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

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

  Wednesday, September 11, 2024    Julie Tappendorf

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

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

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

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Village Owed No Duty of Care to Bicyclist Injured on Sidewalk

Village Owed No Duty of Care to Bicyclist Injured on Sidewalk

  Tuesday, September 10, 2024    Julie Tappendorf

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

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

The Village asserted the following defenses against the lawsuit:

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

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

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

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

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

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

Post Authored by Madeline Tankersley & Julie Tappendorf, Ancel Glink

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New Illinois Law Regulates Low-Speed Electric Scooters

New Illinois Law Regulates Low-Speed Electric Scooters

  Friday, September 06, 2024    Julie Tappendorf

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

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

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

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

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

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

The law also:

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

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

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

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

  Thursday, September 05, 2024    Julie Tappendorf

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

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

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

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

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

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

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

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Municipal Caucus Overview for the 2025 Consolidated Election

Municipal Caucus Overview for the 2025 Consolidated Election

  Wednesday, September 04, 2024    Julie Tappendorf

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

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

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

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

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

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

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

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

  Tuesday, September 03, 2024    Julie Tappendorf

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

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

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

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

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

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

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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