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

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.

Wednesday, July 20, 2022

City's Citation for Business License Violation Upheld by Court

Recently, an Illinois Appellate Court upheld a circuit court's ruling in favor of a City's administrative decision imposing a fine against a parking lot owner for failure to obtain a business license. 895 Wood Dale LLC v. City of Wood Dale.

The owner of a commercial parking lot applied for a City business license, but the City refused to issue the license because the parking lot did not comply with the City's landscaping requirements contained in its zoning code. The City then cited the parking lot owner for operating its business without a business license, and the City's administrative hearing officer imposed a $500 fine. The owner filed a lawsuit to challenge the City's administrative decision, and the circuit court upheld the hearing officer's determination. 

On appeal, the parking lot owner argued that the City was "estopped" from enforcing the landscaping requirements of the City's zoning ordinance because the City had previously issued permits for the parking lot and had not required the landscaping at that time, had not informed the plaintiff of the landscaping requirements when the City inspected the improvements. The owner argued that it had relied on the City's inspection and permitting approvals and the City should not be allowed to enforce its landscaping requirements to hold up its business licensing. 

The Appellate Court rejected the owner's arguments and upheld the City's administration decision against the parking lot owner. The Court noted that the mere fact that a permit had been previously issued by the City does not preclude the City from enforcing its code and requiring a property to comply with code requirements. The Court also determined that the costs the owner would incur in complying with the landscaping requirements are not the type of losses that trigger equitable estoppel because the owner was always obligated to follow the code requirements. In sum, the Court determined that the owner failed to establish its equitable estoppel argument, so the City's administrative decision was proper.

Tuesday, July 19, 2022

Fourth District Interprets FOIA Attorneys' Fee Provision

In response to a three-part FOIA request submitted to a City in January 2020, the City responded two weeks later that it did not possess responsive records to part 1 of the request, that part 2 was unduly burdensome, and that part 3 was “vague and ambiguous.” In response, the requestor asked to confer with the City to reduce his allegedly burdensome request to manageable proportions and requested the City to perform another search for responsive records. Several weeks later, the City produced one record responsive to part 2 of the request. 

The requestor filed a lawsuit against the City alleging that the City (1) violated FOIA by failing to timely produce non-exempt public records to his request, (2) failed to perform an adequate search for responsive records, and (3) willfully, intentionally, or otherwise in bad faith violated FOIA. After the lawsuit was filed, the City agreed to conduct an additional search and produced certain records to the requestor. The trial court ruled in favor of the City finding that the City performed an adequate search for requested records, that the City properly classified part 2 as burdensome and the request failed to reasonably identify records sought for part 3, and that the City did not willfully or intentionally violate FOIA or otherwise act in bad faith in responding to the request.

On appeal, the Fourth District Appellate Court in Martinez v. City of Springfield determined that the trial court erred when it failed to award attorneys fees to the requestor under FOIA section 11(i). The Fourth District held that the requestor “prevailed” in its FOIA lawsuit because the City produced the requested records after the lawsuit was filed. The Court agreed with the requestor that a court order is not a prerequisite to an award of attorney fees under FOIA. Since the City failed to comply with the statutory deadline and only produced responsive records after the lawsuit was filed, the Court remanded the case back to the trial court to hear arguments on the reasonableness of requested attorney fees.

The Fourth District acknowledged that there is some disagreement among the Appellate Districts on the issue of when a plaintiff has "prevailed" in a FOIA lawsuit to trigger the attorneys' fee provision of FOIA. The Fourth District noted that the Second District holds that a plaintiff is entitled to attorneys' fees under 11(i) only if there is a court order in the plaintiff's favor in the FOIA lawsuit. So, if the requested records are provided while the FOIA lawsuit is pending, a plaintiff cannot have "prevailed" in that lawsuit for purposes of an attorneys' fee award under Section 11(i), at least not in the Second District. On the other hand, the First and Fifth Districts hold that the attorneys' fee provision of FOIA can be triggered even without a court order, meaning a plaintiff could have "prevailed" in his or her FOIA lawsuit even if the public body provides the records while litigation is pending. In this case, the Fourth District joined the First and Fifth Districts, holding that a court order is not required for a plaintiff to "prevail." 

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

Thursday, July 14, 2022

PAC Finds Board in Violation of OMA for Closed Session Discussion

The PAC issued its 10th binding opinion of 2022 this week finding a public body in violation of the OMA for exceeding the scope of permissible topics in closed session. PAC Op. 22-010

At one of its meetings, a school district board went into closed session for 3 separate topics. Following the meeting, a request for review was filed with the PAC challenging the closed sessions as exceeding the topics allowed by the OMA. The PAC listened to the recordings of the three closed sessions and determined that two of them were within the scope of the OMA's permissible topics for closed session. However, the PAC determined that one of the three closed sessions exceeded the board's authority under the OMA. Specifically, the PAC noted that the topic discussed in this closed session involved discussions about student transportation bids and contracts, which were not a permissible topic for closed session. The PAC rejected the board's argument that the discussion related to probable or imminent litigation or a criminal investigation. The PAC ordered the board to release the recording and minutes relating to this particular discussion.

Tuesday, July 12, 2022

Court Finds No Common Law Dedication of Detention Pond to City

An Illinois Appellate Court recently ruled in favor of a municipality in a dispute between the municipality and homeowners as to the ownership and responsibility over a detention pond on the homeowners properties. Reich v. City of Lake Forest. 

Two adjacent property owners filed a lawsuit against the City claiming that the detention pond that straddles their two lots had previously been dedicated to the City through a "common law" dedication when the subdivision was first built and, as a result, the City was responsible for maintaining the pond. The City argued that there was no evidence that the developer of the subdivision intended to dedicate the pond to the City, nor any evidence that the City ever accepted the pond as a public improvement. The circuit court ruled in favor of the City, finding no evidence of dedication where neither the plat of subdivision nor the subdivision agreement referenced the dedication of the pond to the City. The court also noted that the City had not taken any action to maintain the pond over the years. On appeal, the appellate court agreed and upheld the ruling in favor of the City, finding no evidence that the developer of the subdivision had any intent to dedicate the pond to the City. Because the court found no evidence of donation, it did not address the issue of whether the City accepted the pond because the court noted that there can be no common law dedication in the absence of donative intent.

Disclaimer: Ancel Glink represented the City in this lawsuit and appeal.

Monday, July 11, 2022

PAC Issues Binding Opinion on FOIA Denial of Request for Union-Related Records

In January 2022, an individual submitted a FOIA request to a municipality asking for the names, work addresses, work e-mail addresses, job titles, hire dates, department names and union membership information for each City employee covered by the collective bargaining agreement with SEIU Local 73. The City denied the request pursuant to FOIA exemption 7.5(zz), which exempts from disclosure information prohibited from being disclosed by the Illinois Public Labor Relations Act (IPLRA). Specifically, the City asserted that sections 6(c-5), 10(a)(8), and 10(a)(9) of the IPLRA prohibited disclosing information responsive to the FOIA request.

After the requestor appealed the denial, the PAC issued PAC Op. 22-009, which concluded that the City properly denied the FOIA request pursuant to FOIA exemption 7.5(zz).

The PAC noted that Section 6(c-5) of the IPLRA expressly prohibits disclosing any information personally identifying employee membership or membership status in a labor organization or other voluntary association affiliated with a labor organization or a labor federation, including whether employees are members of such organization or the identity of the organization.

While a public body's staff roster, employee business addresses, and public body-issued e-mail accounts are not generally exempt under FOIA, in this case, the PAC noted that the FOIA request to the City only requested information about employees covered by the City's collective bargaining agreement with SEIU Local 73. The PAC determined that providing responsive records that confirmed whether specific City employees are within a bargaining unit represented by SEIU Local 73 would necessarily reveal the identity of the organization and information concerning employee membership or membership status, in direct contravention of the IPLRA.

Although the requestor argued that identifying which employees are in a particular bargaining unit does not indicate whether they are union members, the PAC rejected this argument, noting that the FOIA request specifically sought each employee’s union.

The PAC also noted that an employee's ability to bring an unfair labor practice charge before the Illinois Labor Relations Board or file suit in circuit court against an employer for disclosing employee information in violation of section 6(c-5) underscores the mandatory nature of the provision, which was intended to insulate employees from third party communications concerning their union membership status.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, July 5, 2022

Agenda Did Not Adequately Describe Action Items as Required by the OMA

In binding PAC Opinion 22-008, the PAC found a Farm Committee (Committee) of a County Board (Board) in violation of the OMA when it voted on two resolutions without adequately describing the actio items on the Committee's meeting agenda.

In April 2022, an individual submitted a request for review with the PAC, alleging that the Committee violated the OMA by voting to approve two resolutions to (1) hire a person to obtain crop insurance and (2) borrow money for crop expenses without listing either item on the Committee’s April 7, 2022 meeting agenda. In response to the PAC, the Committee asserted that item 3 of its April 7, 2022 meeting agenda, which stated “[d]iscussion and vote on recommendation to the County Board regarding farming options for the County Farm," provided sufficient advance notice of its final actions.

The PAC concluded that the Committee violated section 2.02(c) of the OMA by taking final action on the two resolutions without describing the general subject matter of those actions on the April 7, 2022 meeting agenda. Although the PAC acknowledged that the term general subject matter is inherently ambiguous and has not been "precisely" defined by the OMA or Illinois courts, the PAC stated that section 2.02(c) requires that a public body’s agenda include sufficient detail to notify members of the public about the types of final actions a public body anticipates taking. Here, the Committee took final action by recommending that the Board (1) attain crop insurance and (2) borrow money for crop expenses, but the PAC found that the agenda for the Committee’s meeting failed to list the general subject matter of either of those action items.

The Committee argued that even if it violated the OMA at its April 7, 2022 meeting, the Board cured its violation by considering and voting on the Committee's recommendations at its April 14, 2022 meeting. In response, the PAC rejected this argument, reasoning that because the Committee and the Board are separate public bodies for the purpose of complying with OMA requirements, the Board's actions at its April 14, 2022 meeting did not cure the Committee's violation of OMA at its April 7, 2022 meeting. That being said, because the Board already considered and voted on the Committee's recommendations, the PAC did not see a legal or practical reason for the Committee to prepare a new agenda and re-vote on its final actions.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, June 28, 2022

Attorney General Issues Opinion on Pension Forfeiture for Former State Representative

Last week, the Illinois Attorney General issued an opinion responding to a question about pension forfeiture. Att'y Gen Op. 22-001. (Note that this opinion is not issued by the PAC office and is unrelated to that office's duties relating to OMA and FOIA).

The opinion was in response to a question raised by the General Assembly Retirement System (which deals with pension benefits for General Assembly members) as to whether former state representative Arroyo's guilty plea for felony wire fraud charges requires forfeiture of his pension benefits. 

The Attorney General looked at Section 2-156 of the Pension Code which requires the forfeiture of retirement annuities and other pension benefits if a member is convicted of a service-related felony, as follows:

None of the benefits herein provided for shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his or her service as a member.

The Attorney General noted that the purposee of the felony forfeiture provision was to discourage official mimsconduct by denying retirement benefits to public servants convicted of violating the public trust.

In applying this section of the Pension Code to the former representative's guilty plea, the Attorney General determined that his guilty plea for wire fraud "related to, arose out of, or was in connection with his official duties as a State Representative." Specifically, the Attorney General noted that the former representative's criminal conduct occured while he was a member of the state house, and the underlying facts of the offense demonstrated that he used his position as a state representative to obtain financial benefit for himself when he accepted monetary payments in exchange for a promise to vote in favor of legislation to legalize sweepstakes gaming machines.  

Monday, June 27, 2022

Inmate Not Entitled to Fees and Costs under FOIA

An inmate at a correctional center made several FOIA requests to the Illinois Department of Corrections (IDOC) seeking his medical records and copies of administrative rules. IDOC initially denied the requests for medical records because the inmate failed to follow IDOC’s administrative policy. IDOC also initially denied the inmate’s copies for certain administrative rules based on FOIA exemptions.

The inmate sued IDOC alleging that (1) his medical records were withheld in violation of FOIA and (2) that the inmate was entitled to recover costs and penalties. The circuit court dismissed the inmate’s lawsuit, finding that the inmate’s medical records were exempt from disclosure until the inmate eventually followed IDOC’s administrative procedures and that the inmate was not entitled to penalties and costs. The court also directed IDOC to provide updated copies of the administrative rules originally requested by the inmate because the inmate was being relocated to another facility that did not possess copies of the updated administrative rules at issue. On appeal, the inmate solely claim that the circuit court erred by denying his request for fees and costs under FOIA.

In Watson v. Illinois Department of Corrections, the Appellate Court upheld the circuit court’s denial of fees and costs to the inmate, finding that the inmate did not prevail in his lawsuit. The Appellate Court noted that the circuit court granted IDOC’s motion to dismiss because the inmate was not entitled to the requested medical records under FOIA, which is an adverse judgment against the inmate. Although the circuit court had directed IDOC to produce updated copies of certain administrative rules, the Appellate Court clarified that the circuit court had denied the inmate’s claim that he was entitled to these documents on its merits. As a result, the Appellate Court upheld that circuit court’s decision to deny the inmate’s request for costs under FOIA section 11(i).

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, June 21, 2022

Seventh Circuit Remands Case Relating to Right to Bear Arms T-Shirts in Schools

The Seventh Circuit Court of Appeals recently issued an interesting opinion on students right to free speech in the context of school clothing. N.J. v. Sonnabend.

Two middle school students sued their Wisconsin school districts after they were barred from wearing t-shirts with messages in support of the right to bear arms. One t-shirt displayed a Smith &  Wesson logo with an image of a revolver. The other t-shirt displayed the logo of the Wisconsin Carry, Inc., a gun rights group, and an image of a handgun. The students sued their respective school administrators in separate lawsuits alleging violations of their free speech rights under the First Amendment. The cases were consolidated and the district court ruled in favor of the school administrators2, finding the administrators' actions to be viewpoint neutral and reasonable. The students appealed to the Seventh Circuit. 

The Court of Appeals first determined that one of the students' case was "moot" because the student had graduated from middle school and was now in high school. 

With respect to the other student's challenge, the Court first determined that the student's actions implicated the student's free speech rights since the t-shirt conveyed an expression of political speech (a favorable opinion of firearms and support for the right to bear them). However, the Court acknowledged that a school can justify restrictions on speech activities if the school can show that the speech "would materially and substantially disrupt the work and discipline of the school" or invade the rights of others. That standard was established in a previous U.S. Supreme Court case called Tinker v. Des Moines Independent Comm. Sch. Dist, involving a First Amendment challenge to school policies that prohibited students from wearing black armbands to express opposition to the Vietnam War. Because the district court did not apply the Tinker standard in this case, the Court of Appeals sent the case back to the district court to conduct that analysis. 

Friday, June 17, 2022

Court Finds FOIA Challenge Moot But Remands Back to Trial Court to Analyze Whether Initial Denial Was in Bad Faith

In 2018, an inmate filed two FOIA requests with the Illinois Department of Corrections (DOC) seeking personal information about other inmates and certain inmate master record files. The DOC denied both requests on the basis that the records were specifically prohibited from disclosure by state laws. The inmate filed a pro se lawsuit against DOC seeking civil penalties, attorney fees, and costs alleging that DOC improperly denied the inmate’s requests. While the inmate’s complaint was pending, the DOC provided him with records responsive to the initial FOIA requests. The trial court ruled in favor of the DOC in the lawsuit, and the inmate appealed, alleging that (1) the DOC’s mid-litigation disclosure of responsive records did not render his lawsuit "moot" and (2) the court should have granted him costs and civil penalties.

In Staake v. Illinois Department of Corrections, the Fourth District Court of Appeals upheld the trial court’s ruling in favor of DOC due to the case being moot, finding that because the DOC provided the inmate with the requested records, there was no controversy any longer. 

However, on the issue of civil penalties, the Appellate Court reversed and remanded the case back to the trial court to determine whether the DOC denied the inmate’s requests willfully, intentionally or otherwise in bad faith. 

In remanding the case back, the Appellate Court noted that the DOC failed to provide a detailed factual basis, or any explanation at all, for why the DOC failed to redact certain exempt information from the responsive records pursuant to exemption 7(1)(a), and thereafter provide the inmate with redacted records, as required by FOIA sections 7(1) and 9(b). In addition, the Appellate Court noted that while the DOC’s re-assessment of its original interpretation of FOIA exemptions used to deny the FOIA requests, by itself, was not enough to demonstrate bad faith under FOIA, the fact that the DOC only did so after the inmate filed the lawsuit warranted further consideration by the trial court. 

Post Authored by Eugene Bolotnikov,  Ancel Glink

Thursday, June 16, 2022

New Laws Raise the Competitive Bidding Threshold for Some Units of Local Government

The Illinois General Assembly recently passed several new laws to amend competitive bidding requirements for some units of local government, as follows:

Public Act 102-0728 amends the Illinois Township Code to increase the competitive bidding threshold for the purchase of services, materials, equipment, or supplies as well as construction projects to $30,000 from $20,000.

Public Act 102-0999 amends the Illinois Park District Code to increase the competitive bidding threshold for contracts for supplies, materials, or work to $30,000 from $25,000.

Public Act 102-0138 amends the Fire Protection District Act to provide that improvements to real estate by a fire protection board of trustees that result in an expenditure of $20,000 or more must be competitively bid in accordance with the procedures set forth in that Act. 

Public Act 102-0460 amends the Conservation District Act, Downstate Forest Preserve District Act, and the Cook County Forest Preserve District Act to require competitive bidding for the purchase of supplies, materials, or work when the expenses exceed $30,000 (previously $25,000). 

Post Authored by Tyler Smith & Eugene Bolotnikov

Wednesday, June 15, 2022

Court Dismisses FOIA Lawsuit as "Moot" Where Records Were Ultimately Provided

A requestor submitted a FOIA request to a municipality seeking all approved sales tax sharing agreements/settlements approved within the past 30 days. The City initially denied the request, stating it had no responsive records because there had been no agreements approved in the preceding 30 days or the agreements were not yet signed by all parties. The requestor then sued the City claiming it had violated FOIA. However, after the lawsuit was filed, the City provided the requestor with two signed agreements responsive to the FOIA request. Several months later, the City also provided the requestor with three more documents responsive to the FOIA request. Then the City filed a motion to dismiss the lawsuit as moot because the requestor had since received all documents responsive to the request. The trial court dismissed the case and the requestor appealed, claiming that (1) the lawsuit was not moot, and (2) the City should have been ordered to pay the requestor's attorneys fees and assessed civil penalties.

On appeal, the Appellate Court in Kraft v. City of Kankakee upheld the dismissal of the lawsuit. Specifically, the Appellate Court declared that once the requestor received all documents responsive to the request, the controversy ceased to exist and the requestor’s claim was moot. 

The Appellate Court also determined that the requestor was not a “prevailing party" in the FOIA lawsuit since the City had provided all requested documents to the requestor without a court order. As a result, the requestor was not entitled to attorney fees and costs.

Finally, the Appellate Court rejected the requestor’s claim for civil penalties under FOIA because the requestor failed to demonstrate that the City willfully, intentionally, and in bad faith failed to comply with FOIA. Because the FOIA request had sought approved agreements/settlements, the City did not improperly deny the request when it first responded that it had no responsive records, because at the time the request was submitted, the City’s responsive agreements/settlements had not yet been signed or executed. The Court noted that "a plaintiff cannot maintain a cause of action under FOIA where the records sought did not exist at the time of the FOIA request."

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, June 14, 2022

New Law Protects Park Districts in Leases with Utility Companies

Last week, P.A. 102-1084, the Park District and Public Utility Liability Act, was enacted, providing good news for park districts, forest preserve districts, conservation districts, or other local entities with a park and recreation department or facilities (Parks Entity) who have leases with public utility companies. The new law provides that any provision in a lease agreement between a public utility and a Parks Entity that requires the Parks Entity to indemnify or hold harmless the public utility company against liability for injury or property damage caused by or resulting from the negligence (in whole or in part) of the utility company is against public policy, void, and unenforceable. The law makes it clear that the new law does not prevent or prohibit an agreement from including provisions that require the public utility company to indemnify or hold harmless the Parks Entity.

Monday, June 13, 2022

Court Upholds Denial of Request for Shooting Incident Records as Unduly Burdensome

After an officer-involved shooting incident in 2020, a police department (CPD) received FOIA requests asking for various records about the incident, including audio and video recordings. The CPD produced certain records, but also withheld others based on several FOIA exemptions, including applicable law enforcement exemptions and the unduly burdensome exemption. The requestors filed a lawsuit against the CPD alleging that (1) the CPD improperly withheld requested records, (2) failed to conduct a reasonably diligent search, and (3) willfully and intentionally violated FOIA by denying their requests. The trial court ruled in favor of the CPD, finding that it had proved that the requested records were exempt under applicable FOIA exemptions, that it had conducted a sufficient search for the records, and that it did not willfully violate FOIA. On appeal, the plaintiffs challenged the trial court’s finding that the CPD properly withheld the requested records, and iKraft v. Chicago Police Department, the Appellate Court also ruled in favor of the CPD. 

First, the Appellate Court held that the CPD demonstrated that the requested records were exempt under FOIA’s unduly burdensome exemption. Specifically, the Appellate Court found that the categorical request seeking all videos and emails related to the incident was unduly burdensome because the CPD’s affidavits indicated that it would take CPD personnel at least 213 hours of review to review 71 videos, as well as at least 1,000 hours to review 30,000 potentially responsive emails. 

Second, the Appellate Court rejected the requestor’s allegation that the CPD failed to confer with the requestors in good faith, finding that the CPD affidavits established that it offered the requestors an opportunity to narrow their requests to more manageable proportions, but the requestors failed to do so. Although the Appellate Court acknowledged that the public has a significant interest in obtaining information related to officer-involved shootings, CPD demonstrated that its burden of complying with the request outweighed the public’s interest in this information, because (1) the requestors refused to extend the time to respond to these categorical requests beyond 10 business days, which placed a significant operational strain on the CPD during the pandemic, (2) responding to this request would require the CPD to review over 30,000 records which would require more than 1,200 hours of work, and the requestors failed to reduce the scope of their requests, and (3) the CPD did not foreclose the possibility of providing some records in the future based on receiving modified requests.

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, June 10, 2022

Court Upholds Municipal Vacation of Street

In 2016, a property owner try to buy a portion of a nearby right-of-way abutting the owner’s property in order to make the area of the owner’s property large enough to subdivide into two lots without requiring a zoning variance. In 2018, the municipality agreed to vacate a portion of its right-of-way to the owner in exchange for $80,000 and an easement guaranteeing the municipality continued public use and access to the vacated right-of-way. That same year, the municipality approved the vacation ordinance, which authorized vacating part of the subject right-of-way, and a subdivision resolution, which approved a preliminary and final play for the subdivision of the combined owner’s property and the vacated portion of the right-of-way.

Later in 2018, several residents filed a lawsuit against the municipality challenging the legality of the street vacation and subdivision of the property. Both the trial court and appellate court ruled against the residents in Boros v. Village of Oak Brook 

First, the court rejected the residents’ claim that the vacation ordinance does not serve the public interest, finding that the ordinance helped settle ongoing litigation between the owner and the municipality, alleviated the municipality's financial burden of maintaining underused and unimproved land, allowed for the productive development of the property, among several other reasons that collectively demonstrated that the ordinance served the public interest.

Next, the court rejected the residents' claim that the vacated land fell under the public trust doctrine, finding that doctrine inapplicable because the state did not deed the vacated land to the municipality, and the municipality followed the vacation process set forth in state statute.

The court also rejected the residents' claim that the compensation received by the municipality was insufficient since the compensation was based on a number of factors, including the compensation paid to the municipality as well as the value of retained easements allowing the public continued access and use.

Finally, the court found that the residents lacked standing to challenge the subdivision approval because plaintiffs’ failed to demonstrate either an actual injury or a legally cognizable interest.

Post Authored by Eugene Bolotnikov, Ancel Glink

Thursday, June 9, 2022

Seventh Circuit Rejects Takings and Other Constitutional Challenges to Governor's COVID-19 Measures

In response to Illinois Governor Pritzker's Executive Orders 2020-32, 2020-38, and 2020-43 (which included requiring residents to “stay at home,” compelling all “non-essential businesses” to temporarily close, and prohibiting gatherings of more than a specified number of people), several individuals and businesses filed suit against Governor Pritzker, claiming that his Executive Orders violated various provisions of the U.S. Constitution, including that the restrictions violated the First Amendment free speech, religious exercise, and assembly rights, their Due Process rights under the Fourteenth Amendment, and the Fifth Amendment’s Takings Clause. A federal district court dismissed the lawsuit, and the case was appealed to the Seventh Circuit Court of Appeals.

On appeal, the Seventh Circuit upheld the district court’s dismissal in Nowlin et al. v. Pritzker. The court determined that the individual plaintiffs did not establish the necessary injury in fact to satisfy Counts I through V. The court of appeals also dismissed Count VI (the Fifth Amendment takings claim filed by the businesses), finding that the businesses failed to establish that the Governor’s COVID-19 restrictions constituted a regulatory taking. Citing prior U.S. Supreme Court precedent discussing the burden of proof necessary to prove a taking by governmental regulation, the court reasoned that the businesses failed to show that Governor’s Executive Orders deprived the businesses of all or a significant part of their economically beneficial use. 

Post Authored by Cheyanne Pincsak and Eugene Bolotnikov, Ancel Glink

Wednesday, June 8, 2022

Municipality Not Liable for Sidewalk Trip and Fall

In Batelli v. Village of Addison, a pedestrian was injured after tripping on a clearly visible raised sidewalk square while walking along a publicly maintained sidewalk. The pedestrian sued the municipality, alleging the municipality's negligent failure to properly maintain its public sidewalks breached its duty of care owed to her as a pedestrian using publicly maintained walkways. The trial court ruled in favor of the municipality, finding that the municipality did not owe her a duty of care because the raised sidewalk was an “open and obvious danger.”

The appellate court agreed, finding that the danger presented by the clearly visible raised sidewalk square was such an open and obvious danger that a reasonably prudent pedestrian could have recognized and avoided the risk it created, and the municipality owed no duty to the pedestrian independent of the open and obvious danger exception. After weighing the burdens local governments would face from identifying and curing obvious sidewalk defects against the potential safety benefits for pedestrians, the court further concluded that the potential safety benefits for pedestrians were minor and the burdens faced by local governments would be immense forcing disproportionate costs on the municipality. In support of that conclusion, the court emphasized the inability of local governments to prevent natural forces from causing minor damages to sidewalks and that it would be impracticable to force local governments to zealously guard against “injuries from open and obvious sidewalk defects.”

Post Authored by Tyler Smith & Eugene Bolotnikov

Monday, June 6, 2022

General Assembly Amends Exotic Weed Act to Address Buckthorn Eradication

Effective January 1, 2023, municipalities will have express statutory authority to adopt ordinances to eradicate buckthorn on all public and private property within its jurisdiction. P.A. 102-0840 amends the Illinois Exotic Weed Act to add the following new language:

(d) Notwithstanding any other provisions in this Section for the control of exotic weeds, a municipality may adopt an ordinance to eradicate common buckthorn (Rhamnus cathartica), glossy buckthorn (Rhamnus frangula), saw-toothed buckthorn (Rhamnus arguta), dahurian buckthorn (Rhamnus davurica), Japanese buckthorn (Rhamnus japonica), and Chinese buckthorn (Rhamnus utilis) on all public and private property within its geographic boundaries. 

Friday, June 3, 2022

PAC Issues Binding Opinion on Remote Meeting Agendas

The Public Access Counselor of the Attorney General's Office (PAC) just issued a binding opinion finding a public body in violation of the OMA for failing to include language on a meeting agenda informing members of the public how they could remotely attend a meeting of the public body that was held virtually. PAC Op. 22-007.

A village board of trustees posted an agenda of a regular meeting with language indicating that the board members would be attending the meeting virtually. A member of the public filed a request for review with the PAC office alleging that the board violated the OMA by not informing members of the public how they could attend the virtual meeting. The village responded that the meeting was broadcast on YouTube where members of the public could view it and that the village had publicized the meeting on its Facebook page.

The PAC determined that the village board violated the remote meeting procedures of section 7(e) of the OMA because it failed to include a web-based link or other information describing how members of the public could attend the virtual meeting. The PAC read various provisions of Section 7(e) together to make the determination that specific language (i.e., a web-based link, telephone number, or other access information) must be expressly stated on the agenda and that agenda must then be posted on the public body's website.

Public bodies that are meeting remotely should ensure that they include language on the agenda informing the public how they can attend the remote meeting, either in the form of a web-based link, telephone number, or other means of access, and also make sure the agenda is posted on its website. Although the OMA only requires public bodies to post agendas on their websites if a full-time employee of the public body maintains the website, the PAC interpreted section 7(e) more broadly to require public bodies to post agendas of remote meetings on their websites regardless of how their website is maintained.

Thursday, June 2, 2022

New Record Retention Requirements for Local Governments Addressing Dangerous or Unsafe Buildings

Municipality and county officials should be aware of a new recordkeeping obligation relating to demolition records submitted to the municipality or county. 

P.A. 102-847 amends the Illinois Municipal Code and Counties Code to require a municipality or county that brings a court action to demolish, repair, remediate, or enclose a dangerous or unsafe building within its jurisdiction (under 65 ILCS 5/11-31-1 or 55 ILCS 5/5-1121) to maintain for a period of 3 years any documentation submitted by a contractor relating to the disposal of demolition debris or uncontaminated soil generated during the demolition or work that identifies the following information:
  • hauler
  • generator
  • place of origin of the debris or soil
  • weight or volume of the debris or soil
  • location, owner, and operator of the facility where the debris or soil is transferred, disposed, recycled, or treated.
There is an exemption for permitted pollution control facilities that transfer or accept this type of debris or soil.

The Act also amends the Freedom of Information Act to expressly state that these records are public records subject to release under FOIA.

Wednesday, June 1, 2022

Court Properly Dismissed Challenge to City's Executive Order Requiring Early Closing for Liquor Establishments

In response to the COVID-19 pandemic, the Mayor of the City of Carbondale issued Executive Order 2020-04 (EO 4) on June 2, 2020, changing the closing hour of existing beer gardens in the City from 1:59 a.m. to 10 p.m. The holder of a “beer garden” license from the City repeatedly refused to follow the closure requirement despite numerous police warnings. On June 4, 2020, the Mayor issued a five day suspension of the bar owner's license for violation of the EO 4.

The bar owner then filed a lawsuit against the City and several City officials, seeking to overturn the suspension and invalidate EO 4. The City filed a motion to dismiss the lawsuit and the circuit court ruled in the City's favor, dismissing the lawsuit.

The appellate court affirmed, agreeing with the dismissal of the lawsuit in Knoob v. City of Carbondale. The appellate court noted that the lawsuit asked the circuit court to issue an order declaring EO 4 invalid and preventing the City and its officials from enforcing that order. However, after the lawsuit was filed, the City had changed the closing time back to 1:59 a.m. As a result, the appellate court held that a court ruling on the validity of EO 4 would have no practical effect on the controversy between the parties since there would be no need to enjoin the City or any of its named officials from enforcing the order that was no longer in place. The appellate court also rejected the licensee's request for money damages since the licensee had alleged in his complaint that he had refused to follow the order and close his business early anyway.

Post Authored by Eugene Bolotnikov, Ancel Glink

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.