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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, July 23, 2024

Election Calendar Changes for Spring 2025 Elections

On July 12, 2024, the Illinois State Board of Elections (ISBE) released its Abbreviated Calendar of Dates for the 2025 Consolidated Primary Election and the 2025 Consolidated Election which can be found hereWhile the ISBE abbreviated calendar can be a helpful guide for local elections, candidates for local government office and local election officials are encouraged to check with their legal counsel if they have questions regarding specific filing dates and whether they are required to file for the consolidated primary election or for the consolidated election, which will depend on a variety of factors.

The calendar takes into account two recent statutes (P.A. 103-0586 and P.A. 103-0600) that modified the petition circulation and filing periods of municipal offices for the Spring 2025 elections. Candidates and local election officials should note that many of the circulation and filing dates were moved up about a month from what they may have been used to in past elections.

Looking ahead at some of the important dates for the 2025 Consolidated Primary Election to be held on February 25, 2025: 

July 30, 2024: First day to circulate candidate petitions for primary

October 21, 2024: First day to file nomination papers for primary

October 28, 2024: Last day to file nomination papers for primary

November 4, 2024: Last day to file objections to nomination papers for primary

December 9, 2024: Last day for governing boards to adopt a resolution to allow a binding or advisory question on the ballot at primary

December 19, 2024: Ballot certification deadline for primary

February 25, 2025: Consolidated Primary Election

The below important dates are for the 2025 Consolidated Election to be held on April 1, 2025. These candidate circulation and filing dates apply to those offices that do not require a primary. 

August 20, 2024: First day to circulate petitions for consolidated election

November 12, 2024: First day to file nomination papers for consolidated election

November 18, 2024: Last day to file nomination papers for consolidated election

November 25, 2024: Last day to file objections to nomination papers for consolidated election

January 13, 2025: Last day for governing boards to adopt a resolution to allow a binding or advisory question on the ballot at consolidated election

January 23, 2025: Ballot certification deadline for consolidated election

April 1, 2025: Consolidated Election

Post Authored by Katie Nagy, Ancel Glink

Monday, July 22, 2024

Seventh Circuit Dismisses Due Process Lawsuit

A plaintiff sued a municipality claiming that the city violated his civil rights when a city inspector shouted racial epithets at him when he was removing a tree from a residential lot in the City. According to the opinion, the city inspector was upset that the plaintiff parked his truck in the alley while he removed the tree. The lawsuit alleged violations of plaintiff's due process rights, the Illinois hate crime statute, and intentional infliction of emotional distress.

The district court dismissed his due process claims, leaving only the state law claims which the federal court declined to rule on. Plaintiff appealed and the Seventh Circuit Court of Appeals upheld the dismissal of his due process claims, finding that the plaintiff's complaint failed to allege the violation of a fundamental right. The Court found no fundamental right to "movement without harassment," and also noted that neither defamation nor a derogatory racial epithet will rise to the level of a deprivation of liberty under the due process clause. Finally, the Court held that verbal harassment, threats, or annoyances do not rise to the level of conduct that "shocks the conscience" to trigger a substantive due process claim. The Court concluded that "while despicable," the city inspector's use of racial epithets did not rise to the level of conduct that would support a due process claim. Robbin v. City of Berwyn.

Thursday, July 18, 2024

School Employee Fired for Social Media Posting

In another reminder of "what you say on social media can affect your job," a South Dakota school district recently terminated one of its employees for posting the following on her personal social media page after the shooting incident at the former president's rally:

Shoot if only he would’ve had his scope sighted in correctly.

Employees can be disciplined and even terminated from their positions if their personal social media activities violate their employers' social media policies, so long as those policies are lawful. And, employees should be aware that their social media posts are rarely private, and even if they are not "friends" with their employer, an employee's post can be forwarded to the employer by a co-worker, customer, client, or member of the public. 

Tuesday, July 9, 2024

In the Zone: Court Upholds Contiguity Determination in Annexation Challenge

An Illinois Appellate Court upheld a ruling in favor of a city finding a 19.5 foot shared boundary between annexed property and the city to meet the contiguity requirements for the annexation to be lawful. Neighbors Opposed to Annexation of Parcels v. City of Joliet

An owner purchased three connected parcels of land, one of which was connected to the city boundaries via a shared boundary with plaintiff’s property. In October 2018, the three parcels owned by the owner were annexed into the city. Plaintiff filed a lawsuit asking the court to invalidate the annexation because he claimed the annexed property was not sufficiently contiguous to the city’s boundary as required by law. Although there was some dispute whether the annexed property abutted the city by 19.5 or 33 feet, the circuit court held that even if the annexed property only bounded the city by 19.5 feet, that was sufficiently contiguous for purposes of satisfying the annexation statute.

On appeal, the plaintiffs argued the circuit court's ruling should be overturned because the court failed to provide reasoning for its ruling that the properties were substantially contiguous to the city, there were issues of disputed facts (i.e., the distance of the contiguity) that should have been decided at trial, and that the properties were not, in fact, contiguous to the city.

First, the appellate court held that it was irrelevant that the trial court failed to provide reasoning for its decision. Second, the appellate court held that although there was some dispute as to the nature of the shared boundary (19.5 versus 33 feet), it was undisputed that the properties shared a boundary with the city of at least 19.5 feet. The appellate court acknowledged there is no set rule for how long a common boundary must be, but agreed with the circuit court that in this case, 19.5 feet was sufficient to satisfy the contiguity requirement of the annexation statute. Although the shared boundary between the city and annexed property was small, the appellate court found that it was parallel and adjacent to the existing municipal boundaries in a way that courts typically found annexed property to be contiguous. Additionally, the annexed property was located in a position that would allow the city to gradually and naturally extend services such as fire and police protection in a manner that favored annexation, and was not the type of strip, corridor, or cornering annexation that courts disfavor. Finally, the appellate court noted that it was not adopting a set standard of 19.5 feet of common boundary to satisfy the contiguity requirement for an annexation, stating that a contiguity determination will depend on the individual circumstances and facts of each case.

Post Authored by Daniel Lev & Julie Tappendorf, Ancel Glink

Monday, July 8, 2024

Quorum Forum Podcast: Ep. 85 ADA Reasonable Accommodations

Ancel Glink's Quorum Forum Podcast recently released Episode 85: ADA Reasonable Accommodations. In this episode, Ancel Glink attorneys Katie Nagy and Daiana Man discuss when the American Disabilities Act (ADA) requires an employer to make reasonable accommodations for an employee with a disability, how the interactive process between employers and employees works, as well as the impact of remote work on the changing work environment. 

Wednesday, July 3, 2024

PAC Finds Public Body in Violation of FOIA for Not Responding to FOIA Request

The PAC issued its 9th binding opinion of 2024 in PAC Op. 24-009. Nothing new here - the PAC found a public body in violation of FOIA for failing to respond to a FOIA request and failing to respond to the PAC office's inquiries about the public body's failure to respond to the FOIA request.

Monday, July 1, 2024

Supreme Court Upholds Ordinance Prohibiting Camping & Sleeping on Public Property

The U.S. Supreme Court issued its long-awaited opinion last week in a case challenging several local ordinances that prohibit sleeping and camping on public property. City of Grants Pass, Oregon v. Johnson, et al.

The City of Grants Pass (City) has three ordinances (Ordinances) which restrict camping in public places. These local laws (1) prohibit sleeping on public sidewalks and streets, (2) prohibit camping on public property, and (3) prohibit camping and overnight parking in City parks. Violators of the Ordinances are subject to penalties which are implemented on a graduated scale: initial violators may be issued a fine, whereas repeat violators may be banned from city parks for a period of time or charged with criminal trespass.

Two homeless individuals brought a case against the City, challenging the Ordinances as unconstitutional under the Eighth Amendment, which prohibits cruel and unusual punishment for criminal offenses. The plaintiffs argued that the Ordinances effectively punished them for their status as homeless individuals, and that this criminal classification was unconstitutional. The federal district court and Ninth Circuit ruled in favor of the plaintiffs, finding that the Ordinances could not be imposed against individuals who are involuntarily homeless within the City. The City appealed the Ninth Circuit’s decision to the U.S. Supreme Court.

The Supreme Court reversed the lower court rulings, with six Justices joining in the majority opinion and three Justices dissenting. Both the majority and dissenting opinions discussed the acute homelessness crisis affecting individuals in the United States, as well as the difficulties local governments face in responding to related public health and safety issues that impact homeless individuals and the general public.

The majority opinion, authored by Justice Gorsuch, found that the Eighth Amendment was drafted to place limits on the method and severity of punishment imposed for criminal behavior, and not the determination of what behavior is considered criminal in the first place. Noting that many local governments (and even the federal government) restrict or prohibit sleeping and camping on public property, the majority held that the Eighth Amendment does not prohibit local governments from classifying unlawful behavior in order to address policy concerns such as those presented by the homelessness crisis. The Court found that local governments have been “paralyzed” from making policy decisions to address homelessness in their communities since the Ninth Circuit issued an opinion in 2019 finding that the Eighth Amendment barred Boise, Idaho from enforcing its public-camping ban against homeless individuals who did not have access to alternative shelter. 

Additionally, the majority rejected the plaintiffs’ argument that the Ordinances punished them because of their status as homeless individuals. In the majority’s view, because the Ordinances could be imposed against anyone who was camping or sleeping on public property (including backpackers or protesters), they did not single out homeless individuals. In sum, the majority determined that the Ordinances do not violate the Eighth Amendment because they criminalize conduct, not status, and the fines and penalties imposed are not cruel and unusual.

The dissenting opinion, authored by Justice Sotomayor, focused on the Ordinances’ prohibition on sleeping in public places, finding that this ban was clearly targeted against homeless individuals because of their status in violation of the Eighth Amendment. The dissent reviewed the text of the Ordinances, noting that the definition of “campsite” implies only homeless individuals may be cited for a violation: 

A campsite is “any place where bedding, sleeping bag, or other material used for bedding purposes” is placed “for the purpose of maintaining a temporary place to live.”

The dissent noted that the difference between lawful and unlawful activity under the Ordinances is a person’s “intent to live in public spaces,” which applies almost exclusively to the homeless. The dissent also found that the Ordinances have been enforced only against homeless individuals, noting that the deputy chief of police previously testified that he was not aware of any person being issued a ticket for public camping who was not homeless. Because the criminal conduct (sleeping outside), is directly tied to a particular status (being homeless), the dissent argued the Ordinances should be struck down under the Eighth Amendment.

Both the majority and dissent acknowledged that their analysis in the Grants Pass case is narrow, and does not address other issues that may come up in the context of regulating homelessness―including the First Amendment, Due Process clause, and state statutes that otherwise protect the rights of homeless individuals. As a result, local governments that are considering adopting ordinances to address the use of public property should consult with their legal counsel to discuss the applicability or impact of other laws or regulations that might provide protections to homeless individuals. For example, the State of Illinois has enacted the Bill of Rights for the Homeless Act that prohibits discrimination “on the basis of housing status” and establishes, among others, the following rights for individuals experiencing homelessness:

  • the right to use and move freely in public spaces (including sidewalks and parks);
  • the right to equal treatment by state and municipal agencies; and
  • the right to a reasonable expectation of privacy in his or her personal property.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink, P.C.

Thursday, June 27, 2024

Supreme Court Issues Ruling in Mayor's Appeal of his Bribery Conviction

The U.S. Supreme Court issued an opinion interpreting the federal statute that prohibits state and local government officials from accepting bribes in Snyder v. United States

Section 666 of Title 18 (a federal law) makes it a crime for state and local officials to "corruptly" solicit, accept, or agree to accept "anything of value from any person, intending to be influenced or rewarded" for an official act. A conviction under this federal law is punishable by up to 10 years imprisonment.

A mayor of an Indiana city was charged under this anti-corruption federal law for accepting a $13,000 payment from a trucking company after the company had been awarded $1 million in contracts from the city. Ultimately, the mayor was convicted under this federal law and sentenced to 1 year, 9 months in prison. His conviction was upheld by the Seventh Circuit Court of Appeals, and he ultimately appealed to the U.S. Supreme Court.

The U.S. Supreme Court reversed the lower court rulings, holding that Section 666 of federal law criminalizes bribes, not gratuities. The Supreme Court distinguished between the two, finding that a conviction under Section 666 requires the government to show that the state or local official had a corrupt state of mind and accepted or agreed to accept a payment intending to be influenced in an official act. A gratuity, the Supreme Court said, is given as a token of appreciation after the official act. Here, the Court found that the mayor's acceptance of the $13,000 payment after the contract was awarded to the trucking company qualified as a gratuity, and not a bribe, so Section 666 did not apply. 

The Supreme Court made it clear that although a gratuity or reward offered and accepted by a state or local official after the official act does not violate this particular federal law (section 666), that conduct could be unethical or illegal under other federal, state, or local laws. 

The case included a dissenting opinion, in which three Justices argued that Section 666's use of the word "rewarded" meant that the statute should apply in this situation, where, the dissent said, the mayor "steered more than $1 million in city contracts to a local truck dealership, which turned around and cut him a $13,000 check."

Tuesday, June 25, 2024

PAC Finds FOIA Violation in 8th Binding Opinion of 2024

A FOIA requester sought information about certain properties, including unit addresses and whether the units were occupied or vacant. The public body disclosed responsive records, but partly redacted street addresses for vacant units pursuant to Section 7(1)(v) of FOIA, asserting that disclosing the full street addresses would threaten community safety and make the buildings targets for squatters and other illegal activity.

After the requestor submitted a request for review with the Public Accessor Counselor (PAC), the PAC concluded that public body improperly redacted vacant unit street addresses under FOIA. PAC Op. 24-008.

The PAC determined that the exemption contained in Section 7(1)(v) of FOIA narrowly authorizes redacting records that consist of or depict (1) existing vulnerability assessments, security measures, or response policies or plans, (2) that are created for the purpose of identifying, preventing, or responding to potential attacks on a community or its infrastructure, and (3) when disclosing the vulnerability assessment, security measure, or response policy or plan could reasonably be expected to expose the vulnerability or jeopardize the effectiveness of the measures, policies, or plans, or the safety of the personnel who implement them or the public.

Although the public body argued it redacted street addresses as a security measure to protect its vacant properties, the PAC disagreed with the scope of the public body’s redactions, finding that the street addresses for vacant public housing units did not qualify as existing vulnerability assessments, security measures, or response policies or plans to justify redaction under this FOIA exemption.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, June 24, 2024

PAC Issues 7th Binding Opinion on OMA Complaint

In PAC Op. 24-007, the Public Access Counselor of the Attorney General's Office (PAC) reviewed and considered a complaint that a public body violated the OMA. Specifically, the complainant alleged that a village board violated the OMA by (1) improperly taking final action to authorize the purchase of a truck without listing that item on the agenda and (2) allowing a member of the village board to attend several board meetings electronically. 

With respect to the first claim, the PAC found the village board in violation of the OMA for not sufficiently describing the purchase of a vehicle on the meeting agenda. The PAC noted that the village board voted on the purchase under the agenda item "Report from the Superintendent of Public Works," after the Superintendent informed the board that he had found a used truck that the board could purchase. The PAC determined that voting on this purchase without adequately describing it on the meeting agenda violated section 2.02(c) of the OMA  meeting which requires that any "agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting." (note that the opinion is not clear whether the purchase of the vehicle was made pursuant to an ordinance or resolution, although the PAC has taken a very broad interpretation of this statutory provision in past opinions). In any event, the PAC acknowledged that because the village board re-voted on the vehicle purchase at a subsequent meeting where it was listed on the meeting agenda, no further action was necessary to remedy the violation.

In the second claim, the individual who filed the complaint claimed that the board member "purposefully took a job that requires him to be out of town" and since the job was within an hour's drive of the meeting location, the board member should not be allowed to attend board meetings remotely. The PAC disagreed, finding that one of the reasons under the OMA that allows a board member to attend a meeting remotely is for "employment purposes" and the OMA includes no limiting language on the nature or frequency of a member's ability to attend meetings remotely for employment purposes so long as the board authorizes remote attendance in accordance with its adopted rules. The PAC also noted that the OMA does not condition remote attendance for employment purposes on a board member demonstrating that it would not be feasible to commute to the meeting. As a result, the PAC determined that the board did not violate the OMA by allowing the board member to attend meetings remotely for employment purposes.

Tuesday, June 18, 2024

General Assembly Sends Major Changes to Sales Tax Laws to the Governor

As part of Governor Pritzker’s proposed budget, he lobbied for the elimination of the “grocery tax,” which the Governor argues is a regressive tax which disproportionately affects members of the community with the lowest income. The grocery tax is a part of the State’s sales tax that applies to “food purchased for consumption off the premises where it is sold,” or groceries. By comparison, a “food and beverage tax” applies to food purchased for immediate consumption on the premises from where it is purchased – like from a restaurant.  Because the grocery tax comprises a part of the tax revenue the State shares with cities and villages, the elimination of the grocery tax would result in a reduction of local revenues.

House Bill 3144 was adopted by the General Assembly on June 3, 2024, and would eliminate the grocery tax as of January 1, 2026. HB 3144 would also create the Municipal Grocery Occupation Tax Law that permits all Illinois municipalities to levy a local grocery tax of up to 1% beginning after January 1, 2026. The Municipal Grocery Occupation Tax would be administered, collected, and distributed by the State, as with other local sales taxes. October 1, 2025 is the proposed deadline for municipalities to adopt and file a tax ordinance with the Department of Revenue if they want to begin collecting the local grocery tax on January 1, 2026.

While the local grocery tax is designed to achieve revenue neutrality, House Bill 3144 makes an even more important change for non-home rule cities and villages. Currently, Section 8-11.1-1 of the Illinois Municipal Code requires non-home rule municipalities to obtain referendum approval as a condition of levying a local sales tax. Upon the enactment of HB 3144 into law, non-home rule municipalities will be able to levy a local sales tax without voter approval. The non-home rule sales tax can be levied in 0.25% increments and remains capped at 1%. The local sales tax can be commenced either January 1 or July 1 each year, provided the ordinance enacting the tax is filed with the State by October 1 or April 1, respectively. 

Keep an eye on the status of HB 3144 to see whether the Governor approves this legislation.

Post Authored by Adam Simon, Ancel Glink

Monday, June 17, 2024

Time is Money: U.S. Department of Labor Raises the Bar on Overtime Exemptions

The U.S. Department of Labor (Department) has issued a final rule that changes the salary threshold necessary for white-collar employees to be classified as exempt from overtime requirements under the Fair Labor Standards Act (FLSA). For a white-collar employee to be considered exempt under the FLSA, the following three criteria must be met:

   (1) The employee must be paid a fixed salary;

   (2) The salary must meet a minimum specified amount; and

   (3) The employee must primarily be engaged in executive, administrative, or professional duties.

The overtime rule raises the salary-threshold levels in two phases. Beginning July 1, 2024, the threshold initially increases from $684 per week to $844 per week. The second phase begins January 1, 2025, at which time the threshold increases to $1,128 per week (equivalent to $58,656 per year).

But the increases don’t stop there. In drafting the rule, the Department recognized the need to update earnings thresholds regularly. As a result, the threshold will automatically increase every three years beginning July 1, 2027. The automatic increases are based upon wage data at the time of the update.

While lawsuits challenging the Department’s authority to increase the overtime threshold have been filed, it would be prudent for employers to examine the salaries of existing exempt employees and remain prepared to affect salary increases should those challenges fail. 

Post Authored by Kevin Sterk, Ancel Glink

Wednesday, June 12, 2024

Court Upholds Injunction Against Water Shut Off to Mobile Home Park

In 2023, a municipality sent notice to the owner of a mobile home park and the residents in the park that it would be shutting off water to the park for nonpayment of water services. At that time, the mobile home park had a delinquent water account with the city for $858,447. The mobile home park was served by a single water main, and the owner of the park was responsible for payment of water services, not the individual residents of the park, and a shutoff of water would impact all residents in the mobile home park. One of the residents of the mobile home park filed a motion for a temporary injunction to stop disconnection, which was granted by the trial court. 

The city appealed the injunction to the Illinois Appellate Court, which upheld the trial court's order. Hammer v. City of Blue Island. The Appellate Court held that the status quo in this case was the continued provision of water service to the residents in the mobile home park, and that the balance of the equities in this case favored the residents because of the substantial harm if the water were shutoff while the case moved forward because that would render the residences uninhabitable. The Court also noted that the City's delay in taking action on the unpaid bill for two years, without notice to the tenants, exacerbated its own injury and harmed innocent tenants who were not aware that the park's water bill was delinquent. Finally, the Court acknowledged that the injunction was just preliminary relief, and that the city would still have the opportunity to defend the case. 

While this case only involved preliminary relief and the case will now move forward for the city to present its defenses against the lawsuit, this court ruling may provide some guidance to municipalities in similar situations to consider seeking legal remedies sooner rather than letting a delinquency continue for several years and to notify both the owner and tenants of water bill delinquencies.

Tuesday, June 11, 2024

Court Rules in Favor of Sheriff's Office in FOIA Lawsuit

In response to several FOIA requests asking for transcripts of conversations between Sheriff’s Office personnel and police dispatchers, a Sheriff’s Office released responsive records subject to applicable redactions. The requestor then sued, seeking a court order to compel the release of  records allegedly withheld from disclosure and to explain the FOIA exemptions used by the Sheriff’s Office to withhold or redact certain records. The lawsuit also asked the court to impose civil penalties against the Sheriff’s Office for allegedly willfully and intentionally failing to comply with the FOIA requests. 

After the lawsuit was filed, the Sheriff’s Office released additional records responsive to the requests, and explained the FOIA exemptions used to redact information. The trial court dismissed the lawsuit as moot since records had since been released and denied the request for civil penalties, finding that the Sheriff’s Office did not willfully or intentionally fail to comply with FOIA.

On appeal, the Illinois Appellate Court also ruled in favor of the Sheriff's Office. Harsy v. Perry County Sheriff’s Office. First, the Appellate Court agreed that the lawsuit was moot since the Sheriff’s Office had disclosed responsive records and properly cited exemptions to redact or withhold records. The Appellate Court also rejected the requester's "bad faith" argument since the Sheriff’s Office promptly issued refunds to the requestor for all claimed overcharges after the lawsuit was filed and failed to show the Sheriff's Office willfully or intentionally failed to comply with FOIA.

The Court also rejected the requestor’s argument that the trial court should have ordered the Sheriff’s Office to provide an index of redacted or withheld records, finding that because the requestor failed to request an index before the trial court’s in camera inspection, the necessity for an index after the circuit court’s in camera review was moot.

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, June 10, 2024

Friday, June 7, 2024

Court of Appeals Upholds Injunction Against a Library's Removal of Controversial Books

The Fifth Circuit Court of Appeals issued an opinion on June 6th upholding a court's issuance of a preliminary injunction against a library in a First Amendment challenge to the library's removal of controversial books. Little, et al. v. Llano County, et al..

In 2021, Llano County, Texas residents contacted the county commissioners to complain about books in the children's section of the library that they claimed were pornographic and overtly sexual. According to the court opinion, the residents were specifically concerned with several books about “butts and farts." The chair of the county commissioners and another member of that body directed the library director to remove the challenged books from the shelves. The director complied. In response to additional complaints, the chair contacted the library director about other books that “depict any type of sexual activity or questionable nudity." That communication was accompanied by a list put together by a state representative of books he referred to as "pornographic filth." By the end of 2021, 17 books had been removed from the library based on resident complaints.

In 2022, the library board was dissolved and replaced by a new board. The chair of the county commissioners appointed to the new board two members who had been involved in the book removal complaints. The new library board then implemented several policy changes, including prohibiting the library director from attending board meetings and requiring the director to seek approval from the library board before purchasing any new books for the library.

Seven library constituents then filed a lawsuit in federal court against the county commissioners, the library director, and the library board members claiming that the removal of the 17 books from the library was because they disagreed with the books’ content in violation of the First Amendment. They asked the district court to impose a preliminary injunction while the case moved forward that would require, among other things, that the library restore the 17 books.

The district court granted the preliminary injunction request and ordered the library to restore the removed books to library shelves while the case continued through the process. The district court found that the patrons had adequately pleaded a First Amendment claim because the library's likely motivation in removing the books was “a desire to limit access to the viewpoints” with which they disagreed. The court noted that while public libraries have “broad discretion” to curate the content of their collections, their discretion is not absolute. 

The library appealed the injunction to the Court of Appeals. The Court of Appeals analyzed the First Amendment cases, focusing on the U.S. Supreme Court ruling in Board of Education, Island Trees Union Sch. Dist v. Pico, 457 U.S. 853. In that case, a plurality of the Supreme Court held that school officials could not remove books from a school library's shelves simply because they dislike the ideas contained in those books, and that if their intention was to deny access to ideas they disagree with, and that intent was the decisive factor in their decision, then their exercise of discretion would violate the First Amendment. 

Based on the holding in the Pico case and other relevant cases, the Court of Appeals held that although librarians can consider the content of books in making curation decisions, that discretion must be balanced against patrons' First Amendment rights, including the right to receive information and ideas. If the motivation of a library official to remove a book is the desire to deny access to ideas to which they disagree, and that intent is the substantial reason for the decision, then the decision implicates First Amendment rights.

The Court of Appeals acknowledged that there are many other reasons why books may be removed that have little to do with a disagreement with the books' content. For example, the Court said a library could remove older editions of a dictionary, or books that are in a dilapidated condition, or books that hadn't been checked out in years based on lack of interest and poor circulation history, without acting unconstitutionally. However, the Court did not find that there was any evidence that the library's rationale for their book removal decisions in this case fell into any of these rationales.

Instead, the Court of Appeals found that the district court's preliminary injunction was based on its reasonable conclusion that the 17 books were removed after constituents complained they were "pornographic filth," and the library's substantial motivation to remove the was to deny access to particular ideas. The Court of Appeals found the evidence to be clear that the library director likely weeded these books because she was told to do so by those who disagreed with their message.

In conclusion, the Court of Appeals stated as follows:

Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree. Because that is apparently what occurred in Llano County, Plaintiffs have demonstrated a likelihood of success on the merits of their First Amendment claim, as well as the remaining factors required for preliminary injunctive relief. 

The Court of Appeals then ordered the library to restore the disputed books to "publicly visible and accessible shelves" in the library, update the library's catalog to reflect that these books are available for checkout, and enjoined the library from removing any books from the shelves without first providing the constituents who brought the lawsuit with documentation on the library officials responsible for making that decision and the reasons for the removal. 

Note that this appeal involved a preliminary injunction, and did not decide the substance of the case, so the plaintiffs' First Amendment claims will now move forward at the district court, while this injunction stays in place during those proceedings.

It is worth noting that the case is quite lengthy, and a good portion of the case is devoted to a dissenting opinion that argues that the library's decision in curating its materials is government speech, and concludes that the majority's opinion has turned courts into the "library police."

It will be interesting to see how this case plays out at the district court when the case returns for further proceedings but also whether the case ultimately makes it way to the U.S. Supreme Court since this ruling is only precedential in the Fifth Circuit Court of Appeals.

Wednesday, June 5, 2024

Defamation Claim Against City Inspector General Dismissed

A former city councilmember filed a defamation case against a city inspector general and other city defendants. The complaint alleged, among other things, that the inspector general defamed him when he authored and then transmitted a report to the mayor that accused him of committing the criminal offense of conspiracy. The complaint also alleged that the city's ordinances authorizing the mayor to appoint an inspector general violated state law. 

The inspector general filed a motion to dismiss the complaint arguing that his communications were privileged, that he had immunity under the Tort Immunity Act for his official actions in conducting the investigation and authoring the report, and that the complaint did not state a claim for defamation because it did not allege that he published the report to a third party. The trial court dismissed the complaint, finding that the Tort Immunity Act immunized the inspector general.

On appeal, the Appellate Court first held that the allegations challenging the legality of the city ordinances were insufficient to overcome the presumption of validity of a city's ordinances, so dismissal of that allegation was proper. As to the application of the Tort Immunity Act, the Appellate Court disagreed with the trial court that it applied to the inspector general in this case, finding that the inspector general was not covered by the cited sections of the Act because he was not an officer or an employee of the city but instead, an independent contractor. However, the Appellate Court upheld the dismissal of the case on other grounds, specifically that the inspector general had tendered the report to the mayor in the discharge of his official duties, and that action was covered by absolute privilege and immunity. McFarland v. O'Dekirk, et al.

Tuesday, June 4, 2024

Court Upholds Zoning Approvals for Wind Farm Project

An Illinois Appellate Court recently ruled in favor of a county and developer in a zoning dispute brought by residents to challenge the approval of a wind energy farm project in the county. Erickson et al. v. Knox County Wind Farm LLC, et al.

A wind farm developer filed an application with the county for approval of a conditional use permit and a zoning variation to allow the construction and operation of a wind energy farm. The county ZBA approved the variation and recommended that the county board approve the conditional use permit. After the county board approved the conditional use permit, a group of residents filed a lawsuit against the county and the wind farm developer asking the court to overturn the county board's approval. Specifically, the residents claimed the approvals violated their procedural due process rights, the approvals were arbitrary and capricious under the LaSalle factor standards, the ZBA failed to issue findings of fact when the variation was approved, and the application did not meet the variation standards.

The trial court ruled in favor of the county and developer, and the residents appealed. On appeal, the Appellate Court upheld the rulings in favor of the county and developer.

First, the Appellate Court held that the residents had actual notice of the ZBA hearing and a meaningful opportunity to be heard at that hearing (and, in fact, participated in the hearing). The fact that notice came shortly before the hearing did not violate their procedural due process rights and the fact that the developer had more time to prepare for that hearing than the residents was not relevant to the residents' due process rights. The Court also rejected the residents' argument that the hearing should have been continued because their expert witnesses were not available on the hearing dates finding that they had time to provide additional witnesses, and that they did present evidence and cross-examined the developer's witnesses at those hearings. In short, the Court held that the residents were not denied due process.

Second, the Court rejected the residents' argument that the approvals were arbitrary and capricious under the LaSalle factors test, finding that the residents failed to specifically argue how each LaSalle factor applied to their case and that they were unable to overcome the presumption of validity of the county zoning approvals.

Third, the Court found that the ZBA did, in fact, issue findings of fact after it granted the variation and supplemented those findings after the lawsuit was filed. Since findings were properly made before the court considered the merits of the lawsuit, the Court found no prejudice to the residents.

Fourth, the Court rejected the residents' argument that the county was required to provide them with due process before it issued building permits for the wind farm, and also rejected their argument that the building officials had been unlawfully delegated authority to issue permits.

Finally, the Court upheld the ZBA's approval of the variation, finding sufficient evidence in the record that the application met the variation standards.

Monday, June 3, 2024

Appellate Court Addresses Claims Relating to Confidentiality Provision in Settlement Agreement

A high school district was sued by a student and parents regarding a settlement agreement between the parties. The student and parents claimed the school district released confidential information about the settlement in response to FOIA requests and otherwise that caused them injury and breached the confidentiality provision in the settlement agreement. The school district filed a motion to dismiss the case based on several arguments, including that the Tort Immunity Act applied to several claims. The trial court dismissed the entire case, and the student and parents appealed.

On appeal, the Illinois Appellate Court upheld the dismissal of three of the counts in the lawsuit based on the Tort Immunity Act. The Court noted that Section 2-107 of the Tort Immunity Act provides that a local public entity is immune from liability for injuries caused by "the provision of information either orally, in writing, or by computer or any other electronic transmission..." Here, the Court found that the tort claims against the school district for public disclosure of private facts and intentional and negligent infliction of emotional distress were covered by this section of the Tort Immunity Act, and the trial court's dismissal of these claims was proper.

However, the Court disagreed with the trial court on its dismissal of the breach of contract count, finding that this claim could move forward to the next stage of litigation to flesh out the factual disputes between the parties as to when disclosures were made and whether the disclosures constituted a breach of the confidentiality provisions of the settlement agreement.

Plaintiff 1, et al. v. Board of Education of Lake Forest High School District 115, 2024 IL App (2d) 230173.

Thursday, May 23, 2024

Court Upholds Officer's Termination for Violating Department Policies in Social Media Activities

Last month, the Wisconsin Supreme Court upheld the termination of a police officer in a lawsuit filed by the officer to challenge his termination. Specifically, the officer claimed that he was terminated in violation of his due process rights after he was investigated for his social media activities. Andrade v. City of Milwaukee Bd. of Fire & Police Commissioners. 

In 2018, the police department arrested a Milwaukee Bucks player, and the incident drew some national attention. Andrade posted about the incident on his personal Facebook page multiple times over the course of a few months, including posts that the police chief found "inappropriate, disrespectful and defamatory." The Bucks player filed a lawsuit against the City and various police officers, and the complaint included references to the officer's social media posts as offensive and racist. The City initiated an internal investigation into the officer's social media conduct, and at the end of the investigation and interviews, charged the officer with violating various department policies. As part of the investigatory process, the police chief consulted with the district attorney's office which expressed concerns about using the officer as a witness in any criminal proceedings because the social media posts could be used by defense counsel to impeach the officer and called into question the officer's trustworthiness and credibility. The district attorney's office went so far as to place the officer on the "never call as a witness" list, meaning the office would not prosecute cases that would rely primarily on the officer's testimony. 

Based on the internal investigation and his communications with the district attorney's office, the police chief issued an order discharging the officer, and provided notice to the City's board of fire and police commissioners which conducted a hearing on the discharge. The board heard testimony and received evidence from both the City and the officer, and at the conclusion of the hearing, upheld the chief's decision to discharge the officer.

The officer appealed to the trial court, which found substantial evidence to support the board's decision. The case made its way to the Wisconsin Supreme Court, which also found in favor of the City, holding that the officer had been provided sufficient due process in the discharge proceedings by being provided an opportunity to present testimony and evidence to the board of fire and police commissioners.

Wednesday, May 22, 2024

Appellate Court Upholds Dismissal of FOIA Lawsuit

A requestor submitted various FOIA requests to a Public Defender's Office, the States Attorney's Office, and the County Sheriff. The Public Defender’s Office denied the request, arguing that the Public Defender’s Office was not a public body subject to FOIA because it was part of the judiciary. The State’s Attorney’s Office (SAO) and County Sheriff (Sheriff) responded that they did not have responsive records or denied the requests as unduly burdensome and invited the requestor to narrow the burdensome requests. 

The requestor then sued the Public Defender’s Office, the SAO, and the Sheriff claiming that they violated FOIA by denying his requests. The trial court ruled in favor of the public bodies, dismissing the lawsuit.

After the requestor appealed, the Appellate Court upheld dismissal of the lawsuit in Gakuba v. Winnebago County Public Defender’s Office

First, the Appellate Court determined that FOIA does not apply to the Public Defender’s Office because it operates as part of the judiciary and does not qualify as a “public body” subject to FOIA. 

Second, the Appellate Court held that the SAO did not violate FOIA because it had submitted an affidavit stating it was unable to locate records responsive to the requestor’s first request after conducting a diligent search. The Court also determined that the SAO properly denied the requestor’s second request as unduly burdensome because the requestor failed to narrow his burdensome request after being provided an opportunity to do so.

Finally, although the Sheriff initially failed to timely respond to the requestor’s FOIA request, the Court determined that the requestor's claims against the Sheriff’s Office were moot because the Sheriff had subsequently produced all responsive records to the request.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, May 21, 2024

FOIA Lawsuit Dismissed Where Requested Records Did Not Exist

In response to a FOIA request seeking policies and rules regarding statements by accused persons during custodial interrogations, a Sheriff’s Office responded that it did not have responsive records in its possession or custody. The  requestor sued the Sheriff’s Office alleging that its response violated FOIA, and sought a court order requiring the Sheriff’s Office to produce the requested records. The Sheriff’s Office moved to dismiss the case, supported by an affidavit from its administrative assistant responsible for maintaining its records that the assistant conducted a thorough search of the Sheriff’s Office records and did not find any responsive records. After the circuit court ruled in favor of the Sheriff's Office and dismissed the case, the requestor appealed.

In Hickman v. Mann, the an Illinois Appellate Court upheld the dismissal of the case. The court rejected the requestor’s argument that the circuit court should have struck the assistant’s affidavit because she was not the Sherriff’s Office designated FOIA officer, noting that FOIA’s plain language allows a public body’s FOIA officer or their designee to perform required duties under FOIA, including conducting a reasonably diligent search for records responsive to a FOIA request. Because the assistant had worked for the Sheriff’s Office for 14 years and her duties included maintaining its records, the assistant was authorized to attest that the Sherriff’s Office did not have records responsive to the FOIA request.

The Court also rejected the requestor’s various speculative arguments that the Sheriff’s Office had policies and rules responsive to his request within its possession or custody. First, the court determined that just because a state law contains requirements for recording custodial interrogations in certain situations does not prove that the Sheriff’s Office adopted policies or rules to comply with the law. Second, just because the requestor sent a similar FOIA request to a different agency that had enacted and disclosed a written policy does not establish that the Sheriff’s Office adopted a similar policy. Third, while FOIA requires public bodies to maintain a list of “reasonably current list of all types or categories of records under its control,” a public body’s failure to do so is not actionable under FOIA. The Court concluded that the Sheriff's Office was not required to create records in response to this FOIA request and if the policy that was requested in the FOIA request does not exist, then the nonexistence of the requested documents is a defense to a FOIA lawsuit. 

Post Authored by Eugene Bolotnikov, Ancel Glink

Monday, May 20, 2024

Court Rejected Lawsuit Challenging Denial of Local Pandemic Funding

During the pandemic, a City issued the "Safer at Home Order" which prohibited people from going out except for limited “essential activities.” To help mitigate economic damage as a result of the Order, the City made emergency funds available to non-essential businesses. The available funds were limited and not all of the qualifying businesses were able to receive funding.

A married couple who owned and operated an import and gift store filed suit against the City after their application for the emergency funds grant was denied. They claimed that the City denied their application because the husband had attended a rally protesting the Safer at Home Order, and that denial violated their free speech, equal protection and due process rights. They also alleged that certain statements made by the Mayor in a press statement about why he denied their application were defamatory.

The district court ruled in favor of the City and Mayor, and the business owners appealed to the Seventh Circuit Court of Appeals, which upheld the ruling rejecting the owners' claims in Navratil v. City of Racine

The business owners first alleged that the denial was retaliation for the husband exercising his First Amendment rights in attending the rally. The Seventh Circuit rejected that claim, finding that the rally he attended violated valid time, place, and manner restrictions as (1) the Safer at Home Order temporarily banned large public gatherings; and (2) the rally’s permit to gather on state property had been denied due to health hazards. 

The business owners also alleged a violation of their equal protection rights under two theories: (1) a political animus theory (that the grant application was denied due to the Democratic Mayor’s political beliefs about the Republican business owners); and (2) a class-of-one theory (other applicants in violation of the Safer at Home Order were granted funding). The Court rejected both theories, finding a lack of evidence to support the claims.

The business owners then alleged a violation of their procedural and substantive due process rights. The Court rejected that claim as well, finding the owners had no property interest in a purely discretionary government benefit and that they were not deprived of their legal ability to operate their business. 

Finally, the Court rejected the defamation argument on the basis that the Mayor’s statements about the business owners were substantially true and conveyed the Mayor's genuine thoughts and opinions.

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

Thursday, May 16, 2024

In the Zone: Court Rejects "Class of One" Equal Protection Lawsuit in Land Use Case

In Greenwald Family LP v. Village of Mukwonago, the Seventh Circuit Court of Appeals ruled in favor of a municipality in a "class of one" equal protection lawsuit challenging the municipality's decisions in various interactions with a property owner.

This case has quite a bit of history of interactions between the plaintiff (Partnership) and the Village related to 48 acres of land owned by the Partnership and the Partnership's desire to purchase additional property, ultimately leading the Partnership to file a lawsuit against the Village.

In 2014, the Partnership negotiated a purchase agreement to buy 4 acres of farmland from the Chapman family (Family) who owned 20 acres of farmland. The sale was contingent on Village approval of a land division of that larger parcel. The Partnership was told by the Village that a land division required a developer's agreement that would provide for the installation of certain infrastructure improvements including the construction of an access road, development plans, and a letter of credit to secure the obligation. The application was forwarded to the Village's plan commission, which conditionally approved the land division application conditioned on compliance with the conditions requiring a developer's agreement and development plans. After the Family's contract to sell the 4 acres with the Partnership  fell through because of the failure to meet these conditions, the Village purchased 8 acres from the Family, which included the 4 acres previously contracted for with the Partnership. The Village then constructed the access road, and sold the property to a developer as a development-ready parcel.

The Partnership also owned 47 other acres in the Village. Around 2018, the owner of property adjacent to the Partnership's land was negotiating to sell property to a developer, which triggered a requirement for construction of a new road that would cross a portion of the Partnership's property. After the Village initiated a condemnation action to "take" a portion of the Partnership's land needed for the road construction, the Partnership sued, claiming that the Village's condemnation action did not serve a public purpose and was intended to harm the Partnership. The Partnership alleged that the Village treated it differently than other developers and property owners in its various interactions and disputes. The district court rejected the Partnership's claims, finding a rational basis for each Village decision in dispute, and that ruling was appealed to the Seventh Circuit.

On appeal, the Seventh Circuit applied the two factors for a "class of one" equal protection claim (intentional treatment that is different from others similarly situated and no rational basis for the difference in treatment), and found no basis for the Partnership's claims because it agreed with the district court that the Village had a rational basis for each of its decisions being challenged (second factor). The Court cited to the benefits to the Village from development, including taxpayer benefits, commercial benefits, furtherance of planning objectives, and other community needs. The Court held that the Partnership failed to satisfy its burden to counter any conceivable rational basis for the Village's decisions, and concluded that the Partnership "is a disappointed landowner; it is not a victim of unconstitutional discrimination."

Thursday, May 9, 2024

In the Zone: Changes to Building Code Statutes

On August 4, 2023, Governor Pritzker signed PA 103-0510 into law, which makes several changes to two state statutes: the Capital Development Board Act and the Illinois Residential Building Code Act, which municipalities and counties should be aware of.

Changes to the Capital Development Board Act

The new law requires municipalities and counties that have adopted and are enforcing a building code to identify the adopted model code, by title and edition, and any local amendments, to CDB in writing no later than June 30, 2024. Similarly, municipalities and counties adopting a new building code must identify the model code being adopted, by title and edition, and any local amendments, to CDB in writing at least 30 days before the effective date of the building code. Note that the term “building code” under the new law expressly excludes zoning ordinances.

Effective January 1, 2025, the new law will prohibit any person from occupying a “newly constructed commercial building” or a “substantially improved commercial building” in any “non-building code jurisdiction” until the property owner (or its agent) has contracted with a qualified inspector to inspect the building. Under this new law, the inspector must file a certification of inspection with the municipality or county with jurisdiction over the property indicating whether the building complies with certain Code requirements specified in the Act. The certification requirement does not apply to municipal or county inspectors acting in their official capacity. A “non-building code jurisdiction" means an Illinois municipality or county that (i) has not adopted a building code; or (ii) is required to, but has not identified its adopted building code to the Capital Development Board (CDB). 

Also effective January 1, 2025, the law requires any municipal or county building code to regulate the structural design of new buildings, rehabilitation work in existing buildings, and residential buildings in a manner at least as stringent as the applicable baseline code applicable to those buildings. This section also expressly preempts home rule municipalities.

To comply with the Act, municipalities or counties adopting new building codes or amending existing building codes can identify the code being adopted, by title and edition, and any local amendments to the CDB in writing by visiting the CDB’s website, where they can complete and submit CDB’s County Municipal Reporting Form, and check whether their codes are up to date by visiting CDB’s Directory.

The law also requires CDB to: (1) identify the adopted model code(s) by title and edition, whether any local amendments were adopted, and the date municipalities and counties reported this information to CDB on their website; and (2) annually send written notices to municipalities and counties regarding their obligations under the Act. Many municipalities recently received these notices, which notices were sent, in many cases, to the mayor or president.

Changes to Illinois Residential Building Code Act

The new law also requires that any contract to build a “new residential construction” (construction of a single family home or dwelling containing 2 or fewer apartments, condos, or townhomes) in any non-building code jurisdiction incorporate, as part of the construction contract, the applicability of a “residential building code” agreed to by the home builder and the purchaser. If the builder and the purchaser fail to agree to a residential building code or if no residential building code is stated in the contract, the law states that certain default code provisions that are identified in the new law will be adopted as part of the construction contract.

Post Authored by Eugene Bolotnikov, Ancel Glink

Wednesday, May 8, 2024

In the Zone: City's Application of Parking Requirements to a Church Violated RLUIPA

A federal district court in Illinois recently held that a City's application of its parking requirements to a church placed a substantial burden on religious exercise under the Religious Land Use and Institutionalized Persons Act (RLUIPA) where the City applied their requirements on a case-by-case basis. Immanuel Baptist Church v. City of Chicago.

Since 2011, a church, located in a planned development within the City, operated with an occupancy of 146 people. The City Code required that buildings used for religious assembly have one off-street parking spot for every eight seats of occupancy, which meant the church was required to have 19 parking spots, which it did not have. In 2016, the church sought to purchase two nearby properties, and its lender requested proof of zoning compliance regarding the off-street parking requirement. For the next several years, City zoning officials and the church had extensive conversations to try to resolve the discrepancy, including options for a church exemption from the parking requirements. In 2018, the church met the off-street parking requirements when it leased a nearby parking lot. In June 2019, the City approved changes to the church’s planned development approvals to eliminate the parking requirement. Ultimately, the church was able to purchase part of one of the two properties it originally sought to develop.


The church subsequently sued the City alleging the City’s parking requirement violated RLUIPA’s equal term and substantial burden provisions as well as the U.S. Constitution. After preliminarily resolving two of the three issues, the only issue before the court at trial was whether the City’s parking regulations placed a substantial burden on religious exercise under RLUIPA.

Under RLUIPA's substantial burden provision:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

The district court stated that a substantial burden under RLUIPA can result when a government has procedures in place that permit it to make "individualized assessments" of the proposed uses of religious property. The City argued that RLUIPA did not apply in this case because it did not engage in an "individual assessment. However, the district court rejected the City's argument finding that RLUIPA did apply to the City's application of its parking requirements for religious institutions. Here, the court found that the extensive conversations between the City and church about avoiding the parking regulations were evidence the City's process was not applied mechanically but, instead, with a high degree of discretion. Because the City was making individualized assessments concerning its parking requirements on a discretionary, case-by-case basis, and the burden on the church was significant, the court held the parking requirements placed a substantial burden on the church under RLUIPA. The district court awarded the church $14,590.00 in damages.

Post Authored by Daniel Lev, Ancel Glink

Monday, May 6, 2024

Quorum Forum Podcast Ep. 83: Real Estate Law 101

Ancel Glink's Quorum Forum Podcast has released Episode 83: Real Estate Law 101 at the National Planning Conference.

In this episode, Ancel Glink’s Quorum Forum podcast was in attendance at #NPC24 in Minneapolis to celebrate six years of podcasting and Ancel Glink's David Silverman’s induction into the AICP College of Fellows, the highest honor bestowed on a member of the American Institute of Certified Planners. During the conference, David joined an esteemed panel for “Real Estate Law 101” to help planners understand the fundamentals of real estate and property law. 

Friday, May 3, 2024

Court Dismisses Whistleblower Retaliation Claim

An Illinois Appellate Court recently dismissed a police officer’s whistleblower retaliation claim. Blisset v. City of Chicago.

A police officer was demoted from the rank of Commander to Captain under a police department’s restructuring of its detective units and areas. After being demoted, the officer sued the City under the Whistleblower Act arguing he was retaliated against for disclosing illegal activity, refusing to participate in illegal activity, and that the police department retaliated against him for exposing public corruption or wrongdoing. The police officer alleged his demotion was retaliation for disclosing information to City attorneys about another officer’s attempt to commit perjury and his refusal to participate in a conspiracy to commit perjury.

The Whistleblower Act. 740 ILCS 174/1 et seq., prohibits an employer from retaliating against an employee for disclosing information which the employee reasonably believes discloses illegal activity to the government or law enforcement, or for refusing to participate in an illegal activity. The police officer argued that the Whistleblower Act created a private right of action against the City for retaliatory actions taken against him for disclosing public corruption. The circuit court ruled in favor of the City and dismissed the case, finding that the police officer failed to prove he disclosed information about an activity he reasonably believed to be illegal or that he refused to participate in illegal activity.

On appeal, the Appellate Court upheld the dismissal of the lawsuit. The Court noted that the Whistleblower Act required the police officer to show an invitation to participate in illegal activity and his refusal to participate. Here, the police officer failed to show that he was invited to participate in an illegal activity by any member of the police department or the City. Additionally, the Appellate Court ruled the police officer lacked a reasonable belief that he was disclosing information about an illegal activity as the statements made by the other officer were not made under oath. Finally, the Appellate Court rejected the police officer’s argument that the Whistleblower Act created a private right of action, finding that the Act merely defined actions by the police department that would constitute unlawful retaliation and did not grant the police officer a private right of action. 

Post Authored by Tyler Smith, Ancel Glink

Thursday, May 2, 2024

DOJ Issues New Rules on the Accessibility of Web Content

In April, U.S. Department of Justice announced new regulations that require state and local governments to comply with Web Content Accessibility Guidelines (Accessibility Rules). Title II of the Americans with Disabilities Act requires that state and local governments ensure that people with disabilities have an equal opportunity to benefit from programs, services, and activities. The new Accessibility Rules serve to supplement the protections under Title II, which previously covered local governments’ website content and online activity, but did not impose technical standards of conduct. The Department of Justice has explained that the new Accessibility Rules will ensure people with disabilities are able to engage in virtual services provided by state and local governments, including their ability to register to vote online, access public transportation schedules, and submit requests to their representatives.

The technical standards imposed by the new Accessibility Rules, referred to as Level AA, are an intermediary standard of compliance that was created by the Americans with Disabilities Act. In order to comply with the Level AA standard, government entities must offer alternative text for images displayed onscreen, transcripts to be posted alongside videos, a heightened color contrast, and consistent navigation across the local government's website or mobile app.

The Accessibility Rules will be imposed on different units of government gradually, depending on the number of constituents served by the government entity, the medium of web content (a website or mobile app, for example), and the relative importance of the subject matter. For example, the Rule requires that if the government body serves fewer than 50,000 persons, those entities have three years to comply. Government bodies that serve more than 50,000 persons only have two years to come into compliance with the new standards. The Accessibility Rules cover both web content and mobile apps, but provide exceptions for archived content, preexisting documents and social media posts, reposted content originally created by a third party, and individualized password-protected documents.

See more information about the Accessibility Rules here, and the full text of the Accessibility Rules here

Post Authored by Alexis Carter & Erin Monforti, Ancel Glink

Wednesday, May 1, 2024

In the Zone: Supreme Court Holds that Legislatively Enacted Impact Fees Are Not Exempt from Nollan and Dolan

The U.S. Supreme Court recently issued an opinion finding that legislatively enacted impact fees are not exempt from the "takings" analysis required by Nollan and DolanSheetz v. County of El Dorado, California

The owners of property in the center of the El Dorado County, California that was zoned in the low density residential district applied for a building permit to build a small, prefabricated house. As a condition to the permit, the County required the owners to pay a $23,420 traffic impact fee as required by the County's General Plan rate schedule. The owners paid the fee under protest and received the permit, but then sued the County in state court.

The owners claimed that the County's condition of a building permit on the payment of a traffic impact fee constituted an unlawful “exaction” in violation of the Takings Cause of the Fifth Amendment. The owners relied on the Supreme Court’s rulings in Nollan v. California Coastal Comm’n and Dolan v. City of Tigard, which they argued required the County to make an individualized determination that the fee imposed on their permit was necessary to offset traffic congestion attributable to their specific development. They claimed that the County's traffic impact mitigation fee was not calculated based on any “individualized determinations” as to the nature and extent of the traffic impacts caused by a particular project on state and local roads and, instead, the fee was established by a formula based on the location of the project (i.e., geographic zone within the County) and the type of project (e.g., single-family residential, multi-family resident, general commercial).

The trial court rejected the owners' claims and the California Court of Appeals affirmed. The Court of Appeals held that the Nollan/Dolan takings test applies only to permit conditions imposed on an individual and discretionary basis and that fees imposed on “a broad class of property owners through legislative action” such as the traffic mitigation fee adopted by the County did not need to satisfy the Nollan/Dolan takings tests. 

This case made its way to the U.S. Supreme Court. That Court recognized the government's authority to regulate land use and condition a building permit to further a “legitimate police-power purpose.” However, the Court held that legislatively-imposed fees are not exempt from the Takings Clause and could violate the Fifth Amendment if they do not have an “essential nexus” to the government’s land use interest and “rough proportionality” to the development’s impact on that interest.

The Supreme Court noted that the text of the Takings Clause does not distinguish between legislative and administrative permit conditions and either could constitute an unconstitutional condition on land-use permitsThe Supreme Court  did not determine the validity of the County’s impact fee in this case, or the degree of specificity required when tailoring an impact fee and instead sent the case back to the state court for further proceedings. 

It is important to note that the Supreme Court's ruling does not prohibit local governments from enacting and enforcing reasonable permitting conditions, including imposing legislative-enacted impact fees on a development. However, local governments will want to make sure that their impact fees comply with the nexus/rough proportionality test set out in Nollan and Dolan

Post Authored by Megan Mack & Julie Tappendorf, Ancel Glink