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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

Friday, October 29, 2021

HB 220 Could Expand Fire Bargaining Units

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

Thursday, October 28, 2021

9th Annual IICLE Local Government Law Institute

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

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

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

You can find more information and register here.

Tuesday, October 26, 2021

Illinois Supreme Court Finds Cook County Firearm and Ammunition Taxes Unconstitutional

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

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

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

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

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

Post Authored by Erin Monforti & Dan Bolin, Ancel Glink 

Monday, October 25, 2021

Court Upholds Dismissal of FOIA Lawsuit

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

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

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, October 19, 2021

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

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

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

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

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

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

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

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

Post Authored by Erin Monforti and Julie Tappendorf, Ancel Glink

Monday, October 18, 2021

PAC Issues 10th Binding PAC Opinion of 2021

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

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

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

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

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, October 15, 2021

FOIA Request Properly Denied Where Discovery Order Prohibited Release

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

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

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, October 11, 2021

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

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

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

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

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

Thursday, October 7, 2021

Quorum Forum Podcast Ep. 57: Sexual Harassment

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

Email your questions to podcast@ancelglink.com!

Wednesday, October 6, 2021

Court Dismisses Complaint Challenging COVID-19 Restaurant Restrictions

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

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

The club argued in its lawsuit that:

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

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

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

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

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

Post Authored by Mike Halpin & Julie Tappendorf, Ancel Glink

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

Tuesday, October 5, 2021

Appellate Court Vacates TRO Enjoining School Mask Mandate

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

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