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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Friday, February 23, 2024

Driver's DUI Conviction Upheld

In 2010, a driver was convicted of driving under the influence of alcohol and appealed, claiming her conviction was "void" because the Village prosecuted her without the written permission of the County State’s Attorney as required by Section 16-102(c) of the Illinois Vehicle Code. That section provides that “The State's Attorney of the county in which the violation occurs shall prosecute all violations [of the Code] except when the violation occurs within the corporate limits of a municipality, the municipal attorney may prosecute if written permission to do so is obtained from the State's Attorney.”

The Appellate Court upheld her conviction in Village of Glen Ellyn v. Podkul, rejecting the driver's arguments. First, the Appellate Court held that the driver's claim challenging the Village’s authority to prosecute was forfeited because the driver failed to make an objection during her trial or post-trial motions.

Second, the Appellate Court rejected the driver's claim that a conviction made without statutory authority is void and can be challenged at any time. The Appellate Court held that the trial court’s judgment would only be void if it lacked subject matter jurisdiction over the issue or lacked personal jurisdiction over the defendant. Here, the Appellate Court held that the conviction would only be voidable, so could only be challenged at the appropriate time and through the proper process.

Finally, the Appellate Court rejected the driver's argument that the conviction could be reversed under the "plain error" rule. The Court held that the plain error rule only allows reversal if there is a structural error proven to have caused a severe threat to the fairness and reliability of the trial but the driver failed to demonstrate any error that would rise to the necessary level of severity to justify reversal of her conviction. Here, the driver was not prevented from mounting an adequate defense, putting on evidence, cross-examining the State’s witnesses, or presenting arguments during her trial. Instead, she merely argues that the Village lacked the statutory authority to prosecute her - i.e., that the prosecution was brought by the wrong party, not that the proceedings themselves were fundamentally unfair or unreliable.

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

Thursday, February 22, 2024

Instructor and Municipality Had Immunity for Taser Injury

Chavez participated in a taser training conducted by a part-time police officer. During the training, the instructor inadvertently tased both Chavez and the spotter who was meant to catch Chavez's fall. As a result, Chavez fell and was injured. He filed suit against the instructor and the municipality, claiming he was injured because of the instructor's failure to conduct the course in a reasonably safe manner and that the instructor should have placed mats to catch his fall. 

The defendants argued they were entitled to discretionary immunity under the Local Governmental and Governmental Employees Tort Immunity Act (Act). The Act protects municipalities from liability for an injury resulting from an act or omission of its employee where the employee is not liable. The Act also protects a public employee from liability for an injury resulting from an act or omission of the employee acting in the exercise of his or her discretion. 

The trial court held that the instructor was not entitled to protection under the discretionary immunity act and awarded Chavez damages.  

On appeal, the Appellate Court reversed, holding that the instructor was protected by immunity. The Court found that the taser class was the sole responsibility of the instructor and he was the only person capable of making determinations for the method of instruction for the training. The Court also found that the instructor’s decision not to place mats, the choice and placement of the alligator clips, and how many exposures to give and policy determinations were made (i.e., conducting the course at a fire department to ensure medical personnel were nearby), all weighed in favor of a determination that the instructor acted in the exercise of his discretion. As a result, the Appellate Court held that both the instructor and municipality had immunity under the Act. Chavez v. Village of Kirkland.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink

Wednesday, February 21, 2024

Former Deputy Chief Not Entitled to Rehearing on Retirement Pension

An Illinois Appellate Court recently reversed a trial court order that a firefighter pension fund board of trustees (Pension Board) must hold a new hearing, finding that the Pension Board had provided sufficient due process to the former deputy chief. Ibrahim v. Romeoville Firefighters’ Pension Fund

A month before the deputy fire chief retired, the mayor and village board increased the deputy chief's salary from approximately $125,000 to $150,000. When the deputy chief applied to the Pension Board to receive his pension, the Pension Board approved payouts based on the chief’s $125,000 salary. The deputy chief filed a request with the Pension Board to base the pension on his final $150k salary. The Pension Board reviewed the deputy chief's request at a Pension Board meeting, where the matter was included on the agenda and the deputy chief's attorney was permitted an opportunity to speak on the deputy chief’s behalf. The Pension Board ultimately denied the request, finding that basing the pension on an "unauthorized pension spike" would be against public policy and the regulations of the Illinois Department of Insurance, and would conflict with the Pension Board's fiduciary duties to the Fund and its members. The deputy chief then filed a lawsuit against the Pension Board, and the trial court ruled in the deputy chief’s favor and ordered the Pension Board to hold a new hearing on the matter. The Pension Board then appealed.  

The Appellate Court determined that the trial court could only order a new hearing if the deputy chief’s due process rights were violated. Here, the Appellate Court noted that due process required the deputy chief to be provided notice of the Pension Board meeting and a meaningful opportunity to be heard at that meeting. The Appellate Court noted that the deputy chief had prior notice of the meeting because he discussed the matter with the Pension Board’s attorney, and it was a listed agenda item at the Pension Board meeting. Additionally, the Appellate Court found that the deputy chief’s attorney spoke on the deputy chief's behalf at the Pension Board meeting, providing the deputy chief with a sufficient opportunity to be heard. As a result, the Appellate Court determined that the deputy chief’s due process rights were not violated, and as a result, the trial court had no authority to order a new Pension Board hearing. 

Post Authored by Daniel Lev, Ancel Glink

Tuesday, February 20, 2024

Court Holds that Mayor is Not a "Public Body" Under FOIA

In 2022, an inmate submitted a request to a City for a copy of his own letter he had sent to the Mayor complaining about the conduct of the City's attorney. The City denied the request, arguing, among other reasons, that the letter was not a “public record” under FOIA because it was addressed to the Mayor who did not qualify as a “public body” under FOIA. The requestor sued the City claiming the City’s denial violated FOIA, and the circuit court ruled in the City’s favor.

On appeal, the Appellate Court upheld the circuit court’s ruling in Shehadeh v. City of Taylorville.

First, the Appellate Court held that the requestor’s letter complaining about the conduct of the City's attorney was not a public record because it did not "pertain to the transaction of public business,” like business or community interests and instead pertained to the requestor’s private affairs.

Second, the Appellate Court ruled that the requestor’s letter addressed to the Mayor did not qualify as a public record under FOIA because it was not “received by, in the possession of, or under the control of a public body.” After analyzing FOIA’s definition of a “public body” and prior Illinois cases concluding that an individual alderperson was not a “public body” under FOIA, the Appellate Court concluded that the Mayor is not a “public body” under FOIA. The Court rejected the requestor’s argument that an individual Alderperson should be distinguished from a Mayor, noting that even though a Mayor (unlike an individual Alderperson) has legal authority to make certain unilateral decisions and actions, that distinction does not transform a Mayor into a "public body" under FOIA.

Finally, the Appellate Court determined that the requestor’s request asking for a copy of his own letter was inconsistent with FOIA’s legislative purpose of making public records open and accessible to the public, because requiring the City to provide the requestor with a copy of his own letter would do nothing to further this purpose.

Post Authored by Eugene Bolotnikov and Julie Tappendorf, Ancel Glink

Tuesday, February 13, 2024

PAC (Again) Says Public Body Must Respond to FOIA Request

In its second binding opinion for 2024, the Public Access Counselor of the Attorney General's Office (PAC) found a public body in violation of FOIA for failing to respond to a FOIA request. PAC Op. 2024-02.

With so few binding opinions issued by the PAC each year (about 15 or so each year) and no website posting of the PAC's advisory opinions, there still isn't a lot of guidance for public bodies on the unique (or routine, for that matter) questions and issues that come up in their compliance with FOIA and OMA. 

Monday, February 12, 2024

Firefighter Not Entitled to Non-Duty Disability Pension From Former Employer's Pension Fund

A firefighter applied for a non-duty disability with his current fire pension fund but was denied because he was not eligible for a pension as he had only been with his current department for a year. He also filed a separate application with his former fire pension fund, which also denied his claim because he was no longer eligible for a pension since he was no longer an employee of the department and had voluntarily left to take a job with another fire department.

The firefighter then sued claiming he was entitled to a pension because he should be allowed to combine his creditable service from his current and former employment for pension eligibility under section 4-109.3 of the Pension Code. 

The court disagreed, finding that section only applies to a firefighter who begins employment with a new employer as a result of an IGA that eliminates the previous employer's fire department but does not apply to a firefighter who voluntarily left one job to start another one. The court also noted that the Pension Code makes it clear that only the last pension fund is responsible for a non-duty disability pension, and only if the firefighter has at least 7 years of creditable service with that last pension fund. The court also noted that had the legislature wanted to allow the type of "stacking" of creditable service proposed by the firefighter for non-duty disabilities, it would have included language to that effect but it did not. As a result, the court upheld the denial of a non-duty disability pension by his former employer's pension fund board. Wessel v. Wilmette Firefighters' Pension Fund

Monday, February 5, 2024

Quorum Forum Podcast: Ep. 80 - Not in My Park!

Ancel Glink has posted a new podcast episode on Quorum Forum: Episode 80: Not in My Park! Regulating Controversial Park Activities. 

Park and recreation agencies manage many acres of public space where controversial activities sometimes take place. What authority does your organization have to address resident complaints over the location of pickleball recreational facilities, homeless individuals’ and migrant populations’ use of public parks, and protests in parks? Find out as Ancel Glink attorneys Tyler Smith, Katie Nagy, and host Erin Monforti take over Ancel Glink’s Quorum Forum podcast! 

Thursday, February 1, 2024

Townships and General Assistance for Migrants

As migrants arrive in the Chicagoland area from the southern border, several questions have arisen regarding the legal authority for townships to provide financial aid through general assistance funds. While townships have the authority to provide financial assistance to migrants under the Public Aid Code, 305 ILCS 5/1-1 et seq., (Code), whether migrants are eligible for general assistance funds is a bit more complicated .

First, to receive general assistance under the Code, recipients must either be United States citizens or in a category of eligible non-citizens. The Code provides definitions of those categories, but a township may need to consult with an immigration attorney or legal non-profit for guidance on application of this provision of the Code to the migrants within their jurisdiction. 

Second, for migrants to receive general assistance, they must not be eligible under any other section of the Code. The Code allows the administration of funds for several programs that migrants may be eligible for depending on certain immigration classifications. Townships may need to seek expert guidance on the classification question as well.

Third, assuming those preliminary hurdles are cleared, townships have legal authority to administer general assistance to migrants. While general assistance is usually limited to residents of Illinois, an exception exists to provide non-state residents with general assistance for a temporary period when they will suffer “great hardship.” Migrants arriving in the Chicagoland area typically have no money, food, or shelter which would likely qualify as a great hardship under the Code.

General assistance is split into two categories: 1) transitional assistance; and 2) family and children assistance. The first category, transitional assistance, is for individuals 18 years or older who are “chronically needy” and townships have the power to expand categories of “chronically needy.” If a township wants to provide aid to migrants through transitional assistance, they have the power to do so. The second category, family and children assistance, is for families with children under 18 or pregnant women. There may also be other aid programs for needy families that migrants may be eligible for depending on immigration status. 

Finally, nothing in the Code should be construed to mean that townships are required to provide general assistance to migrants in their communities, but only that they appear to have the authority to do so, subject to certain status or classification issues. 

Post Authored by Daniel Lev, Ancel Glink