIA. The BGA had argued that withholding the documents was improper as it did not fall within the narrow list of exemptions in FOIA. But, the Court disagreed, ruling that a court order must be obeyed and that protective orders take precedence over the disclosure requirements of FOIA.

Post Authored by Erin Pell, Ancel Glink

Read More