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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Tuesday, March 30, 2021

Food Truck Freedom Bill Introduced in General Assembly

The Illinois General Assembly recently introduced HB 3509, called the Food Truck Freedom Act. If passed, the bill would prohibit municipalities from requiring food truck businesses to obtain multiple licenses from the municipality regardless of how many trucks the business operates in that municipality. The bill would also require municipalities to recognize reciprocal business licenses issued to food truck businesses by different municipalities or local health departments. Additionally, the bill would prohibit municipalities or local health departments from imposing additional license qualification requirements on food truck businesses before issuing licenses. 

For initial business licenses, the bill would allow municipalities or local health department to charge a licensing fee to food truck businesses, but the fee can only reimburse the municipality for the actual cost of processing the business license. Subject to certain exceptions, the bill also prohibits municipalities from requiring a food truck business to pay any fee or obtain any permit for a special event on private property, regardless of whether the event is open or closed to the public. 

Please stay tuned for more updates as we continue monitoring HB 3509. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, March 25, 2021

Bill Would Repeal Rent Control Preemption Act

Earlier this week, the House Committee on Housing advanced a bill that would allow units of local government to implement measures regarding rent control, including imposing caps on rent prices. If passed, HB 0116 would repeal the Rent Control Preemption Act, which currently prohibits every municipality from regulating or controlling the amount of rent charged for leasing private residential or commercial properties. Please stay tuned for more updates about this bill.  

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, March 23, 2021

Court Upholds Home Rule City's Water Billing Ordinance

An Appellate Court recently upheld a municipality's water billing ordinance in Souza v. City of West Chicago.

In 2011, West Chicago contracted with Water Resources, Inc. to replace residential water meters and update meter equipment. After some customers experienced years of deficient, inaccurate, and/or missing water meter readings, the City terminated its contract with Water Resources in 2016. 

In 2019, two individuals filed a class action lawsuit against the City and Water Resources alleging that the City engaged in unlawful billing practices by charging customers for water and sewer services outside of the 12-month period prescribed by the water-utility billing provision in state statute (specifically, section 65 ILCS 5/11-150-2 of the Illinois Municipal Code). While the lawsuit was ongoing, the City amended its local water billing ordinance so that the local ordinance: (1) would control over state statute; (2) apply retroactively to any and all billed or unbilled charges incurred for water usage prior to and subsequent to the amended ordinance’s effective date; and (3) apply to all causes of action that have accrued, will accrue or are currently pending. 

The circuit court ruled against the water customers, finding that the City’s amended water billing ordinance was a valid exercise of its home rule powers.

The customers appealed, and the Second District Appellate Court upheld the ruling in favor of the City. Specifically, the appellate court noted that the City’s ordinance was a valid exercise of its home rule powers to regulate an area of vital local interest (the funding and operation of the City’s water utility system). The court rejected the customers' argument that state statute "preempted" the local ordinance finding no preemption language in the statute. 

The appellate court also rejected the customers' argument that applying the ordinance retroactively deprived them of a vested right. 

Finally, the appellate court rejected the customers’ claim that they were entitled to recover economic damages for all service charges wrongfully billed and/or collected by the City because of Water Resources' breach of its contract with the City. The appellate court found that the customers were not parties or third-party beneficiaries to the contract so could not bring a breach of contract claim against Water Resources.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Thursday, March 18, 2021

Court Rules in Favor of School District in Residency Case

An Illinois Appellate Court recently ruled in favor of the school district in a residency case, finding that a student was not a legal resident of the district. Gwozdz v. Board of Education of Park Ridge-Niles School District No. 64.

During the 2017-18 school year, parents enrolled their daughter as a seventh-grade student at a middle school located within the school district. The parents submitted documents identifying the student’s place of residence at a one-bedroom apartment in the district. According to the court opinion, the district became suspicious of the student’s residency during the verification process because the family listed two properties—a single family home outside of the district’s boundaries and the one-bedroom apartment within the school district. The opinion also noted that the district had found the lease “odd” because it was a lease from the family to itself, it was a 10-year lease, and the rent level never changed. 

Because of its suspicions, the district hired a private investigator to conduct surveillance of the family. The investigator observed that the family stayed at the out-of-district residence late in the evening and would leave the house early the next morning. The investigator also “spot-checked” the apartment building and never found the family’s vehicles at that location. After receiving the investigator’s report, the school district issued a letter informing the parents of its determination that the student was not a district resident. In response, the parents requested a hearing in front of the school board’s hearing officer to review the district’s determination. 

At the hearing, the father testified that the family owned the building within the school district and operated a flower business on the first floor. The second floor of the building consisted of eight apartments, seven of which were rented to others. The family kept a one-bedroom apartment to themselves and listed the apartment as its primary residence since December of 2012. In support of residency, the family also submitted other documents, including the student’s vaccination record, vehicle registrations and the student’s library card, all of which listed the apartment’s address. 

In finding that the student did not reside in the school district, the hearing officer noted the unlikelihood that the family lived in a one-bedroom, one-bath apartment, when there was a larger single family home outside of the school district. The hearing officer also found that the family’s testimony was not credible in light of the investigator’s report and pointed to evidence that the student was enrolled in a different school district during the 2015-16 school year, even though the family testified they moved to the apartment in 2012. As a result, the hearing officer upheld the school district’s determination. The circuit court affirmed the determination and the parents appealed. 

On appeal, the Court ruled in favor of the school board. Taking all the facts presented at the hearing together, the Court concluded that the parents intended for the single family home outside of the district to act as a “home base” for day-to-day care for the child. As a result, the Court held that the student did not reside in the school district and ordered the family to pay tuition for the 2017-18 school year.

Post Authored by Rain Montero & Julie Tappendorf, Ancel Glink

Wednesday, March 17, 2021

Court Upholds Use of "Deliberative Process" FOIA Exemption

An Appellate Court recently interpreted the "deliberative process" (sometimes known as the draft document) exception in section 7(1)(f) of the Freedom of Information Act in Fisher v. Office of the Illinois Attorney General. In this case, the court found that a public body (in this case, the Attorney General) did not violate FOIA in denying a request for certain records it claimed were exempt under that exception.

In 2012, the Attorney General (AG) filed a lawsuit against several Cathode Ray Tube (CRT) manufacturers, alleging they conspired to fix prices on certain products resulting in overcharges to Illinois consumers. Ultimately, the AG entered into settlement agreements with all of the manufacturers. In April 2019, an individual representing several clients that submitted claims as part of the CRT settlement, made a FOIA request to the AG, seeking communications between the AG and KCC Class Action Services LLC related to the CRT settlement. The AG denied the FOIA request, claiming that the communications were exempt from disclosure under FOIA’s "deliberative process" exemption in FOIA section 7(1)(f). The requester then sued the AG, alleging that the AG violated FOIA by improperly withholding the requested communications under the deliberative process exemption. The circuit court upheld the AG's denial of the FOAI request and the requester appealed. 

The Appellate Court agreed with the circuit court and also upheld the AG's use of the deliberative process exemption to deny the FOIA request. To exempt records under FOIA’s deliberative process exemption, the Appellate Court clarified that responsive materials must be both (1) inter or intra agency and (2) predecisional and deliberative. 

As to the first requirement, the court concluded that the requested communications between the AG and KCC were intra-agency materials under FOIA’s deliberative process exemption. As AG’s outside consultant, KCC provided the AG with analyses and recommendations regarding the distribution of settlement proceeds, which the AG relied on to create the final settlement distribution plan, and KCC performed essentially the same function in the AG's deliberative process as the AG would have performed if it had chosen to perform the preliminary review of each claim itself. 

Regarding the second requirement, the court determined that the records were predecisional because they were required in order for the AG to adopt and submit its final settlement plan in the CRT lawsuit. The court also determined that the records were  deliberative because the communications between the AG and KCC were related to the process that the AG engaged in to formulate its policies and to create a final settlement plan in the CRT litigation. In this case, AG had retained KCC as an outside consultant to make determinations, subject to the AG approval, regarding which claimants satisfied requirements for participation in the settlement. To that end, KCC reviewed claims and made recommendations to the AG that it used in its final settlement determinations.

This case provides some helpful guidance to public bodies in how the courts will apply the "deliberative process" exemption in section 7(1)(f) of FOIA, and also some insight into the Attorney General's view of this exemption, given that the public body in this case was the AG.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Tuesday, March 16, 2021

Court Finds Term Limits Statute Constitutional

 In Buchanan v. Jones, an Appellate Court upheld the constitutionality of a 2019 state statute as applied to a 2016 referendum that limited the terms of office for individuals elected to the office of village president.

On November 8, 2016, a majority of voters in a municipality who voted in the general election approved the following referendum:

Shall the terms of office of those persons elected to the office of Village President in the Village of Broadview, at the April 4, 2017 consolidated election, and each election for said office thereafter, be limited such that no person shall be eligible to seek election or hold the office of Village President where that person has been previously elected to the office of Village President of the Village of Broadview for two consecutive full four year terms?

On July 19, 2019, the General Assembly amended the Illinois Municipal Code to add Section 3.1-10-17, which provides, in relevant part, that:

(a) The imposition of term limits by referendum, ordinance, or otherwise must be prospective. Elective office held prior to the effective date of any term limit imposed by a municipality shall not prohibit a person otherwise eligible from running for or holding elective office in that municipality. Term limits imposed in a manner inconsistent with this Section remain valid prospectively, but are invalid as they apply to service prior to the enactment of the term limits.


(d) This Section applies to all term limits imposed by a municipality by referendum, ordinance, or otherwise passed on or after November 8, 2016.” 65 ILCS 5/3.1-10-17.

A candidate for the office of village president filed nomination papers for the April 6, 2021 municipal election. A registered voter filed objections to the candidate's nomination papers with the Municipal Officers Electoral Board. Specifically, the objector argued that the candidate was not eligible to seek election to or hold the office of village president because he had previously been elected to that office for two consecutive full four-year terms and was barred from running again due to the 2016 referendum.

On January 26, 2021, the Electoral Board dismissed the objection and ordered the candidate's name to appear on the April 6, 2021 ballot. The Electoral Board reasoned that based on the language of the 2019 statute, any term that the candidate served as village president prior to November 8, 2016 should not be included in determining his eligibility to run for the office of village president in the April 6, 2021 election. The circuit court upheld the Board’s decision and Buchanan appealed.

On appeal, the objector argued that the 2019 statute was unconstitutional as applied to the 2016 referendum because it nullified the past results of a valid election, which established term limits for individuals holding the office of village president and determined who was ineligible to seek election to or hold that office. 

The Appellate Court rejected the objector's argument, finding that the 2016 referendum was silent as to whether service as village president prior to the referendum’s adoption should be considered in calculating consecutive terms. The Court reasoned that the new statute only places a limitation on the way that term limits are calculated in elections taking place after July 19, 2019, the effective date of the statute. As a result, the Court held that the statute was not unconstitutional as applied to the 2016 referendum, and the candidate was eligible to run for the office of village president.

Post authored by Rain Montero & Julie Tappendorf, Ancel Glink

Monday, March 15, 2021

Court Rules in Public Body's Favor in FOIA Case Brought by Inmate

In 2015, an inmate filed two substantially identical FOIA requests with the Chicago Police Department asking the CPD to release records regarding the murder of an individual for which the inmate was prosecuted and convicted. After CPD initially failed to respond to both requests, the inmate sued CPD alleging that CPD had violated FOIA by failing to respond to his requests. After the trial court conducted an in camera inspection of the records produced to the plaintiff and confirmed that CPD conducted a reasonably diligent search for responsive records, the court ruled in CPD’s favor, finding that the inmate’s lawsuit was "moot" because CPD had already produced all non-exempt public records responsive to the inmate’s requests. The inmate appealed.

In Love v. City of Chicago, the First District Appellate Court also ruled in favor of the CPD. First, the appellate court rejected the inmate’s contention that CPD failed to produced certain records, finding no evidence that the CPD’s search was inadequate. Second, the court rejected the inmate's argument that CPD violated FOIA by not producing an index for certain records, finding that public bodies are not obligated to produce an index in response to a FOIA request outside of a court order which did not exist in this case. Finally, the court also rejected the inmate’s request to conduct his own "in camera" inspection of CPD’s records, noting that FOIA only allows a court to conduct in camera inspection of records when appropriate to determine whether records may be withheld under applicable FOIA provisions. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, March 12, 2021

Church Denied Injunctive Relief Against Previous COVID Restrictions

We previously reported on a lawsuit filed by the Beloved Church in Lena, Illinois to challenge Governor Pritzker's executive order that previously restricted places of worship to 10 in-person attendees. The district court had denied injunctive relief, finding that the Governor's executive order furthered the government's interest in protecting people from the pandemic and there were alternative methods for worship. The Church appealed to the Seventh Circuit Court of Appeals which issued an opinion recently affirming the district court but on different grounds. Cassell and Beloved Church v. Snyders.

The Court of Appeals noted that much had changed since the district court's May ruling denying the injunctive relief requested by the Beloved Church. First, the Governor's executive order that restricted places of worship to ten worshipers is no longer in place, having been replaced with a recommendation (rather than a mandated restriction) to limit worshipers. Also, the U.S. Supreme Court had since issued a number of rulings on COVID-related restrictions on religious institutions, some of which had found similar restrictions to be unconstitutional. The Seventh Circuit recognized these Supreme Court precedents but did not grant the Beloved Church its requested injunction against the Governor's restrictions finding that there was little risk that the Church would suffer any irreparable injury since the mandatory restrictions had previously been abandoned by the Governor and there was a very low likelihood that they would be reinstated given the availability of vaccines and the ongoing reduction in COVID cases.

Thursday, March 11, 2021

PAC Issues Binding Opinion on "Probable Litigation" Exception to OMA

The Public Access Counselor of the Attorney General's office (PAC) just issued its third binding opinion for 2021, finding a public body in violation of the Open Meetings Act when it went into closed session under the "probable litigation" exception. PAC Op. 21-003.

A City Council went into closed session at a regular meeting, citing the exception contained in 2(c)(11) of the OMA that allows a public body to discuss "probable or imminent litigation." A resident filed a complaint with the PAC arguing that the Council improperly went into closed session under this exception. In his complaint to the PAC, the resident noted that the City Council had informed him that the Council would be discussing a City sewer main located on the resident's property and which the resident claimed was not within a proper easement . The resident argued the closed session discussion was improper because there was no litigation threatened or pending to justify the closed session. In response, the City defended its decision to go into closed session, arguing that the discussions involved possible or threatened litigation.

The PAC first acknowledged that a public body is authorized to go into closed session to discuss litigation that has been filed and is pending and where litigation is "probable or imminent." The PAC referred to various Attorney General opinions and cases discussing what "probable or imminent'" means, and noted that "there must be reasonable grounds to believe that a lawsuit is more likely than not to be instituted or that such an occurrence is close at hand." 

In this particular case, the City explained that it believed litigation was imminent after the resident stated he was going to retain an attorney. The PAC found that this was not sufficient to justify going into closed session to discuss the sewer dispute. The PAC also found that the 2(c)(11) exception does not authorize closed session discussion of an underlying decision or course of action merely because it could potentially give rise to litigation at some point in the future. In sum, the PAC found the City Council in violation of OMA for going into closed session and ordered release of the closed session meeting minutes and the verbatim recording.

Wednesday, March 10, 2021

US Supreme Court Rules in Government's Favor in FOIA Case

Before issuing a proposed rule regarding cooling water intake structures, the Environmental Protection Agency (EPA) sent its draft rule to the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) for review and consultation. Staff members at NMFS and FWS reviewed the draft rule and advised the EPA that its draft rule would likely jeopardize certain species. After continued consultation with these two agencies, the EPA sent a revised proposed rule in March 2014 that addressed the NMFS and FWS concerns, and the agencies subsequently issued a joint final biological opinion and the EPA issued its final rule on the same day. 

Later, the Sierra Club (an environmental group) submitted a FOIA request seeking records related to the two agencies' consultations with the EPA. The agencies denied the request, arguing that the draft biological opinions analyzing the EPA’s 2013 proposed rule were exempt under the federal FOIA’s "deliberative process privilege." After the Sierra Club sued to obtain the withheld documents, the Ninth Circuit Court of Appeals concluded that the draft biological opinions represented the agencies’ final opinion regarding the EPA’s 2013 proposed rule and ordered release of the requested documents. The agencies appealed to the U.S. Supreme Court. 

In United States Fish and Wildlife Service v. Sierra Club, Inc., the U.S. Supreme Court reversed the Ninth Circuit and concluded that the FOIA’s deliberative process privilege protects the in-house draft biological opinions from disclosure because the documents were both pre-decisional and deliberative. 

The Court clarified that the privilege distinguishes between pre-decisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not. Here, even if the drafts reflected the agencies’ last views about a proposal, the draft opinions reflected preliminary views—not final decisions—about the EPA’s proposed 2013 rule. The Court noted that a document does not represent an agency’s final decision solely because nothing follows it. Instead, what matters is whether (1) the document communicates a settled policy of the agency; (2) the agency treats the document as its final position and (3) the agency concludes the deliberative process by which governmental decisions and policies are formulated, giving the document “real operative effect.” Here, the Court found that the agencies' draft opinions were subject to change and had no direct legal consequences. In fact, the decisionmakers at the agencies had neither approved the drafts nor had they sent them to the EPA. In short, even though the drafts may have had the practical effect of provoking EPA to revise its rule, the deliberative process privilege still applied because the agencies themselves did not treat the draft opinions as final.

Although this case involved interpretations of the federal FOIA statute and not the Illinois FOIA, it does offer some guidance on the "draft document" or "deliberative process" exemption which is in both the federal and Illinois FOIA statutes.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, March 8, 2021

Quorum Forum Podcast: Live at the APA-CMS Planning Law Session

Ancel Glink's Quorum Forum Podcast just released Episode 50: Sixth Annual APA-CMS Bar Exam. Details of this podcast are below:

The American Planning Association’s Chicago Metro Section and Ancel Glink’s Quorum Forum podcast hosted a live virtual happy hour for the Sixth Annual Bar Exam Planning Law Session! APA-IL President Elect Nina Idemudia and Ancel Glink’s Dan Bolin, Greg Jones and Joyce Jezeer joined planning professionals for a realistic law school simulation covering the year’s noteworthy cases on FOIA, zoning, short-term rentals and more for Quorum Forum’s 50th episode. 

Thursday, March 4, 2021

Bills Introduced to Amend Open Meetings Act

The Illinois General Assembly recently introduced three bills of interest to local governments. If passed, the bills would amend the notice and remote meetings provisions of the Open Meetings Act.

SB 482, if passed, would expand the alternative procedure for conducting remote meetings of public bodies by removing the current requirement that the State must have issued a disaster declaration before public bodies are authorized to hold remote meetings. The bill also allows a public body to hold a remote meeting if the head of a public body determines either (1) that an in-person meeting is not practical or prudent or (2) that conducting an audio or video conference is in the best interest of the public body. The bill would also require that the public notice for the meeting include language that the chair of the public body has determined that an in-person meeting is not practical or prudent or that conducting an audio or video conference is in the best interests of the public body.

HB 2830 proposes to amend the OMA to prohibit public bodies from conducting a closed meeting by audio or video conference. If passed, a public body could only conduct a closed meeting with the physical presence of a quorum of the public body members.

HB 2819, if passed, would require that if a change is made concerning a public body’s regular meeting dates, times, or locations (currently, the statute only references a change in dates), the public body must provide at least 10 days' notice of the change by publication in a newspaper of general circulation in the area where the public body functions. If passed, the bill also permits a public body to provide at least 10 days’ notice of a change made to its regular meeting dates, times, or locations on the public body’s website in addition to providing notice in a newspaper, or in lieu of providing notice in a newspaper if the public body does not have a newspaper of general circulation in the area where the public body functions.

These bills have not yet been voted on, but we will keep you posted if they move forward.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, March 3, 2021

FOIA Requester Not Entitled to Attorneys Fees or Civil Penalties

In 2015, an inmate filed a complaint against the Cook County State's Attorney's Office (SAO) claiming the SAO failed to comply with his FOIA request seeking records from five criminal cases in which he was convicted of various offenses. Shortly after the case was filed, the SAO provided the inmate with 2,867 pages of responsive records with applicable redactions based on FOIA exemptions. Nevertheless, the inmate claimed that because the SAO willfully and intentionally failed to comply with FOIA, the court should award fees, costs, and civil penalties. The SAO filed a motion to dismiss, arguing that the motion for fees and penalties was "moot" because the inmate had already been provided with all responsive, non-exempt records. The trial court ruled in favor of the SAO, and the inmate appealed.

In Watson v. Foxx, the Illinois Appellate Court denied the inmate's request for fees, costs, and civil penalties, agreeing with the SAO that the inmate's appeal was "moot" because the inmate admitted to receiving the records he had requested. 

Even if the case were not moot, the court noted that since the inmate represented himself in the FOIA lawsuit, he would not be entitled to attorneys fees because as a pro se litigant, he did not incur any attorney fees. The court also held that the inmate was not entitled to civil penalties under FOIA section 11(j) because there were no facts suggesting that the SAO had willfully and intentionally failed to comply with FOIA or otherwise acted in bad faith in responding to the FOIA request. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, March 2, 2021

PAC Finds No Violation of OMA In Declining Public's Request to Place Item on Agenda

As we have noted previously on Municipal Minute, some of the more interesting opinions out of the Attorney General's Public Access Counselor (PAC) office are advisory/non-binding opinions. Today, we report on one of these opinions.

On August 23, 2020, a member of the public sent a communication to a park district board of commissioners asking the board to place an item on the agenda for an upcoming board of commissioners' meeting. After receiving an email from the park district’s executive director notifying the individual that the board would not place the requested item on the agenda, the individual filed an appeal with the PAC alleging that the board of commissioners must have held an improper meeting to decline his request in violation of the Open Meetings Act. 

In its response to the PAC, the board explained that the executive director (who is an employee of the park district but not a board member) conferred separately with four of the five board members about placing the requested item on the agenda for the board’s meeting. During those separate, individual discussions, the executive director gathered the consensus that the board would not add the person to the agenda. 

The PAC first determined that there was no evidence that three or more members of the five member board engaged in contemporaneous interactive communications concerning a matter of park district or board business. Because these separate conversations between the executive director and individual board members did not constitute a “meeting” under section 1.02 of the OMA, the PAC concluded that the board never held an improper meeting under the OMA. 

The PAC also determined that the separate discussions between the executive director (a district employee) and individual board members did not constitute a final action that should have been taken at an open meeting in violation of section 2(e) of the OMA. Instead, the PAC noted that the decision to place or not place items on an agenda is not a final action, but rather a procedural step needed to identify substantive issues to be discussed or acted upon at a meeting.

Finally, the PAC noted that the OMA does not require a public body to place an item on its agenda at the request of a member of the public. 

Post Authored by Eugene Bolotnikov, Ancel Glink