Updates on cases, laws, and other topics of interest to local governments

Subscribe by Email

Enter your Email:
Preview | Powered by FeedBlitz

Subscribe in a Reader

Follow Municipal Minute on Twitter


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

Wednesday, November 30, 2022

Court Rejects Sovereign Citizen Defense in Vehicle License Case

In Norman v. City of Chicago, an Illinois Appellate Court rejected a “sovereign citizen” defense brought by a vehicle owner in a City ordinance enforcement action. 

The owner of a vehicle was issued a $60 fine for violating the City of Chicago Code due to expired registration on his license plate. He filed an appeal with the City of Chicago Department of Administrative Hearings (DOAH) where he argued he did not have any contracts with the City of Chicago, was not engaged in “commerce” while traveling in his private automobile, and that he did not consent to be subject to any City of Chicago laws, so he was exempt from any tickets. The administrative law judge found that the plaintiff did not raise a permissible defense and was responsible for the fine. He appealed that decision to the circuit court, which affirmed the DOAH decision.

On appeal to the Appellate Court, Norman argued the Chicago Code applies to commercial “motor carriers," not personal use of a vehicle, and that he was not subject to Chicago’s “political boundaries.” The Appellate Court rejected these arguments, stating there was evidence of the violation and that he failed to raise any proper grounds for contesting the violation.  The Appellate Court pointed to the Chicago Code provision that “every vehicle when driven or moved upon a highway” shall be subject to registration.

The Court also rejected the plaintiff’s other defenses, noting they were clearly taken from the playbook of “sovereign citizens,” who, in the Court's opinion, clog the court system by arguing nonsensical legal theories that have no validity in American law. 

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Tuesday, November 29, 2022

Court Finds in Favor of Department of Corrections in FOIA Challenge

An inmate filed six FOIA requests with the Illinois Department of Corrections (Department) seeking Department records, policies, and copies of the Department’s prior denials of the inmate’s FOIA requests. The Department rejected some of the inmate’s FOIA requests for failing to identify responsive public records and withheld other requested records under various FOIA exemptions.

The inmate sought review of the Department’s denials with the Public Access Counselor of the Attorney General’s office (PAC). The PAC determined that no further inquiry was warranted and closed the file. The inmate then filed a lawsuit against the Department alleging it violated FOIA by improperly denying his requests and witholding responsive public records. The circuit court dismissed the inmate’s lawsuit finding his FOIA requests either failed to properly identify public records, or other portions were properly denied by the Department.

On appeal, the Appellate Court in Warren v. Dep’t of Corr. upheld the circuit court’s ruling in favor of the Department. 

First, the Appellate Court determined that the Department proved it did not possess records pertaining to surveillance footage protocols or temperature monitoring by submitting affidavits from the Department’s assistant legal counsel that such records did not exist. The Appellate Court emphasized that FOIA does not create an independent requirement for governmental bodies to maintain public records, and the nonexistence of requested records is an affirmative defense.

Second, the Appellate Court determined the Department’s denial of the inmate’s request for general information on the Department’s grievance policies and information about a prescription drug banned by the Department was permitted because the request failed to identify a specific public record. The Appellate Court also found that the Department properly withheld building inspection records and health, sanitation, and safety reports as these records were prepared for internal audit purposes and exempt from disclosure under FOIA (section 7(1)(m)). 

Finally, the Appellate Court upheld the Department’s denial of the inmate’s request for copies of his previous FOIA requests denied by the Department under FOIA’s "repeated request" exemption (section 3(g)). The Court held that that Department did not have to provide the inmate with copies of records already provided to him or previously denied as doing so would be unduly burdensome to the Department.

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

Monday, November 28, 2022

Court Will Not Issue Injunction as to Future Legislation

In 2016, voters approved the Safe Roads Amendment to the Illinois Constitution which restricts government expenditure of transportation-related fees and taxes to transportation-related purposes. After the amendment was passed, a group of contractors, builders, and unions sued Cook County claiming the County was violating the amendment by spending transportation-generated revenues on non-transportation expenditures. The County's defense was that it was exempt from the Amendment as a home-rule unit of government, which defense was rejected in a previous lawsuit that made its way to the Illinois Supreme Court earlier this year.

Just a few months after the Illinois Supreme Court issued its rulings, the plaintiffs went back to court asking for an injunction against the County's draft budget for FY 2023 because plaintiffs claimed that the draft budget indicated that the County intended to continue to use transportation-related revenues for non-transportation purposes. The circuit court held a hearing and ultimately denied the motion for a preliminary injunction finding that the plaintiffs claims were "speculative."

On appeal, the Illinois Appellate Court also ruled in favor of the County but on "ripeness" grounds. Illinois Road & Transportation Builders Association, et al. v. County of Cook. The Appellate Court noted that only enacted legislation can be found unconstitutional, not draft or future legislation that has not yet been enacted. The Court rejected the plaintiffs' request that the Court order the County to adopt an appropriations ordinance that complies with the constitutional amendment, as that would require the Court to render an advisory opinion on future legislation. The Court also noted that granting an injunction to order the County to do or not do something in its appropriations ordinance would "meddle into the legislature's exclusive domain of drafting and enacting laws" in violation of the separation-of-powers doctrine.

In sum, the Court held that the plaintiffs' motion for an injunction as to the County's future appropriations ordinance was premature because it was filed before any ordinance was adopted and should be denied as Courts will not weigh in on the constitutionality of legislation that has not yet been enacted.

Tuesday, November 22, 2022

Bill Would Add a Definition for "Prevail" for FOIA's Attorneys' Fee Provision

The General Assembly recently introduced HB 5820, which proposes to amend section 11(i) of the Freedom of Information Act (FOIA) to add a definition of the word “prevail” for purposes of awarding attorneys fees to a prevailing party who challenges a FOIA decision by a public body. If passed, a plaintiff would be deemed to have "prevailed" in a FOIA lawsuit if it either (1) obtains a court order requiring the public body to turn over the records to the plaintiff or (2) receives all requested records from the public body.  

Currently, FOIA section 11(i) does not define the word “prevail,” but merely provides that: 

If a person seeking the right to inspect or receive a copy of a public record prevails in a proceeding under this Section, the court shall award such person reasonable attorney's fees and costs.

In a prior blog post, we discussed the current Illinois Appellate Court split as to when a plaintiff is considered to have “prevailed” in a FOIA lawsuit to trigger FOIA’s attorneys’ fee provision. The First, Fourth, and Fifth District Appellate Courts hold that a court order is not required to trigger FOIA’s attorneys' fee provision, meaning a plaintiff could "prevail" in their FOIA lawsuit even if the public body provides the records while litigation is pending. On the other hand, the Second District Appellate Court holds that a plaintiff is entitled to attorneys' fees only if there is a court order in the plaintiff's favor in the FOIA lawsuit. Under the Second District approach, even if requested records are provided to a plaintiff while the FOIA lawsuit is pending, a plaintiff will not have "prevailed" for purposes of FOIA's attorneys' fee provision.

If HB 5820 is enacted, a plaintiff would have “prevailed” for purposes of triggering FOIA’s attorneys’ fee provisions if the plaintiff either obtains a court order in plaintiff’s favor or receives all requested records from a public body. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, November 21, 2022

Overweight Vehicle Ordinance Cannot Be Enforced Through Administrative Hearings

We recently reported on a case addressing the authority of a home-rule municipality to hold administrative hearings in the case of overlapping state and municipal traffic laws. Another Illinois Appellate Court recently weighed in on a similar issue in Cammacho, Jr., et al. v. City of Joliet. There, the Appellate Court held that the City’s overweight vehicle ordinance had been improperly enforced through administrative hearing procedures. 

The City Code makes it unlawful to operate vehicles over a certain weight on any road within the City that is not designated for such vehicles. After receiving citations for violating the ordinance, several commercial truck drivers contested their tickets at administrative hearings held by the City, but each driver was found liable for violating the ordinance. The drivers then appealed their citations to the circuit court, arguing that the City had no authority to issue tickets or impose fines for this type of vehicle restriction through an administrative adjudication hearing process. The trial court disagreed and upheld the issuance of the tickets. 

On appeal, the Appellate Court ruled in favor of the drivers, holding that the City did not have the authority to hold administrative hearings to adjudicate the overweight vehicle tickets issued to the drivers, based on a provision of the Illinois Municipal Code: 

           Any municipality may provide by ordinance for a system of adjudication of municipal code violations . . . except for . . . (ii) any offense under the Illinois Vehicle Code or a similar offense that is a traffic regulation governing the movement of vehicles and except for any reportable offense under Section 6-204 of the Illinois Vehicle Code. 65 ILCS 5/1-2.1-2 (emphasis added)

The Appellate Court noted that the Illinois Vehicle Code prohibits the movement of overweight vehicles, and that the City Code constitutes a “traffic regulation governing the movement of vehicles.” Because the City Code regulates the movement of vehicles by regulating the weight limits on City streets and because the drivers were cited for a violation while their trucks were moving, rather than while parked or stopped, the City did not have the authority to enforce the tickets issued to the drivers through the City's administrative adjudication hearing process because of the above-referenced exception in the Illinois Municipal Code. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Friday, November 18, 2022

Court Dismisses Lawsuit Based on Refusal of Employees to Get Vaccinated

Recently, an Illinois Appellate Court affirmed the dismissal of a lawsuit brought under the Illinois Healthcare Right of Conscience Act (Act) and denied two employees any recovery for their termination based on their refusal to receive a COVID-19 vaccine. Krewionek & Bosowski v. McKnight.

In August 2021, two employees at a dental and out-patient surgical office were discharged after they refused to comply with their employer’s rule requiring employees to receive a COVID-19 vaccination. The former employees then sued their employer, claiming a violation of Section 5 of the Act, which provides that:

It shall be unlawful for any person, public or private institution, or public official to discriminate against any person in any manner . . . because of such person’s conscientious refusal to receive, obtain, accept, perform . . . or participate in any way in any particular form of health care services contrary to his or her conscience. 

In November 2021, while this lawsuit was pending, the Illinois General Assembly passed a law amending the Act to carve out an exception for health mandates related to COVID-19. The Act now provides that it is not a violation of the act for individuals, entities, or public officials to impose requirements “intended to prevent contraction or transmission of COVID-19 . . . .” The amendment was passed as a declaration of existing law, and included a provision that it would “apply to all actions commenced or pending on or after” its effective date. 

The appellate court affirmed the trial court's dismissal of the employees' lawsuit, rejecting the argument made by the former employees that they did not believe the COVID-19 vaccines could prevent contraction or transmission of the coronavirus. The court noted that because the language of the exception covers measures intended to prevent the spread of COVID-19, and the former employees failed to argue that the vaccine mandate was not imposed with the intention to protect patients from contracting the virus, the dismissal of their case was proper. The court cited a U.S. Supreme Court case and the CDC website for the contention that vaccines are an effective tool to prevent and control disease, recognizing that while

some individuals may disagree . . . [these sources] support that the vaccines are intended to prevent the contraction and transmission of COVID-19.

Because the former employees’ lawsuit was “pending on or after” the date the amendment was passed, the court determined it was properly dismissed.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Wednesday, November 16, 2022

Bill Proposes Solution for Library District Board Vacancies

The Illinois General Assembly has reconvened for the Fall 2022 Veto Session. While this session is traditionally an opportunity for legislators to check the veto power of the Governor, it also gives the General Assembly time to consider new bills.

One of the new bills introduced in the Illinois Senate is SB 4232, which would amend the Public Library District Act of 1991 (Act) to provide an extension for filling vacant trustee positions on boards of library districts across the State but only for vacancies that occurred prior to May 27, 2022 that have not yet been filled.

Under the current version of the Act, when an appointed library district board has a vacancy, the other trustees on the board have 90 days to fill the vacant position. If the board fails to do so, the responsibility is passed to the State Librarian, who has 60 days to appoint an individual to the board. If the State Librarian does not fill the vacancy in this time, the vacant position must be filled at the next regularly scheduled election.

SB 4232 would give the State Librarian a renewed period of 60 days to fill longtime vacancies (those declared prior to May 27, 2022) in library districts across the State, rather than the vacancies being placed on the ballot for election. While the bill has very limited applicability, it could have interesting consequences for affected library districts in the spring of 2023 elections. We will update our readers as the bill makes its way through the General Assembly.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Tuesday, November 15, 2022

Court Upholds Pension Board's Rescission of Benefits

An Illinois Appellate Court recently upheld a Pension Board's decision to deny pension benefits to a former police officer based on the officer's felony conviction in Pruente v. Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago.

According to the Appellate Court's opinion, a former Chicago police officer was convicted of perjury, obstruction of justice, and official misconduct for providing false testimony in a narcotics case. The officer's application for pension benefits was initially approved by the Pension Board; however, subsequently the Pension Board rescinded its approval after investigating the felony conviction. The former officer sued, arguing that the Board's rescission of his pension benefits was an "excessive fine" in violation of the Eighth Amendment to the U.S. Constitution and that the Pension Board violated the Open Meetings Act when it failed to notify him of its initial meeting at which it revoked its approval of his pension.

The Appellate Court ruled in favor of the City, rejecting both of his arguments. First, the Appellate Court held that the officer waived the excessive fine argument because he failed to raise it before the Pension Board. Second, the Court held that any potential Open Meetings Act violation was cured when the Pension Board ratified its decision at a subsequent Board meeting where the officer was in attendance and was represented by counsel who had an opportunity to object to the Board's actions. Finally, the Court rejected the officer's argument that the Board did not have "good cause" to reconsider and rescind its prior approval of his pension benefits.

Wednesday, November 9, 2022

A Group Can Be Considered One Person When Applying "Repeated Request" Provision of FOIA

An individual submitted a FOIA request to a road district seeking certain communications and documents. In response, the road district provided certain non-exempt responsive records. However, because some of the requested records had been previously provided to the requester and two other individuals in a prior FOIA request, the road district denied that portion of the FOIA request on the grounds that it was a "repeated request" from the same person for the same records that were otherwise unchanged or identical to the records previously provided by the road district.

The requestor then filed a request for review with the PAC Office of the Attorney General (PAC). The PAC issued a non-binding (advisory) letter in 2022 PAC 73336, finding that the road district had properly classified the FOIA request as an unduly burdensome repeated request from the same person pursuant to FOIA section 3(g). The PAC rejected the requester's argument that because some of the previous requests were filed by two other individuals the "repeated requests" provision did not apply, finding that the requester and the other two individuals were acting as a "group" since they shared FOIA requests, responses, and responsive records and collectively discussed who would submit which FOIA requests for particular records. The PAC noted that FOIA expressly defines a “person” to include individuals acting as a group. As a result, the PAC determined that the road district properly designated the requestor and two named individuals as one “person” and the road district did not have to provide records to the requester that had been previously provided to other members of the requestor’s group.

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

Tuesday, November 8, 2022

Court Upholds Ruling That School District Did Not Engage in “Reverse Discrimination”

Earlier this month, the Seventh Circuit Court of Appeals ruled in favor of a school district, finding that an athletic director could not maintain a “reverse” race discrimination claim against his employer (“School District”). Groves v. South Bend Community School Corporation

Groves had been a teacher in the School District for 16 years before transitioning to the role of athletic director in 2007. In 2017, Groves interviewed for a newly created position that encompassed the entire School District. After the application and interview process, Groves claims that he was passed up for the role in favor of his Black colleague and filed a civil rights lawsuit alleging he had been a victim of race discrimination and that the other candidate was only hired because he is Black.

Two years later, the School District again reconfigured its athletics program, eliminating the district-wide position and creating four hybrid Dean of Students/Dean of Athletics roles at each of the high schools within the District. Because of this structural change, Grove no longer had a job in the School District, and the same Black colleague he argued was underqualified in his original lawsuit was hired for one of the Dean positions. Groves added this claim to his discrimination lawsuit, again claiming that he was passed upon in favor of his colleague based on race.

The district court granted the School District's motion for summary judgment prior to trial, finding that Groves could not, as a matter of law, present a case that would result in reasonable jurors deciding that the School District had engaged in race discrimination. While Groves had claimed he was better qualified for the job than his colleague, the district court held that the evidence collected in the case did not support his claims.

Groves appealed to the Seventh Circuit Court of Appeals, but that Court upheld the district court's ruling in favor of the School District. The Court of Appeals determined that Grove had failed to overcome the School District’s legitimate justification for hiring the other candidate over him. The School District had presented sufficient evidence that the other candidate was better qualified, had performed better in interviews, and had a respectable reputation to rebuild the athletics program within the School District. Because Groves could not show that these justifications were false, and because he could not show that the School District had discriminated against him based on his race, the Court of Appeals upheld the district court's ruling in favor of the School District.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Monday, November 7, 2022

Quorum Forum Podcast: Episode 66 - Closed Session for Litigation

Ancel Glink just released a new episode of its Quorum Forum podcast: Episode 66: Closed Session for Litigation

The Open Meetings Act mandates public bodies hold open meetings. Ancel Glink’s Kathy Kunkle and Mark Heinle join us to discuss the litigation exception to the Open Meetings Act and what local governments need to know to comply with the Act. 

Email your questions to podcast@ancelglink.com!

Thursday, November 3, 2022

Court Reverses Summary Judgment in Employment Dispute Against City

Recently, the Seventh Circuit Court of Appeals ruled that a former employee could proceed with her employment discrimination claim against a municipal employer. Runkel v. City of Springfield & James O. Langfelder

In 2018, a city purchasing agent announced he was leaving his position. The assistant purchasing agent (Runkel) stated she was interested in the position but was passed over for the role in favor of another employee who at the time worked under Rankel's supervision. At the same time, Rankel was offered a substantial raise to stay in her position as assistant purchasing agent. When she found out she was not being promoted, Rankel was upset and caused a commotion in the office, going so far as to claim the only reason her coworker was hired is because she was Black. The city eventually disciplined Rankel for her remarks, at which time Rankel told the city she would be filing a discrimination complaint. The city then asked Rankel to sign a “last chance” agreement rescinding the pay raise she had been offered and altering the conditions of her work to discourage future outbursts in the workplace.

Rankel eventually left her position with the city and filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging race discrimination and retaliation for protected activity, which claims ultimately made their way to federal court. The district court ruled in favor of the city, and Rankel appealed.

On appeal, the Seventh Circuit Court of Appeals found that the city should not have been granted summary judgment on Rankel's claims where Rankel had sufficiently established her claims’ prima facie (“on its face”) requirements. In other words, Rankel's complaint that the city had engaged in unlawful race discrimination and retaliation provided the required detailed allegations and her case shold not have been disposed of as a matter of law and need to be fleshed out at trial, where a jury can analyze the city's reasons for termination.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Wednesday, November 2, 2022

Court of Appeals Rules in Favor of City in Facebook Parody Case

In Novak v. City of Parma, the U.S. Court of Appeals for the Sixth Circuit ruled in favor of a municipality and certain police officers in a First Amendment challenge relating to an imposter Facebook page created by a private individual. 

Novak created a knockoff Facebook page that looked substantially identical to the City of Parma police department ("Department") page. The imposter Facebook page included posts such as offering free abortions in police vans and a “pedophile reform event” which caused concerned citizens to reach out to the Department to complain. Novak also deleted any comments on his page that stated the page was a fake. 

Ultimately, the Department posted a warning on its Facebook account about the imposter account, which Novak reposted on his imposter page. The Department also issued a press release and took part in a TV news interview, announcing an investigation of the Facebook account and warning people about the imposter page. Novak subsequently took down the page for fear of getting in trouble but was arrested and charged for violating an Ohio law that makes it illegal to use a computer to disrupt or impair police functions. After being found not guilty of the charges, Novak filed a lawsuit against the city and multiple police officers. The district court ruled in favor of the city and Novak appealed. 

On appeal, Novak claimed his arrest was in retaliation for creating the parody Facebook page, violating his First Amendment rights. The Court of Appeals rejected his argument, stating a reasonable officer would have believed every element of the Ohio disruption statute was met. The Court pointed to the fact that police were aware the call center had received multiple calls about the imposter page and the Ohio law created no standard for how much “disruption” had to be caused. The Court also noted that qualified immunity protects an officer who “reasonably picks one side or the other” in a debate where judges could “reasonably disagree." Here, the Court determined that the officers reasonably believed that some of Novak’s Facebook activity was not parody, not protected, and fair grounds for probable cause. The Court also noted that reassurance from no fewer than three other officials (city law director and the judges who issued arrest warrants) supported a finding that the officers “reasonably,” even if “mistakenly,” concluded that probable cause existed, which supports qualified immunity for the individual officers. 

Novak also sued the city under the theory of municipal liability for the officers’ actions. For municipal liability to attach, there must:

  1. Be an official policy or legislation in place authorizing the alleged violation.
  2. A designated decision-maker authorized the activity.
  3. Failure to train or supervise employees.
  4. There is a custom in rights violations.

Novak argued the city law director set the city’s official policy when he determined the police officers had probable cause to continue investigating him. The Court disagreed, stating that would mean every city prosecutor would “set policy” for the municipality several times a day every time they assessed probable cause, which is not reasonable. The Court stated even if the law director had made the final municipal determination that the officers had probable cause to arrest the plaintiff, the judges' independent findings to issue arrest warrants eliminated the causal connection.

In sum, the Court of Appeals upheld the ruling in favor of the city and police officers.

Note that this case has been appealed to the United States Supreme Court. 

Post Authored by Katie Nagy & Julie Tappendorf

Tuesday, November 1, 2022

10th Annual Local Government Law Institute

Attention all local government lawyers! It's registration time for the annual Local Government Law Institute presented by the Illinois Institute for Continuing Legal Education (IICLE). 

Registration information can be found here.  Details about the seminar are below:

IICLE 10th Annual Local Government Law Institute

Friday, December 16, 2022, 8:30 a.m. - 4:00 p.m.

UBS Tower, Chicago (live) and also available via webcast

Topics include:

  • Legislative & Caselaw Update
  • Signage and Flags
  • Advising Clients in Times of Crisis
  • Lunch Panel: Second Amendment
  • Zoning and Development
  • Arbitration in Public Employee Discipline Cases
  • Hot Issues in FOIA and OMA
  • Local Government Attorney Wellness

Monday, October 31, 2022

Court Rejects Challenge to Residential Rental Registration Ordinance

An Illinois Appellate Court recently ruled in favor of a village in a challenge to the constitutionality of the village's residential rental registration ordinance. Reynolds v. Village of Creve Coeur

In 2006, the village enacted an ordinance requiring registration of residential rental units, including mobile homes. The annual fee for registration was $5. In 2013, the village amended the ordinance to raise the fee to $25 per year and to authorize the village to inspect residential rental units for compliance with village building, utility, nuisance, and other ordinances and regulations. 

The owner of a mobile home park sued, claiming the village lacked authority to pass the rental registration ordinance, that federal law preempted the ordinance, and that the registration fee was an impermissible tax. Ultimately, the trial court dismissed all three counts of the lawsuit and the owner appealed the dismissal of count II of his complaint which had argued the ordinance was preempted by federal law. 

On appeal, the owner argued that the ordinance was preempted by the National Manufactured Housing Construction and Safety Standards Act of 1974 ("Act") and federal regulations adopted by HUD. The Appellate Court looked at the preemption provision of the Act which restricts state and local governments from adopting construction and safety standards on mobile homes that differ from HUD regulations. First, the Court determined that the owner's challenge to the constitutionality of the registration fee was not preempted by the Act because the fee did not impose a "construction or safety standard." Second, the Court held that any challenge to the ordinance's inspection provisions was not yet "ripe" because the owner did not claim the village had ever tried to inspect his mobile homes or enforce any ordinance violations against him so there was no "dispute" for the court to decide. Finally, the Court rejected the owner's claim that the ordinance was "unconstitutionally vague," finding that the owner waived that issue because he failed to raise it at the trial court. In sum, the Court upheld the ruling in favor of the village that dismissed the owner's challenge to the village's residential rental ordinance.

Thursday, October 13, 2022

Court Finds Referenda to Recall Mayor Null and Void

In Henyard v. Municipal Officers of Dolton, an Illinois Appellate Court found two referenda authorizing recall of a mayor and subsequently recalling the mayor null and void.

The village's mayor (also known as village president) was elected during the 2021 Consolidated Election. In December 2021, the village board placed two referenda on the general primary election ballot. The first referendum asked whether voters wanted to adopt a recall mechanism that would apply to the mayor effective upon certification of the general election results. The second referendum asked voters if the majority passed the recall mechanism, whether the mayor should be recalled and removed from office.

The mayor filed a lawsuit asking the court to find both referenda invalid and unconstitutional. The circuit court held the referendum provisions were null and void and directed the county clerk to take reasonable efforts to notify early voters of the court’s action; however, the appellate court "stayed" the ruling because early voting had started. The appellate court directed the clerk to conduct the referenda elections as planned, but prohibited the clerk from proclaiming the results as they would have no force or effect until further court order. The election took place, and the state’s attorney reported to the court that both referenda were approved,  and the appellate court then issued its ruling that the referenda were null and void.

The appellate court held that the village had no authority to recall a village official midterm. The court pointed to Illinois history of no public official ever being recalled midterm by a referendum vote – regardless of whether a recall mechanism was in place before the public official’s term began. The court also held the referendum was not clear or precise enough to implement a valid local recall process. The court stated a local referendum mechanism needs to be precise and clear, so it does not leave gaps to be filled by the legislature or municipal body. The court called the village's referenda “fatally vague and ambiguous” regarding the information needed for its implementation and enforcement.

As such, the appellate court concluded that the two referenda were null and void and directed the county clerk not to take an official tally of the votes nor announce the election results.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Wednesday, October 12, 2022

PAC Finds Public Body Exceeded Scope of OMA Exception in Closed Session

In July 2022, the PAC received a complaint alleging that a school district board (School Board) improperly entered closed session during 16 separate meetings to discuss the Illinois General Assembly granting the school district a waiver to build a new school using federal COVID-19 pandemic relief funds. The complaint alleged that before the School Board's June 27, 2022 announcement, the Board was considering constructing a new school building but no prior School Board agenda items or minutes indicated that the Board discussed or voted on that waiver, or that the School Board even discussed building a new school.

In binding PAC Op. 22-012, The PAC concluded that the School Board exceeded the scope of OMA exception 2(c)(5), which authorizes public bodies to go into closed session to discuss the purchase or lease of real estate by a public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired. Specifically, the PAC determined that the School Board discussed funding for the school, legislative considerations, and various other topics concerning the project that were not considered in the context of the narrow topic of purchasing or leasing property for the school. The PAC rejected the School Board's argument that OMA exception 2(c)(5) allowed these collateral discussions because the School Board would eventually have to acquire property if it were to build a new school.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, October 11, 2022

Quorum Forum Podcast Episode 65: Highlights from the 2022 APA-IL Conference

 Ancel Glink's Quorum Forum Podcast is back with a brand new episode: Quorum Forum 65: Highlights from the 2022 APA-IL State Conference. A summary of what you will find on this episode is below.

Ancel Glink loves zoning, planning, and land use law. Join us for a special episode reflecting on the 2022 APA-IL State Conference, featuring highlights shared by Ancel Glink attorneys and law clerks. Topics include sign regulations, short-term rentals, affordable housing, and much more! 

Email your questions to podcast@ancelglink.com.

Friday, October 7, 2022

Court Finds in Favor of Board of Fire & Police Commissioners in Discharge Dispute

In Scatchell v. Board of Fire & Police Commissioners for the Village of Melrose Park, et al., an Illinois Appellate Court upheld the decision of a local Board of Fire and Police Commission ("BFPC") to terminate the employment of a police officer based on several charges of misconduct.

In late 2017, a police officer took paid sick leave to recuperate from an on-duty injury. While on sick leave, the police department learned that the officer was reported to be out hunting when—based on doctor’s orders and department policy—he should have been resting at home. The department reached out to a branch of the Illinois Department of Natural Resources to request that conservation officers be on the lookout for the officer. A conservation officer eventually did spot the officer hunting with  several others, including a former police officer who was also a convicted felon and was not permitted to possess or use a weapon. When confronted by the conservation officer, the officer claimed he “could not say” whether his companion had fired a shotgun while they were out hunting. 

The department then investigated whether the officer abused his sick leave and whether he violated any department policies in his interaction with the conservation officer. During the investigation, the investigator issued the injured officer a Garrity warning, advising him that he was immune from criminal prosecution for any statements made during the investigation but could face discipline or discharge for refusing to answer questions. The injured officer acknowledged and signed the immunity notification.

During the BFPC's disciplinary hearing about these incidents, the officer refused to testify, invoking his Fifth Amendment right not to incriminate himself. The department renewed the injured officer’s Garrity immunity, reminding him that he could be disciplined for insubordination for not answering the questions presented during the disciplinary hearing. When he still refused to testify, the department added an insubordination charge. The BFPC decided to discharge the officer based on eight counts of disciplinary charges, including refusal to obey his superior’s direct order to testify during the hearing. The officer appealed, and the case made its way to the Illinois Appellate Court.

One of the issues that was discussed at length in the opinion was the nature of the Garrity immunity, which protects government employees from being prosecuted for statements they make during an internal investigation, so the government employee is not forced to choose between being fired and incriminating themselves. Once the immunity attaches, however, and the employee faces no possible criminal charges, he or she may be discharged for insubordination for refusing to answer questions related to potential misconduct.

Because the injured officer had been issued a Garrity warning, which remained intact throughout the investigation into his misconduct and the BFPC hearing, the Court decided the BFPC was justified in terminating the officer for insubordination (among several of the other disciplinary charges filed against him).

While the decision of the Court was quite detailed and lengthy, it is worth reading for an understanding of Garrity immunity and the Illinois Administrative Review Law.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, September 29, 2022

Illinois Supreme Court Rules in Public Body's Favor in FOIA Case Involving Lawful Injunction

In a prior post, we wrote about a November 2015 FOIA request to the Chicago Police Department seeking all closed complaint register files (CRs) for all Chicago police officers. After CPD failed to respond to the request, the requester filed a lawsuit seeking an order directing CPD to release the requested files. In response, CPD argued that because a May 2015 injunction entered by another court prohibited CPD from releasing any CR files older than four years from the date of any FOIA request, CPD did not improperly withhold the responsive CR records. That injunction was later vacated in 2016. 

In 2020, a circuit court ruled in favor of the requester and ordered CPD to turn over all responsive CR files from 1967 to 2011. The appellate court reversed, finding that the circuit court improperly ordered CPD to produce the CR files, because CPD was required to follow the terms of a lawful injunction that prohibited releasing the CR files subject to the injunction. The appellate court also determined that it was irrelevant whether the injunction was subsequently vacated, because at the time CPD received the FOIA request, CPD was following a lawful injunction.

The requester subsequently appealed to the Illinois Supreme Court. In Green v. CPD, the Illinois Supreme Court upheld the appellate court’s ruling in favor of CPD, finding that the appropriate time to determine whether a public record may be withheld is when the public body asserts the exemption and denies the request (“time-of-request” approach). The Court rejected the requester’s “changed circumstances” argument, explaining that accounting for changed circumstances that occur during litigation would require a public body to continually monitor the information and revise its responses. The Court held that this approach could undermine FOIA’s goal of producing public information expediently and efficiently and lead to the absurd result of burdening the public body with the requester’s attorney fees even if the denial was proper when the agency made its decision.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, September 28, 2022

Illinois Supreme Court Finds City and Alderman Immune from Liability for Rezoning

The Illinois Supreme Court recently issued an opinion in Strauss, et al. v. City of Chicago finding that the City was not liable for money damages based on a discretionary zoning decision. The case made its way to the Illinois Supreme Court after the lower courts both found in favor of the City.

The building at issue had been zoned for mixed-use developments since 1974, with commercial uses permitted at street level and residential uses permitted above street level. According to the opinion, in 2012, the alderman for the City ward in which the property was located informed the property owner that a music venue would be the only tenant allowed in the building. Soon after the venue opened, however, the relationship between the music venue and property owner became strained because of noise complaints, illicit drug use, and excessive alcohol intake by the venue’s patrons. Based on these issues and other violations of the lease, the property owner filed an eviction action against the music venue in 2015.

In 2016, while the eviction lawsuit was pending, the alderman introduced a downzoning amendment to apply solely to the building. The new classification would prohibit upper-level residences as well as more than 30 categories of businesses. Over the next 14 months, the alderman proposed two other downzoning amendments, both of which substantially limited the permissible uses of the property and impeded the property owner’s efforts to lease or sell the building. Eventually, the City Council adopted one of these downzoning amendments, limiting the kinds of commercial and retail tenants that could rent space in the building. 

Strauss (the property owner at that time) filed a lawsuit, alleging violations of the Illinois Constitution and several tort claims for civil damages. The City prevailed in the trial and appellate courts. The case was appealed to the Illinois Supreme Court, which found that the two constitutional claims were no longer ripe for decision because Strauss no longer owned the building and could not receive effective relief from a decision that the amendment was unconstitutional. 

With respect to the claims for money damages, the Illinois Supreme Court determined that the City could not be found liable for money damages under the Illinois Tort Immunity Act (the Act), which provides that public employees in positions involving the determination of policy or the exercise of discretion cannot be held liable for injuries resulting from those discretionary actions. Even though Strauss alleged that the alderman had acted maliciously due to an alleged relationship with the music venue that had been evicted (and thus was not exercising proper discretion), the Court found that immunity under the Act extends to all kinds of discretionary acts, including those motivated by corruption or the misuse of political power. Because the alderman was determining policy and exercising his discretion in advocating for the downzoning of the property, the Court found that both he and the City were immune from liability for any damages the property owner incurred as a result. Strauss's attempt to have the Court limit immunity to “lawful” and “official” discretionary acts was rejected by the Court, which found that the Act makes clear that “even if the discretion is abused, immunity still attaches.”

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, September 15, 2022

Court Finds Village Had Discretionary Immunity in Motorcycle Accident Case

In Page v. Village of Coal City, an Illinois Appellate Court determined that a village was immune from liability for an injury resulting from a village employee’s actions because the village employee had a position with discretion to make decisions.

A motorcyclist was driving on a local road when her motorcycle tires hit a section of loose gravel, and as a result, she lost control and was thrown off the motorcycle. She filed a negligence claim against the village. The trial court found in favor of the village, and the motorcyclist appealed.

The court determined that the liability of the village depended on whether the village employee who was responsible for village road maintenance served in a position requiring discretionary actions or solely ministerial tasks. Under provisions of the state's Tort Immunity Act, actions by municipal employees are treated differently whether the employees are exercising discretionary authority or acting in a ministerial fashion. As a general rule, the Act provides certain immunities to municipalities for actions of their employees who have the discretion to make judgment calls.

In this case, the Appellate Court determined that the village employee responsible for road repairs held a position requiring an exercise of discretion. The court pointed to the fact the village employee made a conscious decision to gravel the hazardous road and leave the roadway open to traffic until it could be repaved by an outside contractor months later. That employee's decision had been based on multiple factors including village budget, costs, and safety, which supported the village's argument that its employee engaged in a policy determination. While the court acknowledged that the public works roadcrew adhered to a set process in repairing the road, there was no indication in this case that the roadcrew failed to complete the work in a reasonably safe and skillful manner. In sum, the Appellate Court upheld the trial court's ruling that the village had discretionary immunity.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Monday, September 12, 2022

Court Reverses Award of Damages to Developer in Case of Mutual Breach of Contract

Earlier this summer, an Illinois Appellate Court issued a decision finding that both the municipality and the developer had materially breached a redevelopment agreement. Because neither party had complied with the terms of the agreement, the Court decided that neither party was entitled to damages for the other’s breach. PML Development LLC v. Village of Hawthorn Woods.

In 2012, the parties entered into a redevelopment agreement that provided, among other things, that the developer would import fill and bring to grade a large piece of property it owned in the Village. The agreement required the developer to pay taxes on the property until the project was completed, at which point it would donate the land to the Village. The development project faced several obstacles early in the term of the agreement, including a number of changes to the project, including the amount of fill on the site, the sequencing of the project, and the company’s ability to sell certain materials. 

According to the breach of contract lawsuit filed against the Village, the developer argued that these changes presented major challenges to its ability to complete the project on time. The Village also claimed the developer had  breached its obligations under the agreement by not paying property taxes, which resulted in multiple tax liens being placed on the property. The trial court ruled in favor of the developer, finding that the developer's obligations were excused because of the Village's breach and awarding the developer damages for the breach.

On appeal, the Appellate Court found that neither party should have received any damages for breach of contract. The Court agreed with the trial court that the Village’s unilateral changes to the contract terms and working conditions for the company constituted a material breach, finding that under industry standards, the developer should have maintained control and discretion over the “means and methods” for developing the parcel. However, the Court did not find that the Village’s breach excused the developer from its contractual obligation to pay taxes on the property. Because the developer had promised to deliver a deed to the property without any liens or title issues, its failure to pay taxes undermined its ability to comply with that term in the agreement. The Court relied on a foundational principle of contract law to come to its conclusion: “[I]f both parties are in default (breach) there can be no recovery on the contract by either against the other" and reversed the trial court's damages award to the developer

Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, September 8, 2022

Court Clarifies Scope of Home-Rule Units’ Administrative Hearing Authority

Recently, an Illinois Appellate Court clarified the authority of a City’s administrative hearing department where there are overlapping state and municipal traffic regulations. In Potek, et al. v. City of Chicago, the Court held that certain local traffic violations were properly heard in City administrative hearings rather than before a court.

In 2005, the City amended its traffic code to prohibit all use of cell phones while driving. In 2010, the General Assembly passed a narrower law that only prohibited texting, emailing, or instant messaging while driving. It wasn’t until 2014, that the General Assembly expanded state law to prohibit the use of cellphones while driving altogether. 

Between 2012 and 2014, a number of drivers were issued notices that they violated the City ordinance by talking on their cell phones while driving. These violations were considered, and several tickets were paid, through the City’s administrative hearing department. Certain ticketed individuals later sued the City, claiming that the City did not have the authority to decide their traffic tickets based on a state statute that they claimed restricted municipal authority to hold administrative hearings. This statute (contained in the Illinois Municipal Code) states that municipalities may not hold administrative hearings (1) beyond the scope of their statutory or home-rule authority or (2) to prosecute “any offense under the Illinois Vehicle Code or a similar offense that is a traffic regulation governing the movement of vehicles.”

The trial court dismissed the individuals' claims for lack of standing and they appealed. The Appellate Court reversed the standing ruling, finding that the individuals did face a real injury as a result of the City delegating the traffic violations to the administrative hearing department rather than sending the tickets to a local court, so they had standing to challenge in court the administrative hearing department's authority to find them liable and collect fines for their violations.

However, the Appellate Court did not rule in the individuals' favor on their substantive authority argument and instead agreed with the City that its administrative hearing department had the authority to adjudicate several of the traffic violations based on the Illinois Municipal Code. Through the end of 2013, the City ordinance, and not state statute, prohibited talking on a cell phone while driving. As a result, the Court determined that the two laws at the time did not regulate a “similar offense” that required prosecution in court rather than before an administrative agency. The Court also noted that as a home-rule unit of government, the City’s authority to conduct administrative hearings “must be construed liberally.” The Court remanded back to the trial court those tickets that were issued after the state law had changed to prohibit talking while driving to determine whether the drivers were entitled to a refund to the fines they had paid to the administrative hearing department.

Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, August 25, 2022

Court Declines to Find City Liable for Police Officer Off-Duty Activities

The Seventh Circuit Court of Appeals recently issued a decision in Bohanon v. City of Indianapolis rejecting a claim that a "gap" in a city policy constituted municipal action to establish city liability for police officer off-duty activities.

On August 7, 2013, two off-duty officers in plain clothes were drinking at a bar when another bar patron became loud and combative with bar employees and refused to leave when asked. The off-duty police officers identified themselves as police officers and told the patron to leave. The patron subsequently threw one of the officer’s badges to the ground. According to the court opinion, the officers then punched the patron, dragged him out of the bar, and kicked him until he was unconscious. The patron filed suit against the officers and the city alleging civil rights violations. Although the jury ruled in favor of the patron and awarded damages, the judge granted the city's motion for judgment as a matter of law, reversing the damages award. The patron appealed to the Seventh Circuit Court of Appeals.

On appeal, the bar patron argued that a "gap" in a city police department policy was sufficient to establish city liability for the actions of its off-duty police officers. The city policy prohibited off-duty police officers under the influence of drugs or alcohol from taking any police action except under a narrow exception to protect life and limb in emergency situations. The Seventh Circuit disagreed with the patron, finding that a gap in policy amounts to municipal action only if the municipality has notice that its policy will cause constitutional violations. Here, the Court found no evidence that similar incidents had occurred. The Court also found that it was not obvious that the city policy prohibiting police action while under the influence subject to a narrow and specific exception would lead off-duty officers to use excessive force in violation of the Constitution. Finally, the court determined that the city policy did not cause constitutional violations; instead, the officers violated the policy through their actions, which caused the patron's injuries.


Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Wednesday, August 24, 2022

Appeals Court Decides Challenge to Short Term Rental Ordinance

Short-term rental (STR) uses have been a topic of discussion among local government officials with the popularity of individuals listing their homes for short term stays on platforms such as Airbnb and VRBO. This week, the Fifth Circuit Court of Appeals (which has appellate jurisdiction over federal cases out of Texas, Louisiana, and Mississippi) invalidating New Orleans’s STR ordinance. Hignell-Stark, et al. v. City of New Orleans.

New Orleans created a licensing regime for STR uses in 2017, allowing property owners to apply for a license to rent their property for a period shorter than 30 days. The initial City code provisions made clear that an STR license was a privilege, not a right, and that the City exercised broad discretion to issue or withhold licenses. 

After receiving complaints from neighbors that short-term rentals were creating nuisances in residential neighborhoods, affecting neighborhood character, and increasing housing costs, the City revised its licensing program in 2019. These changes restricted STR licenses to the owner’s “primary residence.” The new ordinances also placed substantial limitations on advertising STRs.

A group of property owners challenged the new licensing scheme as unconstitutional under three theories: (1) the failure to renew their STR licenses was an impermissible “taking” under the Fifth Amendment; (2) the residency requirement violated the dormant Commerce Clause of the U.S. Constitution; and (3) the advertising restrictions violated the First Amendment.

The case made its way to the Fifth Circuit. First, the Court found in favor of the City on the owner's takings claims under the Fifth Amendment. Because an STR licenses was not a property "right," the Court held that the City’s refusal to renew a license did not violate a property right. The Court clarified that, while custom and practice may create property interests, STR licenses were not so deeply rooted in custom that the property owners were owed compensation when their renewal applications were denied. The recent creation of an STR licensing program in the City prevented the Court from concluding that the license holders had property interests in the renewal of their licenses.

Second, the Fifth Circuit ruled in favor of the owners on their dormant Commerce Clause claim. Under the dormant Commerce Clause, states and local governments may not discriminate against nor impose undue burdens on interstate commerce. The Court held that the residency requirement for STR licenses was discriminatory on its face because out-of-state property owners without a “primary residence” in the City were forbidden from participating in the STR market in residential areas. The City failed to show that the residency restriction was the only policy alternative for promoting its valid interests in reducing nuisances, retaining neighborhood character, and promoting affordable housing. Therefore, the City failed to show that the discriminatory residential requirement was constitutional.

Finally, the Court found it had no authority to decide the First Amendment claim. The district court had found that the Free Speech claim was “viable,” but had not yet issued a formal judgment granting or denying the property owners’ claims so the appeal was premature. 

This case provides a helpful overview of several constitutional issues that are implicated by the growing popularity of short-term rentals (and local government responses). While the Fifth Circuit does not have direct authority over Illinois cases, this decision provides more insight as to how higher courts may review STR regulations going forward.

Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, August 18, 2022

PD Properly Used Ongoing Criminal Investigation Exemption to Partially Deny FOIA Request

A reporter submitted a FOIA request to a police department (PD) seeking certain records relating to a 2018 homicide. In response, the PD disclosed certain redacted records but withheld other records, on the basis that release of certain exempt records would obstruct the PD’s ongoing criminal investigation into the homicide. The reporter then sued the PD claiming the response violated FOIA. The trial court ruled in favor of the PD, finding that it had demonstrated that disclosing the records it had withheld would interfere with its ongoing investigation. 

On appeal, the Appellate Court in Ballew v. Chicago Police Department upheld the ruling in favor of the PD, finding that the PD had properly demonstrated that the records were exempt under FOIA’s ongoing investigation exemption. The Appellate Court relied on an affidavit of a PD lieutenant who was overseeing the homicide investigation that stated that because the PD's investigation of the homicide was still open and ongoing, prematurely releasing the withheld records would materially impede that investigation because:

  1. investigators were still attempting to identify additional witnesses, collect additional evidence, and apprehend the suspect, who is at large;
  2. premature release would make it difficult to determine the veracity of witness statements because the significant media attention coverage brought to the case could increase the possibility of obstructive behavior that would misguide investigative efforts;
  3. the outcome of the investigation could be jeopardized if details of the investigation, investigative technique, and evidence were to be released; and
  4. releasing the information could place witnesses in danger or deter witness cooperation since the homicide underlying the FOIA request is potentially linked with another (unsolved) violent homicide.

The Appellate Court also rejected the reporter’s argument that the PD had used FOIA’s law enforcement exemptions to assert a “blanket” exemption over investigative records, explaining that nothing in the record supports any claim that the PD refused to review all responsive records before asserting the applicable exemptions over the withheld records. Instead, the Court found that the PD had produced the original case incident report and provided a detailed explanation in the affidavit as to why other responsive documents were exempt. The Court also rejected the reporter’s argument that FOIA required the PD to provide a granular document-by-document explanation regarding its claimed exemptions.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, August 16, 2022

Court Finds In Favor of Board of Education in FOIA Challenge

In 2014, a former teacher, filed a pro se lawsuit against a Board of Education (Board), alleging various FOIA violations related to the former teacher's 30 FOIA requests, including that the Board withheld responsive documents and the Board failed to conduct a reasonably diligent search for records. The circuit court ruled in favor of the Board, finding it had properly responded to all 30 of the FOIA requests, provided nonexempt responsive records in its possession and custody, and did not deliberately withheld documents pertaining to the requester's requests.

On appeal, the Appellate Court in Elmore v. Bd. of Educ. upheld the circuit court’s ruling in favor of the Board. Specifically, the Appellate Court found that the former teacher failed to show that the Board’s search for responsive records to her requests was inadequate or that the Board cited improper exemptions to withhold certain records. The Appellate Court further found that the former teacher failed to prove that the Board withheld certain requested records in their entirety, finding that the Board’s affidavits and other evidence satisfied the Board’s burden to show that it produced responsive nonexempt records in its possession and custody. The Appellate Court also stated that the teacher's belief that a certain document must exist did not make it so.

Additionally, the Appellate Court determined that the Board properly withheld information about the racial breakdown of all Board hires from 2011 to 2013 pursuant to the personal privacy exemption of FOIA (section 7(1)(c)). Specifically, the affidavit from the Board’s FOIA officer demonstrated that the the requested group of new hires was so small (6 employees) that disclosing a summary of ethnicities would unavoidably lead to identifying individual employees, and releasing this information would, therefore, unreasonably invade the privacy interests of those employees. The Appellate Court noted that public employees have a reasonable expectation that their racial identification will remain private, and with such a small number of people involved, releasing only ethnicities could still lead to identifying individual employees, so this part of the plaintiff’s FOIA request was properly denied under the invasion of personal privacy exemption.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, August 11, 2022

Court Upholds Redaction of Requester's Own Private Information Under FOIA

An inmate filed a FOIA request to a City seeking certain records pertaining to the inmate. The City provided the requested records but redacted the inmate’s private and personal information, including the inmate’s home address, home telephone number, date of birth, and his mother’s name, home address, and home telephone number, pursuant to FOIA exemptions 7(1)(b)(private information) and 7(1)(c)(disclosure would be an unreasonable invasion of personal privacy). 

The inmate then filed a request for review with the Public Access Counselor of the Attorney General's office (PAC) claiming the City’s redactions were improper. The PAC determined that no further inquiry was warranted and closed the file. The inmate next filed a pro se complaint in circuit court, alleging, among other things, that the City violated FOIA by improperly redacting records containing his private and personal information, because the inmate had impliedly consented to the disclosure of his own private and personal so the information was not exempt from disclosure under FOIA. The court dismissed the inmate’s complaint, finding that the records were properly redacted, and the inmate’s argument regarding his entitlement to his own exempt information was “not listed within the statute or any other relevant authority.”

The inmate appealed and the dismissal of the case was upheld by the Appellate Court in Warren v. City of Urbana. Specifically, the Appellate Court rejected the inmate’s argument that by submitting a written FOIA request for his own information, including his home addresses and “locations of incidents”, that the inmate consented to and was entitled to disclosure of otherwise exempt information. The Court noted that the General Assembly specifically included home addresses as “private” information under section 7(1)(b), and the only exception to this exemption is where “disclosure is required by another provision of this Act, a State or federal law, or a court order.” Because the inmate failed to identify any statute or court order which required the City to disclose his private information, the Court determined that the City's redaction of the inmate’s private information was proper.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, August 8, 2022

Court Rejects First Amendment Claim Involving Persons' Failure to Provide ID

On August 2, 2022, the Seventh Circuit Court of Appeals issued an opinion finding no First Amendment violation where three individuals failed to provide their ID to a police officer where there was probable cause to arrest them. Lyberger v. Snider

Three individuals followed a woman in her vehicle to her home. Once she arrived, the three individuals confronted and video-recorded the woman while she was parked in her driveway. She called 911 and when police arrived, they asked the three individuals for their identification, which they continuously refused.  The officer then placed them under arrest for disorderly conduct and obstruction. All charges were eventually dismissed. 

The plaintiffs then sued the City and police officers claiming various civil rights violations. The Seventh Circuit first analyzed the plaintiffs’ Fourth Amendment claim and concluded that the police officers had reasonable suspicion to justify the initial detention as well as probable cause to arrest the three individuals. 

The court then went on to analyze the plaintiffs’ First Amendment claim. The plaintiffs argued that the police officers violated their First Amendment rights by arresting them in retaliation for refusing to provide their ID cards per the police officers’ requests. The Seventh Circuit concluded the plaintiffs did not have a First Amendment right to withhold their identification. Although, the First Amendment generally prohibits police officers from subjecting individuals to retaliatory actions for engaging in protected speech, the Seventh Circuit held that probable cause to make an arrest (which was present in this case) defeated their claim that the arrest was in retaliation for protected speech.  As a result, the plaintiffs’ claim that their First Amendment rights were violated also failed.

Authored by Molly Anne Krebs & Julie Tappendorf, Ancel Glink.

Monday, August 1, 2022

PAC Says Resumes of Candidates for Elected Office Are Releaseable Under FOIA

The Public Access Counselor of the Illinois Attorney General's office (PAC) just issued its 11th binding opinion of 2022 finding a public body in violation of FOIA for failing to provide copies of the applications submitted by candidates for appointment to fill a vacant elected office. PAC Op. 22-011,

In April, an individual filed a FOIA request with a village seeking the names and applications of the candidates for a vacancy to the village board. The village denied the request, citing three FOIA exemptions including that the applications were exempt from release as private information, that release of the information would be an invasion of personal privacy of the candidates, and that the documents contained information that expresses policy or opinions. The village also argued that the records were not public records because the village president had not shared the applications with the village board. Ultimately, the village did release the application for the candidate who had been appointed to fill the vacancy but continued to withhold the applications submitted by the other candidates. The requester filed a request for review with the PAC.

The PAC rejected the village's argument that the unsuccessful candidates' applications were either (1) not public records or (2) exempt from release. First, the PAC found that the records were public records since they were in the possession of the village president and were used by the president in deciding who to appoint to fill the vacancy on the villagea board. Second, the PAC determined that the public's right to access information about candidates for elected office (and those considered for appointment to fill an elected office) outweighs any diminished right of privacy the candidates might have to their potential appointment to the village board. The PAC distinguished the privacy interests of candidates for elected office (who have a diminished right to privacy) with unsuccessful candidates for public employment (who have a privacy interest in not having their candidacy disclosed to the public because of the potential negative impacts in the community and with their current employment). Finally, the PAC rejected the village's argument that the records were used to "formulate policy" finding that the work history and educational background of the candidates for appointment to elected office are purely factual in nature. 

In short, the PAC determined that the resumes and other information about candidates for elected office (or appointment to fill a vacancy in an elected position) are releasable under FOIA. 

Friday, July 29, 2022

School Board Members Blocking of Parents on Social Media Violated First Amendment

We have reported in the past about the potential implication of the First Amendment when public officials engage on social media. Not all conduct or activities by public officials will trigger First Amendment protections and rights, but when a public official creates a public forum on social media and then takes action that censors protected speech, courts have held that this action violates the First Amendment. Recently, the Ninth Circuit Court of Appeals addressed this issue in a First Amendment challenge involving two school board members, finding the two officials had violated the First Amendment rights of individuals who they censored on their social media sites. Garnier v. Ratcliff, 9th Cir. July 27, 2022

The two school members had initially set up social media sites for their campaigns. After they took office, they used those same social media pages to engage with citizens about school board matters. On their pages, they informed citizens about upcoming school board meetings, solicited input about board decisions, and communicated with parents about school safety and other pending issues. Two parents who frequently posted critical comments on the school officials' pages, had their posts deleted by the school board members. Eventually, both school officials blocked the parents from their pages. Shortly after the parents were blocked, the school officials set up a word "filtering" setting on their pages that blocked a number of commonly used words that, in effect, eliminated any comments from their pages.

The parents sued, claiming that the deletion of their critical comments and blocking from the school officials' pages violated their First Amendment rights. The school officials first argued that their social media pages were not a public forum, so they were not acting as "state actors" for purposes of a civil right action. They further argued that even the pages were a public forum, their blocking of the parents was a reasonable time, place, and manner restriction. Finally, they argued that by establishing a word filtering setting that blocked all comments they had effectively "closed" the public forum, so the lawsuit was moot.

First, the court rejected the school officials' argument that the case was moot, finding that the closing of a public forum does not "cure" a previous First Amendment violation.

Second, the court found that the two officials were acting as "state actors" when they were engaging on their social media pages. Nearly all of their activities on their pages related to their school official duties, they identified themselves as school officials, engaged with constituents about school board business, and regularly posted about school board business. The court acknowledged that other circuit courts of appeals had similarly found activities and conduct similar to these two officials to have created a public forum that would trigger First Amendment protections, including cases involving a Facebook page set up by the Loudoun County commissioner, former President Trump's Twitter account. Here, the court determined that the officials' had created a designated public forum on their social media sites and their activities in deleting critical comments and blocking critical commenters violated the First Amendment because it did not serve a significant government interest and was not narrowly tailored.

This case is definitely worth a read for government officials who engage in social media activities related to their government duties because it provides a detailed analysis of when a personal social media page and activities can convert into government action triggering the First Amendment.