City's Limited Curfew During Protests Did Not Violate First Amendment

City's Limited Curfew During Protests Did Not Violate First Amendment

  Tuesday, October 22, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently ruled in favor of a city in a First Amendment challenge to a curfew order in Knowlton v. City of Wauwatosa.

In 2020, a police officer shot and killed a black teenager. After the District Attorney's (DA) office decided not to criminally charge the officer, and anticipating that this decision might spark violence in the community, the mayor issued a limited curfew order that went into effect after the DA's announcement. The curfew temporarily restricted pedestrian and vehicular traffic on city streets for five nights and ran from 7 pm to 6 am with exceptions for people traveling to and from work, government officials, the press, and social workers. 

A group of individuals who attended protests in the city (some of whom had been arrested for violating the curfew) sued the city to challenge the curfew, claiming it violated the First Amendment among other claims. The district court ruled in favor of the city on all claims and the plaintiffs appealed to the Seventh Circuit.

On appeal, the Seventh Circuit agreed with the district court ruling in favor of the city on the plaintiff's First Amendment claims. 

First, the Court determined that the city had a "significant government interest" in enacting the curfew to protect the safety of persons and property. The Court noted that a government need not wait until violence or harm materializes to impose safety measures, and that preventative measures to promote public safety are a "basic contribution to government." The Court found the city's public safety concerns to be well founded after the city had experienced civil unrest for months leading up to the curfew. The Court also noted that the neighboring town of Kenosha had seen extensive property damage and serious physical injury in the wake of a police shooting weeks earlier. 

Next, the Court found that the curfew was narrowly tailored to keep people off the streets for a short period of time after the DA's announcement, and was not imposed arbitrarily because of a generalized fear amidst nationwide protests. It was also limited in duration, and had exceptions for certain groups of people. 

Finally, the Court held that the curfew order left plaintiffs with adequate alternative means of communication because they could protest during the daytime hours, or after the curfew expired.

In sum, the Seventh Circuit ruled in favor of the city on the First Amendment challenge to the curfew.

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Lawsuit Challenging City's Authority to Enact Vaccination Policy Dismissed

Lawsuit Challenging City's Authority to Enact Vaccination Policy Dismissed

  Monday, October 14, 2024    Julie Tappendorf

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An Illinois Appellate Court recently dismissed a challenge to a City's COVID-19 employee vaccination policy because the employees did not identify any legal authority to support their claim that the City violated the law in adopting the policy. Sokolovski et al v. Arwady, City of Chicago et al.

In 2021, the City adopted a COVID-19 vaccination policy that required every City employee, contractor, or vendor who had contact with certain persons in the City to be vaccinated against COVID-19 unless exempted. A group of City employees filed a lawsuit to challenge the policy, claiming the City had no authority to require vaccination. The case was dismissed and the employees appealed.

On appeal, the employees argued the policy was unlawful because the City did not expressly identify any state statutory authority or municipal authority for the City to adopt the vaccination policy. The employees also argued that because the policy itself did not specifically state that the Mayor or City Council created the policy, the City had no authority to adopt or enforce the vaccination policy. The City defended its policy claiming it had authority under the Illinois Municipal Code to manage its workforce and to make regulations for the promotion of health or the suppression of diseases. The Appellate Court rejected the employees' arguments, finding no support for their claim that the policy had to name a specific City official who authorized the policy and identify the express authority relied upon to enact the policy. As a result, the lawsuit against the City to challenge the vaccination policy was properly dismissed.

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Local Government Law Institute - December 6, 2024

Local Government Law Institute - December 6, 2024

  Wednesday, October 09, 2024    Julie Tappendorf

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Calling all local government attorneys -- don't forget to sign up for the 2024 Local Government Law Institute hosted by the Illinois Institute for Continuing Legal Education (IICLE). This year's conference will be held in-person at the UBS Center in Chicago and will also offer a webcast option. 

More details about the conference sessions and speakers and registration can be found here. Below is a brief summary of the sessions offered at this year's conference.

Local Government Law Institute, 2024

Friday, December 6, 2024

The conference begins at 8:55 a.m. and concludes at 4:15 p.m. (cocktail reception to follow)

UBS Tower, Chicago (and webcast)

Sessions include:

• Case Law and Legislative Update
• Due Process Considerations in Administrative Hearings
• State and Federal Tort Immunity
• Update on Takings and Impact Fees
• Lunch Panel on Parliamentary Procedures/How to Run a Meeting
• Zoning & Planning Issues and Overlap Between Taxing Bodies
• Difficult World, Difficult Issues
• From Polls to Policy: Election Law Updates
• Secondary Trauma & Imposter Syndrome: Resilience Strategies for Local Government Attorneys

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In the Zone: Seventh Circuit Dismisses Takings Challenge to City’s Short-Term Rental Regulations

In the Zone: Seventh Circuit Dismisses Takings Challenge to City’s Short-Term Rental Regulations

  Monday, October 07, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals dismissed a lawsuit against a city that argued that the city’s shared housing ordinance constituted an unconstitutional "takings" because it prevented a condo owner from renting his property on Airbnb and other homesharing platforms. Mogan v. City of Chicago

The city’s ordinance for shared housing units allowed condominium homeowners’ associations (HOAs) to determine whether short-term rentals would be allowed in their respective buildings. When an HOA prohibited rentals, they would contact the city to have that building added to a list of prohibited buildings for short-term rentals. Renting or listing a short-term rental in a prohibited building would subject the unit owner to a $5,000 fine each day the violation continued. 

A condo unit owner in a building that had been placed on the city's prohibited building list by the HOA and property management company sued, arguing that the city’s ordinance was an unconstitutional taking under the Fifth Amendment and an inverse condemnation under the Illinois Constitution. The condo unit owner claimed he suffered financial losses because he had invested thousands of dollars to refurbish the apartment with the intent of using it as a short-term rental. The district court dismissed both claims, and the unit owner appealed.  

On appeal, the Seventh Circuit focused on language in the HOA covenants that governed the use of all units within the condo building. The covenants stated that no unit within the condominium could be leased for less than 30 days or greater than 30 days where hotel services were provided. Based on the language in the covenants that were in place at the time the owner purchases his condo unit, the court found that the owner was on notice he could not lease his unit for less than 30 days. As a result, the court reasoned that the owner could not prove the city’s ordinance had any economic impact on his unit or that the ordinance interfered with a reasonable investment-backed expectation (necessary elements to prove both the takings and inverse condemnation claims) because the unit owner never had a property right to lease his unit on a short-term basis.

Post Authored by Dan Lev & Julie Tappendorf, Ancel Glink

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Public Body Properly Redacted 911 Callers' Phone Numbers in PAC Opinion

Public Body Properly Redacted 911 Callers' Phone Numbers in PAC Opinion

  Thursday, October 03, 2024    Julie Tappendorf

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A law firm submitted a FOIA request seeking copies of 911 call recordings and other records related to a traffic crash, and the public body disclosed responsive 911 recordings, but redacted the callers' names and phone numbers. After the requestor submitted a request for review with the PAC challenging the redactions, the public body disclosed the names of the callers, but maintained that the home and personal phone numbers of the callers was exempt from disclosure under the "private information" exemption in FOIA. The PAC agreed with the public body and issued a binding opinion finding that the public body properly redacted the callers' phone numbers. PAC Op. 24-012.

First, the PAC rejected the requester’s claim that law firms are entitled to greater access to exempt information in public records because attorneys are officers of the court, noting that FOIA applies equally to all requestors and there is no statute supporting the existence of an “attorney-exception” that would allow attorney to have broader access to otherwise exempt information based on the professional credentials and motives of the requestor.

Second, the PAC rejected the requester's argument that the FOIA exemption in Section 7(1)(d)(iv) applies only to "confidential sources," finding that the exemption’s plain language includes people who file complaints with or provide information to law enforcement agencies, like the callers at issue.

Third, the PAC rejected the requester's argument that this same exemption does not apply when people call an agency and voluntarily provide their information, because the plain language of the exemption does not condition the confidentiality of a person’s name on whether those people have a reasonable basis to believe their names will be kept confidential. The PAC further noted that even if the 911 callers who provided their private phone numbers anticipated being contacted about what they witnessed, this possibility does not render this FOIA exemption inapplicable to the otherwise confidential identifying information of people who voluntarily contact law enforcement.

Finally, the PAC rejected the argument that the term "identities" in that FOIA exemption also includes at least one piece of personal information (e.g., home address, phone number, date of birth) in addition to a person's name, because there is no support for this claim. Indeed, the PAC determined that the term “identity” is typically defined as a person’s name, and a person’s other contact information is not necessary to provide an essential component of an "identity." Even if FOIA requires disclosing the identities of witnesses to traffic accidents, the PAC stated this does not diminish a public body’s authority to redact expressly exempt private information such as their phone numbers.

Post Authored by Eugene Bolotnikov, Ancel Glink

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In the Zone: Court Upholds Constitutionality of Horse Boarding Zoning Ordinance

In the Zone: Court Upholds Constitutionality of Horse Boarding Zoning Ordinance

  Wednesday, October 02, 2024    Julie Tappendorf

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An Illinois Appellate Court issued a ruling in favor of a Village in a longstanding dispute over a commercial horse boarding operation in Drury et al. v. Village of Barrington Hills, et al.

A property owner filed suit against the Village and his neighboring property owner to challenge the constitutionality of a zoning approval ordinance that allowed a horse boarding operation on his neighbor's property. The lawsuit claimed that the ordinance was unconstitutional because it did not benefit the "public welfare" but instead was intended to personally benefit his neighbor. The trial court upheld the zoning ordinance finding that it was "rationally related to the legitimate public interest of promoting horse-boarding operations" in the Village and plaintiffs appealed. 

On appeal, the Appellate Court upheld the trial court's ruling upholding the constitutionality of the zoning ordinance. First, the Court held that even though the zoning approval ordinance had since been repealed, the constitutionality of the ordinance was still relevant because the operator of the horse-boarding facility had filed a separate lawsuit claiming he had a vested right to continue his operations. Second, the Appellate Court rejected plaintiffs' argument that the trial court applied the wrong legal standard, holding that the "rational basis" test applied to their facial substantive due process challenge to the zoning ordinance. Applying the rational basis test to this challenge, the Court acknowledged that the Village had conducted extensive public hearings and received testimony and evidence from experts and numerous members of the public before acting on the zoning ordinance. The Court found the trial court's findings to be well reasoned and thorough, and agreed with its legal conclusion that the zoning ordinance was rationally related to a legitimate public welfare purpose. Finally, the Court rejected plaintiffs' argument that the zoning ordinance's "retroactivity" provision only benefited his neighbor, finding that it was actually beneficial to a number of other horse boarders in the Village. 

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Court of Appeals Weighs in On Recent First Amendment Decision Issued by U.S. Supreme Court

Court of Appeals Weighs in On Recent First Amendment Decision Issued by U.S. Supreme Court

  Tuesday, October 01, 2024    Julie Tappendorf

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In March, we reported on two opinions issued by the U.S. Supreme Court in cases involving First Amendment challenges to government officials’ use of social media on their personal social media accounts, including Lindke v. Freed. In Lindke, the Supreme Court announced a two-part test for establishing that an official’s actions on their personal social media acounts can be attributed to the government (and subject to First Amendment limitations. In order to show that an official’s social media activity on the official's personal social media account is subject to the First Amendment, it must be shown that the official:

1.  has actual authority to speak on behalf of the government on a particular matter; and
2.  purports to exercise that authority in the official's activities on social media.

The Lindke opinion was issued in response to a case challenging the social media activities of the City Manager of Port Huron, Michigan, who had deleted critical comments on his personal Facebook page that were left by an individual who was dissatisfied with the City’s handling of the COVID-19 pandemic. In addition to deleting the critical comments, the City Manager eventually blocked the critic from accessing his Facebook page altogether. The commenter sued the City Manager, claiming the deletion of comments and blocking violated his First Amendment rights. After the U.S. Supreme Court announced its two-part test, it sent the case back to the Sixth Circuit Court of Appeals to assess whether the City Manager’s social media activities violated the First Amendment. In late August, the Sixth Circuit issued its opinion, providing more insight on the analysis set forth by the Supreme Court.

For the first part of the test announced by the Supreme Court, the Sixth Circuit clarified that the City Manager must have had actual authority to speak on behalf of the City in his posts. The Sixth Circuit explained that the City Manager’s Facebook posts would need to be within his “portfolio of responsibilities” to bring his activity under First Amendment scrutiny. In other words, it would not be enough for an individual challenging his activities to show that he had some authority to speak on behalf of the City—rather, the posts must be clearly related to his role and responsibilities as City Manager. Additionally, the actual authority to speak on behalf of the government must come from a distinct statute, ordinance, regulation, custom, or usage. While it is relatively easy to show that an ordinance or regulation gives an official authority to speak, the Court acknowledged it can be difficult to show actual authority by “custom” or “usage,” which rely on unwritten practices that have become so widespread or common that they carry the force of law. The Sixth Circuit, echoing the Supreme Court, cautioned that assessing actual authority requires a close review of an official’s duties, and will be found where those duties include making statements on behalf of the government consistent with their office.

If the critic is able to show that the City Manager had actual authority to speak on behalf of the City, he then has to establish that the City Manager exercised that authority in the social media activity being challenged. The Sixth Circuit clarified that this second step of the test announced by the Supreme Court requires a post-by-post analysis. The commenter must show that the City Manager was exercising his official authority in the posts where his comments were deleted. For the challenge to the City Manager’s choice to block the critic from his page, however, the assessment is much broader -- any post on the account that is shown to be an exercise of his actual authority to speak on behalf of the City could result in liability under the First Amendment if the City Manager censored protected speech. The Sixth Circuit noted that “context is everything” for the post-by-post analysis under the second part of the test announced by the Supreme Court and requires a close review of the challenged posts’ content and function. The Sixth Circuit provided several examples of social media activity that would most likely lead to a finding that the First Amendment applies: 

• Posts expressly citing an official’s legal authority to post on behalf of the government;
• Posts that have some legal consequence, such as the posting of a “burn ban” by a municipal fire marshal; or
• Posts that were made using government staff or funding.

Because the test announced by the Supreme Court was not available to the parties when the Lindke case was brought, the Sixth Circuit sent the case back to the district court to provide an opportunity to establish facts that shed light on this new test. The Sixth Circuit noted, however, that the state action analysis set forth by the Supreme Court does not address several other important issues that are relevant to a First Amendment challenge (including forum analysis and the application of qualified immunity), suggesting that there will likely be more litigation challenging government social media activities in the future.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Court Finds in Favor of College that Protected Personal Information of Students from FOIA Release

Court Finds in Favor of College that Protected Personal Information of Students from FOIA Release

  Monday, September 30, 2024    Julie Tappendorf

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The BGA submitted a FOIA request to City Colleges of Chicago (College) seeking various education records related to their 2018 graduation rate. The College withheld its responsive records citing Section 7(1)(a) of FOIA, claiming that the educational records contained personally identifying student information (PII) that was prohibited from disclosure by the Family Educational Rights and Privacy Act of 1974 (FERPA) without the consent of the students, their parents, or guardians. The BGA sued the College alleging that its response violated FOIA, and the circuit court ruled in favor of BGA, finding that FERPA did not "specifically prohibit" the disclosure of the requested records because FERPA only conditioned the College's receipt of federal funding on its compliance with FERPA, and ordered the College to disclose the records.

The College appealed and the Appellate Court reversed the circuit court's ruling. BGA v. City Colleges of Chicago. In a matter of first impression in Illinois state courts, the Appellate Court examined the interplay between FERPA and FOIA, and concluded that FERPA specifically prohibited the College from disclosing PII in educational records without student, parental, or guardian consent. Thus, the Appellate Court held that the College properly withheld educational records containing PII in response to the FOIA request. The Court also found that the circuit court’s order requiring the College to disclose its records containing PII without consent was unreasonable, because FERPA imposes a binding obligation on schools that accept federal funds and prohibits schools from disclosing PII. As a result, the circuit court’s order for the College to disclose its PII without consent would force the Colleges to violate federal law, and risk losing its federal funding, which is essential to its operations.

The Appellate Court also declined to order the College to disclose its de-identified educational records with PII removed, and instead remanded the case back to the circuit court to review the College's responsive records "in camera" to determine whether the records can be redacted or segregated to protect the disclosure of PII.

Post Authored by Eugene Bolotnikov, Ancel Glink

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PAC Finds Police Department in Violation of FOIA for Withholding Police Report

PAC Finds Police Department in Violation of FOIA for Withholding Police Report

  Thursday, September 26, 2024    Julie Tappendorf

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In response to a FOIA request seeking a case report and related records for an incident, a municipal police department withheld responsive records from disclosure citing Section 7(1)(d)(i) of FOIA, which exempts records that would interfere with a pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement. The requestor then appealed the denial to the Public Access Counselor of the Attorney General's office (PAC). 

In PAC Op. 24-011, the PAC issued a binding opinion concluding that the police department violated FOIA by entirely withholding its responsive records. Specifically, the PAC noted that the case report indicated the police department had administratively closed its investigation into this matter. The PAC rejected the police department's argument that this exemption was still valid because the department was assisting other law enforcement agencies with similar incidents involving a suspect matching the same description, motive, and vehicle, finding that the department did not provide a detailed factual basis explaining with specificity how disclosing its responsive records would interfere with those ongoing joint law enforcement investigative efforts.

The PAC ordered the department to release the records, but stated the department could redact names, identifying information, and details that might disclose the identity of an at-large suspect pursuant to the personal privacy and private information exemptions.

Post Authored by Eugene Bolotnikov, Ancel Glink

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In the Zone: Join Us at the 2024 APA-IL State Conference

In the Zone: Join Us at the 2024 APA-IL State Conference

  Wednesday, September 18, 2024    Julie Tappendorf

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It’s that time of year again: the 2024 APA-IL State Conference is next week, from September 25–27, at the I Hotel and Illinois Conference Center in Champaign, Illinois. The Conference program is packed with great sessions and events, including several noteworthy presentations from Ancel Glink attorneys: 

• Join attorney Dan Bolin on Wednesday, September 25 at 9:45 AM, at GovLove x APA-IL: Award-Winning Planners, for a discussion of notable contributions to the planning field that have been recognized for achievements in building safer, stronger, and more equitable communities.

• Also at 9:45 AM on Wednesday, attorney Tyler Smith will be presenting important legislative and case law updates during the annual Speed Planning session.

• At 2:30 PM on Wednesday, join Greg Jones for a session on Preparing for Legislative Action in 2025¸ featuring updates from the APA-IL Legislative Committee.

• On Thursday, September 26, Greg Jones will be joining several esteemed colleagues and friends to provide a full-day Plan Commissioner training session, featuring a presentation on best practices for plan commissioners, networking opportunities, and a mock hearing (learn more and register here here).

• On Thursday at 8:30 AM, Dan Bolin will be presenting on Planning for Migrant Arrivals to discuss best practices for responding to the influx of migrants and asylum seekers arriving in Illinois communities.

• On Friday, September 27 at 11:00 AM, attorneys Dan Bolin, Adam Simon, and Erin Monforti will be participating in the Hot Ones Law Session to discuss the hottest topics in planning law while enjoying hot wings and refreshing questions from attendees.

The full program for the Conference is available here. We hope to see you next week!

Post Authored by Erin Monforti, Ancel Glink, P.C.

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Referendum Could Not Change "Manner of Selection" of Municipal Board of Ethics

Referendum Could Not Change "Manner of Selection" of Municipal Board of Ethics

  Monday, September 16, 2024    Julie Tappendorf

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In Schittino v. Village of Niles, an Illinois Appellate Court invalidated a referendum that had attempted to change the manner of selection of a municipal board of ethics from an appointed board to an elected one.

A home-rule municipality adopted an ordinance to establish an appointed board of ethics. In 2019, voters initiated a referendum to replace the appointed ethics board with an elected one. The referendum was delayed in litigation as the village clerk refused to certify the referendum, believing it was unauthorized by the Illinois Constitution. In 2021, an Illinois Appellate Court held that the clerk’s role under state law was limited to determining whether the petition was in “apparent conformity” with filing requirements—e.g., having the minimum number of signatures—and not matters of substantive constitutionality. As a result, the referendum was allowed to proceed and was subsequently approved by voters at the April 2021 election.

The village then placed a referendum on the June 2022 ballot to repeal the 2021 referendum and restore the ethics board to appointed positions. However, because voters failed to approve the 2022 referendum, the 2021 referendum remained in effect and the village scheduled elections for the ethics board at the next municipal election in 2023.

In 2023, a lawsuit was filed to challenge the 2021 referendum and asked the court to declare that the 2021 referendum was not authorized by the Illinois Constitution and to issue an injunction prohibiting  the village from certifying any 2023 election results for the elected ethics board members. The circuit court ruled in favor of the plaintiff and declared the 2021 referendum invalid and prevented its enforcement.

Intervenors in the lawsuit (including a candidate for the ethics board at the 2023 election) appealed the circuit court’s decision. The Appellate Court agreed with the circuit court and denied the appeal, as follows.

First, the Appellate Court held that the ethics board members did not qualify as “officers” as required under Section 6(f) of Article VII of the Illinois Constitution. Section 6(f) provides as follows:

  (f)  A home rule unit shall have the power subject to approval by referendum to adopt, alter or repeal a form of government provided by law, except that the form of government of Cook County shall be subject to the provisions of Section 3 of this Article. A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law. A home rule county shall have the power to provide for its officers, their manner of selection and terms of office in the manner set forth in Section 4 of this Article.

The Appellate Court pointed to an Illinois Supreme Court case that held that “officers” referenced by section 6(f) are only those included in the form of government provided for in the Illinois Municipal Code. Here, the Appellate Court found no language in the Illinois Municipal Code providing for an ethics board as part of the form of municipal government. As a result, the ethics board members were not "officers" under Section 6(f) of the Illinois Constitution, and the "manner of selection" of their members could not be changed by the 2021 referendum.

Second, the Appellate Court rejected the intervenors argument that the suit was barred by the laches doctrine because the plaintiff waited two months before the 2023 election to file suit against the 2021 referendum, resulting in prejudice to the ethics board member candidate intervenor. The Appellate Court held that the intervenors failed to demonstrate any evidence to show prejudice and that the plaintiff did not unreasonably wait to file suit as the 2022 referendum could have repealed the 2021 referendum.

Post Authored by Katie Nagy & Julie Tappendorf, Ancel Glink

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Seventh Circuit Dismisses Challenge to State's Mail-In Ballot Procedure

Seventh Circuit Dismisses Challenge to State's Mail-In Ballot Procedure

  Wednesday, September 11, 2024    Julie Tappendorf

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Last month, the Seventh Circuit Court of Appeals rejected a challenge to Illinois election laws that allow election officials to receive and count mail-in ballots for up to two weeks after the date of the election so long as the ballots are either (1) postmarked on or before the day of the election or, (2) if there is no postmark, the voter signs a certification that accompanies the ballot. Bost v. Illinois State Board of Elections, et al.

A group of Illinois voters and political candidates filed a lawsuit against the State Board of Elections to challenge Illinois' mail-in vote procedure, arguing that it unlawfully expanded the time in which residents can vote. The district court dismissed the claims, finding that the plaintiffs did not have standing to sue and, even if they did, the challenge had no merits. 

Plaintiffs appealed to the Seventh Circuit Court of Appeals, which upheld the dismissal on standing grounds. The Seventh Circuit first rejected the voters-plaintiffs' argument that the plaintiffs votes will be "diluted" if mail-in ballots are counted after election day, finding that claim to be too generalized and not the type of particularized injury to support standing. Second, the Seventh Circuit rejected the candidate-plaintiffs' argument that they had to expend additional resources after election day to contest any objectionable ballots, finding that this future claim of harm was neither actual or imminent to support standing. The Court also rejected the candidates-plaintiffs' argument that they have an interest in ensuring that only legally valid votes are counted, finding that argument to be purely speculative. In sum, the Seventh Circuit upheld the dismissal of the lawsuit based on lack of standing.

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Village Owed No Duty of Care to Bicyclist Injured on Sidewalk

Village Owed No Duty of Care to Bicyclist Injured on Sidewalk

  Tuesday, September 10, 2024    Julie Tappendorf

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An Illinois Appellate Court ruled in favor of a Village in a bike injury case in Johnson v. Village of Palatine.

In June 2020, a cyclist was riding his bicycle on a sidewalk adjacent to a high-traffic street. While riding his bike, the cyclist struck an uneven section of the sidewalk, and fell and was injured. He sued the Village, claiming the Village owed him a duty of care to maintain or repair the sidewalk, which he claimed the Village negligently failed to do, leaving it dangerous and unsafe for use.

The Village asserted the following defenses against the lawsuit:

(1)  under the Tort Immunity Act, the Village did not owe the cyclist a duty of care because the sidewalk was intended only for pedestrian use while bicyclists were only permitted users;

(2)  the Village also did not owe the cyclist a duty of care because the alleged defect in the sidewalk was an open and obvious condition; and

(3)  the Village had immunity under the Tort Immunity Act regarding its allocation of funding to its proactive sidewalk replacement program.

The cyclist argued he was an intended user of the sidewalk because there were no bike lanes available on the high-traffic street, leaving him no other choice but to use the sidewalk. He also claimed he was an intended user because the Village had ordinances regulating bicycle use on sidewalks where it was allowed so long as there was no signage prohibiting that use, of which there was none on the high-traffic street. The cyclist also claimed that since he was a citizen of the Village, it was intended that he would use the sidewalk, so the Village owed him a duty of care.

The trial court ruled in favor of the Village and the Appellate Court upheld that ruling on appeal. The Appellate Court first determined there was no merit to the cyclist’s claim that he was an intended user of the sidewalk. The Court noted that the sidewalk was not signed for cyclist use, nor were there pavement markings or other indicators that the sidewalk was intended for bicycle use. Further, the Village’s own ordinances defined sidewalk as being intended for pedestrians, with no mention of cyclists. The Court rejected the cyclist’s argument that because he was forced to use the sidewalk because of the dangerous nature of the busy road, that meant he was an intended user. 

The Appellate Court concluded that there was no merit to the Plaintiff’s contention that he was an intended user of the sidewalk and that his argument regarding his interpretation of the Tort Immunity Act contradicted all precedent. The Court did not address the Village’s “open and obvious” argument since it disposed of the case based on its finding that the cyclist was not an intended user of the sidewalk, and, as a result, the Village did not owe him a duty of care.  

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

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New Illinois Law Regulates Low-Speed Electric Scooters

New Illinois Law Regulates Low-Speed Electric Scooters

  Friday, September 06, 2024    Julie Tappendorf

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Effective on August 9, 2024, Illinois Governor Pritzker signed SB 1960 into law as Public Act 103-0899, which amends the Illinois Vehicle Code to add provisions regarding low-speed electric scooters.

The new law defines a low-speed electric scooter as follows:

A device weighing less than 100 pounds, with 2 or 3 wheels, handlebars, and a floorboard that can be stood upon while riding, that is solely powered by an electric motor and human power, and whose maximum speed, with or without human propulsion, is no more than 10 miles per hour. "Low-speed electric scooter" does not include a moped or motor-driving cycle.

The law allows municipalities, park districts, forest preserve districts, or conservation districts (units of local government) to authorize and regulate the operation of low-speed electric scooters within their respective units of local government on any or all highways under their respective jurisdiction, sidewalks, trails, or other public rights-of-way where the operation of bicycles is permitted.

The law clarifies that the use of low-speed electric scooters within the units of local government is only allowed if a unit of local government authorizes their use within its jurisdiction.

The law also clarifies that any authorization or regulation by a park district, forest preserve district, or conservation district concerning low-speed electric scooters only applies on property owned, managed, or leased by the park district, forest preserve district, or conservation district.

The law also:

• exempts low-speed electric scooters operators from obtaining an Illinois driver’s license (or permit), registration, or a certificate of title to operate the scooter;
• prohibits operating a low-speed electric scooters unless a person is 18 years of age or older;
• prohibits operating a low-speed electric scooters while under the influence of drugs or alcohol;
• prohibits operating a low-speed electric scooters on a highway with a posted speed limit in excess of 35 miles/hour;
• prohibits operating a low-speed electric scooter on state highways;
• prohibits operating a low-speed electric scooter while carrying certain items that prevent the operator from keeping at least one hand on the wheel;
• prohibits a low-speed electric scooter from carrying more than one person at a time;
• prohibits attaching a low-speed electric scooter or its operator to any other vehicle being operated on a public right-of-way; and
• requires low speed electric scooters to be well-maintained, in good operating condition, and possess certain required equipment (e.g., lamps, brakes, sirens).

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

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PAC Finds Village Board Meetings Were Not Open or Convenient Under OMA

PAC Finds Village Board Meetings Were Not Open or Convenient Under OMA

  Thursday, September 05, 2024    Julie Tappendorf

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The Public Access Counselor of the Illinois Attorney General's Office issued its 10th binding opinion of 2024 in PAC Op. 24-010, finding a Village Board in violation of the Open Meetings Act for failing to make its meetings open and convenient to the public.

Multiple requests for review were filed against a Village relating to meetings held in June and July of 2024. Specific complaints included allegations that there was insufficient space in the meeting room for members of the public who wanted to attend and many were turned away from each of these meetings because of limited seating capacity,, and that police department measures impeded public attendance. 

The PAC analyzed the various requests for review and concluded that the two Village Board meetings at question were neither "open" nor "convenient" as required by the Open Meetings Act. 

First, the PAC determined that the Board had adequate notice that its meeting space would be inadequate as there had been significant public interest in the Village Board's activities and controversies. The PAC stated that the Board should have foreseen the public interest where the Board and Mayor were engaged in a number of conflicts and disputes at previous meetings of the Village Board. The PAC noted that the Board could have moved its meetings to a larger venue, offered standing room or overflow capacity in another room, or offered a remote option for members of the public to ensure members of the public could be accommodated in some fashion. 

Second, the PAC rejected the Police Chief's argument that heightened security concerns justified curtailing attendance by the public, including street closures, parking barricades, and excessive police presence that physically impeded members of the public from attending the meetings. 

Finally, the Board acknowledged that while public bodies are not required to ensure that every single person who wants to attend a meeting is able to do so in "full comfort," the "open and convenient" requirement of the OMA required the Board to implement measures to better accommodate the public, which it failed to do at both the June and July meetings.

The PAC concluded by directing the Village Board to take actions to ensure that future meetings are open and convenient to the public, including holding future meetings at alternative locations, if necessary, to accommodate the public. 

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Municipal Caucus Overview for the 2025 Consolidated Election

Municipal Caucus Overview for the 2025 Consolidated Election

  Wednesday, September 04, 2024    Julie Tappendorf

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With municipalities across Illinois set to elect new local officers at the 2025 Consolidated Elections, an overview of the lesser-known nomination method of municipal caucuses may be helpful for smaller municipalities. Note that the overview discussed below applies to official caucus nomination methods established by statute, and not the informal "caucus" political party nomination process that is used in some municipalities. If you are not sure which system your municipality must follow, please consult with your legal counsel.

Illinois municipalities administer either partisan elections (where candidates are nominated and elected from political parties) or nonpartisan elections (where candidates are nominated and elected on a nonpartisan basis). For cities, villages, and incorporated towns with partisan election systems and populations below 5,000 persons, candidates are nominated by established political parties at municipal caucuses unless, on or before November 15, 2024, the municipality passes an ordinance requiring established political parties to hold a primary. These municipalities will hold their caucuses on December 2, 2024, and caucus candidates must file their certificates of nomination with the municipal clerk during the filing period of December 9 – 16, 2024.  10 ILCS 5/10-1(a). Clerks must certify the names of caucus candidates by no later than January 23, 2025.

At a municipal caucus, registered voters select candidates from their political party to nominate for offices up for election in the April consolidated election. Voters can only participate and cast votes at the caucus of one political party (for example a person who participates in the caucus of political party A cannot then participate in the caucus of political party B). An established political party may only nominate one candidate for an office to be elected by the caucus method. The candidate receiving the most votes at the caucus becomes the party’s nominee, and any candidate defeated at the caucus may not run for the same office as a different political party, independent, or write-in candidate.

After being nominated at a caucus, the candidates must then individually file nomination paperwork with the local election official to appear on the consolidated election ballot. If there are two or more political parties that have nominated candidates for an office, the local election official must hold a ballot placement lottery to determine the ballot order. Candidates nominated by caucus appear on the ballot in the same order as their names appeared on the caucus sheet. 

If a caucus will occur, November 22, 2024, is the last day for the municipal clerk to publish or post the notice of caucus. In municipalities with populations over 500 persons, the local election official must publish notice of caucuses in a newspaper published within their municipality. If no such newspaper exists, a local election official is required to publish notice of a caucus in a newspaper of general circulation within the county their municipality is located in. For municipalities with a population of 500 or less, the local election official must post notice of the caucus in three of the most public places within the municipality.

Post Authored by Keri-Lyn Krafthefer & Tyler Smith, Ancel Glink 

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In the Zone: Seventh Circuit Rejects Challenge to Local Sign Regulations

In the Zone: Seventh Circuit Rejects Challenge to Local Sign Regulations

  Tuesday, September 03, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently issued an opinion upholding municipal sign regulations against a First Amendment challenge brought by a billboard company. GEFT Outdoor, LLC v. City of Evansville, Indiana.

A City in Indiana had enacted sign regulations that distinguish between on-premises signs and off-premises signs. In a lawsuit that spanned several years and included various arguments under the First Amendment, these regulations were challenged by a billboard company on various grounds, including that: (1) the distinction between on- and off-premises signs in the City's sign code was an unconstitutional content-based classification; (2) the City’s criteria for reviewing variance requests were likely to take content into consideration in violation of the First Amendment; and (3) the sign code impermissibly exempts certain categories of non-commercial messages for preferential treatment.

The first challenge, based on the distinction between on- and off-premises signs, was successful in the district court. However, the Seventh Circuit ultimately vacated that decision after the Supreme Court issued its opinion in City of Austin v. Reagan, determining that distinctions between on- and off-premises signs are not unconstitutional content-based discrimination.

The second challenge to the City’s variance procedures was rejected by the district court, which found that the sign code’s criteria for variances did not include a review of the proposed sign’s content. Additionally, the District Court determined that the City’s sign code was sufficiently specific to avoid a First Amendment violation. The Seventh Circuit noted that its recent decision in GEFT Outdoor, LLC v. Monroe County all but foreclosed the billboard company’s arguments, since near-identical variance criteria were upheld against a similar challenge in that case.

In its third challenge, the billboard company attempted to argue that the City was clearly considering content in its sign ordinance, since certain regulations did not apply to political signs and signs with other non-commercial messages. The Seventh Circuit noted that, in order to succeed on this claim, the billboard company had to show that the regulations were unconstitutional on their face, meaning that the ordinance (or at least a substantial portion of the ordinance) was unconstitutional in any case, regardless of its application or enforcement. The Seventh Circuit again ruled against the billboard company, finding that it failed to argue that a substantial portion of the ordinance was unconstitutional. Instead, it had focused its claim on the specific application of the variance criteria to its request, effectively conceding that the bulk of the sign regulations were valid.

Ultimately, the Seventh Circuit ruled that the billboard company had failed to show that the City unlawfully considered the content of its proposed off-premise sign in rejecting its request for a variance.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Regulating Election and Campaign Signs

Regulating Election and Campaign Signs

  Thursday, August 29, 2024    Julie Tappendorf

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Every election cycle presents unique challenges for public bodies. To stay ahead of these possible issues, one thing to add to your checklist is the review of your sign ordinance to make sure you are prepared to address any issues that arise related to the regulation of election and campaign signs. 

First, you should confirm your sign ordinances does not single out political signs. Municipal officials should be aware of restrictions on their authority to regulate temporary election and campaign signs on private property. Illinois law prevents municipalities from prohibiting the display of temporary outdoor political campaign signs on private residential properties. 65 ILCS 5/11-13-1(12). Municipal sign codes also cannot impose stricter time restrictions on the display of temporary election and campaign signs than other signs (such as “for sale” signs or holiday decorations). Placing stricter time display requirements only on temporary political signs is a content-based regulation and could result in First Amendment lawsuits against a municipality. Your ordinance cannot, for example, permit real estate signs all year round, but only permit political signs for a certain time period. Your sign regulations must be content neutral.

Second, while your public body can prohibit campaign signs from being placed on government property (public rights of way, for example), it is important to know that candidates or their supporters are allowed to place temporary election and campaign signs on public property outside the designated campaign-free zone during the time period that polls are open for voting on primary and general election days. Special rules apply to political and campaign signs on public property during an election day, and an “election day” is considered any day that early voting may be occurring on your property - it is not just the official day of the election. If your governmental property is a polling place, Illinois law prohibits any electioneering activities within a polling place where voters cast ballots and within 100 feet of a polling place. 10 ILCS 5/17-29. As such, on an “election day,” no election or campaign signs may be placed within this 100-foot designated campaign-free zone, but congregating and engaging in electioneering activities (such as placing election and campaign signs) are permitted on public property outside the designated campaign-free zone. There are special rules for the location of the designated campaign-free zone depending on the unique characteristics of a polling place, which may result in you having to measure the distance from the polling place to see where the campaign-free zone ends. Depending on the measurements from your specific polling place location, you may actually have to permit electioneering within your public building outside of the 100 feet campaign-free zone.

Under section 17-29(c) of the Election Code, the regulation of electioneering on polling place property on election day, including the placement of temporary signs, is an exclusive power and function of the State, so this preempts home rule municipalities from adopting any laws inconsistent with this statute.

Post Authored by Keri-Lyn Krafthefer & Tyler Smith, Ancel Glink

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Special Considerations about Establishing Compensation of Elected Officials

Special Considerations about Establishing Compensation of Elected Officials

  Wednesday, August 28, 2024    Julie Tappendorf

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Note: this is part 2 in our 2-part series on elected officials compensation.

Our previous post discussed the time period by which public bodies must establish compensation for their officers to be elected in the April 2025 election. In this post, we address special factors to keep in mind when establishing compensation for elected officials.

First, section 3.1-30-5 of the Illinois Municipal Code requires municipalities to establish their compensation by ordinance – not by a resolution or motion. The salaries may be fixed in the annual appropriation or budget ordinance, provided that the salaries or compensation of an elected official may not take effect during the term of any officer holding an elective office and that they are adopted at least 180 days prior to the terms of office commencing. See 65 ILCS 5/3.1-50-10 and 3.1-50-5.

Second, the compensation of elected officials must specify whether the members of the corporate authorities are to be compensated at an annual rate or for each meeting for which a public notice of the meeting was given. 65 ILCS 5/3.1-50-15. Also, you might consider specifying whether this applies to both regular and special meetings, and whether an elected official will be paid for a meeting even if they fail to attend. 

Third, in addition to setting a salary or per meeting stipend, the compensation ordinance should specify whether the elected official’s compensation includes health insurance benefits or participation in the Illinois Municipal Retirement Fund. “Compensation” generally includes other benefits, like health insurance. See Ill. Attorney General Opinions 94-022  and 96-039.

Fourth, consider how to address expense reimbursement. If elected officials are submitting receipts and receiving reimbursement, that is permissible and not considered additional compensation under Section 3.1-50-15 of the Illinois Municipal Code. However, if an elected official is given a fixed lump sum expense allowance, that would be considered to be additional compensation. See DeSutter v. South Moline Township Board, 96 Ill.2d 372 (1983) and Hume v. Town of Blackberry, 131 Ill.App.3d 32 (1985). Also, if you provide a fix stipend amount for expenses, specify how that will comply with the requirements of the Local Government Travel Expense Control Act, 50 ILCS 150/1, et seq. Are travel expenses covered by the stipend or in addition to it?

Except for the clerk who can receive additional compensation for serving as collector (65 ILCS 5/3.1-50-25) and the mayor/village president who can receive additional compensation for serving as the local liquor control commissioner (235 ILCS 5/4-3), elected officials cannot receive additional compensation from the municipality, even for performing additional duties. See Ill. Attorney General Opinion 99-009. 

Finally, an ordinance that is adopted at least 180 days prior to the terms of office, can provide for a cost of living or other similar increase during the term of office according to the Illinois Attorney General, which has opined that such increases, during the term of office, do not violate the prohibitions against increasing salaries during a term of office because they are set 180 days in advance. See Illinois Attorney General Opinion S-1366. 

Post Authored by Keri-Lyn Krafthefer & Katie Nagy, Ancel Glink

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It's Time to Establish Elected Officials' Compensation for Terms Starting in 2025

It's Time to Establish Elected Officials' Compensation for Terms Starting in 2025

  Tuesday, August 27, 2024    Julie Tappendorf

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Note: this is part 1 of a 2-part series on elected officials compensation. Stay tuned for part 2 tomorrow

Although the outcome of the November 2024 elections is still unresolved, it is time for Illinois local governments to start focusing on the 2025 elections. One important action step that needs to move to the top of your list is establishing compensation for the officers who will be elected in 2025. 

Section 2 of the Local Government Officer Compensation Act specifies that the compensation of elected officers “shall be fixed at least 180 days before the beginning of the terms of the officers whose compensation is to be fixed.” Section 3.1-50-10 of the Illinois Municipal Code contains the same requirement.  

For most units of local government that want to set the salaries of the officials who will be elected at the April 1, 2025 election, the precise calculations can be a little tricky, as discussed below, but most public bodies will meet this deadline if they take action before the end of October.  For townships, it is simple to calculate the 180-day deadline, because all township officials (except assessors and collectors) take office on the third Monday in May, which will be May 19, 2025. 60 ILCS 1/50-15. Township boards are also required to set the salary of the township assessor at the same time they set the compensation for the supervisor, so the same deadline applies, even though new assessors will not be seated until the following January 1st.  See 35 ILCS 200/2-70. For all townships, the latest date to set compensation of newly-elected officials is November 20, 2024.  

Similar to townships, the terms for public library district trustees begin on the third Monday in May or May 19, 2025. 75 ILCS 16/30-10. As a result, the latest date to set compensation of newly elected library trustees is November 20, 2024.

It is not as simple to calculate the deadline for other units of local government as there is no fixed date for elected officers to enter office. School boards generally seat new members at their organizational meetings, but dates for those meetings may vary. Park boards usually install officers at their first meetings after they receive their vote results. 

The Illinois Municipal Code specifies that terms for municipal elected officials commence “at the first regular or special meeting of the corporate authorities after receipt of the official election results from the county clerk…unless as otherwise provided by ordinance,” but that ordinance cannot provide for a date later than the first regular or special meeting in the month of June after the election. 65 ILCS 5/3.1-10-15. The challenge with this requirement is the date that elected officials take office following the election varies depending on the form of government and, at times, upon the public body’s receipt of the election results. Therefore, a public body may not know precisely when 180 days in advance will be, because it cannot predict when it will receive the election results. It is possible, and likely, that one municipality will install officers on a different date than a neighboring municipality. The safest approach is to adopt any compensation ordinance well in advance of the deadline.

Any changes in compensation for people holding the same office (for example, village trustees) will only apply to the officials who are elected at the April 1, 2025 election, not those elected previously. Therefore, it is possible that trustees may be paid differently depending on when they were elected. 

Our next blog post will address special things to consider when establishing compensation of elected officials. 

Post Authored by Keri-Lyn Krafthefer & Katie Nagy, Ancel Glink

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Appellate Court Reverses Ruling in PEDA Benefits Case

Appellate Court Reverses Ruling in PEDA Benefits Case

  Monday, August 26, 2024    Julie Tappendorf

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Former employees sued a City claiming it unlawfully withheld employment taxes and compensatory time from benefits they received pursuant to the Public Employee Disability Act (PEDA). PEDA provides benefits to certain eligible public employees who are injured in the line of duty for a period of up to a year. The trial court ruled in favor of the employees, but on appeal, the Illinois Appellate Court reversed and sent the case back to the trial court for further proceedings. Bitner v. City of Pekin.

The employees claimed, among other things, that the City violated the Illinois Wage Payment and Collection Act when it withheld employment taxes from their PEDA benefits. On appeal, the Appellate Court determined that the City did not violate state law when it withheld employment taxes from benefits the employees received under PEDA. The Court referred to express language in PEDA that provides that an employee receiving PEDA benefits is to be paid on the same basis as the employee was paid before the injury (see below):

Whenever an eligible employee suffers any injury in the line of duty which causes him to be unable to perform his duties, he shall continue to be paid by the employing public entity on the same basis as he was paid before the injury, with no deduction from his sick leave credits, compensatory time for overtime accumulations or vacation, or service credits in a public employee pension fund during the time he is unable to perform his duties due to the result of the injury, but not longer than one year in relation to the same injury.

Based on the Court's interpretation of this language, the City was not prohibited from deducting employment taxes from the PEDA benefit payments because there was no express mention of employment taxes or tax withholdings in the list of prohibited deductions (which referenced compensatory time and service credits but not taxes). 

The Court did remand the case back to the trial court to look further into the employees' claims that the City wrongfully deducted compensatory time from the PEDA benefit payments.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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In the Zone: Seventh Circuit Upholds Dismissal of Church Zoning Dispute

In the Zone: Seventh Circuit Upholds Dismissal of Church Zoning Dispute

  Thursday, August 22, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals upheld a ruling in favor of a municipality that its zoning code did not unlawfully discriminate against religious institutions where it only permitted religious institutions as special uses in certain zoning districts. Word Seed Church v. Village of Hazel Crest

A church was looking for a new permanent building for its 120-person congregation and wanted to buy property in a village. The village’s zoning code did not allow churches as permitted, by-right uses in any of its zoning districts, but some of the districts allowed churches as special uses. The church sued the village on multiple grounds claiming that the zoning code discriminated against religious assembly and forced religious institutions to go through the more onerous special use permit process. 

The district court ruled in favor of the village, rejecting the church's claims. First, the court held that RLUIPA (Religious Land Use and Institutionalized Persons Act) did not apply because the church never had a property interest in any real estate located in the village. Second, the court denied the church’s equal protection claim because: (1) the church’s decision not to seek a special use permit precluded any possibility of discrimination against it; (2) the church did not show that comparable secular organizations had been treated worse than churches; and (3) contrary to the church’s allegations, there was no property in the village that could accommodate the 120-member capacity the church said it needed. Finally, the district court rejected the church’s vagueness challenge, noting that the Seventh Circuit has upheld zoning ordinances with similar special use regulations. 

The church filed a request with the district court for it to reconsider its ruling, arguing that the court had applied the wrong version of the zoning code in ruling against the church. In 2008, the village had amended its zoning code to remove numerous businesses from its permitted and special use lists in the village's business zoning districts. The district court denied the church’s request to reconsider, and the church appealed.

The Seventh Circuit ruled against the church for three reasons. First, it found the district court would have ruled the same whether it used the pre-2008 or post-2008 version of the zoning code so its argument on reconsideration was irrelevant. Second, the 2008 zoning amendment removed secular businesses from the business zoning districts' list of permitted and special uses and had no bearing on religious assembly. Third, the Seventh Circuit held that the church waived its right to challenge amendments to the business district zoning district during the district court proceedings.

Post Authored by Daniel Lev, Ancel Glink

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DNC Safety Ordinance is Not Unconstitutionally Vague

DNC Safety Ordinance is Not Unconstitutionally Vague

  Wednesday, August 21, 2024    Julie Tappendorf

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The Democratic National Convention is being held in Chicago from August 19-22, 2024. In preparation for the event, the Chicago Police Department and the Secret Service established security protocols for the areas surrounding the convention facilities. The City of Chicago also enacted an ordinance prohibiting items such as laptops, drones, pointed objects, and weapons inside the perimeters.

In Thayer v. City of Chicago, individuals who planned to protest at the DNC challenged the ordinance as unconstitutionally vague. Specifically, they challenged the prohibition of “pointed objects," arguing that this ban raised a question whether protesters could bring ballpoint pens or wear buttons secured with safety pins into the protected area.

The Illinois Appellate Court denied the protesters' request to temporarily suspend the safety ordinance and found that it was not unconstitutionally vague. While the ordinance does not provide a complete list of objects that are permitted or banned, the Appellate Court held that the ordinance has a core ascertainable meaning that was aimed at keeping people safe.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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Seventh Circuit Keeps PFAS Lawsuit in State court

Seventh Circuit Keeps PFAS Lawsuit in State court

  Tuesday, August 20, 2024    Julie Tappendorf

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The State of Illinois sued 3M alleging the company’s Cordova Facility caused PFAS contamination in the Mississippi River in violation of state environmental protection laws. 3M’s Cordova Facility is located along the Mississippi River’s banks and chemicals containing PFAS are manufactured at the facility. 

3M sought to remove the lawsuit to federal court, arguing the PFAS contamination in the Mississippi River could have come from the Army’s Rock Island facility (which is also located on the Mississippi River), and that it had immunity from any state law violations under the government contractor defense. The State argued the case should stay in state court because the lawsuit did not seek any relief from PFAS contamination linked to the Army’s Rock Island facility. 

The district court ruled in favor of the State and 3M appealed. The Seventh Circuit Court of Appeals upheld the district court’s decision to keep the lawsuit in state court, holding the government contractor defense was not available to 3M because the State’s lawsuit only sought relief for PFAS contamination derived solely from the Cordova Facility. As the State’s lawsuit sought no relief for PFAS contamination from the Amy’s facility, the Court ruled 3M could not raise a federal defense and remove the lawsuit to federal court. State of Illinois v. 3M Company. 

Post Authored by Tyler Smith, Ancel Glink

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Court Upholds Sergent’s Suspension for Violating Department’s Social Media Policy

Court Upholds Sergent’s Suspension for Violating Department’s Social Media Policy

  Wednesday, July 31, 2024    Julie Tappendorf

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In September 2019, a newspaper published an article accusing a corrections sergeant for the Illinois Department of Corrections (Department) of posting “offensive” and “Islamophobic” content on Facebook. Soon after, the sergeant was suspended from his position at the Department, and filed a lawsuit to challenge the action. In Hicks v. Illinois Department of Corrections, the Seventh Circuit Court of Appeals held that the suspension did not violate Hicks’s free speech or due process rights.

At the time the article was published, the sergeant’s profile was public and listed the Department as his employer. The day after the article ran, the Director of the Department sent an email to all staff reminding them of the Department’s social media policy and code of conduct. A Department investigator then interviewed the sergeant, who stated that his personal views did not have an impact on his work. The investigator concluded that the posts violated the Department's code of conduct and reflected negatively on the Department and its mission. The Department convened a board hearing and recommended a 10-day suspension.

After the sergeant was suspended, he sued the Department and several Department officials involved in the suspension process, alleging violations of his right to free speech and due process. The district court determined that the Department did not violate these rights because the sergeant took deliberate steps to link his Facebook account to his employer and the posts clearly violated the code of conduct and social media policy.

On appeal, the Seventh Circuit first considered whether the Department violated the sergeant’s right to free speech under the First Amendment when it suspended him. The Court noted that the government, when acting as an employer, has greater leeway to moderate the speech of its employees than when the government is acting to restrict the speech of the general public. The Court applied a balancing test to determine whether the sergeant’s free speech interests outweighed the Department’s interest in promoting effective and efficient public services. The Court found that the social media posts could interfere with the Department’s operations, impact the sergeant’s ability to operate within the chain of command, and erode public trust in the Department. As a result, the Seventh Circuit agreed with the district court and held that the Department did not violate Hicks’ right to free speech when it suspended him.

The Court also held that the Department’s code of conduct was not vague and did not violate Hicks’ right to due process. The Department’s code of conduct prohibited activities unbecoming of a government employee and activities that would reflect unfavorably on or impair the Department’s operations. After a review of the sergeant's Facebook posts, the Court concluded that the code clearly prohibited the sergeant’s social media activity and there was no due process violation. 

Post Authored by Alexis Carter & Erin Monforti, Ancel Glink 

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Court Dismisses Lawsuit by Former Police Chief

Court Dismisses Lawsuit by Former Police Chief

  Tuesday, July 30, 2024    Julie Tappendorf

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An Illinois Appellate Curt upheld the dismissal of a lawsuit filed by a former chief of police against village officials in Ritz v. Neddermeyer and Grace.

The plaintiff was employed by the village under a three-year contract to serve as its police chief. Just before the contract was about to expire, the plaintiff (still serving as chief) met with the village president, who asked him to continue as police chief until a new village administrator was hired. Plaintiff claims that during this meeting, the village president told him he “would be favorably considered for a contract extension given his exemplary service.”

Sometime after the new administrator was appointed, plaintiff was told that if he did not resign as police chief, he would be terminated. He did resign and then filed a lawsuit claiming that the village president and administrator conspired against him to commit “fraud in the inducement.” Specifically, he claimed he relied to his detriment on the president’s statement in their meeting and that he had been fraudulently induced to stay on as police chief.

The trial court dismissed the case, and plaintiff appealed. On appeal, the Appellate Court upheld the dismissal, finding that his claims were not actionable. First, the Court held that the president’s statements did not offer any guarantee of continued employment, so his reliance was not reasonable. The Court also found no fraud, nor conspiracy in the village officials' actions. The Court also determined that the individual defendants had immunity for their actions under the Tort Immunity Act because employment decisions are inherently discretionary policy decisions.

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

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First Amendment Auditor Case Decided in Massachusetts

First Amendment Auditor Case Decided in Massachusetts

  Monday, July 29, 2024    Julie Tappendorf

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A recent case decided by the First Circuit Court of Appeals regarding a lawsuit brought by a citizen-journalist (sometimes referred to as a First Amendment auditor) provides some interesting insight on how a federal court views a citizen recording or filming public officials or employees, even if the case is not binding on Illinois courts.  Berge v. School Committee of Gloucester, Mass, et. al.

In 2022, a citizen-journalist went to the local school superintendent's office to buy tickets to his child's sold-out play. He stated his objective as wanting to ask school officials why the school was capping the number of attendees where the state had previously lifted its COVID-19 mandates. While at the school offices, he was visibly filming as he spoke with various school employees about his objections to the school's policy. One of the school employees asked him to stop recording, and another employee closed his door when the citizen refused to stop filming. After the citizen left the building, he uploaded the recording to Facebook. 

A school employee sent a letter to the citizen-journalist within a few hours of the recording being posted to social media demanding that it be removed. The letter claimed that the recording violated a state law that requires two-party consent to record others.

The citizen-journalist then filed a lawsuit against the school committee and three of the school employees claiming that their letter and conduct violated his First Amendment rights. He asked the court to award him damages and to issue an order to stop the school defendants from continuing to threaten him to remove the recording. After the school was served with the lawsuit, the school's attorney contacted the citizen to inform him that the school committee would not take any action against him relating to the recording and the  letter the school sent to him was "revoked."

The lawsuit was initially dismissed by the district court on the basis that the employees had qualified immunity for the First Amendment claims, and on mootness grounds since the school had stated it would not take action against the citizen-journalist for the recording. The citizen then appealed.

On appeal, the First Circuit Court of Appeals reversed the district court on the first claim, finding that the individual school defendants did not have qualified immunity for the First Amendment claims, for the following reasons:

First, the Court found that the state law prohibiting recording without two-party consent only applied to secret recordings, and did not apply in this case where the citizen-journalist was openly recording in public areas of the school offices.

Second, the Court held there is a "right to publish" under the First Amendment, and the citizen-journalist's posting of his recordings of his discussions with school officials fell squarely under that constitutional protection. The Court found that his questioning of school officials about the school's COVID-19 policy was a "matter of public concern" that he had a constitutional right to publish by posting his recording on Facebook. 

Third, the Court determined that the school employees should have known that the posting of the recordings involving matters of public concern (i.e., his objection to the school's COVID-19 policies) were protected by existing law, so they had no qualified immunity for the First Amendment retaliation claims in the lawsuit.

Although the Court did allow the First Amendment retaliation claims to move forward, it upheld the district court's dismissal of the other claims based on "mootness" since the school had already provided the relief that the plaintiff was asking for when the school confirmed it would not challenge the legality of the recordings themselves.

As noted above, this case is not binding in Illinois, but it is instructive to government officials and employees on the potential protections for the publication of recordings of citizen encounters with public officials or employees in public areas where an encounter relates to a matter of public concern.  

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Election Calendar Changes for Spring 2025 Elections

Election Calendar Changes for Spring 2025 Elections

  Tuesday, July 23, 2024    Julie Tappendorf

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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 here. While 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

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