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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