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Friday, January 29, 2021

US Supreme Court Finds Chicago Did Not Violate Bankruptcy Stay in Keeping Impounded Vehicles

Last week, the United States Supreme Court held that the City of Chicago did not violate the automatic stay provision of the Bankruptcy Code when the City refused to return impounded vehicles to debtors. City of Chicago v. Fulton

Under the Bankruptcy Code, when a debtor files a bankruptcy petition, that action creates an automatic stay that prohibits “any act to obtain possession of property of the [debtor’s] estate or to exercise control over” the debtor’s property. This provision is intended to protect the debtor’s assets and halts all collection activity while the bankruptcy proceeding moves forward.

Like many other municipalities, the City of Chicago impounds vehicles for failure to pay fines for motor vehicle infractions. After a number of individuals' cars were impounded and they filed for bankruptcy, they filed suit against the City, arguing that the automatic stay provision required the City to return their cars. In each case, the bankruptcy court held that the City’s refusal violated the automatic stay provision. The Court of Appeals affirmed all of the judgments in a consolidated opinion. The City then appealed to the U.S. Supreme Court.

The U.S. Supreme Court held that the City did not violate the automatic stay provision by retaining possession of the debtor’s vehicles. The Court reasoned that “to exercise” under the Code means to “bring into play” or take an affirmative action. Because the City merely retained possession of the vehicles and did not change the status quo of possession of the property, the Court found that the City’s actions did not amount to an “exercise of power” over the vehicles within the meaning of the automatic stay provision of the Bankruptcy Code. As a result, the Court held that the City of Chicago’s mere retention of debtors’ impounded vehicles did not violate the automatic stay provision of the Bankruptcy Code.

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink

Thursday, January 28, 2021

PAC Issues First Binding Opinion of 2021 on Unduly Burdensome FOIA Requests

In September 2020, a requestor submitted a FOIA request seeking subpoenas received by the Chicago Police Department (CPD) from federal agencies and search warrants served on CPD in August 2020. CPD denied the request as unduly burdensome, and subsequently offered the requestor an opportunity to submit a new FOIA request. After the requester’s attempts to confer with CPD to reduce the request to manageable proportions were ignored, the requestor appealed the denial of his FOIA request with the PAC. 

In PAC Op. 21-001, the first binding opinion of 2021, the PAC concluded that the CPD violated FOIA by improperly denying a FOIA request as unduly burdensome under Section 3(g) and improperly denying responsive grand jury subpoenas under FOIA Section 7(1)(a). Specifically, the PAC found that CPD did not first offer the requester an opportunity to "meet and confer" so the requester could narrow the scope of the burdensome request to manageable proportions. Instead of conferring with the requestor before denying the request, CPD’s written response to the requestor omitted any mention of an opportunity to confer and invited the requestor to submit a new request. 

Although FOIA does not specify the scope of required dialogue between the parties, the PAC argued that CPD’s refusal to participate in any meaningful exchange with the requestor, and ignoring the requestor’s efforts to confer, clearly did not fulfill the requirement specified in Section 3(g). Indeed, the PAC reasoned that the requirement to confer before denying a request as burdensome would be meaningless if a public body could simply refuse to follow through on an offer to confer when the requestor asks to do so. In addition to CPD’s failure to confer with the requestor, the PAC concluded that CPD also improperly denied the request as burdensome without specifying facts explaining why complying with parts of the FOIA request would burden CPD’s operations. 

The PAC also found that CPD improperly denied the responsive grand jury subpoenas under FOIA exemption 7(1)(a), which exempts information specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law. While CPD claimed the responsive subpoenas were exempt under the Code of Criminal Procedure of 1963, the PAC clarified that the Code only prohibits a State’s Attorney, not police departments, from disclosing matters occurring before a grand jury in Illinois, and the Code does not encompass federal grand jury subpoenas. 

Public bodies should make sure that their communications with requesters about "unduly burdensome" requests clearly provide an opportunity to the requester to confer with the public body about the request in order to narrow it to a more manageable proportion. Certainly, if a requester asks for a meeting to discuss a request that the public body has deemed unduly burdensome, the public body should accommodate that request. Public bodies should also provide details in their "unduly burdensome" communication as to why the request would be unduly burdensome -i.e., it would take X hours and Y staff members to search, compile, and review the requested records which are estimated to be Z number of records. These details will help support a denial if the requester refuses to narrow the request when offered the opportunity.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Tuesday, January 26, 2021

Content-Based Regulation of Solicitation in Streets Found Unconstitutional

Earlier this month, a federal district court judge issued a ruling that will likely be of interest to municipalities that regulate or restrict solicitation on streets within their jurisdiction. Dumiak v. Village of Downers Grove.

In 2019, after two individuals had been cited for soliciting money on Village streets, they filed a lawsuit against the Village of Downers Grove and various Village, State, and County officials to challenge the constitutionality of the ordinance that prohibited their activities. The Village had enacted an ordinance based on authorization in state statute, specifically 625 ILCS 5/11-1006. That statute prohibits persons from standing on a highway for the purpose of soliciting contributions unless the solicitation is within a municipality that has expressly authorized solicitation and the solicitor is registered with the Attorney General as a charitable organization. 

The Village subsequently repealed its ordinance and the parties entered into a settlement of the litigation, which was memorialized in the trial court ruling dated January 11, 2021. That ruling expressly concluded as follows:

The Court therefore concludes, as a matter of law, that 625 ILCS 5/11-1006(c) is a content-based restriction on the freedom of speech that is not justified by any compelling interest and that the provision violates the First Amendment and is unconstitutional on its face under clearly established law, specifically the controlling Supreme Court decision of Reed v. Gilbert, 576 U.S. 155 (2015), and the controlling Seventh Circuit decision of Norton v City of Springfield, 806 F.3d 411 (7th Cir. 2015).

Based on this ruling, municipalities may want to review their own solicitation ordinances for any necessary amendments, as well as discuss modifications to their current practices with regard to enforcing solicitation activities on streets within their municipal borders. This ruling does not mean that municipalities cannot regulate any solicitation activities on streets within their jurisdiction, such as enforcing content-neutral regulations that prohibit activities that impede the flow of traffic. However, the ruling does call into question  regulations that restrict First Amendment activities in a content-based manner that are not justified by any compelling interest. 

Monday, January 25, 2021

Illinois Regions Lower COVID Restrictions

It's been awhile since we've updated our readers on the various restrictions in place throughout the State regarding COVID-19. Since November, most of the State had remained in Tier 3 which prohibited indoor dining among many other restrictions. Recently, the Governor loosened COVID restrictions for various regions in the State: some regions went to Tier 2, others to Tier 1 which opened up indoor dining, and still others are now in Phase 4 with no additional tier restrictions. Not all of the State is currently in the same Tier, however, and things change rapidly so you should always consult the IDPH website for the current restrictions for your region. Also, the State recently modified the Tier mitigation measures, so you should consult the updated Tier restrictions (links below).

As of January 25th, here is an update on where all 11 regions are with respect to COVID-19 restrictions:

  • Regions 1, 2, 7, 10, and 11:  Tier 1 (indoor dining now allowed at 25% capacity)
  • Regions 4, 8, and 9: Tier 2 (indoor dining still prohibited)
  • Regions 3, 5, and 6: Phase 4 (no additional tier restrictions) 

In case you aren't sure which region you are in, you can view the map here.

  • Region 1 - Northwestern Illinois/Rockford area
  • Region 2 - Central Illinois/Bloomington/Peoria area
  • Region 3 - Springfield area
  • Region 4 - Metro East/St. Louis area
  • Region 5 - Southern Illinois
  • Region 6 - Eastern Illinois
  • Region 7 - Will & Kankakee counties
  • Region 8 - DuPage & Kane counties
  • Region 9 - Lake & McHenry counties
  • Region 10 - Cook County (except Chicago)
  • Region 11 - Chicago

Friday, January 22, 2021

Liquor Delivery Bill Passes Both Houses in the Illinois General Assembly

During the recent “lame duck” session, a bill passed both houses of the Illinois General Assembly facilitating liquor delivery by retailers. If signed by the Governor, Ill. S.B. 54 would amend the Liquor Control Act to provide that nothing in the Liquor Control Act will “deny, limit, remove, or restrict the ability of a holder of a retailer’s license to deliver alcoholic liquor to the purchaser for use or consumption,” with just a few exceptions. Except for Chicago, home rule and non-home rule units alike may not regulate the delivery of alcoholic liquor inconsistent with the proposed statutory amendments.

“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. While nothing in the Liquor Control Act will limit the authorized deliveries, other laws surely would including the Vehicle Code’s open container law.

With the Governor’s signature, “on-premises only” licensees and other licensed retailers could make the liquor deliveries authorized by the amendments. Of course, many local liquor commissioners are already allowing temporary delivery of alcoholic liquor according to the guidance issued by the Illinois Liquor Control Commission in response to the COVID-19 pandemic. Additionally, many municipalities allow delivery and carry-out of “cocktails to-go” based on a previous statutory authorization, but that authorization is due to sunset on June 2, 2021. 

Although the liquor delivery landscape is not yet settled since this has not been signed into law yet, municipalities may want to proactively review their ordinances and be ready to address any potential changes once the legislation is enacted, assuming the Governor signs it into law.

Post authored by Daniel J. Bolin, Ancel Glink

Thursday, January 21, 2021

Appellate Court Rejects "Sovereign Citizen" Defense to Speeding Ticket

After being cited for speeding by a police officer and convicted at a bench trial, the driver appealed to the Illinois Appellate Court. The driver raised a "sovereign citizen" defense and claimed that (1) the court and the municipality had no authority to impose a monetary fine because money ceased to exist in 1933; (2) the municipality and court conspired to deprive him of his civil rights, including his right to travel; (3) traffic tickets were nothing more than fraud, extortion, blackmail, intimidation, harassment, mail fraud; and (4) the citation capitalized his name, among other reasons. 

In Village of Frankfort v. Cantway, the Appellate Court upheld the speeding conviction, determined that the appeal was frivolous, and imposed sanctions on the driver for the appeal, including requiring the driver to pay the Village's legal fees incurred in defending the appeal in court. 

Wednesday, January 20, 2021

Illinois Appellate Court Rules on Tort Immunity Case

In Dycus v. County of Edgar, Illinois, the Illinois Appellate Court ruled in favor of the county in a case involving a motorcycle accident, finding that the Tort Immunity Act protected Edgar County from liability. 

In May 2018, the plaintiffs were riding their motorcycles on an Edgar County road. During their ride, the riders crashed and sustained injuries after encountering a road section that recently underwent repair to replace a culvert (a tunnel carrying a stream or drainage pipe). They sued the county arguing its actions amounted to negligence for failure to (1) repair the road, (2) inspect the road, and (3) post signs warning of road repair.

After months of litigation, the county asked the judge rule in its favor, arguing that the county was absolutely immune from liability under the Tort Immunity Act for not posting warning signage and its discretionary decisions in “improving, maintaining, repairing and inspecting the road” surrounding the culvert replacement. The county also argued that the plaintiffs were negligent as well. The circuit court found that the county was immune, and the plaintiffs appealed.

On appeal, the plaintiffs argued the Tort Immunity Act did not protect the county because the county failed to establish that its employees—tasked with road repair—made policy determinations and exercised discretion when performing work on the culvert, which injured the plaintiffs. 

The appellate court first looked at the specific language of the statute relied on by the circuit court in finding immunity:

the complained injuries must have resulted from the employee’s ‘act or omission in determining policy when acting in exercise of such discretion’. . .the act or omission giving rise to the injuries must be both a determination of policy and an exercise of discretion.

Here, the plaintiffs argued that the roadcrew and road engineer’s replacement of the culvert constituted a ministerial act and was not discretionary. The county, on the other hand, argued that its employees’ actions were discretionary based on the procedures established by the county engineer and the nature of replacing culverts. The Illinois Appellate Court agreed with the county, finding that the county engineer made discretionary decisions regarding the method, means, and material used for the culvert replacement. In addition, the roadcrew employees made discretionary decisions regarding the depth of gravel, number of layers, and the number of times to compact the gravel. As a result, these acts constituted discretionary acts, which shielded the county from liability under the Tort Immunity Act.

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink

Tuesday, January 19, 2021

Federal Court Addresses Challenge to Short Term Rental Ordinance

A federal court recently denied vacation property owners’ due process and Fourth Amendment challenges to an ordinance regulating short-term rentals. Stone River Lodge, LLC v Village of North Utica

In 2004, Grand Bear Lodge, LLC purchased land near North Utica to develop a hotel. North Utica annexed the land. The annexation agreements between the village and hotel granted special use approvals for the development of a hotel and a number of buildings that each would include multiple vacation villas. The annexation agreements provided, among other things, that no owner would be prohibited from renting his or her unit and that this right would run with the land and would inure to subsequent owners. 

The villa owners alleged that they had, for years, been allowed to rent out their units without any regulation or mandates from the village. In February 2020, however, the village adopted an ordinance making it unlawful for anyone in the village to operate a “vacation rental unit” without a current, valid license from the village. As defined in the ordinance, a “vacation rental unit” is a dwelling unit or portion of that unit offered for rent for a period of less than 30 days, not including hotels, motels, lodging houses, boarding houses, or bed-and-breakfast establishments that are licensed under other provisions of the North Utica Village Code. The ordinance also established standards and procedures for application and issuance of licenses.

The villa owners filed suit in federal court, alleging due process, Fourth Amendment and equal protection claims. In the lawsuit, the villa owners claimed they had applied for licenses, but were denied by the village in a letter that informed the owners that only one hotel license is issued to the Grand Bear Lodge & Resort P.U.D., and that villa owners that wanted to rent out their property for overnight and short-term rental accommodations had to utilize the rental pool administered directly by the Grand Bear Lodge & Resort.

The villa owners also alleged that on two occasions, the village chief of police “approached an owner’s unit, rang the bell and stated, ‘I’m curious if you’re renting this for the weekend.’” The villa owners were subsequently issued citations seeking $750 fines. 

The court found no violation of the villa owners’ due process rights because the annexation agreements specifically provided that the village retained the right to enact zoning changes. The court noted that the ordinance qualified as a zoning change within the meaning of the annexation agreement. The court also found that the ordinance was a valid exercise of the village’s police powers to address legitimate life-safety, tax revenue, security, quality of life, and fire-safety concerns. 

In rejecting the villa owners’ argument that the police chief’s actions violated the Fourth Amendment, the court reasoned that a police officer may approach a home and knock to make a preliminary inquiry— just as any private citizen may do. Because the police chief merely knocked on the owners’ doors and did not stay for an unreasonable amount of time or enter the property, the court dismissed the villa owners’ Fourth Amendment claim.

However, the court did allow the villa owners’ equal protection claim to move forward against the village. The court noted that the villa owners may have been treated differently than other short-term rental owners because the villa owners were precluded from renting their properties unless they joined a “rental pool” agreement with the Grand Bear Lodge. At this early stage of the lawsuit, the court found that it could not make a determination that this differential treatment did not violate the Equal Protection Clause. As a result, the court allowed the villa owners’ equal protection claim to move forward.

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink

Friday, January 15, 2021

Court of Appeals Upholds $22 Million Jury Verdict for Wrongful Conviction

The Seventh Circuit Court of Appeals recently upheld a jury award of $22 million in a wrongful conviction case against the City of Chicago. Fields v. City of Chicago.

In 1986, Nathson Fields and his co-defendant Earl Hawkins were convicted of murder by a Cook County Circuit Court Judge. Twelve years after the trial, in 1998, those convictions were overturned based on evidence that Hawkins’s attorney had bribed the Judge to secure an acquittal and that the Judge had became concerned that he was being investigated by law enforcement during the trial and returned the bribe. Fields was then retried for the murder. Under a plea agreement, co-defendant Hawkins pled guilty to lesser charges in exchange for testifying against Fields in his murder trial. The plea agreement also stated that it was “the intent of both parties that Hawkins remain in custody until he reaches 72 years of age,” which would be in 2027.

Fields was acquitted in the retrial in 2009. Following his acquittal, Fields filed suit, alleging civil rights and state law claims against the City of Chicago and Chicago police detectives. Fields argued that the detectives pulled Fields as a suspect out of the air, fabricated witness identifications, and failed to provide the police investigative “street file” to Cook County prosecutors. Fields contended that the detectives’ failure to turn over street files to prosecutors was a widespread practice within the Chicago police department, which deprived defense attorneys of the opportunity to fully represent the accused at trial. After a mistrial, a second trial took place in April 2014, and at the close of the trial, a jury found in favor of Fields on a due process claim against one of the police detectives, and in favor of the City and detectives on the remaining claims. 

Following the end of the trial, new evidence came to light that Hawkins was granted a new plea-deal in exchange for testifying against Fields at trial— Hawkins was released on parole three months after the trial, which was 13 years earlier than his original 42 year sentence. Fields and his attorney were not made aware of the deal until after the trial. Fields moved for a new trial on the basis that his attorney could have used the evidence of the new plea deal to discredit Hawkins’s testimony, and as a result, he was deprived of a fair trial. The district court granted Fields’s motion for a new trial, and after a month-long trial, a jury found in favor of Fields against the detectives on his civil rights and state law claims, and against the city on Field’s civil rights claim under §1983. The jury awarded Fields over $22 million in damages. The City and detectives appealed to the Seventh Circuit Court of Appeals, arguing that the district court improperly granted Fields’s motion for a new trial and that the jury verdict should be overturned.

On appeal, the Seventh Circuit found that Fields was unable to fully and fairly present his case without the newly discovered evidence of Hawkins’s new plea-deal with prosecutors. The Court reasoned that the evidence that Hawkins’s trial testimony would lead to his near-immediate release would have severely damaged the City and detectives’ case—and could reasonably have produced a different outcome. Therefore, the Court upheld the district court’s decision to grant a new trial.

The Court also upheld the jury trial’s verdict against the City. In rejecting the City’s argument that Fields failed to show a widespread practice or policy required to establish a civil rights claim, the Court reasoned that Fields presented evidence of a “systemic underproduction of police reports of exculpatory evidence to prosecutors and defense attorneys,” which went well beyond Fields’s case. As a result, the Court held that there was a reasonable basis for a jury to find for Fields on the civil rights claim and upheld the jury trial’s verdict in his favor against the City.

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink

Thursday, January 14, 2021

Illinois General Assembly Sends Criminal Justice Reform Bill to Governor

Yesterday, the Illinois General Assembly completed the 101st General Assembly. Before adjourning, the legislature passed new legislation, including HB 3653, the criminal justice reform bill. The bill is more than 700 pages long, so we are still getting through it, but we did want to share the Illinois Municipal League's summary of the bill that ultimately passed both the Illinois Senate and House and has been sent to the Governor. If the Governor signs the legislation, it will become effective on July 1, 2021, although certain provisions have delayed effective dates. 

You can read the IML summary here. We have also summarized some of the key points of the bill that will affect local governments below:

Constitutional Rights and Remedies

The bill creates a Task Force on Constitutional Rights and Remedies to develop policies and procedures to review and reform constitutional rights and remedies, including qualified immunity for police officers. Note that previous versions of this bill had also included the elimination of qualified immunity but that was not part of the approved bill.

Process for Whistleblower Complaints

The bill amends the Public Officer Prohibited Political Activities Act to modify the whistleblower and retaliation provisions for employees who report violations of this Act by local government employees or contractors, and requires employees who invoke this Act to file a written report to the appropriate auditing official. 

The bill also requires the "auditing official" of the government agency to establish a written process and procedures for managing complaints filed under this Section. For local governments, the "auditing official" is defined as that elected, appointed, or employed official with the local government with responsibility for investigating employee misconduct. If no such individual exists, the County States Attorney will serve as the auditing official.

This bill will likely require some action by units of local government to designate the appropriate "auditing official" and put in place written policies and procedures for managing complaints filed under this new law.

Permanent Retention of Police Misconduct Records

The bill amends the Local Records Act to provide that police misconduct records and records relating to complaints, investigations, and adjudications of police misconduct must be permanently retained and may not be destroyed.

Mental Health Screenings

The bill requires the ILETSB to establish statewide minimum standards regarding regular mental health screenings for probationary and permanent police officers.

Police Officer Training 

The bill requires the curriculum for probationary police officers to include training on use of force, de-escalation, officer safety, and high-risk traffic stops, among other topics. New training on emergency medical response, crisis intervention, and officer wellness and mental health are also added to the required training for police officers. The bill also requires ILETSB to establish rules and minimum standards for in-service training of at least 30 hours every 3 years. The bill requires ILETSB to approve a standard curriculum for crisis intervention training.

Officer-Worn Body Cameras

The bill requires all law enforcement agencies to employ the use of officer-worn body cameras and sets a schedule for implementation, as follows:

  • Municipalities with population of 500,000 or more - January 1, 2022
  • Municipalities with population between 100,000 and 499,999 - January 1, 2023
  • Municipalities with population between 50,000 and 99,999 - January 1, 2024
  • Municipalities with population under 50,000 - January 1, 2025

Law enforcement agencies that comply with these requirements will receive preference for grant funding. The bill also requires annual reporting of the use of body-cameras to ILETSB on or before May 1st of each year.

Law enforcement agencies have additional new reporting requirements, including reporting on incidents where officers are dispatched to deal with someone experiencing a mental health crisis, reporting on use of force, including actions that result in death or serious bodily injury or discharge of firearm at or in the direction of a person.

Uniform Peace Officers' Disciplinary Act

The bill amends this Act to remove a requirement that an officer be informed of names of complainants prior to an administrative proceeding and the name, rank, and unit of the officer in charge of the investigation.

The bill also removes the requirement that complaints against sworn officers be supported by a sworn affidavit, and states that this ban applies to any collective bargaining agreement entered into after the effective date of the bill.

The bill also allows someone to file notice of an anonymous complaint to the ILETSB of any misconduct of an officer. Note that this provision takes effect on January 1, 2023

Municipal and Counties Code - Military Surplus Equipment

The bill amends the Municipal Code and Counties Code to prohibit law enforcement agencies from requesting or receiving certain equipment from any military surplus program. To the extent equipment is not on the prohibited list, agencies must publish notice prior to requesting that equipment. This provision preempts home rule authority.

Use of Deadly Force and the Criminal Code 

The bill amends the Criminal Code to modify the provisions regarding police officer justification for use of force to add language regarding the "totality of the circumstances". Also requires police officers, where feasible, to identify as a police officer prior to use of force and to warn that deadly force may be used unless the officer has reasonable grounds to believe the person is aware of these facts. Prohibits the use of deadly force if the police officer does not believe the person does not pose an imminent threat of death or serious bodily injury to the officer or another person. Also prohibits use of deadly force in a property offense situation unless that situation involves terrorism or deadly force is otherwise authorized by law. 

Prohibited Use of Force

The bill prohibits police officers from using a restraint above the shoulders with risk of asphyxiation, as well as continuing to prohibit the use of chokeholds. The bill also prohibits use of force as punishment or retaliation, the discharge of projectiles aimed at the head, pelvis, or back or indiscriminately into a crowd, and the use of chemical irritants, including pepper spray and tear gas, prior to issuing an order to disperse. The bill also prohibits the use of force to prevent escape.

Police Officer Duty to Render Aid

The bill requires all law enforcement officers to render medical aid and request emergency medical assistance if necessary

Police Officer Duty to Intervene

The bill mandates that police officers intervene to stop or prevent another police officer from using unauthorized force and to report the intervention.

Official Misconduct of Police Officers

The bill expands the official misconduct statute to include (1) misrepresentation or failure to provide facts to describe an incident or report during an investigation of an officer's conduct; (2) withholding of information about another officer's conduct; and (3) failure to comply with the officer-worn body camera statute.

Investigation of Misconduct and Process

The bill requires government agencies that submit notice of violation to the ILETSB to conduct an investigation and adopt a policy regarding these investigations. The ILETSB is then authorized to review reports and evidence and make a determination whether officer should be decertified.

Law Enforcement Compliance Verification

The bill requires law enforcement officers to submit a verification form confirming compliance with the Act for the three year period prior to the verification.

Execution of Warrants

Allows use of no-knock warrants if body-worn cameras are in use or the interaction is otherwise recorded.

Freedom of Information Act

The bill adds new exemptions to FOIA to protect new records contained in the  Officer Professional Conduct Database and records supplied to the ILETSB.

Substance Use Disorder Treatment and Deflection

The bill adds various new topics for substance use and deflection programs and expands uses of appropriate funds. Also prioritizes funding for communities with police/community relation issues and those with a lack of access to mental health and drug treatment programs.

Attorney General Civil Suits

The bill requires the Attorney General to file a civil action if he or she believes a government authority or agent of government has engaged in a pattern or practice of conduct that deprives a person of constitutional rights.

Abolition of Monetary Bail

The bill eliminates the requirement of posting monetary bail, effective January 1, 2023.

Obviously, this summary is by no means exhaustive and more will be reported as we analyze the bill regarding the impacts to local governments. 

Wednesday, January 13, 2021

Officer Not Entitled to On-Duty Disability Pension for Injury in Entering Vehicle

A police officer was injured after he slipped off the curb while entering his vehicle after leaving court where he had been testifying before a grand jury. The officer applied for a disability pension with the Police Pension Fund. The Board of the Pension Fund approved a non-duty disability pension but denied his request for an on-duty disability pension. He sought review of the Board's decision with the trial court which held in his favor. 

The Pension Fund appealed, and the Illinois Appellate Court upheld the Board's decision rejecting his on-duty disability request. Griffin v. Village of New Lenox Police Pension Fund. Specifically, the Court found that the officer was not performing an "act of duty" when he was injured. He was walking toward his vehicle which is an activity that ordinary citizens do every day. There was no special risk in what he was doing nor was he acting in a way any different than a citizen in the ordinary walks of life. As a result, the Court upheld the Board's decision to deny an on-duty disability pension.

Tuesday, January 12, 2021

Illinois Appellate Court Rules on Tax Increment Financing Case

In Grassroots Collaborative v. City of Chicago, an Illinois court held  that two Illinois groups could not sue the City of Chicago for allegedly creating tax increment finance “TIF” districts in a racially discriminatory way. Specifically, the court found that the groups did not have "standing" to sue the City (the requirement that a plaintiff directly suffered or will suffer a cognizable legal injury).

TIF is a program used by municipalities to economically develop blighted, conservation, or formerly industrial areas by setting aside a portion of property taxes for redevelopment projects in the district. After the creation of a TIF district, a municipality assesses the value of each property within the geographic boundary of the district. The assessment establishes a base level where local government tax authorities—like park and school districts—continue receiving monies to fund public services. If property values in the district increase, additional tax monies are diverted to the municipality to use for redevelopment projects in the district. 

When establishing a TIF district, municipalities must create a comprehensive redevelopment plan to use tax funds. Further, municipalities must show private enterprise is not reasonably anticipated to grow the area requiring the TIF program to help make those investments. 

The groups allege the City, for the last 30 years, had been illegally establishing TIF districts in areas that were already experiencing economic growth resulting in predominantly white areas of the City exclusively benefiting from increasing tax revenue. They argued that because these areas were not contributing their excess taxes to various local government taxing authorities, other less affluent areas had to compensate for budget shortfalls. The groups referenced two specific districts: Cortland and Chicago River.

Both Grassroots Collaborative and Raise Your Hand for Public Education, the not-for-profit plaintiffs in the case, argued the City’s actions prompted each to divert resources away from their other advocacy initiatives and would eventually undermine or frustrate their missions to address economic inequity throughout Chicago.

The court dismissed the case finding that the two groups did not have "standing" to sue the City because they failed to show how they suffered impairment to the services it offers or the performance of their mission in order to demonstrate an injury that would allow them to sue. 

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink

Monday, January 11, 2021

Quorum Forum Podcast Episode 48: 20 Questions for 2021

Ancel Glink just released a new episode of its Quorum Forum Podcast. Information about this episode is below:

Episode 48 - 20 Questions for 2021

Local governments will face questions about vaccines, virtual meetings, cannabis licenses, and more in 2021. Ancel Glink's Jaime Such and Rain Montero will join the podcast to answer those questions and more to help you prepare for the new year. 

What are your local government questions for 2021? Email us at podcast@ancelglink.com! 

Friday, January 8, 2021

Court Upholds Executive Order Requiring COVID-19 Screening Protocol for Prison Transferees

An Illinois Appellate Court determined that Governor Pritzker has the authority to require the Department of Corrections to accept prison transfers from county jails, subject to an intake process designed to prevent the spread of COVID-19. Landers v. Pritzker

On March 26, 2020, the Governor issued Executive Order 2020-13, which suspended all transfers of individuals in Illinois county jails to DOC custody, with exceptions developed at the sole discretion of the Director of the DOC. On July 24, 2020, Illinois County sheriffs filed suit, challenging the Governor’s authority to stop prison transfers, and seeking a court order to compel DOC to accept all transfers of prisoners to its custody. Three days later, on July 27, 2020, Governor Pritzker issued Executive Order 2020-50, which rescinded Executive Order 2020-13, and declared that the DOC “will resume accepting the transfer of individuals from Illinois county jails, subject to an intake process designed to ensure the health and safety of the transferring individuals, as well as all individuals and staff at the IDOC.” That same day, DOC issued a memorandum requiring transferees to be quarantined for 14 days prior to transfer and tested for COVID-19 72 hours before the transfer. Transferees who tested positive would have their transfer to a DOC facility postponed.

The sheriffs argued that the executive order exceeded the Governor’s authority by placing conditions on the acceptance of prison transfers despite the fact that the DOC is required, by statute, to accept all properly committed transferees, regardless of any COVID-19 screening protocol. The trial court agreed and ordered DOC to immediately begin accepting transfers of “all inmates who would normally be sent to DOC,” without requiring the sheriffs to follow any protocols designed to prevent the spread of COVID-19.

On appeal, the Appellate Court reversed the trial court and upheld the validity of the executive order. The Court reasoned that Section 7(8) of the Illinois Emergency Management Agency Act (20 ILCS 3305/7) authorizes the Governor to control the “movement of persons within a disaster area,” and that the purpose of the Act is to provide the Governor with broad authority to address emergencies. The Court also found it noteworthy that the Governor rescinded Executive Order 2020-13 and replaced it with Executive Order 2020-50, allowing the transfer of prisoners to resume with restrictions intended to reduce the spread of COVID-19. Because the executive order was designed to ensure the health and safety of transferees, the larger DOC population, and DOC staff during a pandemic, the Appellate Court held that the executive order was a permissible use of the Governor’s broad authority under the Act.

Post authored by Rain Montero & Julie Tappendorf

Wednesday, January 6, 2021

Public Duty Rule Applied to Stormwater Damage Case

In Tzakis v. Maine Township, the Illinois Supreme Court was asked to determine whether the “public duty” rule applied to a case that had been filed before the Illinois Supreme Court abolished the rule. The public duty rule stated that local governmental entities do not owe a duty to individual members of the public when performing customary governmental duties. The Court found that although the rule had been previously abolished by the Court before the outcome of this case, a prospective application of the rule (applying the rule after it was abolished for this particular case) was appropriate to avoid substantial inequitable results for the defendants relying on the rule after years of litigation. This was a favorable outcome for the government defendants in this case. 

In Tzakis, residents of Maine Township sued the township and other local government entities after a 2008 rainstorm caused severe flooding damage. The residents claimed the damage was caused by the local government defendants neglecting to update and address drainage and structural issues with a regional storm sewer system after years of complaints. 

By August 2014, after several years of addressing procedural issues, the defendants had filed motions to dismiss the case arguing they were immune from liability under the public duty rule. By the following April, the trial court ruled that the public duty rule would be applied in this case, and the residents had not alleged sufficient facts to show liability of the defendants.

In 2016, the Illinois Supreme Court in Coleman v. East Joliet Fire Protection District had abolished the longstanding public duty rule. After the rule's elimination, the residents claimed that the defendants could no longer rely on the public duty rule to protect themselves from liability because the rule no longer exists. As of 2016, litigation persisted through the courts to determine whether to apply the public duty rule as it existed when the case was filed (which would protect the government defendants from liability) or follow the Illinois Supreme Court’s ruling in Coleman

In these situations, Illinois courts look to three factors to determine whether a defunct rule applies prospectively to ongoing litigation:

1. whether the decision establishes a new principle of law effectively overturning existing precedent;

2. whether the history and purpose of the new rule are hindered or promoted by a prospective application; and 

3. whether a prospective application causes substantial inequitable results.

Applying these factors, the Court concluded the public duty rule should apply in this case. The Court determined that applying the public duty rule, in this case, would not frustrate the purpose of the Coleman decision. The Court also determined that applying Coleman in this case would be unfair to the government defendants since the residents’ case involved legal claims spanning over 50 years before the ruling in Coleman. Further, the government defendants had argued the public duty rule applied in the case as far back as 2010. As a result, a prospective application of the rule would prevent substantial litigation and not upend an 11-year case.

When applying the public duty rule to the claims made in this case, the Court found the government defendants were not liable for the plaintiffs' flooding damage because any duty to maintain the regional storm sewer system was a general duty to the public, and not a special duty owed the plaintiff residents individually.

Post Authored by Mike Halpin & Julie Tappendorf

Tuesday, January 5, 2021

Top 10 Blog Posts of 2020

 And now, for our annual "top 20" blog posts of 2020...it will come as no surprise, but most of these are COVID-19 related.

1. Most Government Offices Must Close for 2020 Election Day

2. PAC Guidance on OMA and FOIA During COVID-19 - we did multiple updates on this guidance here and here.

3. Governor Suspends In-Person Attendance at Public Meetings

4. Conducting Meetings During COVID-19 

5. State Legislature Adopts Amendment to OMA Regarding Remote Meetings - we did multiple posts on this legislation here and here

6. Reminder of IMRF Posting Requirement Deadline of January 1, 2021

7.  What Powers do Governments Have Relating to Isolation and Quarantine During a Pandemic

8. Workers Compensation New Rule for COVID-19 Claims Also, see here.

9. Appellate Court Issues Opinion on FOIA and Emails/Texts on Personal Devices

10. Governor Issues Stay at Home Order for COVID-19 Pandemic

Monday, January 4, 2021

Summary of 2020 PAC Binding Opinions

As we do every year, we are summarizing all of the Attorney General's binding PAC opinions so you can find them all in one place on the blog. It couldn't be easier this year, as the PAC only issued ten binding opinions this entire year (3 of which came in the last month). We typically see about 15 or so binding opinions each year. Note that we had not yet written up the 9th or 10th binding opinion in separate posts since they came out the last couple of days of the year, so you may want to check those summaries out even if you have read posts about the other binding opinions.

PAC Op. 20-001 (minutes approval)

In PAC 20-001, the PAC found a public body in violation of the Open Meetings Act for failing to approve its meeting minutes in the time limits required by that statute. 

PAC Op. 20-002 (failure to respond)

In PAC 20-002, the PAC found a public body in violation of FOIA for failing to respond to a FOIA request and to the PAC's request for review. Nothing groundbreaking or new here - public bodies are obligated to respond to FOIA requests. 

PAC Op. 20-003 (improper redactions)

In PAC Op. 2020-03, the PAC office found an Illinois agency in violation of FOIA for improperly redacting certain information contained in cannabis business license applications, although the PAC did acknowledge that the agency could properly redact birth dates under 7(1)(c) of FOIA.

PAC Op. 20-004 (personnel evaluation process not exempt)

In PAC Op. 2020-04, the PAC found an Illinois local school council violated the Open Meetings Act when it discussed the timing and process for the school principal's evaluation in closed session. The PAC determined that the “personnel” exemption was limited to discussion of the individual employee’s performance, but not the process for evaluating the employee.

PAC Op. 20-005 (accident reports)

In PAC Op. 2020-05, the PAC found a public body in violation of FOIA for denying various records pertaining to a fatal car accident. The PAC rejected the public body's reliance on the FOIA exemption contained in section 7(1)(d)(iii) which allows a public body to withhold information that creates a substantial likelihood of depriving a person of a fair trial or impartial hearing.  

PAC Op. 20-006 (records in possession of contractor)

The PAC found that the Illinois Department of Corrections (IDOC) improperly denied a FOIA request that sought copies of aggregate data on head injuries incurred by inmates in IDOC custody and policies for evaluating head injuries of IDOC inmates and employees.

The PAC found a public body in violation of the Open Meetings Act where a member of the public body muted the meeting for a short period. however, the PAC did not find a violation where the public body did not allow in-person attendance by the public where remote access was available to the public.

PAC Op. 20-008 (juvenile victims)

The PAC found a public body in violation of FOIA for withholding a police report involving a juvenile victim. The PAC noted that the Juvenile Court Act of 1987 protects records relating to juvenile suspects but not victims. Since the requested record identified a juvenile victim and not a juvenile committing or suspected of committing an offense, the records were not exempt under that Act.

The PAC found a police department in violation of FOIA when it failed to turn over portions of arrest records relating to an arrestee to a watchdog group. The PAC cited to Sections 2.15(a) and (c) in finding that the department was required to provide the requester with at least information that would identify arrestees, including their names, ages, addresses, and photographs (when and if available), and information detailing any charges relating to the arrests. Although two of the arrestees had not yet gone to trial, the PAC rejected the department's reliance on the FOIA exemption that allows a law enforcement agency to withhold records if disclosure would interfere with pending law enforcement proceedings.

PAC Op. 20-010 (assessment records)

The PAC found a county assessor's office in violation of FOIA when it failed to respond to a request for various records regarding the division of property. Nothing new here.