Court Rejects First Amendment Challenge to Public Comment Policy

Court Rejects First Amendment Challenge to Public Comment Policy

  Friday, April 26, 2024    Julie Tappendorf

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An Illinois Appellate Court recently upheld the dismissal of a First Amendment and civil rights challenge to a municipality's public comment policy and various other actions. Eberhardt v. Village of Tinley Park.

The plaintiff had previously filed a lawsuit in federal court against the village challenging a variety of actions, including a First Amendment challenge to the village's public comment policy that restricted comments at a special village board meeting to those that are "germane" to agenda items at that special meeting. In 2021, the federal court dismissed the lawsuit on several bases, including that the special board meeting was a "non-public forum" and the "germaneness requirement" was both reasonable and viewpoint neutral. 

In 2022, the same plaintiff filed a lawsuit in state court raising similar challenges to the public comment policy, but also raising an argument that the policy violated the Illinois constitution. This state lawsuit also claimed that the public comment policy violated the Illinois Open Meetings Act and that a complaint filed with the ARDC (the attorney disciplinary commission in Illinois) violated his civil rights as retaliation and suppression of his First Amendment rights.

The circuit court dismissed all of the claims raised in the state court complaint. On appeal, the Appellate Court upheld that dismissal, as discussed below:

First Amendment Claims

First, the Illinois Appellate Court determined that the federal district court's decision involving the same parties precluded his claims in state court with respect to the federal constitution, finding "collateral estoppel." The Court discussed the federal court's forum analysis as well as other courts' analysis on the type of forum that a municipal board meeting operates as, and concluded that the appropriate test for this particular case (involving restrictions on a special board meeting) is whether the restriction is reasonable and viewpoint neutral. The Appellate Court agreed with the federal district court's 2021 decision that the restriction was both reasonable and viewpoint neutral, citing U.S. Supreme Court decisions finding "relevancy" restrictions for municipal meetings to be reasonable. 

The Court also acknowledged that the "germaneness" restriction was a blanket prohibition and did not selectively suppress speech to a single viewpoint, message, or speaker.

The Court also noted that members of the public could address the village board on any topic at regular board meetings since the germaness restriction only applied to special board meetings.

In short, the Court found that the First Amendment challenge to the public comment policy was properly dismissed, and determined that the Illinois constitution provided no greater protection on this issue.

Open Meetings Act Claims

With respect to plaintiff's Open Meetings Act claim, the Court first held that the OMA expressly provides that public bodies can adopt rules on public comment, which is what the village did in this case. In any event, the Court held that even if the rule violated the OMA, it would not establish a First Amendment violation.

Civil Rights Retaliation Claims

The Court also rejected his civil rights claim that the filing of a disciplinary complaint with the ARDC was retaliatory or interfered with his First Amendment rights. The Court found no facts to support that the filing of this complaint actually did deter him from speaking at meetings or filing lawsuits.

Appointment of Outside Counsel

Finally, the Court rejected his argument that the retention of outside counsel was unauthorized or violated the village code. First, the Court found he did not have "standing" to challenge the village's decision since he was not a taxpayer. And, even if he had standing, the Court determined that his complaint was deficient as it did not include facts to support his argument. The Court rejected his argument that outside counsel was an "officer" that was subject to mayor appointment. The Court further rejected his argument that the village manager did not have authority to retain outside counsel, pointing to language in the purchasing ordinance authorizing this action. Finally, the Court noted that the village board ratified the manager's decision to retain outside counsel, curing any deficiency if there was one.

In sum, the Appellate Court found that the case was properly dismissed by the circuit court.

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Appellate Court Upholds Revocation of Firefighter’s Pension Benefits for Felony Conviction

Appellate Court Upholds Revocation of Firefighter’s Pension Benefits for Felony Conviction

  Thursday, April 25, 2024    Julie Tappendorf

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An Illinois Appellate Court recently upheld a pension board’s decision rescinding a firefighter’s retirement pension benefits due to a felony conviction. Trapp v. City of Burbank Firefighter’s Pension Fund.

A city firefighter retired in 2017 after allegations were raised that he had an inappropriate relationship with a high school intern cadet at the fire department. The Pension Fund Board (Board) approved the firefighter's application for a retirement pension in 2017. In 2020, the firefighter pled guilty to knowingly possessing child pornography by soliciting sexually explicit photos and videos from a high school cadet while he was employed as a city firefighter.

The Board held a hearing to determine if the firefighter’s felony conviction forfeited his right to pension benefits under the Pension Code. The firefighter argued the Board lacked jurisdiction to hold a revocation hearing since the Board did not appeal its initial decision awarding the firefighter pension benefits in 2017. The Board rejected that argument, finding that the felony conviction was related to firefighter’s service as a city firefighter, and issuing a decision revoking the firefighter’s pension benefits.

On appeal, the Illinois Appellate Court upheld the Board’s decision revoking the firefighter’s pension benefits. The Court rejected the firefighter’s argument that the Board lacked jurisdiction to hold the revocation hearing, determining that the revocation hearing was a new hearing authorized by the Pension Code and not an appeal of the initial hearing. Based on the Pension Code, the Appellate Court held that a pension board has the authority to hold new hearings to divest a firefighter of pension benefits for conviction of service-related felonies without needing to appeal the initial award of pension benefits.

Post Authored by Tyler Smith, Ancel Glink

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8th Circuit Finds First Amendment Violation in Government Official Blocking User from Twitter Account

8th Circuit Finds First Amendment Violation in Government Official Blocking User from Twitter Account

  Tuesday, April 23, 2024    Julie Tappendorf

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An interesting case about government social media was decided by the 8th Circuit Court of Appeals in January of this year. Felts v. Green. This decision came out before last month's U.S. Supreme Court decision in Lindke v. Freed that adopted a new "test" for when a government official or employee is engaging in "state action" on their personal social media account for purposes of First Amendment challenges. It's still worth reporting on even if it preceded the USSCT ruling because the test applied in the Felts case is pretty similar to the test adopted by the U.S. Supreme Court.

The President of the City of St. Louis Board of Alderman was sued after he blocked an individual from his Twitter account for posting criticism of his support for closing a local jail. The district court ruled against the President, finding that he used his Twitter account primarily for government business and his actions in blocking the user constituted "viewpoint discrimination." The City then appealed.

The 8th Circuit Court of Appeals first rejected the City's argument that the case was "moot" because (1) the President had since resigned and (2) the President had unblocked the user after she filed the lawsuit. The Court determined that a voluntary unblocking of the user did not prevent the same action from happening again and that the City could still be held liable for the former President's actions even after his resignation. 

Next, the Court of Appeals analyzed whether the President's blocking of the  user qualified as "state action" under the civil rights statute, applying a "policymaking authority" test. The Court determined that the President had final authority regarding communication on behalf of the City, and that his decision to block a user from Twitter was a "deliberate choice of a guiding principle and procedure to silence online critics." The Court noted that the President had alternatives such as ignoring the Tweet or replying to the Tweet and his decision to block the user was an exercise of his final policymaking authority as President of the Board of Aldermen. As a result, the Court found the City of St. Louis liable under Section 1983 for the President's actions in blocking the user from Twitter in violation of her First Amendment rights.

The test that the Court of Appeals applied is pretty similar to the test that the U.S. Supreme Court adopted in Lindke, and seemed to focus on the official's "actual authority" and his exercise of that authority. This differs from the "appearance" test that the Supreme Court expressly rejected in Lindke and that the 8th Circuit seemed to rely on in an earlier case involving the social media account of a Missouri State Representative (Campbell v. Reich). That "appearance" test focuses more on the "trappings" of the account or page that is the subject of the challenge (i.e., the account is primarily used for government business, references the official's title/position, etc.) rather than a focus on the authority of the official to communicate or take action on behalf of the government body.

It will be interesting to see how the district and courts of appeals apply the new Lindke test as they face these First Amendment challenges that are likely continue to be filed as government officials and employees increase their use of social media to communicate about government business.

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Administrative Review Law Was the Exclusive Remedy for Backpay Claim

Administrative Review Law Was the Exclusive Remedy for Backpay Claim

  Tuesday, April 16, 2024    Julie Tappendorf

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An Illinois Appellate Court upheld the dismissal of a lawsuit brought by a Sheriff's office employee that sought backpay related to an unpaid suspension in Coduto v. Cook County.

In August of 2016, an employee in a Sheriff's office was suspended without pay after he was arrested for his third offense of driving while under the influence. The Sheriff then filed charges with the Sheriff’s Merit Board seek terminationation of the employee. While the charges were pending, the employee remained on an unpaid suspension, and two years after charges were filed, the Merit Board suspended the employee for 180 days.

The Sheriff appealed and the circuit court upheld the Merit Board’s decision. Neither party appealed this decision. However, the employee subsequently filed a separate lawsuit seeking back pay from the Sheriff's office for the period of time he was on an unpaid suspension in excess of the Merit Board's 180-day suspension.

The Sheriff filed a motion to dismiss the backpay lawsuit based on the following: (1) the employee's coplaint failed to state a valid mandamus claim; (2) the employee's sole recourse was to appeal the Merit Board's decision under the Administrative Review Law; and (3) his claim was brought too late. The circuit court ruled in favor of the Sheriff and dismissed the case. 

On appeal, the Appellate Court upheld the dismissal of the employee's lawsuit, finding that the employee should have raised the issue of backpay at the original administrative hearing and then by filing a  Administrative Review Law action within 35 days of the final decision of the Merit Board, and his  failure to seek relief through administrative review was fatal to his case.

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

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In the Zone: Appellate Court Determines Zoning Restrictions From 50-Year-Old Case Still Applicable

In the Zone: Appellate Court Determines Zoning Restrictions From 50-Year-Old Case Still Applicable

  Monday, April 15, 2024    Julie Tappendorf

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An Illinois Appellate Court reversed a trial court’s decision that denied a family that owned neighboring property owners the right to intervene in a 1970 lawsuit in order to enforce certain zoning restrictions and remanded the case back to the trial court for further proceedings. Hatch v. City of Elmhurst

In 1970, four landowners successfully sued the City over zoning rules that prevented them from building apartments. The decision forced the City to allow the project subject to certain restrictions which included prohibiting structures on certain areas of the property unless specified adjoining lots were held by common ownership. The court retained jurisdiction over the case to enforce these restrictions.

In 2017, a developer purchased several of those adjoining properties with the intent to construct parking lots. In 2021, the City held several public hearings on the proposed parking lots, and a family that owned an adjoining lot, unrelated to the original landowners, appeared with their attorney at multiple hearings to object to the plan. Ultimately, the City Council passed an ordinance to approve the parking lots. 

In 2023, the family filed a motion to join the 1970 lawsuit and enforce the zoning restrictions against the proposed parking lots, claiming the proposed project violated those zoning restrictions. The trial court denied the request, and the family appealed.

The Appellate Court disagreed with the trial court's decision to deny the family the ability to join the 1970 lawsuit. First, the Court noted that the court had expressly retained jurisdiction to enforce the zoning restrictions, and when those conditions were not met, the family whose property was expressly identified in the 1970 lawsuit had a unique property interest that supported their request to join the case and enforce the restrictions. Second, the Appellate Court rejected the City’s argument that the family's challenge was actually to the 2021 zoning approval and should have been brought within 90 days of the approval of that ordinance under state statute. The Court determined that the family was enforcing their rights under the 1970 case, and not challenging any City action concerning the 2021 ordinance.

Post Authored by Daniel Lev & Julie Tappendorf, Ancel Glink

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Court Dismisses Due Process Claim Relating to Tobacco License Revocation

Court Dismisses Due Process Claim Relating to Tobacco License Revocation

  Friday, April 12, 2024    Julie Tappendorf

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In AZ SPE, LLC v. City of Chicago, an Appellate Court dismissed a due process lawsuit brought by a company whose tobacco licenses had been revoked.

AZ SPE, LLC (AZ) leases property to gas station operators. Advanced Petroleum, one of AZ’s tenants, received notice from the City's Department of Business Affairs and Consumer Protection (Department) of a hearing to determine if its tobacco retail license should be revoked as a result of alleged sales of tobacco to minors. At the hearing, the City presented evidence of three violations and the hearing officer found Advanced Petroleum responsible and revoked its tobacco license.

Section 4-64-935(c) of the City's Code provides that when a tobacco license is revoked, no tobacco license can be granted to any entity for a year for the premises described in the revoked license. AZ was notified by the Department that the revocation of Advanced Petroleum’s license would apply to AZ’s property and that any new application for a tobacco license for that property would be denied during the one-year ban.

AZ sued, alleging that the City Code deprived it of its property interest because the ban lasts for one-year on the premises, making its property less attractive to prospective tenants. AZ also argued that it was entitled to notice of the revocation hearing and an opportunity to be heard at the hearing under the 14th Amendment as the owner of the property. Finally, AZ argued that punishing the property owner for the actions of its tenant violated its due process rights. 

The Appellate Court first held that the right to sell tobacco is not a protected property right under the constitution so AZ's due process claims were not viable. The Court also noted that the City Code provisions authorizing revocation for selling tobacco to minors were not arbitrary nor discriminatory and were rationally related to the City’s interest in protecting minors from the sale of tobacco products. As a result, the Appellate Court upheld the trial court's dismissal of AZ’s lawsuit against the City.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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In the Zone: Quorum Forum Podcast Ep. 82 - APA-CMS Bar Exam 2024

In the Zone: Quorum Forum Podcast Ep. 82 - APA-CMS Bar Exam 2024

  Thursday, April 11, 2024    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast Episode 82: APA-CMS Bar Exam 2024, has been released featuring a recording of the live planning law session at this year's "bar exam" hosted by the APA-CMS. A summary of this episode is below:

The American Planning Association Chicago Metro Section recently teamed up with Ancel Glink’s Quorum Forum podcast for the ninth annual “Bar Exam” planning law session, a realistic simulated law school experience testing planners and land use professionals on important planning law cases related to social media, short-term rentals, and more! Recorded live at Vintage Bar on Taylor Street on March 13, 2024 with Ancel Glink attorneys Dan Bolin, Megan Mack, and Greg Jones, everyone literally "passed the bar" after attending this session. 

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In the Zone: Illinois General Assembly Considers Land Use Legislation

In the Zone: Illinois General Assembly Considers Land Use Legislation

  Wednesday, April 10, 2024    Julie Tappendorf

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Since the Illinois General Assembly convened in mid-January, several bills concerning zoning and land use have been introduced that may be of interest to our readers. We have summarized a few of these bills below and will provide timely updates as they make their way through the legislative process.

House Bill 4213 – Accessory Dwelling Units

House Bill 4213 was introduced during the General Assembly’s veto session in November, and if passed would create the “Local Accessory Dwelling Unit Act.” The bill seeks to limit local government authority, for both home rule and non-home rule units, to prohibit the building or use of accessory dwelling units (ADUs). However, the bill makes clear that local governments may provide reasonable regulations relating to the size and location of ADUs similar to other accessory structures, so long as the regulations do not “have the effect” of prohibiting them outright.

Senate Bill 2716 – Judicial Review of Zoning Decisions

Senate Bill 2716 seeks to amend Section 11-13-25 of the Illinois Municipal Code to limit the authority municipalities have when considering zoning decisions, including special use and variance applications, text amendments, and map amendments. The first part of the bill proposes that zoning decisions should not be considered legislative decisions, but rather administrative decisions, meaning these zoning decisions would be subject to a different standard of review if challenged in court. The second part of the bill provides for “protection against disregard of the decision-making body’s own ordinances or regulations,” which, if enacted, would appear to be an attempt to limit the exercise of home rule authority. 

Senate Bill 2881 – Annexation Agreements

Senate Bill 2881 seeks to limit municipalities’ ability to annex property. If passed, the bill would require any land subject to an annexation agreement to be contiguous (directly touching) to a municipal boundary. The bill creates uncertainty regarding the status and validity of existing pre-annexation agreements for properties that are not yet contiguous to a municipal boundary, and invites differing interpretations that could result in litigation over these agreements’ terms and conditions.

Additionally, the bill would significantly restrict communities from using annexation agreements to address a variety of issues that have long been regulated by agreement, such as local land use regulations, contributions of land or money to government bodies who are impacted by potential development, and property tax abatements. The bill contains an express list of topics municipalities are not allowed to address in annexation agreements, including mandatory rezoning and terms regarding “nonspecific, future” development projects.

Senate Bill 3680 – Crime-Free Housing

Senate Bill 3680 seeks to amend the Illinois Municipal Code to prohibit local governments from adopting crime-free housing ordinances. The bill, which contains express language clarifying it would apply to limit home rule authority, prohibits any “program, ordinance, resolution, or other regulation” that:

• Penalizes landlords or tenants, guests, or others for contact with law enforcement;
• Requires or encourages landlords to evict tenants or household members for contact with law enforcement, a criminal conviction, or alleged unlawful conduct;
• Requires or promotes the use of criminal background checks for current or prospective tenants;
• Defines nuisance behavior to include contact with law enforcement;
• Requires tenants to secure certificates of occupancy as a condition for leasing rental housing or turning on utilities;
• Creates or promotes the use of a registry of individual tenants for the purposes of discouraging or prohibiting renting to particular tenants;
• Penalizes tenants, guests, or other for contacting the police or emergency services; or
• Requires a crime-free lease addendum that sets forth limitations on any of the above activities.

Many municipalities have regulations concerning crime reduction in housing that would be affected if this bill passes. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Illinois Supreme Court Rules that Home Rule Units Not Restricted From Adjudicating Moving Violations or Traffic Offenses

Illinois Supreme Court Rules that Home Rule Units Not Restricted From Adjudicating Moving Violations or Traffic Offenses

  Tuesday, April 09, 2024    Julie Tappendorf

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On April 4, 2024, in Cammacho v. City of Joliet (2024 IL 129263), the Illinois Supreme Court used a case involving municipal tickets issued to truckers driving overweight vehicles to clarify that Section 1-2.1-2 of the Illinois Municipal Code does not prohibit home rule municipalities from using an administrative hearing process to assess fines in cases involving the movement of motor vehicles or reportable offenses under the Illinois Vehicle Code because Division 2.1 does not contain language restricting home rule authority. However, because the tickets issued to the truckers did not comply with the procedures required by the City's own ordinances, the fines assessed by an administrative hearing officer were reversed.

Division 2.1 of the Illinois Municipal Code (65 ILCS 5/) sets forth a system of administrative adjudication which, at the time the overweight tickets were issued, applied only to home rule municipalities (the statute now permits non-home rule municipalities to adopt Division 2.1 by ordinance). Section 1-2.1-1 excludes two types of offenses from adjudication under Division 2.1: “(i) proceedings not within the statutory or the home rule authority of municipalities; and (ii) any offense under the Illinois Vehicle Code or a similar offense that is a traffic regulation governing the movement of vehicles and except for any reportable offense under Section 6-204 of the Illinois Vehicle Code.”

Two appellate courts had interpreted subsection (ii) of Section 1-2.1-1 as a restriction on home rule powers; according to those appellate decisions, Division 2.1 of the Municipal Code deprived home rule units of the jurisdiction to adjudicate traffic regulations governing the movement of vehicles or reportable offenses under Section 6-204 of the Illinois Vehicle Code.

The Supreme Court noted that the powers of home rule units when exercising any power pertaining to its government and affairs are limited only by the Illinois Constitution itself or preemption of home rule authority by the General Assembly. It also cited Section 7 of the Statute on Statutes (5 ILCS 70/7) to point out that since January 12, 1977, whenever the General Assembly chooses to limit the powers of a home rule unit by statute the legislature is required to insert into the statute specific language limiting or denying the power or function of a home rule unit and specifically setting forth how it is a limitation or denial of home rule powers.

Since Section 1-2.1-1 does not use language explicitly restricting or denying home rule authority, it is not a restriction on home rule powers. The portions of the previous appellate decisions which had held otherwise were explicitly vacated. The Court noted that the language in Division 2.1 stating that only home rule units could use Division 2.1 was simply a grant of authority to home rule units, not a restriction of home rule power (as mentioned above, the statute now grants non-home rule units the authority to use Division 2.1).

The Supreme Court stated that, although home rule units were not required to use Division 2.1 of the Municipal Code to adjudicate ordinance violations, the advantage to doing so is that the findings, decisions, and orders of hearing officers may be enforced in the same manner as a court of competent jurisdiction (65 ILCS 5/1-2.1-8). If another method of adjudication is used, the municipality must first commence an action in circuit court to convert the administrative decision into a collectable judgment. (An adjudication of a moving violation or a reportable offense requires the municipality to register the adjudicative decision with the circuit court if it seeks to enforce the decision as a debt. The strong implication of the decision is that the remedies of Section 1-2.1-8 are not available.) The opinion is silent as to what procedures should be used to report the adjudication to the Secretary of State.

The Court concluded by examining the language of the City's Code of Ordinances. It noted that the Code required police officers to issue a uniform traffic citation “in the case of a reportable offense of the Illinois Vehicle Code…”. Since the drivers who received the tickets for driving overweight trucks were CDL holders, violations of overweight vehicle ordinances were reportable violations under Section 6-204 of the Illinois Vehicle Code. Since the City's own ordinances required such offenses to be prosecuted in the circuit court, the administrative decisions issued by the City’s hearing officer were reversed.

Post Authored by Todd Greenburg, Ancel Glink

 

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PAC Finds Sheriff's Office in Violation of FOIA for Withholding Deceased Person's Records

PAC Finds Sheriff's Office in Violation of FOIA for Withholding Deceased Person's Records

  Monday, April 08, 2024    Julie Tappendorf

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In December 2023, an investigative journalist submitted a FOIA request to a Sheriff's Office seeking police reports about a person who went missing from a local hospital and was subsequently confirmed as deceased by a local coroners officer. The Sheriff's Office denied the request in its entirety claiming the responsive reports were highly personal and private, and the privacy interests of the parties involved in the reports outweighed the requestor and public interest in this information. 

The requestor submitted a request for review with the Illinois Attorney General's Public Access Counselor (PAC), claiming that because the missing person is deceased, the decedent has a diminished expectation of privacy and the circumstances surrounding how the decedent went missing is a matter of public interest. In its response to the PAC, the Sheriff's Office also argued that one of the reports was exempt from disclosure because the records related to an ongoing investigation and law enforcement proceedings.

In PAC. Op 24-006, the PAC concluded that the Sheriff's Office improperly withheld the responsive records in violation of FOIA. 

With respect to the Sheriff's Office claim that release would be an unwarranted invasion of privacy, the PAC balanced the journalist's and the public's interest in disclosure against the degree of invasion of personal privacy to the decedent’s family members and determined that the journalist and the public had significant interests in learning about the facts concerning the highly publicized disappearance and death of a missing person, and those interests outweighed the privacy interests of the decedent’s surviving family members.

The PAC acknowledged that the immediate surviving family members of a decedent possess distinct privacy interests in highly sensitive, gruesome, intrusive or anguish-inducing records concerning decedents (e.g., postmortem photographs of decedent’s body). However, the request at issue did not seek graphic images, recordings, or details, nor does the Sheriff's Office have any such responsive records. Instead, because the responsive records to this FOIA request concerned the Sheriff's Office investigation into decedent’s disappearance, which pertains to the public duties of the Sheriff's Office, the responsive reports were not exempt from disclosure in their entirety pursuant to FOIA exemption 7(1)(b) or 7(1)(c).

The PAC also rejected the Sheriff's Office argument that the public interest was diminished because there was no threat to the public, finding that the legitimate public interest in a highly publicized investigation into the disappearance of a community member was not diminished simply because the incidents did not involve threats or harm to the public at large.

The PAC also rejected the Sheriff's claim that the records would interfere with pending or contemplated law enforcement proceedings or obstruct an ongoing criminal investigation. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Court Finds Firefighter Eligible for Health Benefits and Entitled to Reimbursement for Healthcare Expenses

Court Finds Firefighter Eligible for Health Benefits and Entitled to Reimbursement for Healthcare Expenses

  Thursday, April 04, 2024    Julie Tappendorf

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An Illinois Appellate Court recently held that a firefighter qualified for health insurance benefits under the Public Safety Employee Benefits Act (PSEBA) and reversed a hearing officer's ruling that the Village was not required to reimburse the firefighter for premiums paid to a private insurer. Mertes v. Village of Mt. Prospect

In this case, a firefighter worked for the Village between 1997 and 2012. During that time, he injured his back numerous times in both emergency and non-emergency situations, which ultimately required him to undergo multiple spinal fusions and resulted in the firefighter filing an application for a disability pension. Once he was approved for an on-duty disability pension, the Village informed the firefighter it would no longer cover his health insurance premiums under the Village health insurance plan. In April 2014, the firefighter joined his wife’s private insurance and filed an application for the Village to cover the private insurance premiums.

In 2017, having been paying those premiums since April 2014, the firefighter filed a lawsuit demanding reimbursement for those premiums pursuant to PSEBA. The court ordered the Village to hold a hearing regarding his PSEBA application. At that hearing, the hearing officer determined the firefighter was eligible for PSEBA benefits, but the Village had no obligation to reimburse his private insurance premiums. The hearing officer’s rulings were reviewed by the trial court which upheld both decisions. Both parties then appealed.

On appeal, the Appellate Court heard two issues:

1) The Village appealed the decision that the firefighter qualified for PSEBA benefits; and

2) The firefighter appealed the decision that the Village was not required to reimburse his private insurance premiums when the Village stopped paying premiums on the Village health insurance plan.

On the first issue, the Appellate Court noted that eligibility for PSEBA benefits required first responders to have been catastrophically injured in what was reasonably believed to be an emergency, an unlawful act by another, or while investigating a criminal act. The issue here was whether the firefighter’s various back injuries that occurred during non-emergency situations disqualified him from receiving PSEBA benefits. The Appellate Court held it did not, and what was relevant in this case was how the back injuries he suffered while responding to emergencies contributed to his ultimate disability. 

On the second issue, the Appellate Court stated that the right to PSEBA benefits attaches when a first responder is determined to have been catastrophically injured. The Appellate Court reasoned it went against public policy to deny a first responder reimbursement for premiums while waiting for that determination. As a result, the Appellate Court held that the hearing officer’s ruling that the Village was not obligated to pay the premiums for private insurance was in error. 

Post Authored by Daniel Lev, Ancel Glink

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Upcoming Webinar on Supreme Court's Social Media Decision in Lindke v. Freed

Upcoming Webinar on Supreme Court's Social Media Decision in Lindke v. Freed

  Tuesday, April 02, 2024    Julie Tappendorf

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On April 22, 2024, at 1:00 p.m. Central Time, the Local Government Legal Center (LGLC), will host a webinar on the recent U.S. Supreme Court decision in Lindke v. Freed in which the Supreme Court adopted a new test for when government officials will be considered "state actors" and, therefore, subject to the First Amendment when they post on social media, even on their personal pages and accounts. 

Municipal Minute author and Ancel Glink partner Julie Tappendorf will be speaking at the virtual event along with Amanda Karras, Executive Director of the International Municipal Lawyers Association (IMLA). 

Information about the event and registration details can be found here.

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Court Finds Categorical FOIA Request Unduly Burdensome

Court Finds Categorical FOIA Request Unduly Burdensome

  Monday, April 01, 2024    Julie Tappendorf

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In response to a FOIA request seeking all communications between two municipal police chiefs, a City denied the request in its entirety for several reasons, including that the requested communications between the police chiefs were not “public records” ordinarily kept by the City, and because the FOIA request was unduly burdensome. After the requestors sued, the circuit court ruled in favor of the City, and the requestor appealed.

On appeal, an Illinois Appellate Court upheld the ruling in favor of the City in Shehadeh v. City of Taylorville. The Court held that the FOIA request was unduly burdensome because it asked for all communications between the two police chiefs, the requestor refused to narrow or clarify its "categorical request" to a more manageable proportion, and the City’s burden of complying with the request outweighed the public interest in disclosing the requested records.

The Court found persuasive an affidavit submitted by the City police chief’s stating that the City does not maintain copies of communications sent to or from the police chief’s personal electronic devices, and that the City would be required to obtain records not ordinarily maintained by the City and then review a large number of communications between two police chiefs to find responsive records.

The Appellate Court also characterized the FOIA request as a categorical "fishing expedition" that asked for records largely unnecessary to the requestor’s purpose, and the Court found that the requester had failed to show how disclosure of the requested records served the public interest.

Although the Court ruled in favor of the City, the Court did provide some "best practices" for public bodies relying on the "unduly burdensome" provision of FOIA. The Court noted that the City should have asked the requestor to narrow or clarify his FOIA request in its original response letter, and the City should have more clearly explained the City’s burden of complying with the FOIA request, including providing an estimate of the number of records, or the amount of time involved in obtaining, reviewing, and redacting the records responsive to the FOIA request. 

Because the Appellate Court found that the City properly denied the request as unduly burdensome, the Court declined to address whether the requested records were public records under FOIA.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Court Upholds Hearing Officer's Decision on Eminent Domain Relocation Expenses

Court Upholds Hearing Officer's Decision on Eminent Domain Relocation Expenses

  Wednesday, March 27, 2024    Julie Tappendorf

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In Alan Josephsen Co. Inc. v. Village of Mundelein, an Illinois Appellate Court upheld the decision of a Village’s hearing officer that found, among other things, that the Village had properly denied certain requested reimbursement claims made by a recycling company relating to an eminent domain action.

In 2019, the Village of Mundelein brought an eminent domain action to obtain title to property that had been  operated as a recycling business by Alan Josephsen Co. Inc. (AJC). After AJC relocated its business, it sought reimbursement from the Village for its generated expenses pursuant to the “self-move” provision of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA). The first two claims submitted by AJC were paid in full, as requested. With respect to the third and fourth claims, the Village sought its own estimates for these costs and paid the lower estimate for each claim. The fifth claim requested 11 separate expense items, and the Village paid 7 of the 11 items based on estimates the Village had obtained, and denied the requests for the other 4 items.

AJC appealed the Village's decisions on its third and fifth claims through the administrative process with the Village. The Village's hearing officer found in favor of the Village on the third claim. As to the fifth claim, the hearing officer determined that one of the items denied by the Village should have been paid by the Village but upheld the Village's decision on the other items. AJC then appealed the administrative decision to the circuit court which affirmed the hearing officer's decision.

On appeal to the Appellate Court, AJC argued four points: (1) that the Village's hearing officer misapplied the law by accepting the estimates obtained by the Village rather than the ones AJC provided; (2) that the hearing officer was biased because he previously served as an attorney for the Village and that he should have recused himself; (3) that AJC's due process rights were violated when the hearing officer denied its request for additional discovery and failed to hold a hearing before issuing his decision; and (4) that the hearing abused his discretion by upholding the Village’s relocation payment decisions when they were based on separate estimates rather than comprehensive ones.

The court rejected all four of AJC's arguments, holding that (1) its argument was based on an incorrect interpretation of the statute; (2) there was insufficient support for a bias claim; (3) AJC was not owed additional discovery or an evidentiary hearing as the administrative appeal process satisfied the requirements of the statute; and (4) the hearing officer's decision was based on valid information and nothing in the statute required comprehensive estimates.

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

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Person's Own FOID Card Records Are Exempt from FOIA

Person's Own FOID Card Records Are Exempt from FOIA

  Tuesday, March 26, 2024    Julie Tappendorf

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In 2018, a requester submitted a FOIA request to the Illinois State Police (ISP) seeking records regarding his FOID card, including his application, any application denials, and other documents containing information that would have made the requestor ineligible for a FOID card. ISP denied the request in its entirety, citing section 7.5(v) of FOIA, which exempts from disclosure the names and information of people who have applied for FOID cards. After the requestor sued claiming that ISP violated FOIA by denying his request, the circuit court ruled in favor of the requester and ordered ISP to disclose the responsive FOID card records, finding that ISP improperly denied the FOIA request pursuant to FOIA exemption 7.5(v), because that exemption does not apply to persons seeking their own FOID card information.

ISP appealed, and an Illinois Appellate Court reversed the circuit court, finding in favor of the ISP in Woosley v. Illinois State Police. The Appellate Court determined that FOIA prohibits ISP from disclosing FOID card information to the requester. The Appellate Court cited to a 2023 Illinois Supreme Court case (Hart v. Illinois State Police, which we previously reported on), where the Supreme Court held that section 7.5(v) of FOIA is a blanket exemption prohibiting the disclosure of all FOID card information under FOIA, even to an individual seeking his or her own FOID card information. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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In the Zone: Illinois Appellate Court’s Interpretation of Annexation Agreement Favors Municipality

In the Zone: Illinois Appellate Court’s Interpretation of Annexation Agreement Favors Municipality

  Monday, March 25, 2024    Julie Tappendorf

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In 2000, an industrial developer (Industrial Developer) began construction of a transportation and logistics hub in unincorporated Will County. The development was located adjacent to Union Pacific Rail tracks that run parallel to an Illinois highway. Because the development was projected to increase traffic on nearby roads, in 2001 the Village petitioned the Illinois Commerce Commission (ICC) for a permit to construct a ground-level railroad crossing for an extended road that would relieve traffic to and from the highway. The Village’s petition was granted and the railroad crossing was completed in 2004.

In 2007, the Industrial Developer and the Village entered into an annexation agreement (Agreement) to annex the development site into the Village. As part of the Agreement, the Industrial Developer agreed to construct all roadways required by the Illinois Department of Transportation (IDOT) at its own expense, and the Village agreed to provide any documents required for the Developer to obtain any IDOT approvals or permits for building the required roadways. As part of the concept plan for the development, the Industrial Developer indicated that it planned to extend the road that the Village had constructed to cross the rail tracks and create a four-way intersection with the highway to connect to other local roads. By 2010, this extension was complete and the intersection was open to vehicles.

Several years later, however, the ICC determined that the ground-level crossing was not safe for vehicles, but suggested that a elevated bridge over the rail tracks and the highway could provide a safe alternative for local traffic. During this time, the Industrial Developer deeded several lots to another company (Commercial Developer) that then sought to annex its land to the Village. As part of its proposal, the Commercial Developer offered to construct a bridge at the railroad crossing site. The Village declined this proposal. The Commercial Developer filed a petition with the ICC seeking a permit for the proposed bridge, but their application was incomplete without the agreement of the Village. The Developers sent a notice to the Village, arguing it was obligated under the Agreement to support their petition to the ICC for permits to build a bridge across the rail tracks and highway. Again, the Village declined, leading to litigation to determine the parties' rights and obligations under the Agreement. The trial court determined that the Village was obligated to support the Developers’ petition to the ICC to build a bridge. The Village appealed.

On appeal, the Appellate Court reversed the trial court’s decision and determined that the Annexation Agreement did not impose a duty on the Village to support the petition for a bridge. Village of Elwood v. LB Anderson Land Holding, LLC, et al. The Court relied on the plain language of the Agreement and found that although the Village had a duty to provide necessary documents and support to IDOT for the construction of roadways and intersections, the Agreement did not consider (1) the building of a bridge or (2) any applications or petitions to the ICC. The Court stated that “[a] bridge is not an intersection,” and distinguished the jurisdiction of the ICC and IDOT to determine that the proposed bridge was not a project considered by the parties when drafting the Agreement and considering collaboration on public improvements.

Based on the plain language of the Agreement, the Appellate Court held that the Village had reasonable discretion to decide it would not cosign the petition to build a bridge over the rail tracks and highway. While the closure of the ground-level crossing was an unexpected occurrence that impacted the Developers’ access to local roadways, the construction of the crossing in the first place demonstrated that the parties understood that the Village’s obligations to support the Developer only extended to roads and intersections. For these reasons, the Court determined that the Village had no duty to execute the petition in favor of a bridge over the rail tracks and highway.

Post Authored by Erin Monforti, Ancel Glink 

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Seventh Circuit Dismisses Parents' Challenge to School District's Gender Identity Guidance

Seventh Circuit Dismisses Parents' Challenge to School District's Gender Identity Guidance

  Friday, March 22, 2024    Julie Tappendorf

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In 2021, a Wisconsin school district (District) adopted Administrative Guidance for Gender Identity Support (Guidance) to provide direction and resources to schools encountering students with questions about their gender identity. A group of parents filed a lawsuit against the District to challenge the Guidance, arguing that it violated their constitutional due process and free exercise rights because they claimed the Guidance interfered with the parents' exclusive right to make decisions with and on behalf of their children. The district court dismissed the complaint, and the parents appealed to the Seventh Circuit Court of Appeals.

In Parents Protecting Our Children v. Eau Claire Area School District, the Seventh Circuit upheld the dismissal of the lawsuit, finding that the parents had not shown a sufficient injury to bring a lawsuit. While the Court acknowledged that the parents had genuine concerns about application of the Guidance, they could not establish that they suffered any actual or imminent injury to establish standing to sue the District. 

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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PAC Finds Public Body in Violation of FOIA for Withholding Video Footage

PAC Finds Public Body in Violation of FOIA for Withholding Video Footage

  Thursday, March 21, 2024    Julie Tappendorf

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In 2023, a person submitted a FOIA request to a County Sheriff’s Office seeking certain video recordings of a County animal control facility. The County denied the request, alleging that disclosure would interfere with a pending County investigation, and invited the requestor to re-submit their request in 30 days. When the requestor submitted a new FOIA request, the County again denied the request, this time arguing that the records were not public records subject to FOIA and that the records were exempt because they constituted records relating to the adjudication of employee grievances or disciplinary cases under section 7(1)(n) of FOIA. 

The requestor then submitted a request for review with the PAC, wihch issued binding opinion PAC Op. 24-005, concluding that the County violated FOIA by improperly withholding the recordings.

First, the PAC determined that because the responsive video footage relates to the Sheriff’s Office investigation of an alleged incident captured on the footage, and the recordings were in the possession of the Sheriff’s Office, the recordings were public records subject to disclosure under FOIA, unless an applicable exemption applied to all or part of the recordings.

Second, the PAC concluded that the Sheriff’s Office did not demonstrate that the withheld recordings were exempt pursuant to section 7(1)(n) of FOIA. That exemption applies to records relating to a public body's adjudication of employee grievances or disciplinary cases, but requires disclosure of the final outcome of cases where discipline is imposed. Although the Sheriff’s Office stated that disciplinary action was taken against an unidentified individual after completing their investigation into the incident captured on the recordings, the PAC stated that the Sheriff’s Office did not explain whether or to what extent any “adjudication” (defined as a formalized legal proceeding resulting in a final and enforceable decision) occurred following the investigation. In addition, because the withheld footage consisted solely of investigatory information that pre-dated any adjudication, and 7(1)(n) only applies to records generated during an adjudication, the PAC concluded that footage was not exempt.

Post Authored by Eugene Bolotnikov, Ancel Glink

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In the Zone: Seventh Circuit Upholds Denial of Outdoor Athletic Lights

In the Zone: Seventh Circuit Upholds Denial of Outdoor Athletic Lights

  Wednesday, March 20, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals ruled in favor of a City in a private religious school's challenge to the City’s denial of permits to build outdoor athletic lights . Edgewood High School of the Sacred Heart Inc. v. City of Madison

A City created a unique zoning district, the Campus-Institutional-District (CID), with specific procedures for granting zoning approvals. A private religious school within the CID boundaries submitted a development plan (a required CID procedure) to renovate its athletic facilities. The plan did not include building outdoor athletic lighting which the school planned to do, and the City informed the school that outdoor lighting would not be permitted without including it in the proposed development plan. Instead, the school applied for a lighting permit through other procedures, but the City denied that application because granting it was inconsistent with the development plan. The school then sued the City, claiming the denial of its outdoor lighting violated RLUIPA, the Free Exercise Clause of the U.S. Constitution, and vested rights law. The district court ruled in favor of the City, and the school appealed.

RLUIPA generally requires municipalities to treat religious and nonreligious institutions similarly and not place a substantial burden on religious exercise through zoning regulations. The Seventh Circuit found that since the school failed to offer any evidence that a nonreligious institution received outdoor lighting when the school did not, it was not treated differently than a nonreligious institution. The Seventh Circuit also held the City's denial of outdoor lights did not place a substantial burden on the school’s religious mission. As a result, the Seventh Circuit found no RLUIPA violation.

On the school's Free Exercise Clause claim, the Seventh Circuit found that the school failed to provide a compelling reason that the Seventh Circuit should address this claim on the merits (the district court did not address the claim because it found that RLUIPA is at least as restrictive, if not more so, than than the Free Exercise Clause), and upheld the dismissal of this claim.

Finally, the Seventh Circuit determined that because the school did not include outdoor lights in its required development plan, the proposed outdoor lighting did not conform to City regulations, and the school could not establish a vested right to install the outdoor lights. 

Post Authored by Daniel Lev & Julie Tappendorf, Ancel Glink

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Supreme Court’s Analysis: Use of Social Media by Government Officials

Supreme Court’s Analysis: Use of Social Media by Government Officials

  Tuesday, March 19, 2024    Julie Tappendorf

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As we reported last week, the U.S. Supreme Court recently issued opinions in two cases involving First Amendment challenges to government officials’ use of social media (Lindke v. Freed and O'Connor-Ratcliff v. Garnier). To follow up on that post, we want to provide more insight into the new test the Supreme Court announced in Lindke v. Freed and that will be applied by the respective Courts of Appeals when these two cases are remanded.

In Lindke v. Freed, the U.S. Supreme Court held that when a government official posts on social media, the official's speech will only be attributable to the government (and subject to First Amendment limitations), if the official:

(1) has actual authority to speak on behalf of the government on a particular matter; and 

(2) purports to exercise that authority when speaking on social media. 

According to the Supreme Court, the new test reflects the foundational principle that “the Free Speech clause only prohibits governmental abridgement of speech" so an individual who speaks in his or her capacity as a private person cannot be liable for violating another's free speech rights under the First Amendment. The Supreme Court was clear that a government official does not relinquish his or her own First Amendment rights when they take office or are hired by the government. If an official speaks in his or her private capacity by deleting comments and/or blocking users, that is not a violation of another's First Amendment rights but, instead, it is an exercise of the official's individual free speech rights. 

With respect to the first prong of the new test, the Supreme Court considered the circumstances under which a government official could have actual authority to speak on behalf of the government. Lindke involved a City Manager who deleted critical comments and blocked a user from his personal Facebook page. The Supreme Court stated that the City Manager’s status as a government employee, alone, was not conclusive on this first prong because “[t]he distinction between private conduct and state action turns on substance, not labels.” So, according to the Court, the person alleging a First Amendment violation must show a connection between the City Manager's actual authority and his social media activity - and that connection must be something more than that the City Manager had some authority to communicate with residents. That "something more" needs to be tied to a statute, ordinance, regulation, or even a well-settled custom establishing the City Manager's actual authority, and that established authority must be tied to the speech that allegedly violated the First Amendment. 

The Supreme Court gave the following example:  If the City Manager had posted about restaurants with local health code violations and then deleted critical comments from those posts, his actions would only be attributed to the City if his formal role (by law or custom) included public health management or regulation. If, on the other hand, the City Manager does not supervise or otherwise contribute to public health initiatives for the City, his posts could not be tied to the government where he had no authority to post in his official capacity.

As to the second prong of this new test, the Supreme Court said that courts must look at whether the challenged post was made in order to fulfill the government official’s formal responsibilities. Because government officials and employees do not lose their individual rights to free speech when they are elected, appointed, or hired by a government body, the Court noted that it is important to distinguish circumstances where they speak for themselves from situations where they speak on behalf of the government. One way to make this distinction, according to the Court, is to assess whether the social media page used by the government official is an official page or a personal page. 

In many cases, whether a social media page is a personal page or a government page will be fairly easy to determine. Personal pages that include disclaimers such as "the views expressed are strictly my own" or "this is the personal page of John Smith" are entitled to a "heavy" presumption that the posts on that page are personal. On the other hand, a social media page that belongs to the government (an official City account), or passes down to whomever occupies a position (an official City Manager account) are accounts that would purport to speak on behalf of or for the government. 

Here, the Court acknowledged that the challenged City Manager's page did not fall squarely into either of these examples - instead, the Court found it to be a "mixed-use" page where the City Manager posted both in his personal capacity and in his capacity as City Manager. According to the Court, applying this new test to a "mixed-use" page requires a fact-specific review of specific activities on that page in order determine whether a particular post or action was in furtherance of the official's personal capacity or his government capacity. 

The Court gave an example of a mayor posting the following on the mayor's personal Facebook page:

Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.

The Court noted that this hypothetical post appears to invoke the mayor's actual authority, and if the mayor's personal page was the exclusive place this announcement was made, would likely fall into "state action" for First Amendment purposes. However, if the mayor had merely re-shared this information from the City's official Facebook page, it would be less likely to be seen as state action. 

Based on the analysis in the Supreme Court's Lindke opinion, government officials and employees might take away the following:

(1) the Court did not distinguish between public officials and public employees in establishing its new test; 

(2) the Court rejected an argument that the official's page must be "predominantly" used for government purposes to be subject to the First Amendment; 

(3) the Court also rejected an argument that any government-related speech on a personal page will convert a personal page into a government page;

(4) the mere fact that an account-holder is a government official or employee does not, on its own, mean that their social media page or activities are subject to the First Amendment; 

(5) a "mixed use" page where a government official or employee acts both in his or her personal and government capacities can be the most risky type of account as the Court may have to engage in a post-by-post analysis to determine whether the official's or employee's actions have implicated another's First Amendment rights;

(6) adding disclaimers to personal pages that the views express on the personal page are not the views of the government and that the pages are purely for personal use will provide some presumption that the page is a personal one, although it is not determinative and can be rebutted depending on the nature of the activities on that page; and

(7) the Court acknowledged that an official who fails to keep his or her personal page separate from his or her government social media actions exposes himself to greater potential liability. It is particularly problematic if an official blocks a user from commenting on his personal posts because on a "mixed use" page, blocking a user would extend to the entire site, including the user being prevented from commenting on government-related posts on that type of mixed use page.

Based on the Court's analysis and the impact of this new test, government officials and employees may want to consider maintaining separate personal and official social media pages - a best practice we have shared on this site in the past.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink 

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Appellate Court Declines to Decide Challenge to Ballot Proposal

Appellate Court Declines to Decide Challenge to Ballot Proposal

  Monday, March 18, 2024    Julie Tappendorf

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State law requires home rule municipalities to obtain voter approval before they can impose or increase a real estate transfer tax. In November 2023, the Chicago City Council passed a resolution to place a referendum on the March 2024 ballot to modify the City's real estate transfer tax. The ballot question proposed to decrease real estate transfer taxes for properties sold for less than $1,000,000 and increase transfer taxes for properties sold for more than $1,000,000.

A collection of local business and real estate organizations challenged the proposed ballot question, arguing the proposal violated state statute and the Illinois Constitution. Plaintiffs argued that state statute only allows the imposition of a new transfer tax or increase in the rate of taxation with approval by referendum, and that any other change (such as a tax decrease) has to be done without prior approval by referendum.

The trial court ruled in favor of the local businesses and prohibited the proposal from being on the ballot. On appeal, the Appellate Court reversed the trial court in Building Owners and Managers Association v. Commission of the Board of Elections,

First, the Appellate Court noted that Illinois courts have declined to exercise jurisdiction over challenges to referenda that are part of the legislative process. The rationale is the separation of powers between the judiciary and the legislative branches of government, and that the judiciary can "neither dictate nor enjoin the passage of legislation." Here, the referendum was the first step in a process to authorize a municipality to adopt an ordinance implementing or modifying the tax, a legislative process that the AppellateCourt held that courts should not interfere with.

Second, the Appellate Court stated it would not issue an advisory opinion, and that courts should only decide the validity of legislation that has already been enacted.

The Appellate Court vacated the judgment of the trial court, finding that the trial court should not have exercised jurisdiction over the complaint.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

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BREAKING: Supreme Court Rules on Government Social Media Cases

BREAKING: Supreme Court Rules on Government Social Media Cases

  Friday, March 15, 2024    Julie Tappendorf

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We have been following two pending appeals to the U.S. Supreme Court involving First Amendment challenges to government officials regarding their social media activities. The Supreme Court issued opinions in both cases today. We wanted to get a post out right away with a very brief summary of the two rulings and will plan a more detailed summary and explanation of the Court's analysis next week.

The first case involved a First Amendment lawsuit against a City Manager who had deleted critical comments and blocked the commenter from the City Manager's personal Facebook page. The Sixth Circuit Court of Appeals had ruled in favor of the City Manager, finding that his actions did not amount to "state action" under Section 1983 of the Civil Rights Act. The case was appealed to the U.S. Supreme Court, which issued an opinion today. The Supreme Court held that a government official's speech on social media will only be attributable to the government if the official (1) possesses actual authority to speak on the government's behalf and (2) purported to exercise that authority when the official spoke on social media. The Court remanded the case back to the Sixth Circuit to apply that test to the extent that it differed from the one the Sixth Circuit applied when it ruled in favor of the City Manager. Lindke v. Freed.

The second case also involved a First Amendment lawsuit, this time filed by parents against school board members who had deleted their comments and blocked them from the school board members' personal Facebook pages. The Ninth Circuit Court of Appeals ruled in favor of the parents, holding that the school board members violated the parents' First Amendment rights when they deleted comments and blocked them from their pages. That ruling was appealed to the U.S. Supreme Court, which vacated the Ninth Circuit's ruling and remanded the case with instructions that the Ninth Circuit apply the test the Supreme Court established in today's Lindke v. Freed case. O'Connor-Ratcliff v. Garnier.

Stay tuned next week for a more detailed analysis of the Supreme Court's new test and how it might apply to both government officials' and employees' social media activities.

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Seventh Circuit Rules Fired Clerk Not Entitled to New Trial

Seventh Circuit Rules Fired Clerk Not Entitled to New Trial

  Friday, March 15, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals rejected new trial request in a lawsuit brought by a former employee against a city clerk. Artis v. Santos

In January 2016, a city clerk asked a junior clerk to volunteer for two political campaigns, and the junior clerk declined. In February 2016, the city clerk fired the junior clerk, stating that the reason was the clerk's previous felony conviction for stealing public funds. The junior clerk then sued the city clerk claiming the termination was retaliation against his refusal to volunteer for the political campaigns in violation of his First Amendment free speech rights. A jury ruled in favor of the city clerk, and the junior clerk appealed.

On appeal the Seventh Circuit considered four issues:

1) whether the trial court improperly admitted expert witness testimony;

2) whether the trial court improperly allowed an allegedly biased juror to sit on the jury;

3) whether the trial court issued confusing and misleading jury instructions and verdict forms; and

4) whether the jury’s completed verdict forms were inconsistent.

Regarding the expert witness claim, the Seventh Circuit determined the expert testimony was properly admitted because the trial court used the correct framework to admit expert testimony, the testimony satisfied the Federal Rules of Evidence, and it was relevant to case.

Regarding the biased juror claim, the Seventh Circuit stated the standard for disqualifying a juror is whether the juror holds a relevant prejudicial belief and whether they can suspend that prejudicial belief. Although the juror stated a belief that was possibly prejudicial, since the juror repeatedly stated they could suspend the belief, it was proper to let the juror remain.  

Regarding the jury instruction and forms claim, the Seventh Circuit reasoned the jury instructions correctly laid out the elements of a First Amendment challenge, and the verdict forms clearly indicated that only one of the two forms applied depending on how the jury ruled.

Regarding the verdict form inconsistency claim, the Seventh Circuit held that because this claim was not raised at trial, it could not be raised on appeal. 

Post Authored by Daniel Lev, Ancel Glink

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Appellate Court Remands Second Amendment Challenge to County Gun Taxes

Appellate Court Remands Second Amendment Challenge to County Gun Taxes

  Wednesday, March 13, 2024    Julie Tappendorf

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Cook County adopted two ordinances to impose a special retail tax on the purchase of firearms and firearm ammunition. In 2015, a group of plaintiffs challenge the tax claiming it violated both the Second Amendment of the U.S. Constitution and the Uniformity Clause of the Illinois Constitution. In that previous case (Guns Save Life v. Ali), the Illinois Supreme Court found the tax to violate the Uniformity Clause. 

More recently, plaintiffs filed a class action lawsuit against the County claiming the tax was unconstitutional because it violates their Second Amendment rights, and seeking money damages for themselves and for other similarly situated individuals for having been forced to pay the allegedly unconstitutional tax. The County filed a motion to dismiss the class action lawsuit based on four arguments: 

(1) the current case was controlled by the Illinois Supreme Court's previous decision in Guns Save Life v. Ali; 

(2) the plaintiffs were seeking an improper advisory opinion; 

(3) the plaintiffs were alleging insufficient facts to defeat the motion; and 

(4) the ordinance’s tax does not exceed the U.S. Supreme Court decision that so long as fees are not exorbitant then they’re constitutional.

The trial court granted the County's motion to dismiss based on the first argument, holding that it was bound by the outcome of the Guns Save Life case because although the Illinois Supreme Court had relied only on the Uniformity Clause to find the tax unconstitutional, the Appellate Court had previously determined that the taxes did not infringe upon any protected Second Amendment right. 

In Vandermyde v. Cook County, the Illinois Appellate Court rejected the trial court's analysis, finding that nothing in the Appellate Court's previous decision in the Guns Save Life case retained precedential value as it related to the Second Amendment question, and so the trial court was entitled to review and decide the Second Amendment issues in the exercise of its own judgment. The Appellate Court also found the plaintiffs claims to be sufficient to survive a motion to dismiss and rejected the County's argument that the taxes were a fee, finding the taxes had no relation to the County's administrative costs in regulating the allegedly protected activity. As a result, the Appellate Court sent the class action case back to the trial court to review the plaintiffs' Second Amendment challenge. 

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

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In the Zone: Seventh Circuit Rules on Damages Claims in Strip Club Lawsuit

In the Zone: Seventh Circuit Rules on Damages Claims in Strip Club Lawsuit

  Tuesday, March 12, 2024    Julie Tappendorf

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The Seventh Circuit Court of Appeals ruled in favor of a Village in excluding evidence regarding damages arising from a Village’s decision to deny a special use permit to operate a strip club. Chicago Joe’s Tea Room v. Village of Broadview

In 2006, the club owner (Owner) tried to open a strip club, but the Village denied the Owner a special use permit. The Owner filed a lawsuit in May 2007 alleging multiple issues that were resolved in complicated court proceedings between 2008 and 2018. The only issue remaining was whether the Owner was owed damages over the denial of the permit.

In August 2007, the State of Illinois amended laws governing the location of where new adult businesses could open that restricted new adult entertainment businesses. From 2012 to 2014, the Owner offered its opinion on the damages owed based on the club’s expected lost profits. The Village challenged the Owner’s opinion, and the Owner responded with a supplemental expert opinion. 

In August 2022, the Village filed a motion to exclude practically all the Owner’s evidence of damages and lost profits which was approved by the trial court. Ultimately, both parties agreed to a final judgement, and the court awarded the Owner $15,111.

On appeal, the Owner asked the Seventh Circuit to consider five issues:

1) the exclusion of the Owner’s opinion regarding damages owed;

2) the exclusion of the Owner’s rebuttal expert witness;

3) the exclusion of the financial records of the strip club where the Owner previously worked;

4) the exclusion of undisclosed total damages; and

5) the denial of the Owner’s 2018 motion to amend their lawsuit to challenge the constitutionality of the 2007 Illinois adult business law.

The Seventh Circuit held that determining profits for a business that never opened required specialized knowledge that the Owner, as a non-expert, could not provide. In addition, because the Owner’s testimony was based on a different strip club that he had not worked at for years prior, his personal knowledge was insufficient to provide relevant evidence. 

On the rebuttal expert and the other strip club’s financial records claims, the Seventh Circuit reasoned that the inclusion of this evidence, either directly or indirectly, was based on supporting the Owner’s testimony. Because the Owner's opinion testimony was properly excluded, tje rebuttal testimony was also properly excluded. 

Regarding Owner's undisclosed damages claim, the Seventh Circuit held that the parties must disclose calculations for each category of damages claimed, and the trial court was correct to exclude evidence that should have been included in prior required disclosures. 

Finally, on the Owner's challenge to the Illinois law claim, the Seventh Circuit upheld the trial court’s ruling that allowing the amendment in 2018 would have caused undue delay to the trial when the Owner could have amended its lawsuit previously where the lawsuit was filed in 2007.  

Post Authored by Daniel Lev, Ancel Glink

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Quorum Forum Podcast Ep. 81: Local Government Law Careers & More

Quorum Forum Podcast Ep. 81: Local Government Law Careers & More

  Monday, March 11, 2024    Julie Tappendorf

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Ancel Glink's Quorum Forum Podcast has released a new episode, Episode 81: Local Government Law Careers. In this episode, Ancel Glink’s Dan Bolin and Katie Nagy are on the road talking about their experiences and local government law careers. Then, Ancel Glink's Jaime Such discusses an important tort immunity case local governments and cyclists should know. 

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