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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

Wednesday, July 28, 2021

Court Upholds Chicago's Impoundment Ordinance

  Wednesday, July 28, 2021    

In Lintzeris, Moraitis, Jossell, and Daniels v. City of Chicago, five individuals filed suit against the City of Chicago after their vehicles were impounded by the City. They challenged the validity of the City’s impoundment ordinance and administrative hearing procedures. 

After the trial court ruled in the City's favor, the plaintiffs appealed. On appeal, plaintiffs argued that the City's impoundment ordinance was preempted by a section of state statute governing vehicle impounds and procedures, and claimed that the City was prohibited from charging fines not provided for in state statute. The appellate court disagreed, finding that home rule municipalities have authority to impose fines in addition to those provided for in state statute. The appellate court also rejected plaintiffs' argument that the City’s impoundment ordinance procedural requirements were inconsistent with state statute. 

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

  

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Tuesday, July 27, 2021

State Opens ARPA Funding Application Portal to Eliglble Local Governments

  Tuesday, July 27, 2021    

In March, Congress passed the American Rescue Plan Act (ARPA), which seeks to mitigate some of the economic impacts of the COVID-19 pandemic by providing stimulus payments to individuals and creating state and local fiscal recovery programs, among other relief. Through this federal program, over $742 million has been allocated to Illinois for distribution to cities, towns, and villages. This week, Governor Pritzker announced that the distribution of these funds is imminent, pending applications from eligible units of local government which seek to take advantage of the recovery funds.

Local governments with fewer than 50,000 residents that have not yet received any ARPA aid are eligible to apply for the available funds—in Illinois, there are just over 1,250 eligible units of local government. To apply for funding, authorized community representatives may access a portal administered by the Department of Commerce and Economic Opportunity and must submit certain required documentation. The deadline to apply for funding is September 30, 2021, and payments are expected to be distributed in two installments; the first in the coming months and the second approximately one year from the first payment. Local government officials who are unsure whether their communities qualify for these funds can check their eligibility and their expected allotment here.

The ARPA funds can be used to offset costs and losses associated with the pandemic, including negative impacts on small businesses and to support essential workers and portions of the community that have been especially vulnerable to the harmful effects of the coronavirus. Eligible local governments can also use the funds to invest in necessary infrastructure improvements to water and sewer services, as well as broadband utility access. Local government officials are encouraged to consult with their colleagues and attorneys as they prepare their applications and work to utilize the ARPA funds efficiently and equitably.

Post Authored by Erin Monforti and Julie Tappendorf, Ancel Glink

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Monday, July 26, 2021

Updated: Remote Meetings & the Governor's Recent Disaster Proclamation and EO

  Monday, July 26, 2021    

UPDATE: We have gotten a few follow-up questions about our blog post this morning and are publishing this updated post to clarify a statement about a public body's ability to conduct a remote meeting even without the Governor's "feasibility finding" being included in the most recent EO and Disaster Proclamation.

As we previously stated, the Governor did not include in his latest disaster proclamation his previous finding that in-person attendance at public meetings was not feasible due to the disaster. In addition, the Governor's newest executive order did not extend the prior executive orders that relaxed in-person meeting requirements. Exec. Order 2020-15.

That does not necessarily mean that public bodies are prohibited from continuing to hold remote meetings, although we have little to no guidance on this issue since there have been no cases or PAC opinions interpreting this section of the OMA. A decision to hold a remote meeting now would seem to depend on localized circumstances and the head of the public body making the required statutory finding that an in-person meeting is not practical or prudent because of the disaster. So, while the Governor seemed to send a message last Friday that there is no longer a state-wide justification to conduct remote meetings under section 7(e) of the Open Meetings Act, there could be a localized justification for a public body to continue to utilize that procedure, provided the local body can make the required statutory finding. Just as an example, there may be areas in the State with higher than average case counts and/or lower than average vaccination rates that might support a public body conducting a meeting remotely.

To the extent that a public body can make the required local finding that an in-person meeting is not practical or prudent because of the disaster, then the procedures for conducting remote meetings under section 7(e) of the OMA would need to be followed.

For the majority of public bodies that have moved forward or are moving forward with in-person meetings, however, this might be a good time for local governments to review their remote participation policies to recall how these policies work, and to the extent that they don't have a policy, consider enacting one. While many local governments have made video or audio conferences a part of their meetings in the past year, they should make sure they have a remote attendance policy to allow individual members to attend meetings remotely through the "traditional" Open Meetings Act provisions relating to electronic attendance. That traditional remote meeting process in the Open Meetings Act allows public bodies to adopt rules to allow a member to participate by video or audio conference when a physical quorum is present at the meeting so long as the member is prevented from physically attending because of: (i) personal illness or disability; (ii) employment purposes or the business of the public body; or (iii) a family or other emergency. The remote member must notify the clerk of his or her physical absence ahead of time, unless impractical, and a majority of the public body then approves allowing the remote member’s participation by video or audio conference. 

You can read the most recent disaster proclamation here and the most recent Executive Order that extended certain EOs here.

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Thursday, July 22, 2021

Court Finds Daycare May Have Prescriptive Easement Against Village

  Thursday, July 22, 2021    

Ian and Eva James have operated a daycare in Bensenville since 1989. The daycare building sits immediately south of the Soo Railroad Line. The Railroad owns a strip of land between the Line and the daycare building. The daycare uses the strip for parking, a dumpster, and vendor deliveries, which is accessed from a Village road, over a driveway through which a public sidewalk runs. In 2015, the Village sought to establish a Quiet Zone along the Line so trains would not be required to sound their horns at crossings in the Village. Because that process required the Village to restrict access to crossings by pedestrians and vehicles, the Village barricaded the strip that the daycare had used for access.

The daycare owners sued the Village and asked the court to declare that they had a prescriptive easement to access their property and to award damages for blocking that access. The trial court ruled in favor of the Village. 

The appellate court reversed in Chicago Title and Trust Company v. The Village of Bensenville. The appellate court held that the daycare owners had made a case that they had a prescriptive easement for access over the strip of land that had been barricaded by the Village. A prescriptive easement requires evidence of a non-permissive use of land for a 20-year period that is adverse, uninterrupted, exclusive, continuous and under a claim of right notice to the landowner. The owners had used the land exclusively and uninterrupted for at least 20 years, and the Railroad had sufficient constructive notice of that use because the owners had openly used the land continuously for decades. There was no evidence that the Railroad had ever been asked permission by the owners, so their use was adverse. The appellate court also rejected the Village's argument that the owners use of the strip was presumed to be permissive. The case was sent back to the trial court to make a final determination on the owners' other claims.

Post Authored by Dan James & Julie Tappendorf, Ancel Glink

  

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Wednesday, July 21, 2021

Illinois Appellate Court Overturns Pension Board, Holds that Police Chief is Entitled to Not-on-Duty Disability Pension

  Wednesday, July 21, 2021    

In a recent decision, Girot v. Board of Trustees of the Braidwood Police Pension Fund, an Illinois Appellate Court overturned a pension board determination that a former police chief was not entitled to a not-on-duty disability pension. 

In February 2019, the Braidwood Police Pension Board had concluded that the chief was no less disabled when he took the job with the police department than when he finished his service, and as a result he did not meet the statutory requirements for a not-on-duty disability pension. The chief sued, and the case made its way to the Appellate Court.

The Appellate Court used the relevant statutory language to analyze whether the police chief had proven his eligibility for a non-duty disability pension. The Court examined the following issues: (1) whether the police chief was disabled under the law due to an injury not sustained in the line of duty, and (2) whether his disability necessitated his retirement or suspension. 

In addressing the first question, the Court held that the Pension Board had not properly weighed the significant evidence that the chief presented about his disability arising during, rather than before, his employment as police chief, including the chronic pain condition he experienced after a complete knee replacement. According to the Court, the medical records produced by the chief during his Pension Board hearing showed that this condition was diagnosed after he was hired, and that it rendered him unable to perform his responsibilities as chief of police. The Court held that the Board improperly focused on the portions of the hearing that were less favorable to the chief's application, and that the bulk of credible evidence presented regarding his disability supported approving his disability pension application.

In addition, the Court concluded that the pain arising from the chief’s condition, along with the medication he took to in response, required his retirement or suspension from duty. The fact that the chief’s application coincided with the predetermined end of his term of service, rather than an early retirement or suspension from police service, was immaterial because it was undeniable that his disability rendered him incapable of performing his job duties, regardless of when he applied for the pension.

Post Authored by Erin Monforti and Julie Tappendorf, Ancel Glink


  

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Monday, July 19, 2021

Court Finds No Constitutional Violation in Entry to Home and Seizure of 37 Cats

  Monday, July 19, 2021    

Today's case involves the U.S. Constitution and cats, two topics that don't usually go together. Gaetzjens v. City of Loves Park (7th Circuit Court of Appeals)

Sally Gaetjens owned a home in Loves Park, Illinois where she bred cats. In 2014, she went to the doctor for high blood pressure and was told to go to the hospital. When neither her doctor or her neighbor could locate Gaetjens, the Loves Park police were called and informed that Gaetjens may be having a medical emergency. After seeing unattended packages, mail, and garbage at Gaetjens' home, they obtained a key to the home from Gaetjens' neighbor and entered the home. The police encountered intense odor that they described as a mix of urine, feces, and possibly a decomposing body and called EMS. In searching for Gaetjens, they found 37 unattended cats. The City placed a notice on the door that the home was unsafe and not fit for habitancy, and called animal control to impound the cats. 

Sally Gaetjens subsequently sued various local government agencies, including the City of Loves Park, arguing that the condemnation of her home and confiscation of her cats without a warrant violated her Fourth Amendment rights against unlawful search and seizure. 

Both the district court and Seventh Circuit Court of Appeals acknowledged that the City did, in fact, conduct a "search" when it entered her home. However, the courts found the search to be lawful and constitutional because the City had a reasonable basis for believing that there was a medical or other emergency to justify their warrantleess search. The courts also ruled that the seizure of the cats was lawful because of the imminent danger to the cats that could not be care for once the home was declared uninhabitable. In short, the courts did not find a constitutional violation in the City's actions.


  

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Thursday, July 15, 2021

PAC Releases 5th Binding Opinion of 2021

  Thursday, July 15, 2021    

Thanks again to a reader who forwarded a copy of a recent Public Access Counselor (PAC) binding opinion in a FOIA appeal. The Attorney General's website page where public bodies could previously find information about FOIA and OMA, including access to the PAC's electronic training program and PAC binding opinions is still down. 

In PAC Op. 21-005, a requester filed a request for review with the PAC after a municipal police department provided a redacted document in response to a request for employee attendance records. The requester had filed a request seeking records showing the name, star numbers, dates, and type of time off for police officers and employees who requested time off between January 1, 2021 and January 8, 2021 and January 1, 2020 and January 8, 2020. The requester had filed similar requests with other municipal police departments. The police department provided a record, but had redacted all of the substantive data. On appeal to the PAC, the police department justified its redactions by citing to 7(1)(d)(iv), claiming that release of this information could endanger the life or physical safety of law enforcement personnel and 7(1)(v), that the information constituted security measures that could jeopardize the safety of personnel if disclosed.

The PAC concluded that neither of the cited exemptions justified redaction of the data that was requested. First, the PAC stated that a basic employee attendance record is not the type of sensitive record that could potentially jeopardize the life or physical safety of police officers or employees. Second, the PAC stated that employee attendance records did not fall within the 7(1)(v) exemption that protects vulnerability assessments, security measures, and response policies. The PAC then directed the police department to release the requested attendance records.

  

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Tuesday, July 13, 2021

Court Authorizes Limited Disclosure of Medical Information Under FOIA

  Tuesday, July 13, 2021    

In 2018, the Chicago Sun-Times submitted a FOIA request to Cook County Health and Hospital System (CCHHS). The first part of the request sought policies, memos, and other records regarding CCHHS’s compliance with the Criminal Identification Act (Act). The second part sought the times/dates of admissions for gunshot wound patients seeking treatment at CCHHS, and the corresponding times/dates these admissions were reported to law enforcement. Although CCHHS disclosed responsive policies, CCHHS withheld the requested time/date records based on FOIA section 7(1)(a), which exempts information specifically prohibited from disclosure by federal or state laws, and FOIA section 7(1)(b), which exempts private information. The Sun-Times filed a lawsuit alleging that CCHHS improperly withheld records under FOIA. The trial court ruled in favor of the public body, finding that the requested records were exempt from disclosure. The Sun-Times appealed the trial court’s ruling. 

On appeal, the Appellate Court reversed the trial court and ruled in favor of the Sun-Times. Chicago Sun Times v. Cook County Health & Hospital System. The Appellate Court held that disclosing the years that gunshot patients were admitted and the years that law enforcement was notified about those admissions was not prohibited by federal or state laws. Although CCHHS argued this information was “protected health information” (PHI) prohibited from disclosure by HIPAA regulations, the court rejected that argument, finding that because the information could be “de-identified” to provide only the years while removing other PHI, CCHHS could disclose this information without violating HIPAA or a patient’s privacy rights.

In addition, although FOIA prohibits disclosing “medical records,” under section 7(1)(b) of FOIA, the Court held that the year of a patient’s admission, by itself, does not constitute a private medical record prohibited from disclosure under FOIA, especially where the information “is entirely divorced from any personally identifying information.”

Based on this court decision, a public body may have to release medical-related information if that information is not identifiable to a specific individual. 

Post Authored by Erin Monforti and Eugene Bolotnikov, Ancel Glink

  

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Monday, July 12, 2021

Quorum Forum Podcast Ep. 54: Litigation and Legislation

  Monday, July 12, 2021    

Ancel Glink's Quorum Forum Podcast just released Episode 54: Litigation and Legislation. 

In this episode, we discuss common questions local officials have about lawsuits they might encounter while serving the public. We also review legislation from the Illinois General Assembly's 2021 spring session.

Send your questions about litigation and legislation to podcast@ancelglink.com

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Thursday, July 8, 2021

Appellate Court Rejects Deliberative Process and Attorney-Client Exemptions in FOIA Challenge

  Thursday, July 08, 2021    

Chicago Public Media submitted several FOIA requests to the Cook County Office of the President (OCCP) seeking records relating to a political action committee chaired by a commissioner of the Cook County Board of Commissioners. In response, OCCP produced certain records, and withheld other information based on FOIA exemption 7(1)(f), the deliberative process exemption, and 7(1)(m), the attorney-client communication exemption. Chicago Public Media sued alleging that OCCP improperly withheld certain non-exempt records. After reviewing the withheld documents, the trial court held that OCCP did not violate FOIA in withholding certain records, except for one specific record, which the court ordered OCCP to disclose. Chicago Public Media appealed. 

In Chicago Public Media v. Cook County Office of the President, the Appellate Court determined that OCCP improperly relied on the "deliberative process exemption" to withhold certain documents. Specifically, the Appellate Court found that OCCP did not establish how certain withheld emails that discussed media strategies and the manner of providing information to the public related to its deliberative process for developing governmental policies or actions. 

The Appellate Court also found that certain redacted emails either did not contain confidential legal communications or were not received or sent by an attorney. Although OCCP labelled a string of emails as "Confidential Attorney Work Product," that label alone failed to demonstrate the existence of an attorney-client relationship.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Wednesday, July 7, 2021

Court Rules in Favor of Public Bodies in FOIA Case Involving Security Video Footage

  Wednesday, July 07, 2021    

In 2017, the Chicago Sun-Times submitted a FOIA request to the Chicago Transit Authority and the Chicago Police Department seeking surveillance footage of an assailant charged with attempted murder for pushing a CTA customer onto the tracks at a subway station. Both public bodies denied the FOIA request, arguing that the security video was exempt under FOIA section 7(1)(v), which  exempts the following from disclosure:

security measures *** that are designed to identify, prevent, or respond to potential attacks upon a community's population or systems, facilities, or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures. 5 ILCS 140/7(1)(v).

The Sun-Times sued the CTA and CPD, alleging that the footage was improperly withheld under FOIA. The trial court ruled in favor of the requester and ordered both public bodies to produce the footage. 

On appeal, the Appellate Court ruled in favor of the CTA and CPD, finding the video footage to be exempt under FOIA. Chicago Sun-Times v. Chicago Transit Authority. The Appellate Court held that Section 7(1)(v) of FOIA only requires a public body to demonstrate that releasing a particular record could reasonably be expected to jeopardize the effectiveness of its security measures—not that it would jeopardize them. The CTA had submitted an affidavit of its homeland security expert that the footage contained security information that was not currently public, including video quality, resolution, field of view, and blind spots of the CTA's surveillance cameras. The CTA argued that people could use this information to evade security measures when targeting passengers, planning attacks, or evading capture by law enforcement. As a result, the Appellate Court found that CTA sufficiently proved that disclosing the surveillance camera footage from the rail platform could reasonably be expected to jeopardize the effectiveness of its security measures, so the footage was therefore exempt. 

The Appellate Court also rejected the Sun-Times' argument that there was no evidence that a mass transit system's video surveillance ever prevented any terrorist plot or any kind of assault or attack, finding that the CTA only had to prove that the security footage was designed to identify, prevent or respond to "potential attacks," not actual attacks.

Post Authored by Eugene Bolotnikov, Ancel Glink


  

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Tuesday, July 6, 2021

Supreme Court Issues Ruling in Warrantless Search Case

  Tuesday, July 06, 2021    

The U.S. Supreme Court recently issued a ruling in a warrantless search case that may be of interest to municipalities.

After a motorist drove by a highway patrol officer while playing loud music and honking his horn, the officer flashed his lights to signal the driver to pull over. Instead of stopping, the driver drove into his garage. The officer followed the driver into the garage, questioning and administering field sobriety tests to the driver. After a blood test revealed the driver’s blood-alcohol content was three times the legal limit, the State charged the driver with driving under the influence. The driver argued that the evidence should be supressed because it was obtained after the officer’s entered his garage without a warrant, in violation of the Fourth Amendment. The trial and appellate courts rejected his argument, finding that the driver’s failure to pull over and comply with the police signal created probable cause to arrest the driver and the driver could not defeat an arrest begun in a public place by retreating into his home. Additionally, the appellate court stated that pursuing a suspected misdemeanant is always permissible under the “exigent-circumstances” exception to the warrant requirement.

In Lange v. California, the United States Supreme Court disagreed, holding that pursuing a fleeing misdemeanor suspect does not always categorically justify entering a person’s home without a warrant. Instead, the Supreme Court noted that an officer can make a warrantless entry when the exigencies arising from a misdemeanants’ flight creates a compelling need to act before it is possible to get a warrant. The Court noted that misdemeanors are generally minor in nature and, although a suspect’s flight might create an exigent need for police to act swiftly, the Court cautioned that not every case of misdemeanor flight triggers a categorical rule allowing a warrantless home entry.

Post Authored by Eugene Bolotnikov, Ancel Glink

  

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Friday, July 2, 2021

School Prevails Against Village in Tax Waiver Case

  Friday, July 02, 2021    

In a lengthy opinion, an Illinois Appellate Court ruled against a municipality in a case involving an alleged breach of an agreement between the municipality and a Montessori School that waived the school's right to a tax exemption for the school property. Keystone Montessori School v. Village of River Forest.

In 1998, Keystone Montessori School wanted to operate a private school on property zoned for commercial uses. The commercial zoning did not allow schools as a permitted or special use. The Village and Keystone entered into a number of agreements as a condition to the Village granting planned development approvals to allow Keystone to operate a school on the property. One of these agreements provided that Keystone would not apply for a tax exemption on its property. Over the years, Keystone attempted to amend the tax agreement but the parties did not agree to any amendment. According to Keystone, it had paid over $1 million in property taxes on the property over the years. In 2018, notwithstanding its agreement with the Village, Keystone applied for a tax exemption for its property, which was granted in 2018.

Keystone subsequently filed a lawsuit against the Village asking the court to invalidate the tax agreement on the basis that it was unconstitutional and unenforceable, among other claims. Specifically, Keystone claimed that requiring the school to waive its right to a tax exemption that was allowed by right under the Illinois constitution and state statute was contrary to public policy and rendered the tax agreement void and unenforceable. The Village responded that a school can agree to waive its rights, which Keystone did in exchange for the zoning relief necessary to operate its school on this property. 

The trial court ruled in Keystone's favor, finding the tax agreement to be void and unenforceable. However, the court did not grant Keystone's request for reimbursement for the 20 years of taxes the school had paid over the years, finding that Keystone could have filed for a tax exemption earlier so its claim for reimbursement was not timely.

The appellate court upheld the trial court's ruling in favor of Keystone, rejecting the Village's argument that Keystone could legally waive its tax exemption rights. The appellate court determined that the Village "usurped for itself" the power to decide whether Keystone should receive the exemption that was authorized by the Illinois constitution and provided for in the Illinois Tax Code. The court also held that Keystone could not legally waive its exemption through the tax agreement because the tax exemption was intended to benefit the public as a whole and not just the school itself. 

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Thursday, July 1, 2021

Supreme Court Agrees to Hear Digital Billboard Case

  Thursday, July 01, 2021    

Earlier this week, the United States Supreme Court agreed to hear a case evaluating how municipalities can regulate electronic message boards and off-premises signs (i.e., billboards). This dispute marks the first time the Supreme Court has waded into local signage control since 2015, when the Court decided Reed v. Town of Gilbert. Reed introduced significant uncertainty for communities seeking to promote community aesthetics through sign regulation. We will soon see whether City of Austin v. Reagan National Advertising brings more of the same.  

In 2017, two advertising companies submitted permit applications to digitize billboards located in Austin, Texas. Austin denied the applications based on a city sign code provision that only allowed on-premises signs to feature digital displays. The code prohibited off-premises digital signs.  Austin’s code (like many other sign codes) defines off-premises signs as “a sign that displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution, or other commercial message which is generally conducted, sold, manufactured, produced, offered, or occurs elsewhere than on the premises where the sign is located.”  

The advertising companies challenged the constitutionality of Austin’s on-premises/off-premises distinction on First Amendment grounds. In defense, Austin argued that its sign regulations promoted a compelling government interest; namely, protecting the aesthetic value of the city and public safety.  Last August, a federal court sided with the advertisers and found that Austin’s prohibition of off-premises digital signs was an unconstitutional content-based speech regulation.

Communities regularly distinguish between on-premises signs and off-premises signs, and, in some cases, enforce sign codes that prohibit off-premises signs altogether. The Supreme Court’s interest in this case suggests municipalities should be prepared to potentially reconsider that regulatory approach, and particularly if the Court issues another opinion like Reed.  We’ll be monitoring this case closely.

Post authored by Greg Jones and Daniel James

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