Seventh Circuit Upholds Ruling of Qualified Immunity in Arrest

Seventh Circuit Upholds Ruling of Qualified Immunity in Arrest

  Tuesday, February 28, 2023    Julie Tappendorf

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In a recent ruling, the Seventh Circuit Court of Appeals upheld a ruling in favor of police officers in a Fourth Amendment lawsuit against the officers who arrested an individual for having a rifle, bayonet, handgun, and other weapons in a public park on the basis that the officers had qualified immunity. Pierner-Lytge v. Hobbs.

Police were contacted by a number of parents of children playing in a park that a woman was in the park wearing a rifle with a bayonet on her back and a handgun strapped to her hip, along with pepper spray, a baton, and two pairs of handcuffs. Police arrived at the scene and ultimately arrested her for disorderly conduct. She sued, claiming the police violated her civil rights in arresting her without probable cause. The district court ruled in favor of the officers, finding they had qualified immunity in this action. On appeal, the Seventh Circuit upheld the ruling in favor of the officers, finding that they were entitled to qualified immunity in this case because they reasonably believed they had probable cause to arrest the individual based on the circumstances at the time of arrest. 

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Court Denies Award of Attorneys Fees and Civil Penalties in FOIA Challenge

Court Denies Award of Attorneys Fees and Civil Penalties in FOIA Challenge

  Monday, February 27, 2023    Julie Tappendorf

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A watchdog group filed suit against a township claiming the township violated the Freedom of Information Act (FOIA). The group had requested a "copy of the hard drive contents" of a specified township computer. The township responded that because it did not have the capability in-house to copy the entire hard drive onto an external hard drive to release to the group, it had to outsource that job, and informed the group it would have to pay $350 for the outsourcing services and an external hard drive. 

The circuit court ruled in favor of the group on its FOIA challenge, and ordered the township to make copies of the documents that were on the hard drive and release those to the group. The court rejected the group's request for an award of attorneys fees and civil penalties, finding that the lawsuit was unnecessary because the group could have made a reasonable attempt to clarify that its request was for copies of documents and not a copy of the actual hard drive.

On appeal, the Appellate Court upheld the circuit court's ruling, agreeing that the group was not entitled to attorneys fees or civil penalties in this case. The Appellate Court noted that the township was willing to produce the records, and the group could have avoided unnecessary litigation and litigation expenses had it clarified to the township what it was actually requesting. As a result, the Appellate Court held that the township did not willfully, intentionally, and in bad faith fail to comply with FOIA so as to justify an award of attorneys fees or the imposition of civil penalties against the township. Edgar County Watchdogs v. Joliet Township

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Seventh Circuit Finds Due Process Violation in Police Chief Termination

Seventh Circuit Finds Due Process Violation in Police Chief Termination

  Friday, February 24, 2023    Julie Tappendorf

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In a recent decision, the Seventh Circuit Court of Appeals determined that a municipality violated its former police chief’s due process rights when it terminated him without providing an opportunity to be heard. Bradley v. Village of University Park,  

In 2014, a municipality hired a new police chief with a two-year written employment contract. The contract provided that if the chief was terminated “without cause,” he would be entitled to severance in the amount of four months’ salary. After the 2015 municipal election, the newly elected mayor and village board placed the chief on administrative leave and ultimately terminated him. The municipality argued that the termination was required by state law because the employment contract between the municipality and chief had a term that extended past the term of the mayor who had appointed him. The municipality asserted that because the termination was by "operation of law," the municipal board did not need to vote on the termination or provide reasons or a hearing. The chief subsequently requested a hearing before the municipality and subsequently sued the municipality, claiming that he was deprived of his constitutionally protected property interest in his position as police chief without due process of law and that the municipality breached his employment agreement.

The district court dismissed the chief’s due process claim, and the chief appealed to the Seventh Circuit. On appeal, the Seventh Circuit reversed the district court decision, finding that the chief had alleged a violation of his due process rights. The case was then remanded back to the district court, which ruled in favor of the municipality. The chief appealed a second time to the Seventh Circuit.

On the second appeal, the court ruled in favor of the chief on his due process claim.  First, the Seventh Circuit noted that the municipality had already stipulated the chief had a property interest in his position, so had waived any argument to the contrary on that issue. Second, the Seventh Circuit held that the chief successfully established that his due process rights were violated when he was not provided an opportunity to be heard regarding his termination. However, on the chief's breach of contract claim, the Seventh Circuit ruled in favor of the municipality, finding that the municipality had exceeded its authority under the Illinois Municipal Code when it entered into a contract that extended past the appointing mayor’s term, so the chief lacked a valid and enforceable contract. The Seventh Circuit remanded the case back to the district court on the issue of damages and the mayor’s claim of qualified immunity.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

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Appellate Court Rejects Challenge to Chicago’s Short-Term Rental Ordinance

Appellate Court Rejects Challenge to Chicago’s Short-Term Rental Ordinance

  Wednesday, February 22, 2023    Julie Tappendorf

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Earlier this month, an Illinois Appellate Court upheld the dismissal of a challenge to Chicago’s short-term rental (STR) ordinance. Mendez v. City of Chicago.

The City’s STR ordinance regulates short-term housing arrangements, like those offered on Airbnb and VRBO. In 2016, two residents filed a lawsuit to challenge the original STR ordinance and later added several claims to address the City's amended ordinance. The lawsuit included a variety of claims, including the following:

1. Inspection Requirement

Under the STR ordinance, hosts with more than one rental unit are subject to an inspection every two years. The plaintiff-hosts challenged the inspection requirement, arguing it authorized searches without their consent in violation of the Illinois Constitution. The Appellate Court upheld the dismissal of this claim, finding that the claim was not “ripe” because the building commissioner had not yet adopted rules governing these inspections, so no host was actually subject to a search that might "offend" their constitutional rights.

2. Primary Residence Requirement

Another provision of the STR ordinance requires short term rentals to be the host’s primary residence, with certain exceptions. The plaintiffs argued that the building commissioner was given too much discretion to determine whether a home is exempt from the primary residence rule, in violation of their due process rights. The Appellate Court rejected that argument, finding, among other things, that because neither plaintiff-host had applied for an exemption, they failed to exhaust necessary administrative remedies before filing a lawsuit.

3. Noise Restrictions

The STR ordinance prohibits “excessive loud noise” on STR properties between 8:00 PM and 8:00 AM each night, defined as noise “louder than average conversational level at a distance of 100 feet or more, measured from the property line of the . . . unit.” Plaintiffs challenged the noise standard as vague, and pointed out that similar regulations do not exist for hotels, bed-and-breakfasts, or other renting businesses. The Appellate Court dismissed this challenge, finding that the noise restrictions provided sufficient notice and clear standards to comply with due process and were not discriminatory since most hotels are located in commercial rather than residential districts.

4. Ban on Single Night Rentals

Under the STR ordinance, hosts are forbidden from renting their properties “for any period less than two consecutive nights” until City officials adopt future regulations ensuring that single-night rentals can be effectively and safely conducted. The Appellate Court found the ban to be a fair and reasonable exercise of the City Council’s legislative power.

5. Taxpayer Standing

Finally, the plaintiff-hosts claimed they had “taxpayer standing” to argue that enforcement of the STR regulations was a misuse of taxpayer dollars. The Appellate Court rejected their argument, finding that the hosts presented no evidence they will be required to pay increased sales or property taxes to account for the enforcement of the STR regulations so they could not establish taxpayer standing to challenge the ordinance.

In upholding the ordinance, the Appellate Court noted that municipal ordinances are entitled to a presumption of constitutionality that can only be overcome by clear and convincing evidence, which plaintiff-hosts failed to overcome.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Bill Would Amend ARL Regarding "Parties of Record"

Bill Would Amend ARL Regarding "Parties of Record"

  Tuesday, February 21, 2023    Julie Tappendorf

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A bill was recently introduced in the Illinois General Assembly that would expand on existing language in the Administrative Review Law (ARL) regarding necessary "parties of record" in a lawsuit challenging an agency's decision. As a general rule, the ARL requires that "parties of record" be named as defendants in any ARL action to challenge the decision of an administrative agency. There is an exception in the statute that provides that only the zoning board of appeals and applicants are considered "parties of record," and individuals who appear before the zoning board of appeals and submit testimony or written evidence need not be named as defendants but only require notification of the lawsuit by the person challenging the decision. 

Senate Bill 283 would expand on the zoning board of appeals "exception" to also include actions against agencies that make decisions on historic preservation or architectural review matters, such as historic preservation commissions and architectural review commissions. If passed, this means that members of the public who testify or provide evidence at hearings of these type of administrative agencies would receive notice of the lawsuit challenging the administrative decision but would not need to be named as defendants in the lawsuit. The bill also provides these individuals with the right to intervene in the action if they choose to.

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Court Reverses Teacher's Dismissal for Facebook Posts

Court Reverses Teacher's Dismissal for Facebook Posts

  Thursday, February 16, 2023    Julie Tappendorf

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In a recent Illinois Appellate Court ruling, the Court reversed a school district's termination of a teacher for her personal social media activities. Kelleher v. ISBE.

After a parent raised concerns about a teacher's Facebook posts about her students, the school district investigated the teacher's social media page (which was publicly visible), and placed the teacher on paid leave while it discussed disciplinary options. After settlement negotiations were unsuccessful, the school district terminated the teacher, identifying 16 charges against her, including her Facebook posts which the district claimed violated the school's social media policy.

The teacher then requested a hearing, and the hearing officer upheld a number of the charges, including the teacher's violation of the school's social media policy and confidentiality of student information. The hearing officer found that the teacher had done the following on her public Facebook page: (1) made unprofessional, inappropriate, and disparaging remarks about students; (2) discussed her interactions with students; (3) disclosed her communications with parents; and (4) declared that she would share her parent communications with other individuals. The hearing officer found that, although the teacher did not refer to any of the students or parents by name, she did make references to specific incidents and problems. The hearing officer concluded that the teacher's “inappropriate Facebook posting” was not remediable conduct. The hearing officer rejected many of the school district's other charges. 

The school board accepted the hearing officer's findings of facts and recommendation to dismiss the teacher for cause, and affirmed the teacher's dismissal for cause based on the sustained charges. The teacher then filed suit in circuit court to challenge her termination, which upheld the board's dismissal of the teacher.

On appeal, the Appellate Court held that "despite the inappropriateness of the plaintiff’s Facebook posts and the problems that potentially could have occurred from them," the teacher was entitled to the statutory written warning from the school board before being dismissed based on this conduct. The Court also found that the evidence presented to the hearing officer did not demonstrate that the teacher's posts had caused any damage or injury at the time the school district discovered them and that a warning at that time could have have enabled the teacher to delete the posts and make her Facebook account private before the posts were seen by any students or other parents or community members. As a result, the Appellate Court reversed the school board's decision to terminate the teacher.

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Remote Meetings After May 11th

Remote Meetings After May 11th

  Wednesday, February 15, 2023    Julie Tappendorf

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The Governor has announced his intention not to renew the COVID-19 disaster declaration beyond April, letting it expire on May 11, 2023. This means that as of May 12, 2023, public bodies will no longer be able to conduct remote meetings under the current "public health" provision contained in section 7(e) of the Open Meetings Act. 

There have been a few bills proposed in the Illinois General Assembly that would expand the "public health" provision of the OMA to authorize the "chief elected or appointed official" of the public body to make a determination that an in-person meeting would pose a risk to the health or safety of the members of the public body or the public rather than requiring that a state-issued disaster declaration be in place. See Senate Bill 103 and House Bill 1408. You may recall that similar legislation was introduced last session but was never adopted. We will keep our readers posted on the bills as they move through this session.

Of course, individual members of public bodies can still attend meetings electronically under the provisions of 7(a)-(d) of the OMA, so long as the public body has adopted a policy authorizing remote attendance and the member meets the statutory eligibility requirements for attending the meeting electronically. 

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No Taking Where Dam Removal Lowered Water Level Along Owner's Property

No Taking Where Dam Removal Lowered Water Level Along Owner's Property

  Tuesday, February 14, 2023    Julie Tappendorf

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Property takings cases are pretty few and far between so land use professionals will be interested in today's case out of the Seventh Circuit Court of Appeals. Kreuziger v. Milwaukee County.

In the late 1930s, Milwaukee County built a dam on the Milwaukee River in an urban green space called Estabrook Park. In 2017, the County transferred the dam to the Milwaukee Metropolitan Sewerage District for the purpose of removing it. After the dam was removed, the water level immediately upstream fell by about 4 feet. A homeowner along the river sued the District and the County, claiming that the removal of the dam constituted a Fifth Amendment taking of his riparian right to the prior surface water level. The district court ruled in favor of the District and County, finding that the homeowner had no property right to the river remaining at its previous level.

On appeal, the Seventh Circuit upheld the ruling in favor of the District and County. The Court noted that in order to prevail on a federal takings claim, the homeowner had to show that the government had taken, either physically or by unduly onerous regulation, private property owned by the homeowner. Although the homeowner was a riparian owner (someone who owns land on a navigable waterway), those riparian rights are subordinate to and encumbered by the state's interest and authority to regulate and maintain its rivers and lakes for the benefit of the public (the public trust doctrine). As a result, the Court concluded that because the homeowner did not have a property right to a particular water level in the river, he could not have suffered an unconstitutional taking when the dam was removed.

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Court Upholds Charge Against Owner For Removing Buckthorn on Neighbor's Property

Court Upholds Charge Against Owner For Removing Buckthorn on Neighbor's Property

  Monday, February 13, 2023    Julie Tappendorf

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A Village cited an individual for criminal damage to property, alleging the defendant violated the Village Code by knowingly hiring a landscaping company to enter onto her neighbor's property to remove buckthorn (an invasive tree species), which caused damage to her neighbor’s property. 

The trial court ruled in favor of the Village, finding it had demonstrated that (1) the defendant intentionally hired a landscaping company to remove buckthorn; (2) the buckthorn was on the neighbor’s property, and (3) the neighbor's property incurred damage because of the removal of the buckthorn. The court sentenced the defendant to six months’ supervision, $500 in fines, and 40 hours of community service. 

The defendant appealed and argued that the only property that was damaged was an invasive plant, and because the Village's own ordinance provides mitigation credit for the elimination of the invasive plant, she could not be guilty of destroying “an illegal substance.” The Appellate Court disagreed, concluding that the removed buckthorn was property of her neighbor and was not her property to destroy. Further, the Appellate Court found the defendant was properly notified of the charges against her, and rejected her argument that she could not be charged for actions taken by the landscaping company she hired. Village of Deerfield v. Merten.

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

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PAC Finds No Violation in FOIA Denial of Employee Survey Results

PAC Finds No Violation in FOIA Denial of Employee Survey Results

  Thursday, February 09, 2023    Julie Tappendorf

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In 2022, a school received a FOIA request seeking certain employee survey results used in connection with preparing performance evaluations for staff members. The school denied the request citing FOIA section 7(1)(f), FOIA’s "deliberative process" exemption. After the requestor appealed the denial, the PAC issued binding PAC Op. 23-002, concluding that the school did not violate FOIA by denying the responsive survey results under FOIA exemption 7(1)(f).

Specifically, the PAC determined that the withheld employee survey responses reflected the anonymous opinions and recommendations of school employees which were used by the school as part of a specific pre-decisional and deliberative process to evaluate staff performances.

Although the requestor argued that the survey results were improperly withheld because the school failed to specifically state its intended use of the survey to evaluate staff performance, the PAC disagreed, stating that FOIA’s deliberative process exemption does not require a public body to provide advance notice of all possible uses of information it gathers before incorporating the information into its decision-making. Instead, FOIA exemption 7(1)(f) requires identifying what deliberative process is involved and the role the requested records played in the course of that process.

Here, the PAC determined that the school had sufficiently demonstrated that the disclosure of the employee survey results would be detrimental to the school’s deliberative process in evaluating staff performance and could discourage employees from providing candid opinions in the future on sensitive matters. As a result, the PAC determined that the records were properly withheld from disclosure pursuant to FOIA exemption 7(1)(f).

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

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Court Interprets 60-Day Time Limitation For Filing OMA Lawsuits

Court Interprets 60-Day Time Limitation For Filing OMA Lawsuits

  Tuesday, February 07, 2023    Julie Tappendorf

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Recently, an Illinois Appellate Court applied the 60-day time limitation for filing a lawsuit alleging a violation of the Open Meetings Act (OMA) to dismiss two of three claims made a City Council. Better Government Association v. Chicago City Council.

In mid-June 2020, an organization filed a lawsuit alleging that the City Council violated the OMA when it hosted three teleconferences (one each in March, April, and May 2020) without providing public notice or allowing the public to access the meeting. The City Council argued that (1) the teleconferences were not “meetings” under the OMA, (2) the claims regarding the March and April teleconferences were barred by the OMA’s 60-day statute of limitations, and (3) the third claim was “moot” because a recording of the May teleconference was later released to the public. The circuit court ruled in favor of the City, finding that the first two claims were time-barred and that the third claim was moot.

On appeal, the Appellate Court agreed that the claims relating to the March and April teleconferences were barred by the OMA, which provides that a lawsuit alleging a violation of the statute must be initiated “prior to or within 60 days of the meeting alleged to be in violation of the Act . . . .” The OMA provides exceptions to the 60-day statute of limitations where the allegedly improper meeting is not discovered in enough time to file a claim or there are procedural delays in the Attorney General’s review of an alleged violation. The Court held that no exception applied to extend the statute of limitations because the organization was aware of the March and April meetings prior to the expiration of the 60-day limitations period but the lawsuit was not filed until after that deadline.

With respect to the third claim relating to the May teleconference, the Court found that it was filed within the 60-day period. Furthermore, the Appellate Court reversed the circuit court, finding that the third claim was not moot simply because a recording of that teleconference was later released. According to the opinion, the “released” audio of that call was a leaked recording which had not been authorized for release by the City Council. The Court explained: 

That an audio recording has made its way into public domain does not substitute for the City releasing the official audio (or minutes), especially since audio recordings as well as minutes can be altered, portions erased, or mutilated.

The Appellate Court sent the case back to the circuit court to determine whether the City Council violated the OMA with respect to the May teleconference.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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