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Thursday, May 12, 2022

Seventh Circuit Clarifies Scope of Liability for Abuse Claims Under Title IX

On May 10, 2022, the Seventh Circuit Court of Appeals issued an opinion analyzing under what circumstances a school district could be held liable under Title IX (a federal statute) for alleged abuse of a student by a school employee. C.S. v. Madison Metropolitan School District

According to the facts in the court’s opinion, during a student’s seventh-grade year at school, several employees reported to the principal that they were concerned about incidents they witnessed involving a school security assistant: the employee was seen giving back rubs to students, allowing the young girl in question to visit his office after school, hugging the girl, and refusing the girl’s attempts to kiss him on the cheek. In response, the principal told the security guard to limit physical contact and avoid private interactions with the student, advising him to set strong boundaries with her. After the student graduated from middle school, she reported that the inappropriate conduct had not stopped after the principal’s warnings: instead, she claimed that the employee’s conduct had escalated and she sued the school district under Title IX. The district court ruled in favor of the school district, and the student appealed to the Seventh Circuit.

The test adopted by the U.S. Supreme Court for Title IX sex discrimination claims requires a plaintiff to show that a school district official with authority to institute corrective measures had (1) actual notice of a teacher or employee’s misconduct and (2) acted with “deliberate indifference” in response. In this case, the Court of Appeals acknowledged that test and also noted that a school district cannot be held liable under Title IX based “solely on the knowledge of the risk of future misconduct.” Instead, a school district has liability only when the school has knowledge of past discrimination and has proven unwilling to act to end the discriminatory conduct and limit further harassment.

In this case, the Seventh Circuit also ruled in favor of the school district, finding that when the principal was notified of the earlier inappropriate interactions between the student and security assistant, she responded reasonably by counseling the employee to establish boundaries. Because no further harassment or abuse was reported to the principal following her discussion with the employee, the principal had no actual notice of abuse and no reason to expect the relationship would escalate. The school avoided a finding of “deliberate indifference” under the Title IX discrimination test adopted by the Supreme Court because the principal took actions that were reasonably calculated to bring the school into compliance with Title IX, based on her knowledge of the alleged misconduct.

While the school district was not found liable in this case, the Court of Appeals did suggest that schools “err on the side of taking reactive and preventative measures to ensure compliance with Title IX,” when they observe or become aware of inappropriate conduct.

Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Wednesday, May 11, 2022

PAC Finds "Final Action" Even Without a Vote

The Public Access Counselor of the Illinois Attorney General's Office (PAC) recently issued its 6th binding opinion of 2022 finding a public body in violation of the Open Meetings Act for failing to sufficiently describe an agenda item. PAC Op. 22-006.

After a meeting of a school board, an individual filed a request for review with the PAC alleging that the school board voted to make masks optional in the schools without listing that action item on its meeting agenda. The school board filed a response, explaining that the board discussed a revised mitigation plan prepared by the superintendent but did not take a vote on the plan at the meeting. The school board argued that since it did not take final action on the plan, there was no requirement to place that item on the meeting agenda.

The PAC reviewed the meeting minutes, as well as other documents relating to the meeting, including a communication sent out by the school board to parents. The PAC first acknowledged that the board's discussion of the mitigation plan did not violate the OMA. However, the PAC found that the board did, in fact, take final action on the mitigation plan even though the board did not vote on the plan. The PAC based its decision on language in the meeting minutes that noted that the board reached a "consensus" on the superintendent's mitigation plan as well as a communication sent out by the board to parents that notified them of the changes to the mitigation plan regarding masking in the schools. 

Interestingly, the PAC acknowledged that an Illinois Appellate Court had previously expressly held that "[w]ithout the public vote, no final action has occurred" but then disregarded that holding and similar court holdings in finding that the school board took final action on the masking plan without an actual vote. The PAC seemed to distinguish the court's holding that no final action is taken without a public vote because the school board in this case had not ratified its decision. Frankly, this issue seems more appropriately raised in an action to challenge the validity of the masking plan changes without final action having been taken by the school board (which is an issue that is clearly outside the PAC's jurisdiction) rather than having the PAC determine whether final action was taken without proper notice since no vote was actually taken by the board. In an even more surprising turn, the PAC concludes its opinion by ordering the school board to take a formal vote on the plan - seemingly mandating action to determine local legislative policy. 

Friday, May 6, 2022

Quorum Forum Podcast Ep 64 - Planning and Law

Ancel Glink's Quorum Forum Podcast just released Episode 64: APA-CMS Bar Exam 2022

In this episode, we are celebrating four years of Ancel Glink’s Quorum Forum podcast at the APA-CMS Bar Exam, a realistic simulated law school experience for planners and land use professionals. Recorded live at the Haymarket Pub and Brewery on April 6, 2022, listen to APA-IL Chapter President Nina Idemudia and Ancel Glink attorneys Daniel Bolin, Megan Mack, and Greg Jones discuss the most important planning law cases of the year. 

Wednesday, May 4, 2022

Governor Extends Disaster Proclamation for Another 30 Days

Illinois Governor Pritzker issued another disaster proclamation last Friday that extends through May 29th. You can read it here. Since this disaster proclamation meets the requirements of section 7(e) of the Open Meetings Act, public bodies can meet remotely (or in a hybrid fashion) so long as they can make a localized determination that it is not practical or prudent for the body to meet in-person because of a public health crisis and the public body complies with all of the requirements of section 7(e).

Tuesday, May 3, 2022

Supreme Court Finds City in Violation of First Amendment for Denying Religious Flag on City Flag Pole

On Monday, the U.S. Supreme Court issued an opinion finding the City of Boston in violation of the First Amendment after it denied a religious group the ability to fly its "Christian Flag" on the flagpole at City Hall. Shurtleff v. City of Boston. Justice Breyer authored the opinion, and all nine Justices joined in the judgment, although there were three separate concurring opinions.

The City of Boston has three flag poles on a plaza at City Hall. The City usually flies the American flag, the Massachusetts flag, and the City flag on those flagpoles. Occasionally, the City allowed private groups to hold events on the plaza and fly the flag of their choosing on the third flagpole (the one that usually flies the City flag). According to the decision, the City allowed 50 different flags to be flown on the City flagpole between 2005 and 2017. 

In 2017, a group called "Camp Constitution" asked the City to allow it to hold a flag raising event where the group would fly a flag that would commemorate the Christian faith (Christian Flag). The City denied approval on the basis that it believed that flying a religious flag at City Hall would violate the Establishment Clause of the First Amendment. The group sued the City, and the district court held that the City acted within its constitutional authority by denying the Christian Flag, finding that the flags flying from the City's flag pole constituted government speech, meaning the City could choose what flags to fly (i.e., control the message).

The case made its way to the U.S. Supreme Court which issued its opinion this week finding that the City's flag practices were not government speech. Instead, the Court determined that the City had opened up a public forum when it allowed private groups to fly flags of their choosing at City Hall, and once a public forum was open, the City could not discriminate based on religious viewpoint. The Court stated as follows:

When a government does not speak for itself, it may not exclude speech based on "religious viewpoint"; doing so "constitutes impermissible viewpoint discrimination."

The Court acknowledged that there is a blurry line between government speech (where the government can control the message) and a public forum (where the government invites speech and cannot discriminate based on viewpoint). In analyzing whether the flagpole activities were government speech or constituted a public forum, the Court looked at three factors.

First, the Court looked at the history of flag flying at City Hall, which the Court recognized mostly supported the City of Boston since the City's flagpole most often conveyed the City's message (the City flag) and not private expression.

Second, the Court looked at whether the public would tend to view the speech (i.e., flag flying) as City speech or private expression. The Court determined that this factor was not clear since the City flag and private flags shared the third flagpole.

The final factor was the extent to which the City controlled the flag raisings and shaped the messages. It was this factor that the Court found determinative in its analysis of whether the speech was government speech or private expression. The Court noted that the City had allowed numerous groups to raise their flags over a 12 year period and had never denied permission until 2017 when it denied the Christian Flag. The Court also noted that the private groups selected the flags, not the City. The Court found no evidence that the private flags were an expression of the City's official sentiments or messaging, contrasting Boston's practice with a flagpole policy adopted by the City of San Jose that expressly states that the approved flags that may be flown on its flagpoles "are not intended to serve as a forum for free expression by the public" and instead are flown "as an expression of the City's official sentiments." 

It is important to note that the Court did not hold that all government flagpoles must accommodate private expression or that a government cannot choose to fly a flag of its own choosing to commemorate an occasion, event, or group. What the Court did say, however, is that a government flagpole could turn into a "public forum" if the government opens it up to private expression in a manner like what the City of Boston had done. Once a public forum is created, the government needs to be careful not to discriminate based on the viewpoint of the message or speech in a way that would violate the First Amendment.

Monday, May 2, 2022

Bills Affecting Libraries Sent to Governor

Illinois libraries may be interested in two bills that passed both houses in the Illinois General Assembly's Spring Session and have been sent to the Governor.

HB 5283 - Library Board Vacancies and Treasurer Appointments

If the Governor signs this bill, vacancies in the office of trustee on a library district board or on a municipal library board where the trustees are elected will now be required to be filled within 90 days of the vacancy (currently, the statutes require these vacancies to be filled "forthwith" without specifying a time-frame). For library districts, the legislation also would authorize the State Librarian to appoint someone to fill a board vacancy if the board of trustees of the library district fails to fill it within the 90 day statutory time-frame. The State Librarian will have 60 days after the board's failure to appoint someone to fill the vacancy. The bill also provides that a board of trustees of a library district can choose to appoint a treasurer rather than elect one from among the trustees.

SB 3497 - Fee Waiver for Nonresident Minors

This legislation amends both the Local Library Act and the Library District Act so would apply to municipal libraries and library districts. If this bill is signed, a library board of trustees may adopt regulations that waive the nonresident fee that is otherwise applicable for persons under the age of 18. It's important to note that this is not an automatic fee waiver, so individual library boards of trustees will have to decide whether they want to affirmatively adopt a regulation establishing the fee waiver. 

Thursday, April 28, 2022

Annexation Agreement Binds Successor Owner of Part of Property

An Illinois appellate court recently issued an opinion about enforcement of an annexation agreement against a successor owner that will be of interest to Illinois municipalities. Village of Kirkland v. Kirkland Properties Holdings Co.

In 2003, the Village entered into an annexation agreement with the owner at the time of about 115 acres of land that was unincorporated. The agreement was for a 20 year term, and stated that it was binding on the "successor owners of record of the land which is the subject of the agreement." The agreement provided for the annexation of the property into the Village and future residential development. The agreement required the owner to construct certain public improvements on the property, including roadways, and to provide the Village with a letter of credit to secure construction of the public improvements. 

In 2011, the owner sold 41 of the 82 platted lots to Plank. In 2017, Plank sold 34 lots to KPHC (the defendant). In 2019, the Village sent letters to KPHC requesting that it deposit a letter of credit in an amount proportionate to the number of lots it owned in the development in order to secure the completion of the roadways. When KPHC did not provide the security, the Village sued, arguing that KPHC was in breach of the annexation agreement. KPHC filed a motion to dismiss, arguing that because it did not own the entirety of the property that was subject to the annexation agreement, it was not responsible for the obligations under that agreement. The trial court ruled in KPHC's favor and dismissed the Village's lawsuit, holding that the obligations did not "run" to a successor owner unless that successor owner purchased the entire subdivision. The trial court also awarded fees to KPHC under a fee-shifting provision in the annexation agreement.

The Village appealed, and the appellate court reversed the dismissal of the Village's case against KPHC. First, the appellate court noted that the agreement itself makes it clear that the agreement "runs with the land" and is binding on successor owners. The appellate court rejected KPHC's argument that because the agreement didn't specify that it was binding on subsequent owners who only purchase a portion of the property, that it didn't extend to KPHC. The court found the Village's use of a "proportionate responsibility" analysis for apportioning responsibility for construction of public improvements and the provision of security for those improvements to be a common and workable scenario and consistent with the language in the annexation agreement that contemplated phasing of the development. 

In sum, the appellate court reversed the dismissal of the Village's case against KPHC and remanded it back for further proceedings. 

Wednesday, April 27, 2022

Appellate Court Rules on Local Government COVID Workplace Policies

The Fourth District Court of Appeals recently issued two decisions upholding workplace policies requiring COVID-19 vaccination and/or testing for public employees.  

In Graham v. Pekin Fire Department, several current and former employees asked a Sangamon County court to issue a temporary restraining order (TRO) barring various public employers, Governor Pritzker, and the Illinois Department of Public Health from enforcing a workplace policy requiring all employees either to be vaccinated against COVID-19 or, alternatively, to undergo regular testing for COVID-19. The employees maintained that the vaccination and testing policy was invalid because only the IDPH has the authority to quarantine people and require them to be vaccinated or tested for contagious diseases, and that the vaccination and testing policy was discriminatory under section 5 of the Right of Conscience Act. The circuit court denied the employees' TRO petition.

After the employees appealed, the appellate court upheld the denial of the employees request for a TRO. The appellate court noted that the Illinois General Assembly recently enacted a statute that made it clear that it was not a violation of the Conscience Act for an employer to take measures to prevent the spread of COVID-19. The court also concluded that employers had the power to enact workplace safety rules, including the vaccination and testing requirement.

In Allen v. North Mac School District 34, a school district announced a policy in October 2021, stating that employees who did not provide proof of COVID-19 vaccination or comply with required weekly COVID-19 testing could be deemed ineligible to work and placed on a nondisciplinary administrative leave until the teacher complied with the policy, or subject to disciplinary action if a teacher failed or refused to comply. In March 2022, educators in various school districts filed an emergency motion for a TRO against numerous school districts and various state agencies and officials, including Governor Pritzker. The educators argued that (1) school districts lacked authority to require teachers to get a COVID-19 vaccination or submit to testing and (2) educators could not be compelled to take a COVID-19 vaccine or be subjected to weekly testing without first being afforded their right to due process. In April 2022, the Sangamon County circuit court ruled in favor of the educators and issued a TRO to stop enforcement of the policies.

On appeal, the appellate court vacated the TRO issued by the circuit court for several reasons. Specifically, although Section 2 of the Public Health Act affords an individual the right to due process if he or she does not consent to an order from the IDPH or a certified local health department, the court clarified that this case does not involve a situation where the IDPH or a certified local health department has ordered the educators to do anything. The appellate court also noted that the Act does not require a public school district to obtain a court order before it can place a teacher on unpaid administrative leave for refusing to get vaccinated or tested on a weekly basis. Instead, the court held that the school districts adopted lawful and reasonable workplace policies designed to protect students and school employees, and nothing in these policies restricted the educators’ activities, movement, or interactions anywhere outside of the workplace.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, April 26, 2022

IL Supreme Court Narrows Absolute Immunity for Injuries Resulting from Escaping Prisoners

The Illinois Supreme Court recently issued an opinion limiting the application of absolute immunity for local public entities and public employees under Section 4-106(b) of the Tort Immunity Act (Act) as it relates to prisoners in custody. Robinson v. Village of Sauk Village

Robinson filed a complaint against two municipalities and individual police officers (collectively, Defendants) to recover for injuries he suffered after he was hit by a vehicle that had been fleeing the Defendant police officers. Police had received a stolen vehicle report, located the vehicle in motion, and attempted to stop it with emergency lights. The vehicle fled at a high rate of speed through multiple jurisdictions, committed multiple traffic violations and crossed into Indiana before stopping in a parking lot. The lead officer positioned his squad car perpendicular to the vehicle’s driver door and exited drawing his firearm on the suspect. The lead officer approached the vehicle but remained approximately 10 feet away. The suspect remained in the closed vehicle and ignored orders to exit. Instead the suspect repeatedly shouted, “shoot me” and pointed a bottle and a small black object at the lead officer. Notably, the officers did not block the vehicle or otherwise directly limit or control the suspect’s movement. Unrestricted, the suspect drove away at a high rate of speed into Illinois with officers in pursuit. During the pursuit, the suspect struck and severely injured Robinson in an intersection cross walk. The suspect continued to flee to Indiana where he was fatally shot by Indiana police officers.

The circuit court ruled in favor of the Defendants in granting their motion for summary judgment, finding Defendants were immune from liability because the suspect was "in custody" for purposes of Section 4-106(b) of the Tort Immunity Act when officers pointed weapons at him in the parking lot and ordered him to show his hands. Section 4-106(b) of the Act provides, in part, “[n]either a local public entity nor a public employee is liable for *** [a]ny injury inflicted by an escaped or escaping prisoner.” The Act defines “prisoner” as a person held in custody. 

The appellate court disagreed with the circuit court, holding that the suspect was not an “escaped or escaping prisoner” as required for absolute immunity under the Act. The appellate court further noted custody is not defined by the Act but a mere show of authority by police officers is insufficient to establish physical custody. Because the suspect’s freedom of movement was not controlled by the officers, he was not in custody before he fled the parking lot. As such, the appellate court reversed the circuit court’s grant of summary judgment.

On appeal to the Illinois Supreme Court, Defendants argued that the demonstration of authority by police officers when they drew their weapons and gave orders in the parking lot was sufficient to establish custody under the Act. Robinson countered by arguing that a show of authority does not establish custody under the Act and that previous Supreme Court case law defined custody as control over a suspect’s freedom of movement. Robinson further argued that if a mere show of authority is sufficient to establish custody under the Act, absolute immunity would be invoked every time a police officer tells a person to stop or activates emergency equipment.

The Court looked to the Black’s Law Dictionary definition of “custody” which could mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or taking manual possession. Without determining how broad the term custody may be, the Court concluded the act of directly controlling and limiting someone’s freedom of movement, i.e. being placed in a squad car, was custody within the meaning of the Act. Further, the Court concluded the phrase “held in custody” requires some direct restriction or control of a person’s freedom of movement to a particular place for at least a limited period of time. Moreover, the term prisoner refers to a person subject to some level of physical confinement.

Here, the suspect was partially surrounded by 6 officers with weapons drawn. However, the suspect remained in the vehicle with the engine running and ignored commands. The officers attempted to restrain and control the suspects movements but failed because they did not physically block his ability to move to a particular place. In conclusion, the Court agreed with the appellate court that a mere show of authority is insufficient to establish a person is “held in custody” under the Act. Particularly in this case, the failure of the police officers to block the suspect’s freedom of movement with their police vehicles or otherwise control his movement meant that the absolute immunity provision of the Act did not apply since the suspect was not an escaped or escaping prisoner. Until a person’s freedom of movement to a particular place is directly limited or controlled by law enforcement, they are not an “escaped or escaping prisoner” within the meaning of the Act to trigger absolute immunity. In short, the Illinois Supreme Court agreed with the appellate court that summary judgment should not have been granted to Defendants, and the Court remanded the case back for further proceedings.

Post Authored by Bryan Strand, Ancel Glink

Monday, April 25, 2022

Court Addresses Juvenile Records in FOIA Case

A requester submitted a FOIA request to the Chicago Police Department (CPD) asking for records related to a 2019 officer-involved shooting of a juvenile. CPD denied the request, arguing that the juvenile law enforcement records were specifically prohibited from disclosure under the Juvenile Court Act of 1987 (JCA). The requestor subseuqently filed a lawsuit alleging that CPD had violated FOIA by failing to provide the responsive juvenile law enforcement records. The trial court ruled in favor of the requestor, finding that the JCA’s privacy protections for juvenile law enforcement records ended upon a minor’s death, meaning the requester was entitled to the disclosure of those records.

On appeal, the Appellate Court disagreed and reversed the trial court ruling, finding that the court's finding that the JCA’s privacy provisions do not apply to law enforcement records of a deceased minor was incorrect. Calloway v. Chicago Police Department. The appellate court noted that the JCA does not contain any language explicitly or implicitly limiting the scope of these protections to records involving a deceased minor. As a result, the appellate court held that these records cannot be disclosed to unauthorized parties without good cause and an order from the juvenile court.

The appellate court also held that the CPD failed to prove, by clear and convincing evidence, that the requested records fell with the scope of the asserted FOIA exemption, because the CPD’s affidavit in support of its claimed exemptions was brief and conclusory, and failed to provide the detailed justification required to show why the exemptions applied. The appellate court then remanded the case back to the trial court to determine what, if any, responsive records are exempt from disclosure under FOIA and which records are subject to disclosure.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, April 21, 2022

Supreme Court Issues Decision in Challenge to Austin's Sign Regulations

The US Supreme Court just issued an opinion in a case challenging the City of Austin's sign regulations. This case overturns the Court of Appeals ruling finding the City's sign regulations to be unconstitutional and seems to offer welcome relief to municipalities struggling to regulate off-premise signs after the Court's 2015 ruling in Reed v. Gilbert. City of Austin v. Reagan

Like many other municipalities, the City of Austin, Texas has enacted sign regulations that restrict off-premises signs. Under the City's sign code, no new off-premises sign can be installed, and existing off-premises signs are "grandfathered," meaning they can remain in place but cannot be altered in a manner that would increase their nonconformity. Two billboard companies challenged the City's sign regulations, claiming that the City's distinction between off-premises signs and on-premises signs is unconstitutional under the First Amendment's free speech clause and the Supreme Court's ruling in Reed.

The District Court held that the City's sign regulations were content-neutral and the distinction between on-premise and off-premise signs satisfied the constitutional standard for content-neutral signs. The Court of Appeals reversed, however, finding that the distinction was content-based because a government official would have to read a sign's message to decide whether a particular sign was off-premise or on-premise. The Court of Appeals then determined that the City's sign regulations did not satisfy the constitutional analysis that applies to content-based signs (strict scrutiny). 

The case made its way to the U.S. Supreme Court. The Court overturned the Court of Appeals ruling, rejecting the Court of Appeals' interpretation of Reed to mean that a sign regulation is "content-based" if an official has to read the sign to make a determination on whether a sign fell under the off-premise or on-premise regulation. The majority opinion found that interpretation of Reed to be "too extreme." The Court acknowledged that some evaluation of a sign's message may be necessary in applying sign regulations and that evaluation alone does not turn a content-neutral sign into a content-based sign that requires a stricter scrutiny for a constitutional analysis. 

The Supreme Court distinguished this challenge to the one at issue in Reed, finding that the challenged City of Austin sign regulations do not single out any topic or subject matter for differential treatment. Instead, the Court found that the challenged sign regulations distinguish based on location, which was more in the nature of a time, place, or manner restriction rather than a content or message restriction. The Court also acknowledged the Court's previous decisions that have upheld the distinction between on- and off-premise signs, including restrictions on billboards.

The Court did not make a determination as to whether the challenged sign regulations survive the "content-neutral" analysis and instead sent it back to the lower courts for application of the proper constitutional test for content-neutral sign challenges. 

Thursday, April 14, 2022

PAC Orders Release of Disciplinary Complaints in 5th Binding Opinion

In November 2021, a reporter submitted a FOIA request to the City of Chicago Department of Human Resources (Department) seeking disciplinary records and complaints of racism, harassment, and discrimination filed against City employees. The Department released some redacted records, but withheld the remaining records citing the personal privacy and deliberative process exemptions. After the reporter appealed the partial denial to the PAC, the PAC issued its fifth binding opinion of the year concluding that the Department violated FOIA by improperly withholding responsive records. PAC Op. 22-005.

Specifically, the PAC found that disclosing most of the withheld complaints would not constitute a clearly unwarranted invasion of any City employee's right to personal privacy because the public has a significant interest in obtaining information that sheds light on claims of misconduct by public employees. The PAC also noted that complaints alleging workplace misconduct by City employees, even if the complaints are later deemed unfounded, still pertain to the public duties of public employees and, as a result, disclosing these complaints would not result in a clearly unwarranted invasion of personal privacy to the City employees.

Additionally, the PAC determined that the Department failed to show how the complaints revealed the Department’s predecisional deliberative process. Although complaints may lead to deliberate discussions culminating in final actions, the PAC found that the complaints in this case were not part of a deliberative process because they preceded the decision-making process. The PAC also found that the complaints were factual in nature and purely factual information is not exempt from disclosure under exemption 7(1)(f).

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, April 5, 2022

Appellate Court Directs Trial Court to Review Relocated Witness Records Requested by FOIA

In 2020, an individual submitted a FOIA request to the Cook County State’s Attorney’s Office (SAO) seeking certain information related to victim/witness relocations. In response, the SAO provided certain non-exempt records, but withheld other records based on several asserted FOIA exemptions, including the personal privacy exemption as well as exemptions that apply to criminal and law enforcement records. The requestor sued the SAO claiming that the SAO violated FOIA by failing to prove that the withheld records were exempt from disclosure under the asserted exemptions. The trial court ruled in favor of the SAO, finding that the SAO sufficiently demonstrated that the withheld documents fell within the asserted FOIA exemptions.  

In Fields v. Cook County State’s Attorney’s Office, although the appellate court acknowledged that the SAO’s affidavits emphasized the dangers of disclosing victim and witnesses identities, it held that the affidavits failed to demonstrate with reasonably specificity how or why disclosing certain records would lead to disclosing exempt information, (e.g., personally identifying information of witnesses and victims in the relocation program). As a result, the appellate court vacated the trial court's ruling in favor of the SAO and directed the trial court to conduct an "in camera" (private) inspection of the records to determine whether any records fall within the exemptions that were claimed by the SAO. The appellate court also invited the trial court to order the SAO to prepare an index of withheld information, which would assist and expedite the trial court’s review by: (1) detailing the nature or contents of withheld documents without disclosing the information deemed exempt by the SAO; and (2) containing a statement of claimed exemptions for each withheld document.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, April 4, 2022

Governor Extends Disaster Declaration for Another 30 Days

Last Friday, the Governor extended the state disaster proclamation for another 30 days. You can access the updated disaster proclamation here. That means that public bodies can continue to conduct remote or hybrid meetings so long as they (1) make a local determination that a fully in-person meeting is not practical or prudent and (2) follow all of the other remote meeting requirements of section 7(e) of the Open Meetings Act for that meeting.

Court Interprets Pension Code Provision on Survivor Benefits

An Illinois appellate court recently interpreted a provision in the Pension Code regarding the timing of receipt of surviving spouse benefits. Thornley v. Board of Trustees of River Forest Police Pension Fund.

A police offer retired in 2015, and then passed away three years later. His spouse applied for surviving benefits under the Pension Code. The Pension Board granted the application, but determined that the spouse was not entitled to benefits immediately because the deceased officer, had he lived, would not have been entitled to benefits until he reached age 60 (he was a deferred pensioner). The spouse sued, claiming that the statutory language stated that she was entitled to benefits "upon his death." The Pension Board argued that the surviving spouse benefits would commence on the date on which the officer would have been entitled to benefits under the Pension Code, which was when he turned 60 years old. Both the trial court and the appellate court agreed with the Pension Board, finding that she was entitled to the same benefits the officer would have been entitled to had he lived. In this case, pension benefits would commence when the officer would have turned 60 years old, and not immeidately upon his death.

Thursday, March 31, 2022

Upcoming Training on New Requirements for Statements of Economic Interest

Don't forget to join Ancel Glink at our upcoming livestream of our next Quorum Forum Podcast discussing the new requirements for filing your Statements of Economic Interest that is scheduled for next Tuesday, April 5, 2022, at noon. More information about how you can join the podcast via Youtube, Facebook, or Twitter is below:

Quorum Forum Podcast Episode 63

Many local government officers and employees are required to file a statement of economic interests each year and the new questions on this year's form are causing confusion for many filers. However, a careful review of the definitions in the new law will make the questions easier to answer. Join the livestream of Ancel Glink's Quorum Forum podcast on Youtube, Facebook, or Twitter on April 5, 2022 at 12:00 pm (noon CDT) to learn more and share your questions about completing the new statement of economic interests form!

Tuesday, March 22, 2022

Court Upholds Village Ordinance Requiring Sprinklers in Commercial Buildings

Two commercial property owners sued a municipality to challenge its sprinkler ordinance. The businesses claimed that the burden to comply outweighed any benefit of having an automatic sprinkler system installed. They also claimed that the ordinance was unconstitutional because it applied to commercial buildings but not residential dwellings and that the ordinance was an unconstitutional "taking" of their property. The trial court upheld the sprinkler ordinance, finding that it provided a public safety benefit that outweighed the property owners' cost to comply. The court also rejected the owners' equal protection argument, finding that commercial buildings and residential buildings are not the same, so they could be regulated differently by the municipality. 

On appeal, the Appellate Court also found the sprinkler ordinance constitutional. The Appellate Court held that there was a rational basis for the municipality requiring automatic sprinklers in commercial buildings (protection of life and property from fire), and the ordinance was not arbitrary or discriminatory in treating residential and commercial properties differently. The Appellate Court also rejected the businesses' takings claim that the ordinance deprived them of all economic use of their land, finding that their properties continued to be used and generated income for the businesses. 2095 Stonington, LLC v. Village of Hoffman Estates, 2022 IL App (1st) 201026-U.

Monday, March 21, 2022

Court Upholds Village's Finding that Short-Term Rental Use Violated Zoning Code

We don't see a lot of zoning cases that make their way to the Illinois Appellate Court but last week, we saw two which we will report on this week. 

In Wortham v. Village of Barrington Hills, 2022 IL App (1st) 210888, the Village notified a homeowner who was renting out their home as a short-term rental more than 40 times on VRBO that the short-term rental use was not allowed in the R1 district which only permits single-family uses. The homeowner ignored the notice, and continued to rent out their home. The Village sent two additional notices before sending notice to appear before a hearing officer on the alleged Zoning Code violations. The hearing officer found the short-term rental use to be an unlawful commercial lodging use that was not a permitted use in the R1 district under the Village Zoning Code and imposed a fine of $26,250 and ordered the homeowners to cease renting their home out. When the homeowners continued to rent out the home, the Village cited them again, and the hearing officer imposed a second fine and another order to cease the illegal use of the property. The homeowners appealed both administrative hearing decisions to the trial court, which upheld the Village's decisions. The homeowners then appealed that ruling.

On appeal, the Appellate Court reviewed the Village's Zoning Code, specifically to determine whether the short-term rental use was permitted under the R1 regulations as the homeowners argued or constituted an unlawful commercial use as the Village argued. First, the Appellate Court held that the short-term rental use was not a permitted home occupation under the Zoning Code, which was the only lawful commercial use of R1 zoned property. The Court determined that the homeowners' advertisement of the use on VRBO, the parking of multiple vehicles in the driveway during the short-term rental use, and the installation of a keypad on the door gave an outward appearance of a vacation rental business, not a single family residence. Second, the Court found that the short-term rental use was not consistent with the "intent and purpose" of the Zoning Code which included the prevention of the harmful encroachment of incompatible and inappropriate uses into residential areas. Finally, the Court rejected the homeowners' argument that the fact that the Village prohibited short-term rentals but allows longer term leases was unconstitutionally vague because the Zoning Code did not define the appropriate time-frame for unlawful or lawful leases, finding it to be an impermissible facial challenge to the Zoning Code.

In sum, the Appellate Court upheld the Village's citation of the homeowners for improperly using their single family home as a short term rental use in violation of the Village's Zoning Code.

Tuesday, March 15, 2022

Bill Would Require Posting of Notice of Elected Official Vacancies

Senate Bill 2553 will be of interest to units of local government in Illinois with elected officials. The bill is called the Local Official Vacancy Posting Act, and has been approved by the Illinois Senate and is currently in the Illinois Houe. If approved by the House and signed by the Governor, it would require a unit of local government to post every elected official vacancy on its website, if the website is maintained by full-time staff of the government. That notice would have to remain on the website until the vacancy is filled. The bill also requires local governments to forward notice of the vacancy to the county clerk in the county in which the unit is located for posting on the county clerk's website. The bill includes a home-rule preemption. 

Monday, March 14, 2022

PAC Finds Public Body in Violation of FOIA For Redacting "Goodbye Email"

The Public Access Counselor of the Attorney General's office (PAC) issued its fourth binding opinion of 2022 finding a public body in violation of FOIA when it redacted an email from a retiring police chief. PAC 22-004.

A news reporter submitted a FOIA request to a police department asking for a copy of an email that a police chief sent to all Village employees on his last day of employment. The Village initially denied the request in its entirety but later that day amended its response and disclosed a redacted copy of the email, citing section 7(1)(c) (invasion of personal privacy). The reporter then filed an appeal with the PAC, and the Village responded by providing an unredacted version to the PAC for review. The Village argued that it properly redacted portions of the email based on several arguments, including (1) that portions of the redacted email were not "public records" as they were merely a personal goodbye correspondence sent to colleagues and friends, which the Village argued constituted private affairs and not Village business; (2) release of the redacted portions of the email would be an invasion of personal privacy because it contained highly personal thoughts and feelings of the chief; and (3) the opinions expressed by the chief in the email were exempt under 7(1)(f) as they expressed the chief's frank opinions on Village policies and procedures. 

The PAC disagreed with the Village, and ordered it to release the unredacted email to the requester subject to permissible redactions of "private information" such as personal phone numbers and personal email addresses under 7(1)(b). In its opinion, the PAC determined that the chief was still employed at the time the letter was sent and the opinions expressed in the email constituted public records, not private affairs, and were not exempt under any of the cited exemptions. The PAC noted that the "deliberative process" exemption of 7(1)(f) only applies when predecisional opinions actually relate to the process by which policies are formulated, which the PAC found was not the case with the chief's email. 

Friday, March 4, 2022

BREAKING: Governor Extends Disaster Declaration Another 30 Days

UPDATED 3/7/2022 to include links to the new Disaster Declaration and Executive Order 2022-07 that were issued last Friday.

Today, Governor Pritzker extended the State's COVID-19 Disaster Declaration over all counties in Illinois for another 30 days. The Governor also issued EO 2022-07 extending a number of previously issued Executive Orders through April 2, 2022, including the EOs relating to cannabis licenses, Phase 5 reopening plan, EO 2022-06 which relaxed the mask mandate in most places, EO 2021-22 imposing vaccination and testing requirements for certain health care workers (as amended by EO 2021-23, 2021-27, and EO 2022-05) and EO 2021-28 imposing vaccination and testing requirements for day cares, among many others. The new EO 2022-07 also modifies certain mitigation measures at schools. Readers interested in learning how a particular extended EO has been modified should read through EO 2022-07. You can read the Disaster Declaration here and EO 2022-07 here.

As we noted earlier this week, the issuance of a state-wide disaster declaration relating to COVID-19 means that public bodies can conduct remote meetings under section 7(e) of the Open Meetings Act subject to the rules and regulations contained in that statute, including the head of the public body making a local determination that it is not practical or prudent to meet in person.  

A New Quorum Forum Podcast Episode Released: Sunshine Laws for Springtime

A new Ancel Glink's Quorum Forum Podcast episode has been released: Quorum Forum 62: Sunshine Laws for Springtime

Spring is almost here, so we’re celebrating increasing sunshine and sunshine laws with Ancel Glink attorneys. In this episode, we review important Freedom of Information Act and Open Meeting Act decisions that local government should know. 

Wednesday, March 2, 2022

The Open Meetings Act, Remote Meetings, and COVID Measures

There have been a lot of questions recently about the relaxation of certain COVID mitigation measures (such as the mask mandate) and how these changes might affect public bodies in conducting future meetings under the Open Meetings Act. As of today, we don't know whether the Governor will extend his current disaster declaration that was issued on February 4th and is set to expire later this week so we are providing two potential scenarios.

If the Governor does issue another disaster declaration this week, then public bodies can choose to conduct their meetings remotely or in a "hybrid" fashion subject to the rules contained in section 7(e) of the Open Meetings Act. That section allows public bodies to meet remotely so long as certain conditions are met, including (1) the State has issued a disaster declaration relating to a public health situation that covers the public body's area and (2) the head of the public body makes a local finding/determination that it is not practical or prudent to meet in-person because of the public health situation and (3) the public body follows all of the statutory rules for these remote meetings, including ensuring public access, recording the meeting, taking roll call votes, etc. It will be up to individual public bodies (and specifically the head of that body) to determine whether local conditions are such that an in-person meeting is not practical or prudent due to the COVID-19 pandemic.

If the Governor does not issue another disaster declaration this week, then once the current declaration expires, meetings of public bodies will need to be conducted in person and remote attendance would have to follow the "traditional" rules under section 7(a)-(d) of the OMA would apply so long as the public body has adopted a policy to allow remote attendance under this statute. Those rules allow an individual member of the public body to attend remotely if there is a physical quorum of the body physically present at the meeting, the public body approves the remote attendance, and the member's absence is due to (1) personal illness or disability; (2) employment purposes or business of the public body or (3) a family or other emergency. 

We will keep you posted as more information comes out but stay tuned to what the Governor does over the next few days. As with all things COVID, the situation remains fluid and could change rapidly. 

Tuesday, March 1, 2022

FOID Card Holders Can Obtain Own FOID Card Application and Records

In 2019, two individuals submitted FOIA requests to the Illinois State Police (ISP) seeking copies of their own applications for a firearm owners’ identification (FOID) card and ISP’s FOID card denial letters. ISP denied both FOIA requests, on the basis that the applications and denial letters are expressly exempt from disclosure under FOIA exemption 7.5(v), which exempts the following: 

Names and information of people who have applied for or received Firearm Owner’s Identification Cards under the Firearm Owners Identification Card Act or applied for or received a concealed carry license under the Firearm Concealed Carry Act, unless otherwise authorized by the Firearm Concealed Carry Act; and databases under the Firearm Concealed Carry Act, records of the Concealed Carry Licensing Review Board under the Firearm Concealed Carry Act, and law enforcement agency objections under the Firearm Concealed Carry Act.” 5 ILCS 140/7.5(v).             

Both requestors sued ISP arguing that the records were improperly withheld under FOIA, and both the circuit court and appellate agreed, finding that ISP failed to prove that exemption 7.5(v) authorizes withholding the personal applications or FOID card denial letters of the applicants that are the subject of the records. Hart v. Illinois State Police. Because both requesters consented in writing to the release of their personal information by submitting FOIA requests seeking their own FOID card applications and denial letters, the court held that ISP was not prohibited from disclosing the requesters' own personal information to the requesters. Otherwise, the court reasoned that it makes no sense for a public body to withhold a person’s name and other personal information when that person already knows their own personal information and consents in writing for the public body to release that information.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, February 23, 2022

Court Finds FOIA and OMA Lawsuit Challenging Closed Session Was Properly Dismissed

An Illinois Appellate Court recently ruled in favor of a public body in a lawsuit claiming the public body violated the Open Meetings Act and FOIA relating to a closed session. Pal v. City of Elmhurst, 2022 IL App (2d) 210048-U.

On June 15, 2020, a City Council went into closed session to discuss the pending retirement of a City director and whether to fill the soon-to-be vacant position. After that meeting, the City mistakenly posted the closed session minutes from that meeting on the City's website, and plaintiff was able to download those minutes. The plaintiff then filed a request for review with the Illinois Public Access Counselor (PAC) and also filed a lawsuit against the City, claiming the City Council violated the OMA when it went into closed session at the June meeting. The lawsuit also included three counts claiming FOIA violations by the City. The PAC did not take action on the request for review since a lawsuit had been filed.

The City filed various defenses to the complaint, as well as a motion to dismiss the lawsuit. The City argued, among other things, that the minutes of the closed session remained confidential under state statute because the City Council had not yet detemined that they should be released to the public. The City also argued that it did not violate the OMA when it went into closed session at the June meeting.

The trial court listened to the recording of the closed session and determined that the City Council's discussions in closed session did not violate the Open Meetings Act (count I). The court also dismissed counts II, III, and IV, which alleged FOIA violations, finding that they were dependent on finding that the city council violated the OMA. The plaintiff then appealed.

On appeal, plaintiff argued that the Judge had erred in dismissing his OMA and FOIA claims. He argued that the City Council's "generalized discussions" about the City's hiring freeze prior to discussing filling the soon-to-be vacant director position was not allowed to take place in closed session. Relying on a presumption that the trial court's order had a sufficient factual basis and that the Judge had listened to the recording, the Appellate Court found no error in the Judge's dismissal of the plaintiff's OMA claim, as well as the FOIA claims that were dependent on the OMA claim. The Appellate Court also rejected the City's argument that the plaintiff invaded the City's "privilege" in the minutes of closed sessions, finding that argument moot due to the dismissal of all counts in the lawsuit. 

Tuesday, February 22, 2022

Court Finds Public Body in Violation of FOIA in Withholding Citation Data

In 2018, a requestor submitted a FOIA request to a municipal finance department (“Department”) seeking an index of certain data from the City’s CANVAS system, which is used to store, process, and track citation information for parking tickets, speed-light camera tickets, stoplight traffic tickets, booting, and towing tickets. The Department denied the request, alleging that the requested records constitute "file layouts" and, therefore, were exempt under FOIA exemption 7(1)(o), which protects:

“[a]dministrative or technical information associated with automated data processing operations, including, but not limited to, software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals, and any other information that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under this Section.” (emphasis added) 

The requestor then sued the Department, and the trial and appellate courts found the Department in violation of FOIA by improperly withholding the requested records under exemption 7(1)(o). Chapman v. Chicago Department of Finance. Although the Department argued that the requested file layouts were expressly exempt under exemption 7(1)(o), the court found that the records listed in exemption 7(1)(o) are not automatically exempt - instead, a public body must demonstrate that disclosing the records would “jeopardize the security of the system or its data.” Because the Department failed to show how disclosing the file layout would (as opposed to could or possibly) jeopardize the security of the Department’s CANVAS system or its data, the court ruled that the Department was required to disclose the records.

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, February 18, 2022

Appellate Court Finds Appeal of TRO in School Mask Mandate Challenge "Moot"

Many have been following the lawsuit filed by parents against the Illinois Governor, the IDPH, and the Illinois State Board of Education, among others, that challenged the State of Illinois' school mask mandate that had been enacted by state agency emergency rules. On February 4, 2022, a Sangamon County Judge issued a temporary restraining order (TRO) declaring the emergency rule "null and void" and restraining enforcement of Executive Orders 2021-18, 2021-24, and 2021-25. 

That ruling was appealed to the Illinois Appellate Court (4th Circuit), which issued a ruling yesterday declaring the matter "moot" because the emergency rules that were the subject of the circuit court's ruling had expired. Specifically, on February 15, 2022, the Joint Committee on Administrative Rules (JCAR) objected to and suspended the IDPH's renewal of the emergency rules relating to school mask mandates, meaning that the emergency rules had expired by their own terms on February 13, 2022. Since none of the rules that the circuit court found null and void are currently in effect, the appellate court ruled there was no longer a controversy for the appellate court to decide. Austin et al. v. Board of Education of Community Unit Sch. Dist. 300, et al., 2022 IL App (4th) 220090-U. 

One paragraph of interest in the appellate decision references the authority of local school districts to act on their own to address COVID-19. That language is reprinted below.

We note the language of the TRO in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19. Thus, it does not appear the school districts are temporarily restrained from acting by the court's TRO.

Wednesday, February 16, 2022

PAC Rejects Public Body's Use of "Investigatory Exemption"

The PAC issued its second binding opinion of 2022, concluding that a Village violated FOIA by failing to prove that certain records were exempt from disclosure under several FOIA investigative exemptions. PAC Op. 22-002

In 2021, a not-for-profit organization that provides certain services to persons impacted sexual abuse submitted a FOIA request to a municipal police department seeking certain records regarding their client. The Village denied the FOIA request in its entirety citing FOIA exemption 7(1)(d)(ii), which exempts records that would interfere with active administrative enforcement proceedings, and FOIA exemption 7(1)(d)(vii), which exempts records that would obstruct an ongoing criminal investigation.

The requester appealed to the PAC, which found that the Village improperly withheld the responsive records. The PAC determined that the Village failed to provide a specific basis as to why the investigatory exemptions applied. Specifically, the PAC found that the Village failed to demonstrate that the records related to any "active administrative enforcement proceeding," that a criminal investigation was ongoing, or how disclosure of the records would obstruct that investigation. 

The PAC also noted that section 2.15(a) of FOIA requires municipalities to disclose basic arrestee information, and the Village failed to demonstrate how disclosing any of this required information would interfere with a law enforcement proceeding or endanger law enforcement or other persons.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, February 15, 2022

TIF Bill Would Drastically Change Local Economic Development Authority

The Illinois General Assembly is currently considering legislation that would dramatically change how municipalities create and administer tax increment financing (TIF) districts. If approved, Senate Bill 2298 would (among other things):

  • Cut the length of most new TIF districts from 23 years to 10 years.
  • Revise statutory definitions to prohibit municipalities that are considering creating a new TIF district from relying on, among other things, whether (1) the district contains dilapidated or deteriorating structures; (2) whether the district’s buildings lack proper ventilation, light, and sanitary facilities; (3) whether the district has a high number of vacancies; (4) whether the area embraces modern city-planning practices; and (5) whether the value of the land in the district is appreciating at a slower rate than the community as a whole.
  • Prohibit communities from establishing a new TIF district in an area currently occupied by a TIF district (i.e., “re-TIF-ing” an area).
  • Prohibit municipalities from using funds remaining in the TIF district account at year end to pay for redevelopment project costs without the taxing districts’ (e.g., school districts, park districts, townships) prior consent.  
  • Prohibit municipalities from annually declaring and distributing money remaining in the TIF district account to the taxing districts without the prior consent of the other taxing districts.

In practice, SB 2298 seems designed to make it more challenging for municipalities to both create new TIF districts and to realize the community benefits that TIF districts can provide. As many of our readers know, TIF districts provide perhaps the most effective local economic development tool communities can use to try to resolve the real problems resulting from underperforming neighborhoods. SB 2298 would undoubtedly alter how, when, and if municipalities use TIF districts to try to address local problems.  

More information about SB 2298, including when the bill will next be debated, is available on the Illinois General Assembly’s website.

Post Authored by Greg Jones, Ancel Glink

Monday, February 14, 2022

City Council's Remote Meeting in Violation of Open Meetings Act

The Illinois Attorney General's Public Access Counselor (PAC) issued two new binding opinions recently, one dealing with remote meetings under OMA and one dealing with FOIA. We are reporting on the OMA opinion in today's post where the PAC found a City Council in violation of OMA for its remote meeting practices. PAC Op. 22-003. The opinion provides some guidance to public bodies on how the PAC interprets the public notice requirements for remote or hybrid (meeting that allows remote and in-person attendance) meetings held under section 7(e) of the OMA. 

A member of the public filed a request for review with the PAC alleging that a City Council provided inadequate notice of a remote meeting held on January 11, 2022. She claimed that although an agenda was posted at City Hall indicating that the City Council would be meeting on Jnauary 11th via Zoom, the agenda did not include a Zoom or other web-based or telephone access link for the public to attend the remote meeting. When she had contacted the City to request the link, it was provided to her via text message; however, she said the link was not provided in a timely fashion and she missed a portion of the meeting. 

The City responded that the City provided the Zoom link to her and she did, in fact, attend and participate in the City Council meeting. The City also noted that members of the public were welcome to attend the meeting in-person. In response to follow up questions from the PAC, the City noted that although the Zoom link was not posted on the agenda/notice, members of the public could request the link. The City also noted that the City did not have an audio or video recording of the meeting. 

The PAC determined that the City Council's remote meeting on January 11th was not in compliance with the OMA for several reasons.

First, the PAC determined that section 7(e) of FOIA requires a public body to post the remote meeting access information on its website with the meeting notice/agenda at least 48 hours in advance of the meeting. In this case, the agenda did not include information as to how the public could access the Zoom meeting, so the City Council did not provide adequate advance notice of the remote meeting. The PAC stated that the remote access information should be provided and accessible to the public during the 48 hour period before the meeting, and the statute expressly requires that the information be posted on the public body's website. The PAC stated that the website posting requirement in 7(e) of the OMA does not distinguish between public bodies who maintain their own websites nor did that provision consider the size of the public body. 

Second, although the City informed the PAC that members of the public could have attended the meeting in-person, the PAC found that the agenda did not provide the public with sufficient information about in-person access. The "location" information on the agenda stated it would be a "Zoom Meeting."

Finally, the PAC stated that the City violated the OMA by not making a verbatim audio or video recording of the remote meeting as required by section 7(e)(9) of the OMA. 

The PAC directed the City to (1) include all remote access information in the meeting notice/agenda in the future; (2) specify on the agenda when in-person attendance is allowed at any remote/hybrid meeting; and (3) make and keep a verbatim audio or video recording of future remote meetings.

Monday, February 7, 2022

New Podcast Episode: Regulating Controversial Park Activities

Ancel Glink's Quorum Forum Podcast has released a new episode: Episode 61: Not in My Park! Regulating Controversial Park Activities.

In this episode, Ancel Glink attorneys discuss surveillance, cannabis, guns, and other controversial activities regulated by park agencies. This episode was recorded at a session presented at the recent 2022 IAPD/IPRA Soaring to New Heights conference.

Thursday, February 3, 2022

PPP Exclusion of Adult Entertainment Businesses Did Not Violate First Amendment

The Seventh Circuit Court of Appeals recently ruled against a group of adult entertainment businesses that had filed a lawsuit to challenge the Small Business Administration's denial of benefits to the businesses under the Paycheck Protection Program (PPP). Camelot Banquet Rooms v. United States Small Business Administration.

When Congress enacted the PPP program to provide COVID relief funding to eligible businesses, it had expressly excluded businesses that present or derive more than a minimal gross revenue from live performances or depictions or displays "of a prurient sexual nature." 23 businesses that fall within this exclusion filed suit, claiming that the exclusion penalizes them from engaging in expressive activity protected by the First Amendment. The Seventh Circuit disagreed with the adult entertainment businesses, finding that the program does not restrict any First Amendment protected activities. Instead, by excluding the businesses from the PPP program, the federal government simply chose not to subsidize the adult entertainment, which does not implicate the First Amendment. The Court vacated the district court's preliminary injunction and remanded the case back for further proceedings.

Tuesday, February 1, 2022

PAC Finds in Favor of Public Body in Appeal Involving Attorney-Client Privilege FOIA Exemption

In its first binding opinion of 2022, the PAC issued a binding opinion finding in favor of a public body in a FOIA appeal involving the attorney-client privilege exception of FOIA.

In October 2021, a reporter submitted a FOIA request to a County State’s Attorney’s Office (SAO) seeking reports prepared by a State’s Attorney to County Board members regarding the use of county funds for certain purposes. The SAO denied the FOIA request pursuant to FOIA exemption 7(1)(m), because the responsive records contained exempt confidential attorney-client privileged communications and work product documents. The journalist appealed the denial to the Illinois Attorney General's PAC Office, claiming that the SAO improperly withheld the records because the State's Attorney was not acting as a legal advisor in connection with the records, but was instead providing non-legal public relations advice.

In PAC Op. 22-001, the PAC found that the SAO did not violate FOIA when it denied the FOIA request pursuant to FOIA exemption 7(1)(m). The PAC first acknowledged that the attorney-client privilege does not apply when an attorney engages in communications that seek or convey business or other non-legal advice to a client. However, in this case, the PAC determined that the responsive records were prepared by a State's Attorney in her capacity as the County Board's attorney and were for the primary purpose of providing legal guidance to County Board members on a specific issue. Because the records reflected the substance of the State's Attorney's opinions and her confidential legal advice concerning the underlying matter, the PAC concluded that the records fell within the scope of FOIA’s exemption for confidential attorney-client communications and were properly withheld.

Additionally, the PAC found no indication that the SAO or the County Board shared records with outside parties or otherwise waived the attorney-client privilege. The PAC further determined that even if the contents of the responsive records had influenced statements to the public or the media, the records would still be protected by the attorney-client privilege because their primary purpose was to provide legal advice.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Thursday, January 27, 2022

New Law Provides Process for Removing Archaic Restrictions from Property Documents

In 2021, the Illinois General Assembly passed P.A. 102-0110, which became effective on January 1, 2022. This new law amends the Counties Code to permit Illinois residents to modify deeds and restrictive covenants that had been recorded against their properties and include language that restricts the use, transfer, lease, or occupancy of real property on the basis of race, color, religion, or national origin. The law is intended to bring property deeds and other recorded documents in line with Section 3-105 of the Illinois Human Rights Act, which makes void any “condition, restriction or prohibition . . . which directly or indirectly limits the use or occupancy of real property on the basis of race, color, religion, or national origin.”

The law provides procedural guidelines for Illinois residents to amend property documents associated with residential, commercial, and other property they own. It also provides a mechanism that allows condominium associations and housing cooperatives to amend restrictive covenants with approval by the majority of the members of the condominium or cooperative board. If an owner or member of these communities seeks to amend the covenant, and the board fails or refuses to do so, the owner or member can file an action to compel the filing of modification paperwork to remove the illegal restriction.

All proposed amendments to deeds and restrictive covenants must go through the county recorders office where the property is located, which will then send the modification request to the State’s Attorney’s office for review for proper form. County recorders may impose a filing fee for these covenant modifications in an amount up to $10 per recording.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Wednesday, January 26, 2022

Appellate Court Reverses Order Requiring Release of Records Subject to Protective Order

In 2019, the Chicago Sun-Times submitted a FOIA request to a police department (CPD) seeking records regarding the death of a named individual. After the CPD denied the request on the basis that the department had previously provided the newspaper with all available non-exempt records responsive to the requestor’s prior 18 FOIA requests to CPD, the newspaper filed a lawsuit alleging various FOIA violations against CPD. CPD argued that certain responsive records were exempt from disclosure because protective orders from 2012 and 2014 prohibited the disclosure of grand jury investigative records. In August of 2020, the circuit court rejected CPD's arguments and ordered CPD to disclose the responsive records. 

On appeal, the appellate court in Chicago Sun-Times v. Chicago Police Department reversed the trial court's ruling finding that requiring CPD to comply with the August 2020 court order rather than the 2012 and 2014 protective orders would put CPD in a Catch-22 of having to decide which of the conflicting court orders the CPD was required to follow. The appellate court also held that the trial court erred in ordering CPD to release the records in full based on CPD’s failure to plead affirmative defenses because the trial court should have first conducted an "in camera" review of the responsive records determine which records, if any, were protected from disclosure by the 2012 and 2014 protective orders.

On remand, the appellate court instructed the circuit court to require CPD to prepare an index of withheld records and prepare all records responsive to the newspaper's FOIA request for in camera review by the circuit court. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, January 25, 2022

Appellate Court Upholds Ruling in Favor of Public Body in FOIA Case

After a public body denied a FOIA request for emails based on applicable FOIA exemptions, the requestor sued the public body claiming that the records were improperly withheld. After conducting an "in-camera" inspection of the records that had been withheld from release, the trial court agreed that the records were properly exempt from disclosure, and the requester appealed.

On appeal, the requestor argued that the withheld responsive records could be redacted to protect certain exempt information and released to the requester. However, because the record on appeal did not include the emails that had been reviewed by the trial court, the appellate court presumed that the trial court’s order was in conformity with law and had a sufficient factual basis and upheld the ruling in favor of the public body. Robinson v. Township High School District 113 

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, January 24, 2022

Federal Court Dismisses Civil Rights Suit Challenging $50 Parking Ticket

Recently, the Seventh Circuit Court of Appeals upheld the dismissal of a civil rights lawsuit against an Illinois municipality by a person who had been issued a parking ticket. Lewis v. Alsip. The driver filed the section 1983 action against the municipality after she was issued a $50 parking ticket for parking her car on a secondary snow route. She claimed her due process rights were violated because the municipality had not posted signage on the street informing drivers when snow prohibited parking. The federal district court dismissed the case and the driver appealed to the Seventh Circuit. The Court of Appeals held that due process only requires a legislature to enact and publish laws. In this case, the municipality satisfied the "publication" requirement by posting its ordinances on its website and making those ordinances publicly available but did not require the posting of signage.

Friday, January 21, 2022

Illinois Supreme Court Finds City PSEBA Ordinance Invalid

The Illinois Supreme Court issued an opinion in an appeal of a case filed by a firefighter union against an Illinois City that challenged the City's PSEBA ordinance. Specifically, the union had argued that the City's definition of "catastrophic injury" in its ordinance was inconsistent with the PSEBA statute and the Illinois Supreme Court's definition of that term in the case Krohe v. City of Bloomington. The circuit and appellate courts had ruled in favor of the union and the City appealed to the Illinois Supreme Court. Today, the Illinois Supreme Court issued its decision affirming the ruling in favor of the union, finding the City's definitions in its PSEBA ordinance of "catastrophic injury" and "injury" to be inconsistent with the PSEBA statute. International Assoc. of Firefighters v. City of Peoria, 2022 IL 127040.

In 2018, the City passed an ordinance amending its City Code to define "catastrophic injury" for purposes of determining whether an officer was entitled to benefits under the Public Safety Employee Benefits Act (PSEBA) to add a requirement that an officer show that his or her on-duty injury prevented the officer from "performing any gainful work." The local firefighters union filed suit against the City, claiming that the City had no authority to modify the definition of "catastrophic injury" and that the definition was inconsistent with the PSEBA statute that does not include that phrase as well as the Illinois Supreme Court's interpretation of "catastrophic injury" in the Krohe decision. The union also challenged the ordinance's definition of "injury" as being inconsistent with the PSEBA statute. The City defended its ordinance and definitions, arguing that it had the authority to define these terms based on its home rule powers. After both the circuit court and appellate court ruled against the City, the City appealed to the Illinois Supreme Court.

The Illinois Supreme Court held that the City's definition of "catastrophic injury" that added the requirement that an officer show that the officer's disability prevented the officer from "performing gainful work" was inconsistent with the PSEBA statute. The Court found that this added language impermissibly disqualified offices who might otherwise be entitled to benefits under the PSEBA statute. The Court also found the City's definition of "injury" to be inconsistent with the PSEBA statute as it would also disqualify those who might otherwise meet the requirements of the PSEBA statute. In sum, the Illinois Supreme Court determined that the City's PSEBA ordinance was not a valid exercise of home rule authority because its definitions were inconsistent with the requirements of the Act and, therefore, preempted. 

Wednesday, January 19, 2022

Appellate Court Upholds Dismissal of Negligence Claims Against County

An Appellate Court upheld the dismissal of negligence claims against a county related to the issuance and operation of a special use permit for a commercial use adjacent to the plaintiffs property. Sutton v. Next Level Strategies.

In 2020, the Suttons (residential property owners) filed suit against the county and Next Level (a commercial business) adjacent to their property. The complaint consisted of 26 counts, two of which were directed at the county. Count 25 claimed that the county negligently granted a special use permit to Next Level and Count 26 alleged that the county negligently failed to enforce its ordinances against Next Level. The other counts were directed at Next Level.

The county filed a motion to dismiss Counts 25 and 26, arguing that Count 25 was barred by the 90 day zoning statute of limitation and that the Tort Immunity Act provided immunity to the County for both Counts 25 and 26. The court ruled in favor of the County and dismissed both of the counts filed against the County. The Suttons appealed.

The Appellate Court upheld the dismissal, finding that both Counts were properly dismissed under the Tort Immunity Act, which expressly provides the County with immunity from claims relating to the issuance of a permit and from claims that the County failed to enforce any law. 

Friday, January 14, 2022

Court of Appeals Declines to Issue Injunction to Churches Based on 2020 Executive Order

In early 2020, two religious institutions sued the Illinois Governor to challenge one of his Executive Orders that had restricted the number of persons who could attend in-person worship services to 10 people. The federal district court had denied the churches' request for a preliminary injunction to stop the Governor from enforcing the order, and the churches appealed. In June of 2020, the Court of Appeals ruled in the Governor's favor, finding that the challenged restriction did not violate the Free Exercise Clause of the First Amendment.

On remand back to the district court, the churches requested that the court issue a permanent injunction to stop enforcement of the restriction. The churches argued that subsequent decisions by the U.S. Supreme Court that came after the Court of Appeals' ruling were favorable to their argument that capacity limits on in-person worship violate constitutional rights. The district court denied the request, finding that the churches' challenge was "moot" because the Governor's EO had been subsequently amended to remove the capacity limits for places of worship. The churches appealed again to the Seventh Circuit Court of Appeals arguing that the federal court should rule on the legality of the previous restriction because the Governor might, in the future, impose a similar restriction. The churches asked the federal court to enjoin the Governor from reinstating the sort of capacity limit that was in force in spring of 2020.

In a ruling this week, the Seventh Circuit Court of Appeals agreed with the district court that injunctive relief was not appropriate in this instance. The Court of Appeals stated that federal courts should not assume that a state official will refuse to follow U.S. Supreme Court precedent, nor should a federal court grant injunctive relief based on predictions of what the Governor might do in the future. The Court of Appeals stated that if the State imposes an objectionable order in the future, the churches could file suit then, but concluded that "this suit is over." Elim Romanian Pentecostal Church et al., v. Pritzker (7th Cir. January 11, 2022).