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Friday, April 26, 2024

Court Rejects First Amendment Challenge to Public Comment Policy

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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