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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

Wednesday, March 27, 2024

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

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

Tuesday, March 26, 2024

Person's Own FOID Card Records Are Exempt from FOIA

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 PoliceThe 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

Monday, March 25, 2024

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

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 

Friday, March 22, 2024

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

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

Thursday, March 21, 2024

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

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

Wednesday, March 20, 2024

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

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

Tuesday, March 19, 2024

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

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 

Monday, March 18, 2024

Appellate Court Declines to Decide Challenge to Ballot Proposal

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

Friday, March 15, 2024

BREAKING: Supreme Court Rules on Government Social Media Cases

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.

Seventh Circuit Rules Fired Clerk Not Entitled to New Trial

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

Wednesday, March 13, 2024

Appellate Court Remands Second Amendment Challenge to County Gun Taxes

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

Tuesday, March 12, 2024

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

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

Monday, March 11, 2024

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

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. 

Thursday, March 7, 2024

In the Zone: New Development and Annexation Agreement Book

The American Bar Association has published a new book on development and annexation agreements that may be of interest to land use and planning professionals. The book is called Development by Agreement: A Toolkit for Land Developers and Local Governments, and Municipal Minute creator/moderator and Ancel Glink partner Julie Tappendorf is one of the co-authors. 

More information about the book can be found on the ABA's website here and a summary of the book is provided below:

Title: Development by Agreement: A Toolkit for Land Developers and Local Governments

Authors: Julie A. Tappendorf, Cecily Talbert Barclay, and Matthew S. Gray

Summary: Landowners and local governments often use agreements to increase public benefits and reduce uncertainty surrounding proposed developments. The second edition of this guide provides an overview of problems faced by land developers and local governments that can easily be solved by development and annexation agreements.

Wednesday, March 6, 2024

In the Zone: Community Land Trusts Webinar

Municipal Minute posts that focus on land use, zoning, economic development, and similar topics will now have an "In the Zone" identifier in the blog topic. We hope this helps our land use and planning professionals who follow Municipal Minute find posts of interest to their work and practice. Today's post is our first with the "In the Zone" identifier.

Planning professionals may be interested in checking out an upcoming webinar on affordable housing and community land trusts hosted by the APA Planning & Law Division - details below:

Title: Community Land Trusts: Affordable Housing Strategies for Racial and Economic Justice

Date & Time: Tuesday, March 12, 2024 from noon to 1:35 p.m. Central Time

Credit: 1.50 CM | 1 CM - Law | 1.5 CLE (Illinois)

Registration here

Description: At a moment during which no state has an adequate supply of extremely low-income rental housing, innovative solutions in shared equity housing are helping to cultivate meaningful, lasting social change. As active practitioners in the world of Community Land Trusts, our three guest speakers’ unique experiences—derived from legal, administrative, and urban planning perspectives—are invaluable in guiding the work of housing attorneys, planners, and lay advocates alike. This webinar will cover tangible strategies for shared equity housing implementation, tools for effective participatory governance frameworks, and potential institutional or systemic barriers. 

Tuesday, March 5, 2024

Court Finds Substantial Complaince with Election Code

An Illinois Appellate Court recently found candidates substantially complied with the Election Code against a challenge to the language on the circulator's certification. Gallagher v. Cook County Officers Electoral Board.

Candidates for the office of Appellate Court Judge filed nomination papers to be included on the March 2024 primary election ballot. The nomination papers included affidavits certifying their petitions were signed during the required statutory period. Objectors claimed the candidates' affidavits did not comply with the Election Code (Code) because the date range deviated from the Code’s required language,and the candidates should not be on the ballot.

The affidavits contained statements that all signatures were provided during the period of “September 5, 2023 to December 4, 2023.” The Code requires that nomination petitions included a circulator's certification that the nomination papers were signed no more than 90 days before papers were due to be filed. The objectors argued that the affidavit language did not match the statutorily prescribed language.

The Electoral Board ruled in favor of the objectors and ordered the candidates’ names to be removed from the ballot, finding that strict compliance with the prescribed language of the Code was required. The candidates appealed, and the circuit court found the affidavits to be in substantial compliance and ordered the names to appear on the ballot. 

On appeal, the Appellate Court agreed with the circuit court and held that the affidavits complied with the Code as this provision of the statute only required a showing of substantial compliance. The Court reasoned that since the affidavits contained an affirmative statement that complied with the purpose of the Code, the candidates were found to be in substantial compliance and the Court ordered their names to appear on the ballot.

Post Authored by Alexis Carter & Julie Tappendorf, Ancel Glink