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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

Tuesday, June 27, 2023

Supreme Court Settles on Subjective Test for "True Threats" in First Amendment Social Media Case

Today, the U.S. Supreme Court issued a ruling in a Colorado case involving a First Amendment challenge by an individual who had been convicted of stalking for his social media communications. Counterman v. Colorado. We reported on this case previously and the Supreme Court's pending ruling. In today's ruling, the Supreme Court reversed the person's stalking conviction based on its application of a new "subjective" test for determining what constitutes a "true threat" of violence. Since the State had applied an "objective test" in convicting him of the stalking crime that was based on a reasonable person's understanding that the speech was threatening violence rather than the speaker's understanding that its speech was threatening, the case was remanded back to the trial court.

The defendant had been convicted of stalking based on Facebook posts he made about a local musician. The case involved thousands of Facebook posts made from 2014 to 2016, and just a few examples were provided in our previous reporting on this case and more are detailed in the Supreme Court's decision. The Colorado man defended his conduct by arguing that the First Amendment protects speech from government interference even when that speech may be offensive to others. He argued that he could not be held criminally liable for speech that he did not intend as a threat. The State, on the other hand, argued that the proper standard in these cases is whether a reasonable person would see the statements as a "serious expression of intent to commit physical violence," which the State argues it demonstrated in this case.

In the appeal, the Supreme Court acknowledged that "true threats" of violence are not protected by the First Amendment. The Court stated that a true threat is a “serious expression” conveying that a speaker means to “commit an act of unlawful violence.” If an individual's speech constitutes a true threat, the First Amendment would not provide that person with a defense against charges brought because of that speech (in this case, stalking charges). The issue before the U.S. Supreme Court was whether a subjective or objective test should be applied in determining whether the "speech" constituted a true threat. 

The Court ultimately determined that in order for speech to constitute a "true threat," there must be some subjective understanding by the speaker that his speech could be viewed as threatening violence. The Court held that the State must show that the speaker consciously disregarded a substantial risk that his communications would be viewed as threatening violence (i.e., a reckless standard) but is not required to prove any more demanding form of subjective intent to threaten another. Because the defendant's conviction was based on an objective test rather than the Court's new subjective standard, the Court vacated his conviction and sent the case back for further proceedings consistent with its ruling.

This is an important case for governments because the Court has adopted a more narrow test as to when a person's speech might constitute a "true threat" of violence and not be protected by the First Amendment. This case could affect how governments moderate comments on their social media pages, regulate speech at government meetings, and determine when speech might rise to the level of criminal conduct (stalking, for example). Governments may need to review their social media comment and meeting policies as well as discuss this new "subjective standard" with law enforcement to ensure that the government does not overstep when threatening speech is involved.

Monday, June 26, 2023

Illinois Supreme Court Analyzes Breach of Contract Claims in Development Agreement Case

We previously reported on an Appellate Court decision in a case involving claims of breach of contract relating to the development of a 62 acre parcel of land. The developer had initiated the lawsuit by filing a breach of contract claim, among other claims, against the municipality arguing that the municipality interfered with its proposed development that was the subject of a development agreement between the two parties. The municipality filed a counterclaim against the developer, arguing that it had breached the development agreement when it failed to transfer ownership of certain property, pay property taxes on the property, and fund an escrow account with the municipality. The circuit court found that both parties had breached the development agreement but ultimately ruled in favor of the developer because finding that the municipality could not enforce the terms of the agreement because the municipality had breached the development agreement first. The circuit court awarded the developer over $6 million in damages and attorneys fees. Both parties appealed, and the Appellate Court found the circuit court erred in finding that the municipality's breach excused the developer of its own breach, as discussed here.

The case was appealed again and the Illinois Supreme Court issued its ruling on the breach of contract claims made by both parties last week. PML Development LLC v. Village of Hawthorn Woods. In its ruling, the Illinois Supreme Court upheld the circuit court's ruling in favor of the developer on its breach of contract claim against the municipality but reversed that part of the circuit court's ruling that was in favor of the developer on the municipality's breach of contract counterclaim. The Supreme Court held that both parties had viable breach of contract claims against the other party and neither was excused from its own obligations under the development agreement merely because the other party had also breached the contract or based on which party breached first. The Supreme Court remanded the case back to the circuit court and directed the court to calculate each party's respective damages for the other party's breach of contract. 

This breach of contract case is a complicated one with a long history and we have only discussed a small part of the case here but the case could provide some guidance to developers and municipalities on how the Illinois Supreme Court will analyze and decide breach of contract claims involving development agreements.

Thursday, June 22, 2023

Court Addresses 911 Recordings and Caller Identity in FOIA Case

The Illinois Appellate Court recently ruled in favor of a sheriff's department in a case involving a FOIA request for 911 recordings. Edgar County Watchdogs v. Will County Sheriff's Office

A watchdog group filed multiple FOIA requests to a sheriff's department asking for copies of 911 calls and reports and other records relating to two parks. The department provided activity and police reports, with redactions, but denied the requests for 911 recordings. The group filed a lawsuit against the department claiming its denial of the request for 911 recordings and its redaction of reports violated FOIA. The lawsuit sought attorneys fees and costs.

The department argued that the 911 recordings were exempt under FOIA because they included statements by individuals who file complaints or provide information to law enforcement and could not be altered or redacted to protect the speaker's identity. The circuit court ruled in favor of the watchdog group and ordered the department to provide either (1) altered audio recordings to mask callers' identities or (2) transcripts of the 911 calls. The court also ordered the department to provide unredacted versions of the victim statements in the police reports. 

The department appealed the court's decision ordering it to release altered video recordings. In a previous decision on this appeal, the Court upheld the circuit court's order that the department provide altered versions of the 911 calls but rejected the circuit court's order that the department provide a transcript. On the department's motion for a rehearing, the Appellate Court modified its ruling on the altered 911 recordings, holding that because the department did not have the ability to scramble or disguise audio recordings to mask the identity of a 911 caller, it did not have to provide the recordings in their unaltered form. The Court again held that producing a transcript of the 911 calls constitutes the creation of a new record which is not required by FOIA. 

It is important to note that the Court rejected the department's argument that all 911 calls are "automatically" exempt from disclosure because the content would reveal the caller's identity, finding that not all recordings would necessarily disclose a caller's identity. 

Wednesday, June 21, 2023

EV Charging Act Will Impose New Construction Standards on Residential Buildings

Governor Pritzker recently signed into law the Electric Vehicle Charging Act, P.A. 103-0053, imposing new requirements on residential buildings to have a certain number of parking spaces be "EV capable." The Act becomes effective January 1, 2024, although some of the requirements do not take effect immediately.

The new law requires all new single family homes and multiple family buildings containing 2 to 4 units that are constructed after January 1, 2024 to have an electric panel installed that meets the "EV capable" requirements of the Act for at least one dedicated parking space per residential unit. Affordable single family homes and units in multiple family buildings with 2 to 4 units do not have to become "EV capable" until January 1, 2026 and the requirement only applies to code-required parking spaces for affordable units.

For new or converted multiple family buildings containing 5 or more units, 100% of all parking spaces must be "EV capable" for buildings issued a building permit after April 1, 2024. There is an exception to the requirement if the parking lot or structure would have to be excavated to comply with the Act. New affordable housing buildings have a more gradual rollout for EV capability, starting in 2026. 

The Act also includes provisions that restrict homeowners and condominium associations from prohibiting or unreasonably restricting the installation of EV charging systems, as well as provisions that apply to the installation of charging systems in rental properties.

"EV-capable" is defined under the Act and includes language requiring parking spaces subject to the Act to have installed, at a minimum, the electrical panel capacity and conduit to support future implementation of EV charging with 208-volt or 240-volt or greater, 4-ampere or greater circuits.

Tuesday, June 20, 2023

New Illinois Laws Apply to Townships

Today, we report on a few new Illinois laws that were recently enacted that concern Illinois townships:

P.A. 103-0016 prohibits township officials from withholding township funds from an organization based on the perceived citizenship or immigration status of the person who would receive funds from that organization.

P.A. 103-0025 amends the Illinois Public Officer Prohibited Activities Act to modify the conflict of interest restrictions that apply to municipal and county officers that also serve on the board of a non-profit organization to also apply to township officers.

P.A. 103-0072 provides that townships on a cash or modified cash basis of accounting can only count levied tax funds towards the total township funds if received within the township's fiscal year. The law also provides that a highway commissioner's equipment and building fund is considered a capital fund that is not subject to the limitation on the accumulation of funds provision of Section 85-65 of the Township Code.

Friday, June 16, 2023

New Law States that Records Provided by Public Body to PAC for FOIA Request for Review Are Not Releasable

Over the next week or two, we will be reporting on a number of bills that are now Illinois law. 

P.A. 103-0069 (SB 0325) was enacted on June 9, 2023, and amends Section 9.5(c) of the Freedom of Information Act to make it clear that records that the Public Access Counselor of the Illinois Attorney General's office (PAC) is prohibited from releasing to the public or the requester any of the records provided to the PAC by a public body in response to a request for review filed with that office. That amendment also expressly states that these records are exempt from release under FOIA while in the possessio of the PAC. 

Thursday, June 15, 2023

No Qualified Immunity for Commissioner who Displays Rifle During Speaker's Public Comment

A 6th Circuit Court of Appeals allowed a First Amendment retaliation case against a county commissioner to move forward where one of the commissioners displayed a high-powered rifle while a member of the public was speaking during public comment at a commission meeting. MacIntosh v. Clous.

At a county commission meeting held by Zoom, members of the public spoke during public comment to express concerns about the commission's prior invitation to the Proud Boys to attend a previous commission meeting. One speaker asked the commissioners to make a public statement condemning the Proud Boys' violent behavior. In response to her comments, a commission member briefly left the Zoom video area and returned with a high-powered rifle that he displayed on camera while she spoke.  

Following the meeting, the speaker sued the commissioner and the county, alleging that the commissioner unconstitutionally retaliated against her for exercising her First Amendment rights. She argued that the display of the rifle while she spoke during public comment made her feel fearful, intimidated, and physically threatened, and had deterred her from speaking at subsequent commission meetings. Other members of the public and officials also expressed concern and fear, and one commission member proposed a censure resolution that the commission voted down. 

The commissioner filed a motion to dismiss the lawsuit, claiming he had qualified immunity for his actions. The district court disagreed and denied his motion to dismiss and he appealed to the 6th Circuit Court of Appeals. 

On appeal, the commissioner argued the case should be dismissed because the speaker's allegations did not rise to the level of retaliation and that he had qualified immunity for his actions. The Court of Appeals disagreed with him, finding that the speaker had plausibly alleged that the commissioner violated her free speech rights. 

First, the Court held that the speaker's public comments at the commission meeting was a protected First Amendment activity. Second, the Court found that the commissioner's display of a firearm to the camera was a threat with a deadly weapon that could be interpreted as a message to "stop or else" the weapon would be used against her, and a threat to shoot someone because of protected speech is an adverse action required to show retaliation. The Court also noted that the commissioner's conduct could fall under the crime of "brandishing" a weapon. Third, the Court held that the display of the firearm by the commissioner was in direct response to the speaker's comments at the commission meeting, finding a connection between the two. Finally, the Court rejected the commissioner's qualified immunity argument finding that no reasonable official could believe that it was permissible to brandish a deadly weapon in response to a speaker's public comment that was asking the official to condemn violence. 

As a result, the Court of Appeals concluded that the district court properly denied the commissioner qualified immunity and sent the case back for further proceedings on the speaker's First Amendment claims.

Wednesday, June 14, 2023

New Law Ties State Library Funding to Policies on Book Bans

At a signing ceremony at Chicago’s Harold Washington Public Library on June 12th, Governor Pritzker signed into law P.A. 103-0100. This new law, effective January 1, 2024, states that if a library or library system wants to be eligible for state funding, it must either:

(1) adopt the American Library Association’s Library Bill of Rights that indicates materials should not be proscribed or removed because of partisan or doctrinal disapproval; or

(2) develop a written statement declaring the inherent authority of the library or library system to prohibit the practice of banning specific books or resources. 

The State Librarian and Illinois State Library Staff are charged with administering the provisions of this new law, and are authorized to create appropriate rules and regulations to carry out the new law. 

Included in the new law is the following policy statement:

It is further declared to be the policy of the State to encourage and protect the freedom of libraries and library systems to acquire materials without external limitation and to be protected against attempts to ban, remove, or otherwise restrict access to books or other materials.

Illinois appears to be the first state to pass this type of law that ties state funding to library policies on book banning.

Post Authored by Britt Isaly & Julie Tappendorf, Ancel Glink

Tuesday, June 13, 2023

New Law Modifies "Parties of Record" in Challenges to Historic Preservation and Architectural Review Decisions

The Illinois Governor recently signed P.A. 103-0067 into law amending the Administrative Review Law to modify who the "parties of record" are that must be named as defendants in an administrative review of a historic preservation or architectural review decision of a local commission or board.

Prior to this legislation being enacted, interested persons who appeared before a historic preservation or architectural/design review board or commission were named as defendants in any administrative review action before a circuit court to challenge the board or commission's decision. This new law will treat interested persons who appear before historic preservation or appearance review boards or commissions the same as those persons who appear before a zoning board of appeals, meaning they will no longer have to be named as defendants in the lawsuit challenging the adminsitrative decision.

Note that the new law does require the person who files a lawsuit to challenge the decision of the historic preservation or architectural review board or commission to provide notice to those persons who appeared at and provided oral testimony or written testimony at the board or commission informing them of the filing of the lawsuit and their right to intervene in the lawsuit, if they choose to do so.

Monday, June 12, 2023

Employee Terminated for Social Media Posts Not Entitled to Unemployment Benefits

An Illinois Appellate Court recently held that an employee who had been fired for making threats against his co-workers on Facebook was not entitled to unemployment benefits. Termini v. Board of Review of IDES

A City truck driver posted on a Teamster union's Facebook page that he objected to his co-workers coming to work while exhibiting COVID-19 symptoms. According to the opinion, his posts read as follows:

This is really getting old. I’m sick of this. How is it that money comes before safety? Well, you’ve been warned. You better pray this doesn’t touch my life because I’ll take you all with me.

* * * 

You've been warned.

The City fired the driver as a result of his social media posts, and he filed an application for unemployment benefits. The City objected to his application on the basis that he was not eligible for unemployment benefits because he had been terminated for misconduct. The City argued the driver was dismissed because he used social media to "willfully and deliberately make threatening statements towards his coworkers" in violation of a law prohibiting harassment through electronic communication and the City's electronic communication policy. After the IDES granted him unemployment benefits, the City filed an administrative appeal before the ALJ, which also upheld the approval of benefits.

The City then appealed to the IDES Board of Review, which determined that the driver was not eligible for benefits because his public threat of violence in the workplace constituted "misconduct," which violated state law and the City's policies and disrupted the City's operations. The driver then filed a lawsuit, which case ultimately went to the Appellate Court.

The Appellate Court agreed that the driver was not entitled to unemployment benefits, finding that his social media postings constituted "misconduct" because they violated laws prohibiting harassment through electronic communications. The Court found his postings were an "illegal threat" because his statements, when read together, could reasonable be read as a threat of violence, whether the statements were interpreted to mean the driver would physically harm his co-workers or threaten to infect his co-workers if he were to contract COVID-19 from his co-workers.

Wednesday, June 7, 2023

Extension of "Cocktails-to-Go" Statute Signed by Governor

The Governor has signed P.A. 103-004 into law, which law amends a number of state statutes, including statutes relating to the state energy code, sports wagering, court fees, and various others. One provision that will be of interest to local governments is the extension of the previous amendment to the Illinois Liquor Control Act that authorized the delivery and carry out of mixed drinks until August 1, 2028 - this "cocktails to go" enactment was set to expire in January of 2024, and now will extend for an additional four plus years.

We reported on the 2020 "cocktails to go" legislation here.

Tuesday, June 6, 2023

Public Body Improperly Imposed a "Review Fee" for FOIA Request

In its eighth binding opinion of 2023, the PAC found a public body in violation of FOIA because it improperly treated a FOIA request as a commercial request and imposed an improper "review" fee. PAC Op. 23-008.

The Natural Defense Council filed a FOIA request with a county requesting records pertaining to flood-related home buyout programs. The Council requested a fee waiver stating that the request was in the public interest and the Council was a non-profit organization. The county responded that it had compiled the requested records and the fee for the request would be $90 in copying fees and $130 for a "review" fee. The Council said it would pay the fee "under protest" but shortly thereafter was notified that the fee would actually be over $1,000 because the county had printed out more than 3,000 pages of responsive records. The county also explained that $600 of the $1000 fee was for the county's "review" of the records. 

The Council then filed a request for review with the Public Access Counselor (PAC), arguing that the county improperly charged a "review fee" even though the Council's request was not for a commercial purpose. The county responded that it properly treated the request as a commercial request under section 6(f) of FOIA, which allows a public body to charge a fee for searching and reviewing records.

The PAC disagreed with the county's assertion, finding that the Council was a non-profit organization, its stated purpose for its FOIA request was for "academic, scientific, or public research or education," and there was no evidence that the Council intended to use the records "for sale, resale, or solicitation or advertisement for sales or services." In short, the PAC found the county in violation of FOIA for treating the Council's request as a commercial request and for imposing a "review" fee and directed the county to provide the records subject only to permissible copy charges.

Monday, June 5, 2023

PAC Rejects City's Reliance on "Unduly Burdensome" Provision to Deny FOIA Request

The PAC recently issued a binding opinion finding a public body in violation of FOIA by improperly denying a request as unduly burdensome. PAC Op. 23-007.

A requester submitted a FOIA request for "all emails" sent or received or circulated by a city's planning and development department in calendar year 2021 relating to a particular parcel of land owned by the municipality. The city responded by requesting additional information about the request, including the name or email address of specific city employees, the timeframe for the search, and any specific search terms or criteria for the search. The requester replied that it was not required to identify specific employees for its request for emails and that the other requested information was already described in the original FOIA request. The city then notified the requester that it was treating the request as "unduly burdensome" under section 3(g) of FOIA because it would require the city to review all department emails to determine which were responsive to the request. The requester subsequently filed a request for review with the PAC. The city did not file a response.

The PAC reviewed section 3(g) of FOIA and determined that it requires a public body to explain the reasons why a request would be unduly burdensome and the "extent to which compliance will so burden the operations of the public body." Here, the PAC found that the city did not adequately explain why or how the request was unduly burdensome. The PAC also noted that public bodies are expected to make "judgment calls" about the manner in which to conduct a search for responsive records. When a request asks for "all emails," the PAC acknowledged that a public body isn't required to search every email account of every employee and official ut instead will need to make a "judgement call" to identify specific employees whose emails are reasonably likely to contain responsive records since the public body is in a better position than members of the public to know which employees are likely to have sent or received emails on a particular subject. 

In conclusion, the PAC determined that the city's insistence that the requester identify specific employees or email addresses to be unreasonable, and the city's reliance on the "unduly burdensome" provision of section 3(g) of FOIA to be improper and directed the city to conduct a search of its email system for the requested records.

Friday, June 2, 2023

Quorum Forum Podcast - Tips for Newly Elected Officials

Quorum Forum just released Episode 73: Tips for Newly Elected Officials

In this episode, Ancel Glink attorneys called the Quorum Forum hotline with their tips and congratulations for newly and not-so-newly elected local government officials in Illinois, including helpful tips on local government meetings, public comment, working with staff, and more!

Thursday, June 1, 2023

Federal Court Tackles First Amendment Challenge to University’s Public Comment Procedures

Recently, a federal district court denied a university's motion to dismiss a First Amendment lawsuit brought by union membersSEIU Local 73 v. Board of Trustees of the University of Illinois.

In early 2022, three SEIU Local 73 Union members (who also sat on the Union’s bargaining committee) sought prior permission to speak during the public comment period of the upcoming University Board of Trustees (Board) meeting. Each member noted on their request that they planned to address the Board regarding collective bargaining and labor relations at the University. The Board denied their request to speak based on its public comment procedures which prohibit presentations on “issues under negotiation as part of the University’s collective bargaining process.” The Union and its three members then sued the Board, claiming its policy violated its free speech rights under the First Amendment, and the University filed a motion to dismiss the lawsuit.

The district court first engaged in a "forum analysis," which is a common first step in assessing First Amendment claims brought against government bodies when they restrict speech in public places. The Union argued that the Board meeting should be considered a “designated public forum,” which means it would be a forum held open for speech during certain times with little to no restrictions on the speech. The Board argued that the meeting was a “limited public forum,” meaning it was open for speech on a selective basis and only for a distinct purpose. The district court determined that the Board meeting was a limited public forum based on the numerous rules and procedures governing public comment: members of the public are required to seek advance permission to participate, have a limited time to address the Board, and may only speak on matters which the Board has authority to address. Additionally, the Board had specific restrictions on comments addressing particular topics―including matters falling under collective bargaining negotiations. Because it was a limited public forum, the court noted that the restrictions imposed by the Board were subject to a less stringent review than under a designated public forum.

Next, the Court found that because it was a limited public forum, the Board could constitutionally impose reasonable restrictions on speech during public comment, so long as it did not discriminate against speakers based on their viewpoint. The Union argued that the Board's policy prohibiting all labor-related speech was unreasonable so their First Amendment claim should not be dismissed. The University, on the other hand, argued that its policy was reasonably drafted to avoid a violation of Illinois labor laws, which require that all collective bargaining be done with a union’s chosen exclusive representative.

On this issue, the court agreed with the Union and determined that its claim should not be dismissed. It distinguished collective bargaining procedures from comments made during a public meeting, noting that “merely listening” to unioni employees during public comment does not constitute bargaining or unlawful direct dealing. Because the meeting was held open to the public, the court determined there was minimal risk that an unauthorized "agreement" would be formed between the union members who spoke during public comment and the Board. The court also noted that the Board was not obligated to respond to the comments made during public comment, which further limited the risk of direct dealing. As a result, the court denied the University’s motion to dismiss the Union’s First Amendment claim, and the case will continue through litigation.

The Court made it clear that its opinion should be interpreted narrowly, based on the unique restrictions that the University adopted on public comment at its Board meetings. However, forum analysis applies equally to local government meetings, and readers should be aware that Free Speech rights may be implicated when public comment is restricted.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink