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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, September 28, 2023

Court Upholds Ordinance Imposing Fees for Towing and Impoundment

In Leehy v. City of Carbondale, an Appellate Court upheld a City ordinance requiring the payment of administrative fees for costs related to the towing and impoundment of a vehicle involved in certain crimes. Plaintiffs filed a lawsuit against the City to challenge the fees, claiming they were unconstitutional and that the City was reimbursed twice for the same costs under the ordinance and the Illinois Criminal and Traffic Assessment Act (Act). The trial court found that the fees were reasonably related to the costs incurred by the City and were not duplicative of the statutory fines authorized by the Act which related to DUI enforcement related activities like police vehicles and breathalyzers and not intended to reimburse the City for incurred costs as the ordinance fees provided.

Plaintiffs appealed and the Appellate Court upheld the ruling in favor of the City. The Appellate Court held that the Act authorizes a punitive fine assessed to individuals convicted or who plead guilty to a misdemeanor DUI. In contrast, the City ordinance authorizes imposition of a fee designed to recoup incurred costs of the City and the purposes and intent of the Act and ordinance were not the same. The Appellate Court also found the City's ordinance to be constitutional as it was rationally related to a legitimate governmental interest and was not arbitrary nor discriminatory. The Court noted that the City's fee does not need to represent the exact costs incurred but must at least relate to those actual costs. The court pointed to the fact that Plaintiffs failed to prove there was no reasonable relation between the fee and cost of service as well as that Illinois courts have upheld fees over five times greater than the actual cost, referencing A&H Vending Service, Inc. v. Village of Schaumburg, 168 Ill. App. 3d 61 (1988).

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

Wednesday, September 27, 2023

Court Rejects Lawsuit Challenging City Officials' Social Media Posts

A resident (plaintiff) filed a lawsuit against a village, certain village officials, and a resident seeking damages for a variety of claims, including invasion of privacy, false light, disclosure of private facts, intrusion upon seclusion, and intentional infliction of emotional distress. The complaint claimed that the defendants posted various false statements about her on social media. The plaintiff also claimed that the defendants had obtained police reports about her and posted private medical information about her on social media. The plaintiff also alleged that the actions by defendant were in retaliation for her vocal comments criticizing one of the defendants fitness to serve as an elected official. One of the defendants settled with the plaintiff and the trial court dismissed the remainder of her case and rejected plaintiff's motion for sanctions, and she appealed to the Illinois Appellate Court. Williams v. Stuckly.

First, the Appellate Court rejected plaintiff's privacy and intrusion upon seclusion claims, finding that her allegations related to the publication of records that had been obtained through lawful means (FOIA) and that there was no evidence to support an expectation of privacy in the police reports disclosed through FOIA.

Second, the Appellate Court determined that there were insufficient factual allegations to support her false light claim and those that were included in the complaint were too vague and unclear.

Third, the Appellate Court upheld the dismissal of her conspiracy claim since that claim requires an underlying cause of action but all of her underlying claims had been dismissed. 

Finally, the Appellate Court determined that the plaintiff's motion for sanctions against one of the defendants was not well founded where plaintiff was seeking sanctions against a defendant despite the dismissal of the plaintiff's entire case. 

In sum, the Appellate Court upheld the trial court's dismissal with prejudice, finding that the plaintiff had been given three opportunities to plead an adequate complaint and had failed to do so.

Tuesday, September 26, 2023

City Did Not Own Property Until Condemnation Proceedings Were Complete

In 2005, a city filed a lawsuit to acquire a low-income apartment complex through eminent domain proceedings. The case proceeded for 12 years, and the apartment complex continued to operate and the owners continued to pay property taxes. In 2018 (a year after the city acquired title to the property), the previous owners filed a tax objection complaint seeking a refund of over $6 million in property taxes they paid for the 12 year period between the filing of the eminent domain complaint and the date the city acquired the property. The trial court dismissed the case but the appellate court reversed and ruled in the property owners' favor, finding that the city "retroactively" owned the property from the date it filed its complaint and the property owners were entitled to a refund. That ruling was then appealed to the Illinois Supreme Court. 

On appeal, the Illinois Supreme Court reversed the appellate court and held that the city did not become the owner of the property until the condemnation proceedings were complete. The Court overruled a previous case (City of Chicago v. McCausland) that held that a government's title "related back" to the filing of the complaint for purpose of determining who is responsible for liens that had been filed after a condemnation complaint but before the condemnation proceedings were complete. As a result, the Court held that the previous property owners were responsible for the property taxes during the 12 year period between the filing of the complaint and the completion of the condemnation proceedings as they were the lawful owners of the property until the city acquired title. MB Financial Bank, N.A. v. Brophy, 2023 IL 128252.

Thursday, September 14, 2023

Board Violated OMA in Restricting Content of Public Comment

In a recent binding PAC Opinion, the PAC found a public body in violation of the Open Meetings Act (OMA) for restricting the content of public comment. PAC Op. 23-013

A member of the public submitted a request for review to the PAC claiming that a school board violated the OMA when the board president interrupted her during public comment when she referred to a hiring policy and informed her that she could not discuss personnel issues at a public board meeting. 

The PAC concluded the school board violated section 2.06(g) of the OMA by imposing a restriction on public comment that was not authorized by the board's "established and recorded" public comment rules. Although the school board had adopted public comment rules, those rules did not restrict public comment on personnel matters. The board responded that its restriction on discussing personnel issues was authorized by language on the board's annotated board meeting agenda stating that the school board requests that any matters concerning personnel or students be privately communicated to the board. However, the PAC rejected the board's argument, finding that there was no evidence that the board had communicated this restriction to the public. 

Although the PAC did not make a formal determination on whether the board could establish this type of restriction on public comment since its opinion was based on the requirement in section 2.06(g) that public comment rules be "established and recorded," the PAC did state that this type of restriction might constitute an impermissible content-based restriction on the speaker’s First Amendment rights. As we have noted on Municipal Minute before, the PAC has weighed in on constitutional issues in the past when deciding requests for review although the First Amendment was not the basis for this opinion.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

Tuesday, September 12, 2023

Public Body Did Not Act in Bad Faith in FOIA Response

An Illinois Appellate Court determined that a public body did not act in bad faith when it denied a request for postmortem photographs even though the trial court ordered the public body to release the records. Thomas v. County of Cook, 2023 IL App (1st) 211656-U

While Thomas was serving 75 years in prison for a murder conviction, he filed a FOIA request with the County requesting all postmortem photographs, autopsy photographs, and x-rays of the decedent. The County withheld 35 of the 38 requested records, explaining that the release would constitute an "unwarranted invasion of personal privacy" and the records were exempt from release under section 7(1)(c) of FOIA. The County cited to binding PAC Opinion 10-003 in support of its denial.

Thomas sued the County, claiming its refusal to release the photographs was willful and in bad faith and violated FOIA. The trial court ruled in favor of Thomas, in part, and ordered the County to release the 38 autopsy photographs; however, the court rejected Thomas' argument that the County's denial was in bad faith. Thomas appealed the court's ruling that the County did not willfully and intentionally fail to comply with FOIA or otherwise act in bad faith. 

The appellate court agreed with the trial court that the County's denial of the request was not in bad faith because the County had relied on a binding PAC opinion that had determined that family members of the decedents have a privacy interest in keeping postmortem photographs from being released to the public. 

The appellate court did not address the trial court's substantive ruling that the photographs requested by Thomas were releasable nor did the appellate court distinguish the PAC Opinion that protected those records from release, likely because the County did not appear to appeal the substantive ruling. It is possible the trial and appellate courts may have weighed the interest of Thomas (who was serving time for the murder of the decedent) in receiving the photographs in this case as more significant than the interest of the reporter in the PAC opinion cited by the County. 

When relying on the "invasion of personal privacy" exemption of 7(1)(c) of FOIA, public bodies should make sure they balance the interests of the requester in the release of requested records against the privacy interests at stake. 

Monday, September 11, 2023

Quorum Forum Podcast Ep. 75 - APA-CMS Bar Exam 2023

Ancel Glink's Quorum Forum Podcast just released a new episode: Quorum Forum Ep. 75 - APA-CMS Bar Exam 2023. In this episode (recorded live at the Haymarket Pub and Brewery), Ancel Glink attorneys discuss the most important planning law cases of the year in a simulated law school experience format targeted to planners and land use professionals. 

Wednesday, September 6, 2023

PAC Binding Opinions and Indexes of OMA/FOIA Opinions

The last two binding opinions issued by the Public Access Counselor (PAC Op. 23-011 and 23-012) didn't provide public bodies with any guidance on compliance with FOIA or OMA, except to reiterate that public bodies are required to respond to FOIA requests, so we didn't see a reason to summarize those opinions.

However, we did want to remind our readers of two great resources for FOIA and OMA guidance that public bodies may find helpful. The PAC has posted on its website an index of binding OMA opinions and FOIA opinions. These indexes categorize the various binding opinions over the past 13 years and it looks like they have been regularly updated. 

So, if you are looking for guidance on public comment at meetings, or topics that can be discussed in closed session, or FOIA exemptions or fees, or any other topic addressed by the PAC in one of its binding opinions, these indexes could be a great starting point.