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Thursday, December 23, 2021

Illinois Liquor Control Commission Issues Guidance on Liquor Delivery

The Illinois Liquor Control Commission (ILCC) issued a legislative bulletin this week including guidance on the new liquor delivery law going into effect on January 1, 2022. The guidance is mostly targeted at the retailers who want to take advantage of the new law that allows liquor delivery; however, municipalities that license these retailers may want to be aware of the new rules and consider whether they need to update their local liquor codes to be consistent with the new law.

As a reminder, the new law preempts home rule and non-home rule units (except for Chicago) and allows certain state-authorized liquor deliveries effective January 1, 2022. “Delivery” means the movement of alcoholic liquor purchased from a licensed retailer to a consumer through:

  1. delivery within the licensed retailer’s parking lot, including curbside, for pickup by the consumer;
  2. delivery by an owner, officer, director, shareholder, or employee of the licensed retailer; or
  3. delivery by a third-party contractor, independent contractor, or agent with whom the licensed retailer has contracted to make deliveries of alcoholic liquors.

Deliveries must be made within 12 hours from the time the alcoholic liquor leaves the retailer’s licensed premises, and “delivery” does not include use of common carriers.

The new ILCC guidance only allows deliveries by retailers that are designated by the ILCC as licensed for off-premises consumption or combined off-premises/on-premises consumption. All alcoholic liquor must be delivered in the original package unless the liquor is delivered under the cocktails-to-go law. While cocktails-to-go deliveries must be made by a person 21 years of age or older, the guidance provides that other liquor deliveries may be made by a person 18 years of age or older subject to local ordinance.

The guidance also states that the retailer and its third-party delivery agent must comply with specific sections of the Liquor Control Act, including Section 6-16 (prohibited sales and possession), Section 6-29 (winery shipper’s license), and Section 6-29.1 (direct shipments of alcoholic liquor). While Section 6-29 states its labeling, signature, and delivery confirmation requirements only apply to wine, the state guidance applies these requirements to all deliveries of alcoholic liquor under the new law:

  • All packages containing alcoholic liquor must be clearly labeled “CONTAINS ALCOHOL. SIGNATURE OF A PERSON 21 YEARS OF AGE OR OLDER REQUIRED FOR DELIVERY. PROOF OF AGE AND IDENTITY MUST BE SHOWN BEFORE DELIVERY.” This warning must be prominently displayed on the packages.
  • A retailer must require the transporter that delivers the package to obtain the signature of a person 21 years of age or older at the delivery address at the time of delivery.
  • At the expense of the retailer, the retailer must receive a delivery confirmation from the third-party delivery company indicating the location of the delivery, time of delivery, and the name and signature of the individual 21 years of age or older who accepts delivery.

The guidance also requires retailers and their third-party agents to comply with all local, state, and federal delivery laws, including the alcohol delivery laws of other states. Significantly, retailers will be liable for delivery violations of third-party delivery agents.

The legislative bulletin also provides that, under similar conditions, licensed off-premises and combined off-premises/on-premises retailers may ship alcoholic liquor in the original package to a consumer by common carrier if allowed by the local liquor control commission or local ordinance.

Post Authored by Dan Bolin & Erin Monforti, Ancel Glink

Wednesday, December 22, 2021

PAC Finds Public Body in Violation of FOIA for Withholding Certain 911 Call Data

In August 2021, a reporter submitted a FOIA request to the City of Chicago’s Office of Emergency Management and Communications (OEMC) seeking certain 911 call data, including response times to incidents. Although OEMC provided a data set responsive to the FOIA request, OEMC withheld 911 response times pursuant to FOIA exemption 7(1)(d)(vi), which exempts records that would endanger the life or physical safety of law enforcement personnel or any other person, and FOIA exemption 7(1)(v), which exempts from disclosure certain response policies and plans designed to identify, prevent, or respond to potential attacks on a community’s population, systems, facilities or installations.

The reporter then appealed to the PAC Office of the Attorney General, which office issued an opinion finding that OEMC violated FOIA by improperly withholding the 911 call response time data pursuant to FOIA exemptions 7(1)(d)(vi) and 7(1)(v). PAC Op. 21-012.

Specifically, the PAC rejected OEMC’s speculative assertions that 911 call response times could (rather than would) endanger the life of safety of first responders or other people, because OEMC’s assertion that response times could be used to target criminal activities in areas that take longer for police personnel to respond to than others were conclusory and unsupported by a detailed factual basis. Unless the response time data clearly demonstrates a pattern of consistently slower response times within particular districts that could be exploited for criminal purposes, which the PAC said OEMC failed to assert or prove, the PAC concluded that OEMC improperly withheld the 911 response time data under exemption 7(1)(d)(vi).

The PAC also concluded that OEMC improperly withheld the 911 response times under exemption 7(1)(v) because the plain language of exemption 7(1)(v) only applies to three categories of records (vulnerability assessments, security measures, and response policies or plans), not to factual response time data demonstrating the performance of public duties by public employees, and response time records are not plans designed to meet any objective stated in the exemption, so response time records fall outside the scope of the exemption.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, December 21, 2021

Public Body Did Not Waive FOIA Exemptions

In 2017, a law firm submitted a FOIA request to a Police Department seeking certain 2017 motor vehicle traffic accident reports. After the Department produced redacted accident reports to the requester, the requester sued the Department alleging that the Department improperly redacted non-exempt information under FOIA, and alternatively, even if the Department’s redactions were proper, the Department waived its ability to assert FOIA exemptions because the Department had previously provided unredacted accident reports to a third party vendor, LexisNexis. 

We previously reported on the First District Appellate Court’s decision upholding the Department’s redactions as proper and finding the Department did not waive its right to redact accident reports in response to a FOIA request, because even though the Department previously provided unredacted copies of the same reports to a third-party vendor (LexisNexis), the vendor was acting as the Department’s agent under a contract in order to comply with the Department's mandatory reporting obligations under section 408 of the Vehicle Code, which requires the Department to file motor vehicle accident reports with the Secretary of State and the Department of Transportation

On appeal to the Illinois Supreme Court, the requester solely argued that the Department should be precluded from asserting applicable FOIA exemptions because they previously voluntarily disclosed unredacted reports to its third party vendor. In a recently issued decision, the Illinois Supreme Court rejected the requester's waiver argument and upheld the validity of the Department’s redactions finding that a public body does not waive an individual's interest in his or her own personal or private information, despite the public body having previously provided a state-approved vendor unredacted copies of the same reports to comply with its mandatory reporting obligations under state law.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, December 20, 2021

New Law Amends Election Code to Restrict Contributions to Judicial Campaigns

The Illinois General Assembly recently passed Public Act 102-0668, which, among other things, amends the Election Code to regulate the influence of “dark money” and out-of-state contributions on Illinois judicial election campaigns.

Specifically, the new law prohibits a candidate political committee established to support a candidate seeking judicial nomination from accepting contributions (1) from any entity that does not disclose their identity and (2) from any out-of-state person.

Regarding contributions to a candidate political committee established to support a candidate seeking judicial nomination, the new law also prohibits:

  • any person from making a contribution in the name of another person or knowingly permitting their name to be used to effect a prohibited contribution or knowingly accepting a contribution made by one person in the name of another person; 
  • a person from knowingly accepting reimbursement from another person for a contribution made in that person’s name; 
  • any person from making or knowingly accepting anonymous contributions; and 
  • any person from predicating any benefit (e.g., employment decisions) or any other gift, transfer or emolument upon either (i) the decision by the benefit recipient to donate or not to donate to a candidate; or (ii) the amount of any such donation.

The new law also prohibits any judicial candidate or political committee established to support a judicial candidate from knowingly accepting any contribution or making any expenditure in violation of this new law.

Finally, the new law also prohibits any officer or employee of a political committee established to support a judicial candidate from knowingly accepting a contribution made for the benefit or use of a candidate or knowingly making any expenditure in support of or opposition to a candidate or for electioneering communications in relation to a candidate in violation of any limitation designated for contributions and expenditures under the new law.

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, December 17, 2021

PAC Finds In Favor of Public Body in Challenge to Remote Meeting

The Public Access Counselor of the Illinois Attorney General's office (PAC) just issued a binding opinion finding no OMA violation where a public body conducted its meeting remotely via Zoom. PAC Op. 21-011.

In September, a school board conducted its board meeting via Zoom, with no in-person attendance by the public. The board heard public comment, and one member of the public objected during public comment to the board's decision to hold the meeting remotely. After the meeting, that member of the public filed a request for review with the PAC alleging that the board's decision to hold the meeting remotely violated the OMA. She argued that the board's rationale for holding the meeting remotely (because of the COVID-19 pandemic) was a pretext to avoid having members of the public attend the meeting in-person, particularly since the board had conducted its previous meeting in-person.

The board filed a response to the request for review with the PAC, explaining that the board followed the process set out in section 7(e) of the OMA for conducting a remote meeting while the Governor's disaster proclamation was still in effect. The board referenced language that it had placed on its meeting agenda that explained that the meeting would be held remotely because of the pandemic. The board also explained that at the board's August meeting, there were a number of people in attendance who refused to comply with the mask requirement, which also disrupted the board's meeting when they refused to either put on a mask or leave the meeting. 

The PAC reviewed the recording of the board's August and September meetings, as well as the board's September agenda and explanation in its response. First, the PAC found that the board followed the requirements of 7(e) of the OMA in conducting the remote meeting because (1) the Governor's disaster proclamation is still in effect, (2) the board president made a determination that it was not practical or prudent to hold an in-person meeting due to the pandemic, and (3) the board provided access to the public through the Zoom platform. Second, the PAC noted that the person who filed the complaint was allowed to participate in the September remote meeting via Zoom and, in fact, spoke during public comment at that meeting. The PAC also noted that it was within the board's discretion to decide not to hold an in-person meeting given the disruptive noncompliance with the mask requirement by numerous members of the public at the board's previous meeting, so long as the board followed the OMA requirements.

This opinion provides very helpful guidance to public bodies in complying with section 7(e) of OMA that authorizes remote meetings while the Governor's COVID-19 disaster proclamation is in effect.

Appellate Court Confirms Standard of Review for Zoning Challenges

Zoning decisions by municipalities and counties can often be controversial and sometimes end up in litigation.  How these zoning decisions should be reviewed by the courts has been the subject of much debate (and legislation) in Illinois over the past few decades.  Last week, the Appellate Court of Illinois for the Fourth District once again addressed this issue in Schreiner v. County of Logan, et al.

In Schreiner, the Logan County Board approved a rezoning request that allowed a property to be used for limestone mining and crushing. The plaintiffs, who owned adjoining property, sued the county challenging its approval of the rezoning, claiming the county violated several provisions of the Counties Code or the county’s own zoning ordinance. The neighbors also claimed they were not provided a sufficient opportunity to be heard at the public hearings on the rezoning request. After a trial, the circuit court upheld the rezoning decision, finding that the neighbors failed to provide evidence that the decision violated their substantive or procedural due process rights.

On appeal, the appellate court upheld the decision in favor of the county, and confirmed that the proper test for reviewing a legislative action is the rational basis test and not administrative review. The appellate court noted that prior decisions that deemed municipal and county zoning decision administrative in nature had been overturned when the General Assembly amended state statute. The appellate court also noted that these statutory amendments showed that the legislature intended to limit review of zoning decisions to arbitrariness as a matter of substantive due process under the rational basis test, which is evaluated using the LaSalle/Sinclair factors. 

Since the neighbors had not made any specific claim that the county’s rezoning decision violated their substantive due process rights, the appellate court upheld the trial court’s finding in favor of the county. The appellate court declined to address the neighbors' claims that the county’s rezoning decision violated the Counties Code and the County’s own zoning ordinance because the neighbors failed to argue that these alleged violations deprived them of substantive due process. The court also held that the neighbors failed to demonstrate that the county had violated their procedural due process rights because they admitted they had attended the public hearings on the rezoning request and had an opportunity to make statements during those hearings.

The Schreiner case confirms that challenges to municipal and county zoning decisions are limited to substantive and procedural due process grounds.

Post Authored by Erin Monforti & Kurt Asprooth, Ancel Glink

Tuesday, December 14, 2021

OMA Amendment Addresses Review of Executive Session Minutes

We did not see much activity in this session of the Illinois General Assembly regarding the Open Meetings Act or FOIA. The one bill that did pass amends the provisions relating to review of executive session meeting minutes.

Previously, each public body was required to conduct a review of their executive session minutes no less than semi-annually. P.A. 102-0653 amended the OMA to address public bodies that do not meet regularly. Under this Act, public bodies are now allowed to review their executive session meeting minutes every six months or as soon as practicable. The Act also also allows ad hoc committees to review their executive session meeting minutes at their next meeting. 

Post Authored by Dan James & Julie Tappendorf

Monday, December 13, 2021

New Laws for 2022: Affordable Housing

UPDATED POST. Today, we are reporting on some of the new laws that will take effect in 2022 that address affordable housing.

P.A. 102-0175 amends the Affordable Housing Planning and Appeal Act to require that non-exempt municipalities (those municipalities that the State of Illinois has determined do not meet the State's 10% threshold for "affordable housing") provide notice and hold a public hearing on any new affordable housing plan or any amendment to an existing plan. The amendment also gives the Attorney General enforcement power for the Act’s reporting requirements related to the development of an affordable housing plan. If a non-exempt local government does not submit its plan in a timely manner, the AG can file an action for mandamus or injunctive relief or take appropriate relief to ensure compliance. The Act provides that a home-rule unit "may not regulate the activities described in this Act in a manner more restrictive than the regulation of those activities by the State under this Act." 

This new law also creates the COVID-19 Affordable Housing Grant Program Act which provides that the housing development authority shall establish a grant program to encourage the construction and rehabilitation of affordable multi-family housing in response to the pandemic. This requirement is subject to appropriations provided by the grant fund. We wrote about the Act here.

P.A. 102-0062 allows non-exempt local governments, community college districts, and the State of Illinois to develop affordable housing for students around community colleges in coordination with a nonprofit affordable housing developer.  

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Friday, December 10, 2021

New Liquor Law for 2022

P.A. 101-0668 preempts the authority of home rule and non-home rule units (except for Chicago) to restrict certain state-authorized liquor deliveries effective January 1, 2022. 

“Delivery” means the movement of alcoholic liquor purchased from a licensed retailer and delivered to a consumer through:

  1. delivery within the licensed retailer’s parking lot, including curbside, for pickup by the consumer;
  2. delivery by an owner, officer, director, shareholder, or employee of the licensed retailer; or
  3. delivery by a third-party contractor, independent contractor, or agent with whom the licensed retailer has contracted to make deliveries of alcoholic liquors.

Deliveries must be made within 12 hours from the time the alcoholic liquor leaves the retailer’s licensed premises, and “delivery” does not include use of common carriers such as buses or trains. 

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Thursday, December 9, 2021

New Land Use & Economic Development Laws for 2022

Over the next week or so, we will summarize some of the new laws that are taking effect in 2022 that will be of interest to local governments. For those of you who follow our Quorum Forum Podcast, you have already heard about some of these.

Today's post focuses on new laws that affect zoning, land use, and economic development:

P.A. 102-0078, or Hayli’s Law, prohibits local health departments and public health districts from regulating lemonade stand sales by a person under the age of 16. We previously wrote about this new law here.

P.A. 102-0180 permits any person to cultivate vegetable gardens on their own property. The purpose of the Act is to encourage the cultivation of fresh fruit and produce at all levels of production, including on residential property for personal consumption. Under the law, a vegetable garden is any "vegetable garden" means any plot of ground or elevated soil bed on residential property where vegetables, herbs, fruits, flowers, pollinator plants, leafy greens, or other edible plants are cultivated. There is a home-rule restriction that states that home rule units may not regulate vegetable gardens in a manner inconsistent with the Act. Restrictions may still be made on the basis of height, water use, fertilizer use, or other characteristics. We previously reported on this Act here.

P.A. 102-0098 opens at least 50 new state licenses for adult-use cannabis dispensaries over the course of 2022. Five of the licenses will be issued through a social equity program aimed at issuing licenses to a “disproportionately impacted area.” Those areas meet certain statutory criteria such as having 20% of households receiving assistance under the Supplemental Nutrition Assistance Program or an unemployment rate more than 120% the national average. The Act sets January 1, 2022 as the deadline for the Department of Agriculture to publish an application to issue additional Conditional Adult Use Dispensing Organization licenses.

P.A. 102-0108 will expand the Illinois Enterprise Zone Act to authorize 97 (instead of 12) enterprise zones to be certified in a calendar year. The Act also provides that at least 25% of zones available for designation must be awarded to zones in counties with populations under 300,000. For those zones set to expire before 2024, the application process begins five years prior to expiration. Expiring zones may reapply, but other areas may compete for the designation.

The amendment also implements new consequences for zones failing to file reports of any capital investment, job creation or retention, or state tax expenditures for three consecutive years. After the Department of Commerce notifies the chief elected official of the county or municipality that is not compliant, the Department will place the county or municipality on probationary status for at least 6 months. If corrective action is not achieved during the probationary period, the Department will decertify the zone.

P.A. 102-0127 amends TIF reporting requirements. Beginning in FY-2022, municipalities that submit the required TIF reports will also be required to report to the State Comptroller the following: (1) the number of jobs projected to be created for each redevelopment project area at the time of approval of the redevelopment agreement; (2) the number of jobs, if any, created as a result of the development to date for that reporting period under the same guidelines and assumptions as was used for the projections used at the time of approval of the redevelopment agreement; (3) the amount of increment projected to be created at the time of approval of the redevelopment agreement for each redevelopment project area; (4) the amount of increment created as a result of the development to date for that reporting period; and (5) the stated rate of return identified by the developer to the municipality for each redevelopment project area, if any.

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

Wednesday, December 8, 2021

Court Issues Injunction Against Texas Law Restricting Social Media Platform Moderation

Many of you may have been following the law adopted by the State of Texas legislature prohibiting censorship by social media companies like Facebook, Twitter, and others which was the subject of a recent federal lawsuit. The court issued an initial ruling in that case recently, which "stayed" enforcement of the law for now.  Netchoice LLC v. Ken Paxton.

HB 20 makes it unlawful for a “social media platform” (like Facebook, Twitter, etc) to censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: 

(1) the viewpoint of the user or another person;

(2) the viewpoint represented in the user’s expression; or

(3) a user’s geographic location in this state or any part of this state. 

HB 20 carves out two content-based exceptions to the law's broad prohibition: 

(1) platforms may moderate content that “is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment,” and 

(2) platforms may moderate content that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.” 

The law authorizes a user who believes a platform has improperly “censored” his or her viewpoint to sue the platform and obtain attorney’s fees. In addition, the Attorney General of Texas can “bring an action to enjoin a violation or a potential violation” of HB 20 and recover its attorney’s fees.

Two trade associations with members that operate social media platforms that would be affected by HB 20 sued the Attorney General for the State of Texas claiming the law violates a variety of constitutional protections, including First Amendment free speech rights and the Fourteenth Amendment’s due process and equal protections clauses, among other claims.

The the court ruled that plaintiffs were entitled to a preliminary injunction to "stay" the law from taking effect. The court held that the plaintiffs had demonstrated a likelihood of success on the merits of their First Amendment claim that the law violated their members' free speech rights. Specifically, the court determined that social media platforms have First Amendment rights to moderate content that is posted and disseminated on their own platforms. The court held that HB 20’s prohibitions on “censorship” and constraints on how social media platforms disseminate content violate the First Amendment. The court noted that these platforms have policies against content that express a viewpoint and that disallowing them from applying their own policies requires platforms to “alter the expressive content of their message.” The court found that because the law would substitute the government's editorial discretion for the private companies over the social media platforms that these companies operate and moderate, it constituted viewpoint discrimination under the First Amendment. The court also found the law to be discriminatory and unconstitutionally vague.

In sum, the court denied the State's motion to dismiss the legal challenge to the Texas law and granted injunctive relief to "stay" enforcement of the law while the challenge proceeded through the court.

Tuesday, December 7, 2021

Town Employee's Termination Did Not Violate the First Amendment

The U.S. Court of Appeals for the Seventh Circuit recently issued a decision in Sweet v. Town of Bargersville and Longstreet. The case involved a customer service employee for the Town of Bargersville who was discharged in January 2018. The employee brought civil rights claims against the Town alleging she was fired in retaliation for exercising her free speech rights under the First Amendment. 

Sweet was employed by the Town of Bargersville for nearly 20 years and claims she performed her job adequately until her primary duty—collecting utility bill payments—was outsourced in 2015. She then transitioned into a general customer service role and her performance reviews then stated she was argumentative, resistant to change, and disorganized. In August 2017, Sweet disconnected a resident’s utility services because the resident failed to pay his bills. Shortly thereafter, the Clerk-Treasurer, Steve Longstreet, reconnected the resident’s utilities, which Sweet claims in her lawsuit was motivated by his personal and business affiliation with the resident and the resident’s prominent status in the community. Sweet shared her criticisms of Longstreet and this perceived inequity with co-workers and confronted Longstreet outright.

Shortly after this reconnection incident, Sweet was prohibited from handling disconnections. In January 2018, Sweet was discharged from the Town. The Town stated that the reason she was terminated was because she was not adequately keeping up with the transition to automated systems.

Sweet filed suit in federal court which ruled in favor of the Town and Longstreet—the court found that Sweet could not establish First Amendment retaliation because she failed to show that the decision to terminate her employment was made with retaliatory motive. On appeal, the Seventh Circuit agreed with the district court's ruling but also held that Sweet’s speech was not protected by the U.S. Constitution as required by a First Amendment retaliation claim. Citing Supreme Court precedent, the Seventh Circuit reasoned that “speech that owes its existence to a public employee’s professional responsibilities,” even if not strictly required by the employer, is not protected under the First Amendment. Since Sweet’s criticism of Longstreet was directly related to her job duties as a utility-collections clerk, any perceived adverse action did not violate her free speech rights but was instead a fair response by her employer to a work-related disagreement. 

The Seventh Circuit also noted that Sweet was terminated for multiple performance deficiencies five months after she complained to Longstreet about perceived misconduct. Since Sweet failed to show that her speech was protected or that she was discharged for exercising her First Amendment rights, her termination was not unconstitutional.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Monday, December 6, 2021

Quorum Forum Podcast: Ep. 59 New Laws for 2022

Ancel Glink's Quorum Forum Podcast has released a new episode, Episode 59: New Laws for 2022! 

In this episode, Ancel Glink attorneys will share information about many of the new laws that are set to take effect in 2022 that will be of interest to local governments. 

Call the Quorum Forum Hotline (312.601.9185) to tell us your new year’s resolution, or email your questions to podcast@ancelglink.com!

Thursday, December 2, 2021

PAC FOIA and OMA Website Mostly Restored

After months of being mostly inaccessible, the Public Access Counselor's FOIA and OMA webpages are now mostly up and running, including links to the PAC's binding opinions on FOIA and OMA. What has not yet been restored, unfortunately, is the PAC's OMA and FOIA training module, which according to the website, is being updated. 

I know many local government officials have been waiting for the OMA electronic training to be available, so we will keep you posted as to the status of the electronic FOIA/OMA training. The good news is that you can access the PAC's binding opinions, as well as other PAC FAQs, educational materials, and other guidance that can assist government officials and employees in complying with these two statutes.

Wednesday, December 1, 2021

Court Finds First Amendment Violation in Facebook Moderation Case

A federal court in Arkansas issued an opinion a few months ago that may be of interest to governments that operate and moderate social media accounts, especially those that supplement Facebook's filtering settings. Tanner v. Ziegenhorn.

The Arkansas State Police operates a public Facebook page where Tanner posted various comments  that are the subject of this lawsuit. 

The first comment made a disparaging remark against a state trooper ("this guy sucks") that was removed by an officer who administered the page. After Tanner complained, the State Police allowed Tanner to repost the comment and the administrator admitted that the comment should not have been deleted. 

Tanner's second comment criticized another state trooper, accusing him of a crime. That comment was not deleted by the State Police but was hidden after the State Police blocked Tanner for his subsequent actions.

Tanner's third comment consisted of private messages sent through the messenger function in Facebook that were not publicly posted. In these private messages, Tanner accused the State Police of removing other messages he had posted that had included profanity. These private messages included profanity. The State Police blocked Tanner from the Facebook page for these private messages. 

Other comments posted by Tanner contained profanity and were screened out by profanity filters established by Facebook and supplemented by the State Police in its account settings. 

Tanner subsequently sued, claiming the State Police violated his First Amendment rights by deleting his comments and blocking him from posting on the State Police Facebook page.

The court first noted that the State Police had created a public forum when it established its Facebook page. As a result, the court held that the comment section of that page was a designated public forum that is protected under the First Amendment, although the private messaging space was not and, therefore, was not subject to the same protections as the public space. 

In considering the various actions of the State Police in moderating its Facebook page, the court found as follows:

As to the first comment, the court found no violation since the removal was only temporary and the State Police allowed him to repost it. 

However, the court did find that the State Police's blocking of Tanner from its page for posting profanity violated Tanner's First Amendment rights. The court also found that the State Police's decision to add words to Facebook's "filtering" program, (including "pig," "copper," and "jerk," among other words) was impermissible viewpoint discrimination under the First Amendment. In addition, the court found that the State Police's decision to set the Facebook filter for its page to "strong" - the setting Facebook uses to filter (and remove) the most profanity - was not narrow enough for a designated public forum. The court did acknowledge that because the State Police could not control Facebook's community standards which filter out some words that might otherwise be protected speech, any removal of comments through Facebook's actions were not imputed to the State Police. 

There are a few good lessons in this case for administrators of government social media accounts. First, administrators should be cautious in choosing among Facebook's filtering settings given this court's ruling that the State Police's choice to set its filter to "strong" was too broad. Administrators should also consider whether it is necessary to add more words to Facebook's filter given the court's ruling that this action could be considered viewpoint discrimination. If a government entity does decide to block an individual from its social media account, it should ensure that the reasons for the blocking do not implicate free speech rights (i.e., don't block someone solely for criticizing the government, which is one of the highest forms of protected speech). Finally, although a reliance solely on Facebook's "community standards" for filtering words on Facebook does not seem to create a First Amendment issue (at least not from this court's view), as noted above, care should be given if a government wants to supplement the base community standards by adding words to the filter or adopting Facebook's "strong" filter setting.

Monday, November 22, 2021

Village's Assault Weapon Ban Upheld By Illinois Supreme Court

We previously reported on Municipal Minute about an Illinois appellate court decision involving a challenge to the Village of Deerfield, Illinois assault weapon ban. The appellate court had ruled in favor of the Village, upholding the Village's assault weapon ban ordinance. That decision was appealed to the Illinois Supreme Court, which issued its ruling last week. As a result of a divided Illinois Supreme Court, the appellate court's ruling in favor of the Village was affirmed. 

The Illinois Supreme Court opinion is set out in full below:

In this case, one Justice of this court has recused himself, and the remaining members of the court are divided so that it is not possible to secure the constitutionally required concurrence of four judges for a decision (see Ill. Const. 1970, art. VI, § 3). Accordingly, the appeal is dismissed. The effect of this dismissal is the same as an affirmance by an equally divided court of the decision under review but is of no precedential value. See Perlman v. First National Bank of Chicago, 60 Ill. 2d 529, 530 (1975). 

Tuesday, November 16, 2021

Court Rules in Favor of Federal Agencies in Federal FOIA Lawsuit

Over several years, a prisoner submitted hundreds of FOIA requests under the federal Freedom of Information Act to the Federal Bureau of Investigation, the United States Marshals Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Federal Bureau of Prisons. The prisoner's FOIA requests centered around a conspiracy theory that a movement he had joined that had white supremacy ties was an elaborate governmental sting operation. After the agencies either provided responsive redacted records, withheld exempt records, or highlighted that their searches failed to identify responsive records, the prisoner filed a lawsuit alleging that the agencies conducted inadequate searches. The district court ruled in favor of the government agencies, finding that each agency submitted an affidavit from agency personnel detailing the FOIA process and how their searches were reasonably calculated to locate responsive records.

On appeal, the 7th Circuit Court of Appeals in White v. United States Department of Justice also ruled in favor of the government agencies. The Court of Appeals found that the agency affidavits had a presumption of good faith, and in order to overcome this presumption of good faith, the requester had to to provide evidence that the agencies unreasonably overlooked records that would have been responsive to his FOIA requests. Here, the Court of Appeals determined that White’s speculative, conspiracy-based claims of bad faith searches failed to overcome that presumption because FOIA requires more than just speculation that additional documents exist to overcome the good faith presumption in the agency affidavits.

Although this case discusses the obligations of federal agencies to conduct reasonably diligent searches under the federal FOIA statute and the presumption of good faith given to detailed affidavits from agency officials, this case is relevant for Illinois public bodies, because the Illinois FOIA statute is modeled after its federal counterpart, so Illinois courts often look to federal cases as persuasive authority.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, November 15, 2021

Court Rules in Favor of County Board in Case Challenging Appointment Authority

Recently, an Illinois Appellate Court ruled in favor of a County Board in a case deciding who has the authority to appoint officials to fill County elected office vacancies. Kloeppel v. Champaign County.

After the voters approved a change in the government structure of Champaign County, the voters elected the County's first County Executive. When the new County Executive took office, there were vacancies on the County Board and in other election positions that needed to be filled. Consistent with past practice, the County Chairman and County Board took action to fill these vacancies. Shortly thereafter, the County Executive filed suit against the County Board claiming that the County Executive and not the County Board had the authority to fill these elected office vacancies.

The case involved an interpretation of two different statutes regarding appointments in County government. The County Executive argued that the Counties Code gave the Executive the authority to appoint all County officers. The County Board argued that the Election Code gave the County Board the authority to fill vacancies in elected positions such as on the County Board. The trial court ruled in the County Executive's favor and the County Board appealed.

The Appellate Court reviewed the two statutes and ruled in favor of the County Board, reversing the trial court. While the Appellate Court acknowledged that the County Executive has the authority under the Counties Code to make appointments in certain County offices (i.e., boards and commissions), that authority does not extend to appointments to elected office, which the Appellate Court determined was reserved to the County Board Chairman and Board under the Election Code. In sum, the Appellate Court found that the Chairman of the County Board, with the advice and consent of the County Board, has the authority to fill vacancies in County elected offices, not the County Executive.

Disclaimer: Ancel Glink represented the Champaign County Board in this appeal.

Friday, November 12, 2021

Two More Veto Session Bills Sent to the Governor

We reported on a few veto session bills yesterday, and today we report on a bill that, if signed by the Governor, could provide relief to businesses in tax increment financing (TIF) districts that were adversely affected by the COVID-19 pandemic and also provides for an exemption from the State’s parking excise tax for parking facilities operated or owned by municipalities. 

SB 217 amends the Illinois Municipal Code to authorize local governments to provide relief to businesses located within redevelopment areas that have experienced business interruptions or other adverse conditions directly or indirectly attributable to the COVID-19 pandemic and experienced during a statewide disaster declaration regarding COVID-19. These costs can be reimbursed in the form of grants, subsidies, or loans distributed prior to December 31, 2022. 

Municipalities can also establish, by ordinance or resolution, procedures for the payment of the funds, including application procedures, grants or loan agreements, certifications, payment methods and other accountability measures that may be imposed upon participating businesses. 

The bill defines eligible costs of business interruption as decreases in revenue caused by closing or limiting access to the business establishment to prevent the spread of COVID-19 or decreases in revenue caused by decreased customer demand as a result of the COVID-19 public health emergency. 

In addition, the bill also includes an exemption from the State’s parking excise tax for parking garages and areas operated or owned by units of local government – the exemption does not apply if the parking facility is operated by a third party. This amendment will address concerns that were raised by municipalities when the parking excise tax was enacted by the State as to whether this tax applied to commuter lots and other public parking lots owned and operated by government entities. The bill also exempts the purchase of a parking space by a unit of local government for use by its employees, provided that the purchase price is paid directly by the municipality. 

Post authored by Rain Montero, Ancel Glink

Thursday, November 11, 2021

Update on Veto Session Bills Sent to the Governor

After a much-needed vacation, Municipal Minute is back. We have a few recent bills to report on today and tomorrow.

General Assembly Passes Several Bills During Fall Veto Session

The Illinois General Assembly met for its annual Fall Veto Session last month. Despite its name, there were no vetoed bills for the General Assembly to attempt to override—instead, members considered and passed several new bills which will be sent to Governor Pritzker for consideration.

SB 1169 Would Amend the Health Care Right of Conscience Act

SB 1169, which started as a bill to provide a technical amendment to the Pyrotechnic Use Act, was passed by both houses of the General Assembly as a completely different bill. The bill passed both houses on October 28th as an amendment to the Health Care Right of Conscience Act (HCRCA), which generally protects an individual’s right to refuse to obtain, receive, or accept medical treatment without facing discrimination based on their medical decisions. The amendment provides an explicit exception to the Act by stating that any person, public official, employer, institution, or other entity may impose requirements that are intended to prevent the contraction or transmission of COVID-19 or “its subsequent iterations." The bill has been formulated as a “declaration of existing law."

HB 3136 Would Create Gaming Omnibus Law

The General Assembly passed HB 3136, the omnibus gaming legislation, on October 28th. While the bill is long and incorporates several different changes to the Illinois Horse Racing Act of 1975, the Illinois Gambling Act, the Raffles and Poker Runs Act, and the Video Gaming Act, we want to provide an update of the legislative changes to video gaming that most greatly impact local government and municipalities’ regulatory authority.

The bill allows non-home-rule units of local government to impose an annual video gaming terminal fee of $250 (previous cap was $25). The bill does not restrict the authority of home rule municipalities to charge terminal fees in excess of the statutory cap, which was previously upheld by an Illinois Appellate Court. The fees imposed by home-rule and non-home-rule units of local government must be shared equally between the gaming terminal operator and the licensed establishment where the terminal is being operated. The bill also curtails the taxing power of units of local government with regard to video gaming—municipalities may not impose taxes on the following entities or persons:

  • manufacturers, distributors, terminal operators, licensed technicians, licensed terminal handlers, licensed establishments, licensed veterans establishments, licensed truck stop establishments, licensed fraternal establishments, or their authorized activities under the Video Gaming Act; 
  • video gaming terminals;
  • users or players of video gaming terminals; or
  • other uses, play, or operations of video gaming terminals by any person or entity.

Municipalities that have already adopted an ordinance to impose an amusement tax on any of the above entities can continue to impose those taxes, so long as the ordinance was adopted prior to November 1, 2021. However, a municipality that has adopted that type of tax cannot increase, expand, or extend the tax or enact a new tax on persons participating in video gaming.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Friday, November 5, 2021

Quorum Forum - New Episode 58: Taxes

Ancel Glink's Quorum Forum Podcast has just released a new episode - Episode 58: Taxes 

There is nothing certain in this life but Quorum Forum podcast and taxes! Ancel Glink’s Keri-Lyn Krafthefer, Adam Simon, and Jim Rock join us to discuss budget and levy process, tax objections, tax assessment appeals, and more! 

Email your questions to podcast@ancelglink.com!

Friday, October 29, 2021

HB 220 Could Expand Fire Bargaining Units

This week, the Illinois Senate passed HB 220, which has now been sent to the Governor for signature. If he signs the bill, it would amend provisions of state law that define who is a supervisor or a company officer for purposes of determining who can be included in a bargaining unit for a fire department. Specifically, the bill proposes to define a company officer to include an officer who "may be responsible for multiple companies or apparatus on a shift, multiple stations, or an entire shift..." Fire unions have argued this could expand which fire officers are included in bargaining units. 

Thursday, October 28, 2021

9th Annual IICLE Local Government Law Institute

In just about a month, IICLE will present the 9th Annual Local Government Law Institute. This conference is offered every December and provides local government lawyers with practical guidance on a variety of local government legal topics. This year, the conference will be "virtual" for all attendees (sadly, no lunch or cocktails) but the faculty will be presenting "live," which will be a treat for returning attendees who may have missed the faculty interaction. 

More details about individual sessions and speakers will be released as we get closer to the conference date, but here's a sneak peak at conference topics:

  • Police Reform
  • Legislative/Case Law Update
  • Liars, Tyrants & Thieves
  • Zoning Disputes
  • Labor & Employment Issues with COVID-19
  • Economic Incentives & Tools
  • Tort Immunity
  • COVID-19 & Attorney Burnout
9th Annual Local Government Law Institute
December 3, 2021 (Friday)
8:30 to 5:00 p.m.

You can find more information and register here.

Tuesday, October 26, 2021

Illinois Supreme Court Finds Cook County Firearm and Ammunition Taxes Unconstitutional

The Illinois Supreme Court recently issued an opinion in Guns Save Life, Inc., et al. v. Ali, et al., ruling in favor of a group of plaintiffs that challenged the constitutionality of the Cook County Firearm and Firearm Ammunition Tax Ordinance. 

The County's Firearm Tax Ordinance (passed in 2012) imposed a $25 tax on the retail purchase of individual firearms in Cook County. A 2015 amendment imposed a new tax on firearm ammunition with different rates for centerfire and rimfire ammunition. The ordinances cited the need to ameliorate the high economic and social costs of gun violence within the County. While the ammunition taxes were raised with the explicit intention of directing revenue to the Public Safety Fund, the firearm taxes were not directed to any specific fund or program specifically related to curbing the cost of gun violence.

gun advocacy group, an Illinois resident, and a gun retailer (plaintiffs) filed a lawsuit against the County arguing that its ordinance violated the United States Constitution and the Illinois Constitution and were preempted by the Illinois FOID Card Act and the Concealed Carry Act.

The lower courts held that the taxes were a proper exercise of Cook County’s home-rule taxing authority and did not meaningfully impede the plaintiffs’ right to bear arms—rather, the taxes were no more than a minimal restraint on rights protected by the United States and Illinois Constitutions. The appellate court further held that the ordinances were not preempted by the FOID Card Act or Concealed Carry Act, as these two statutes only preempt local authorities from regulating guns, not taxing them.

On appeal, however, the Illinois Supreme Court agreed with plaintiffs and held that the ordinances violated the Illinois Constitution—specifically, the taxes violated the uniformity clause, which provides that classes for non-property taxes must be reasonable and that “objects within each class shall be taxed uniformly.” In coming to this decision, the Illinois Supreme Court created a new test: when a tax classification directly bears on a fundamental right (such as the right to bear arms), the government must show that the tax classification is substantially related to the stated purpose for the legislation. Because the taxes in this case were not sufficiently tied to the legislative purpose of reducing the costs of gun violence in Cook County, the Illinois Supreme Court held that the County failed to meet its burden to show that the taxes were substantially related to the purported purpose of the tax.

Post Authored by Erin Monforti & Dan Bolin, Ancel Glink 

Monday, October 25, 2021

Court Upholds Dismissal of FOIA Lawsuit

In August 2018, an inmate submitted a FOIA request to the Illinois State Police (ISP) seeking certain lab reports containing fingerprints that were inventoried as evidence. The ISP denied the FOIA request. The inmate then filed a lawsuit, alleging that ISP violated FOIA and asking the court to order ISP to release responsive records. In response, ISP filed a motion to dismiss the case arguing that its denial was proper because the request was a repeated request since ISP had previously provided the inmate with all lab case files in response to prior FOIA requests and ISP had no additional records in its possession and custody. The court ruled in favor of ISP and dismissed the case. The inmate appealed the dismissal and claimed that ISP failed to produce an index of records in violation of FOIA.

In Love v. Illinois State Police, the appellate court upheld the ruling in favor of ISP, finding that the trial court properly dismissed plaintiff's complaint. The appellate court noted that there was no evidence in the record that the inmate was denied access to any records. Although FOIA section 11(e) allows the court, on plaintiff’s motion, to order a public body to provide an index of the records to which access has been denied," based on ISP's affidavit in this case, the inmate "had already been provided with the case files, and that there were no additional records to provide."

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, October 19, 2021

Court Upholds City’s Partial Delegation of Clerk’s Duties

Recently, an Appellate Court issued an opinion in a case testing the limits of home-rule authority under the Illinois Constitution. In Fazekas v. City of DeKalb, the court upheld the dismissal of a case brought by a City Clerk against the City, holding that the City had the authority to create a new position to supplement the efforts of the Clerk to fulfill her duties.

In October 2019, the City enacted an ordinance that created the office of executive assistant, appointed by the City Manager. The City Council justified the new position by noting that the City Clerk was a part-time position and that City residents would benefit from full-time availability of clerical assistance that would be provided by this new executive assistant position. The Clerk sued the City, arguing that the new ordinance violated Article VII, Section 6(f) of the Illinois Constitution that provides as follows:

“A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law.” 

The court held that the Clerk did not meet her burden in establishing that there was a clear constitutional violation because  the creation of the new office did not alter the “manner of selection” or “terms of office” for the position of City Clerk and so it did not violate the Section 6(f) exception to home-rule authority.

The court rejected the Clerk's argument that the position basically eliminated the City Clerk's position, finding no evidence that the Clerk's duties were completely supplanted by the executive assistant position.

The court also rejected the Clerk’s argument that the ordinance violated the Illinois Municipal Code. The Clerk claimed the ordinance violated the statute that provides that the mayor and city council can appoint new officers “necessary to carry into effect the powers conferred upon municipalities,” because the new executive assistant role was unnecessary given the duplicate duties between it and the City Clerk position. The court disagreed, finding that the City's justification for creating the new position — that the public would benefit from the availability of clerical assistance during all regular business hours — was sound legislative judgment that a court would not disturb.

The court only commented briefly on the Clerk’s last argument that the ordinance violated the voting rights of DeKalb residents. Because the court had already concluded that the position of City Clerk had not been eliminated or altered by the ordinance, it held that there clearly was no adverse impact on the electorate’s right to vote for that office.

Post Authored by Erin Monforti and Julie Tappendorf, Ancel Glink

Monday, October 18, 2021

PAC Issues 10th Binding PAC Opinion of 2021

A reporter submitted a FOIA request to the City of Chicago’s Office of Emergency Management and Communications (OEMC) seeking records relating to a letter where an Alderman expressed concerns about allegations of discrimination, harassment, and a hostile work environment at OEMC. The OEMC provided certain responsive records, but redacted the names of two employees who were alleged or found to have engaged in misconduct. The reporter submitted a Request for Review with the PAC alleging that the OEMC’s redactions violated FOIA.

In PAC Op. 21-010, the PAC determined that the OEMC violated FOIA by redacting the names of its employees who were alleged or found to have engaged in misconduct. Specifically, the PAC rejected OEMC’s argument that the names of these City employees were exempt from disclosure under FOIA’s private information exemption 7(1)(b), because a person’s name is a basic identifier, rather than a unique identifier, and disclosing these employee names would not reveal any “private information."

In addition, the PAC determined that the responsive records concerned a complaint of workplace violence against a City employee and a finding that another City employee violated OEMC’s social media policy by posting a disparaging comment about the complainant on Facebook. As a result, the PAC determined that the records relate to the public duties of public employees are do not, therefore, constitute a clearly unwarranted invasion of personal privacy under section 7(1)(c)  of FOIA.

The PAC also rejected OEMC’s argument that the redacted records could have been withheld in their entirety under FOIA exemption 7(1)(n), which allows withholding certain records relating to a public body’s adjudication of employee grievances or disciplinary cases. Instead, because the records at issue merely documented complaints and investigations of complaints against City employees and were informally resolved and not part of a hearing, proceeding, or other formal agency proceeding that would constitute an “adjudication," the PAC concluded that OEMC failed to demonstrate that the redacted names of the City employees were exempt under FOIA exemption 7(1)(n). 

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, October 15, 2021

FOIA Request Properly Denied Where Discovery Order Prohibited Release

In a post-conviction proceeding, an inmate sent a FOIA request to the States Attorney Office (SAO) asking for certain records relating to his conviction that he had been previously denied access to through a previous discovery request. The SAO denied the inmate FOIA’s request citing exemption 7(1)(a), arguing that the requested records were prohibited from disclosure by Illinois Supreme Court Rules 412 and 415. The inmate then sued the SAO claiming it violated FOIA by denying his request, and sought attorney fees, costs, and a civil penalty. The circuit court dismissed the inmate’s lawsuit, finding that the records were exempt from disclosure pursuant to FOIA exemption 7(1)(a) because the inmate’s FOIA request attempted to circumvent the Kankakee County circuit court discovery order which had prohibited disclosure of the requested records. The inmate appealed.

In Watford v. Rowe, the appellate court held that the inmate's case was properly dismissed and the FOIA request properly denied. The appellate court determined that a person may not use FOIA to obtain discovery materials after their motion for discovery was denied in a separate collateral proceeding that is still pending. The court also determined that the inmate was not entitled to an award of attorney fees under FOIA section 11(i), because the inmate did not prevail on his claim, and in any event, a pro se litigant is not entitled to an award of attorney fees. Further, the court denied the inmate’s petition for civil penalties against the SAO pursuant to FOIA section 11(j) because there was no evidence that the SAO intentionally or willfully failed to comply with the FOIA request or otherwise acted in bad faith.​

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, October 11, 2021

PAC Finds School Board in Violation of OMA for Conducting Public Comment in Closed Session

The PAC has issued a 9th binding opinion for 2021 (forwarded by a reader since the Attorney General's website is still not fully operational). In PAC Op. 21-009, the PAC found a school board in violation of the Open Meetings Acct because it required members of the public to provide comments in closed session, and did not provide an opportunity for public comment in open session.

A school board conducted a meeting where the only agenda topic was a closed session to consider a personnel matter. A significant number of members of the public attended the meeting and 10 people signed up to speak at the meeting. The board went into closed session shortly after opening the meeting, and the members of the public who signed up to speak were called into closed session one-by-one to provide their comments to the school board. 

Subsequently, a reporter filed a complaint with the State Ethics Commission claiming the board improperly restricted public comment in violation of the Open Meetings Act. The Commission forwarded the complaint to the Public Access Counselor since it enforces the OMA. The school board filed a response to the complaint, stating that the reason the school board conducted "public comment" in closed session was because the members of the public were commenting on the performance of a school employee which is a proper topic of closed session.

The PAC first noted that the school board had no rule in place requiring members of the public to provide comments in closed session rather than an open meeting (and the PAC questioned whether such a policy would be lawful in any event). Next, the PAC stated that the OMA exemptions authorize, but do not require, public bodies to discuss certain matters in closed session. The PAC rejected the school board's argument that the employees being discussed in closed session had rights to have matters relating to their performance discussed privately rather than publicly. The PAC concluded that the board violated the OMA by failing to allow the public to address the board in open session, and ordered the school board to provide an opportunity for public comment in open session at all future meetings.

Thursday, October 7, 2021

Quorum Forum Podcast Ep. 57: Sexual Harassment

Ancel Glink's Quorum Forum Podcast just released Episode 57: Sexual Harassment. In this episode, Ancel Glink attorneys discuss the Workplace Transparency Act, which requires all Illinois employers to provide employees with sexual harassment prevention training on an annual basis. 

Email your questions to podcast@ancelglink.com!

Wednesday, October 6, 2021

Court Dismisses Complaint Challenging COVID-19 Restaurant Restrictions

In December 2020, an adult business entertainment club sued Governor Pritzker, the Mayor of the City of Harvey (where the club is located), the Illinois Department of Public Health, and the Cook County Department of Public Health challenging the enforcement of the Governor's order restricting all indoor dining. 

The adult club had been served written notice by the City that it was in violation of the Governor's Executive Order 2020-63 (“EO-63”) which restricted restaurants and bars in Cook County from offering indoor dining and beverage consumption. The written notice stated that businesses violating the order would be subject to criminal arrest and business license revocation.

The club argued in its lawsuit that:

  1. the governments' activities were governed by the Illinois Department of Public Health Act (20 ILCS 2305/et seq.);
  2. the mitigation measures stated in EO-63 did not comply with the Act; and
  3. City officials were not authorized to arrest the club.

The City filed a motion to dismiss the claim, and recently the Circuit Court of Cook Count dismissed the case with prejudice in Tripp Location LLC v. Pritzker.

The court first looked at Section 7 of the Illinois Emergency Management Act (20 ILCS 3305/7), which authorizes a Governor to declare disaster proclamations and to suspend regulations of any state agency if the regulation hinders efforts to cope with the disaster. The court also noted that an Illinois Appellate Court had previously determined that the Governor had the authority to issue successive disaster proclamations for the same disaster — in this case, the COVID-19 Global Pandemic. 

In addition, the court noted that although state statute authorizes the Illinois Department of Public Health to order a business’s closure to the public to prevent the spread of infectious disease with the consent of the owner or upon order of a court, an Appellate Court had already held that COVID-19 mitigation measures of this type were not considered "business closures" but instead merely “prescribed guidelines that restaurants must follow to safely operate.” As a result, the court determined that EO-63 and subsequent regulations that restricted indoor dining did not violate, or even implicate, Section 2 of the Illinois Department of Public Health Act.

In sum, the court rejected plaintiffs' claims and agreed with the City that the case should be dismissed.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink

Disclaimer: Ancel Glink represented the City defendants in this case.

Tuesday, October 5, 2021

Appellate Court Vacates TRO Enjoining School Mask Mandate

Last month, a group of parents of students who attend school in the Bond County Community School District filed a lawsuit and a petition for a temporary restraining order (TRO) against the school district's mandate that students wear a mask while indoors at school. On September 21, 2021, the circuit court entered an order granting the parents' petition for a TRO, enjoining the school from requiring the students from wearing masks on school property without parental consent or a lawful order of quarantine having been issued against a particular student from the local health department. The school district appealed.

In Lurkins v. Bond County Community School Dist., the 5th District Appellate Court vacated the TRO because the parents failed to name the Governor, the Illinois State Board of Education (ISBE), and the Illinois Department of Public Health (IDPH) as party defendants. The Appellate Court determined that these state officials/agencies are "necessary parties" in the case because the parents were challenging a mask mandate that was imposed by the Governor's Executive Order, as well as guidance issued by both the ISBE and the IDPH. Because the Governor and the two state agencies have an interest in this matter that would be materially affected by any ruling in the case, the Appellate Court found that their participation is required. Since the TRO was issued without these necessary parties, the Appellate Court found the TRO void and vacated it. The case was remanded back to the circuit court.

Tuesday, September 28, 2021

Governor Signs Land Use and Environmental Legislation

In this edition of the Municipal Minute series on legislative updates, we will update you on several recently enacted Illinois laws relating to land use, public transit, and replacement of lead pipes.

P.A. 102-0180 provides new protections for vegetable gardens on residential property for non-commercial use. Under this new law, any person may cultivate a vegetable garden on their private property or on private property with the owner's permission. A vegetable garden is defined as "any plot of ground or elevated soil bed on residential property where vegetables, herbs, fruits, flowers, pollinator plants, leafy greens, or edible plants are cultivated." The new law restricts local government regulation of vegetable gardens in a manner inconsistent with this new right, although governments can regulate the "height, setback, water use, fertilizer use, or control of invasive or unlawful species." The new law preempts home rule. 

P.A. 102-0660, expands bike and pedestrian pathway in highway planning and construction projects to apply beyond "urban areas" to projects within any municipality with a population of over 1,000 people. The law contains a few exceptions where bike and pedestrian path planning is not required, including a new exception where a municipality has passed a resolution declaring that the bicycle or pedestrian way does not fit the current development plan. The two current exceptions are: (1) where a pavement resurfacing project does not widen traveled roads or provide stabilized shoulders; or (2) where pathways would be unnecessary or not appropriate because of safety issues or costs.

P.A. 102-0613 creates the Lead Service Line Replacement and Notification Act, a comprehensive law that is intended to improve water service in Illinois. The Act lays out a detailed schedule for the Illinois Environmental Protection Agency (IEPA) and community water suppliers to replace lead service lines in the State with assistance from a new fund, the Lead Service Line Replacement Fund. The Act prioritizes funding to units of local government based on the prevalence of low-income households, lead service lines, and water samples with elevated lead levels. The Fund will be used for "planning, design, or construction directly related to the replacement of lead service lines and restoration of property."

Post Authored by Erin Monforti and Mike Halpin, Ancel Glink

Thursday, September 23, 2021

Attorney General Issues Opinion that a Convicted Felon Forfeits Pension Benefits

This summer, the Illinois Attorney General issued an opinion interpreting 40 ILCS 5/14-149 which states that members of the State Employees’ Retirement System forfeit pension benefits after they are convicted of a felony related to or arising out of or in connection with their service as an employee.

An employee in the Department of Vehicle Services for nearly twenty years had access to title and registration fees and sales tax payments. According to the Attorney General opinion, the employee began stealing fees and tax payments in 2015, and attempted to cover up her activities by cycling stolen funds with new title and registration fees and requiring staff to direct missing fee complaints only to her. The employee also sent license plates to vehicle owners by United Parcel Service, rather than by the usual method with the United States Postal Service. Ultimately, the employee was convicted of mail fraud, intentional misapplication of Secretary of State fees, and theft of Illinois Department of Revenue vehicle sales tax payments and sentenced to 18 imprisonment and ordered to pay over $70,000 in restitution.

The State Employees' Retirement System sent a letter to the Attorney General asking for an opinion as to application of the Pension Code requirement that a participant’s pension benefits be forfeited if the participant is convicted of a service-related felony. The Attorney General issued an opinion finding  that the employee's conviction was related to, and arose out of, her employment with the State because (1) she was working in her capacity as a government employee when she defrauded the State and (2) without her position, she would not have had access to State funds. The Attorney General also noted that its opinion is consistent with court cases applying forfeiture in other situations where government employees have violated the public trust and commited felony misconduct.

Post Authored by Dan James & Julie Tappendorf, Ancel Glink