Appellate Court Rules in Favor of Wind Farm Developer

Appellate Court Rules in Favor of Wind Farm Developer

  Thursday, August 07, 2025    Julie Tappendorf

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An Illinois municipality enacted a zoning regulation that restricted the generating power of wind energy conversion systems. A wind farm developer that sought to construct a wind farm on land outside the municipality but within 1.5 miles of its limits sued the municipality, claiming the zoning regulation was constitutionally invalid and outside the scope of the municipality's authority. The trial court ruled in favor of the municipality, but the Appellate Court reversed in Hickory Wind, LLC v. Village of Cedar Point.

After a municipality adopted a zoning regulation that prohibited any wind energy conversion structure or wind turbine designed to generate more than 120% of the electricity demand for the parcel on which it is located in the municipality and in the area within 1.5 miles of the municipality, a wind farm developer (Hickory Wind, LLC) filed a lawsuit challenging the regulation. The trial court found in favor of the municipality, holding that Hickory Wind failed to offer evidence that the zoning regulation exceeded the municipality's authority or was constituted impermissible exclusionary zoning, and that any "as-applied" challenge was not yet ripe. That ruling was appealed.

On appeal, the Illinois Appellate Court reversed the ruling in favor of the municipality and ruled in favor of Hickory Wind on its "exclusionary zoning" claim. The Appellate Court noted that a zoning ordinance is "impermissibly exclusionary if the affected activity is effectively prohibited anywhere within the municipal limits." In this case, the Appellate Court determined that the zoning regulation on wind farms was not a "mere limitation" or restriction, but an outright ban. The Court acknowledged that municipalities have the authority to place reasonable limitations on things like height, blade length, tower density, and the like but that a regulation that restricts energy generation in such a way that it renders commercial wind power economically impossible is "both a violation of public policy and is also, in effect, an unauthorized ban." Because the municipality was non-home rule, it had to rely on statutory authority to regulate and the Court held that state law permitted regulation, but did not expressly authorize municipalities to ban commercial windmills. The Court declined to address the constitutional arguments since it resolved the case on non-constitutional grounds. 

There was a dissenting opinion in the case that would have deferred to the municipality on its own zoning regulations because state law specifically permits regulations of wind farms and no regulatory scheme preempts the municipality's zoning ordinance. The dissent also would have acknowledged the "potential impact that proposed 17 650-feet-tall windmills (taller than the St. Louis Arch) will necessarily have on the value of nearby homes and the possible chill they may place on subsequent residential and commercial development."

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Illinois Governor Signed a Number of Bills on August 1st

Illinois Governor Signed a Number of Bills on August 1st

  Wednesday, August 06, 2025    Julie Tappendorf

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The Illinois Governor signed a number of bills into law on Friday, August 1st, including the following that affect local governments:

HB 42 - Authorizes library boards to charge nonresident library fees on a quarterly or biannual basis, rather than in one lump sum.

HB 1910 - Requires libraries to maintain a supply of opioid antagonists and have at least one employee trained to identify the signs of opioid overdose present at the library during operating hours to administer an antagonist. Effective January 1, 2026. As we have reported previously, this bill only amends the Local Library Act and does not amend the Library District Act.

HB 2336 - Amends the Fire Protection District Act and the Illinois Municipal Code to authorize fire districts and municipalities to charge reasonable fees from assisted living or nursing home facilities for lift-assist services. Those fees cannot exceed the actual personnel and equipment costs for all services rendered in connection with the lift-assist service. Effective January 1, 2026.

SB 1701 - Modifies the definition of "supervisor" for police officers. Effective July 1, 2026.

SB 1195 - Amends the Illinois Police Training Act to require instruction for probationary law enforcement officers on trauma-informed programs, procedures, and practices. Effective January 1, 2026.

HB 32 - Amends the Township Code to permit a temporary deputy township supervisor to administer a township's general assistance program and allows township parks and recreation departments to employ minors for youth sports activities.

HB 1367 - Amends provisions of the Township Code to modify a township's use and disposition of open spaces. Effective January 1, 2026.

SB 1612 - Raises the competitive bid threshold to $60,000 for the purchase of supplies or materials for park districts, conservation districts, and forest preserve districts (competitive bids for "work," as defined by the statute, remains at $30,000).SB 1380 - Authorizes counties and municipalities to use a state or locally-owned utility pole and public right of way for public safety purposes. Effective January 1, 2026.

SB 2285 - Amends the Vehicle Code to update the definition of bicycle to include low-speed electric bikes. Effective January 1, 2026. 

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Seventh Circuit Finds University's Social Media Page to be a Public Forum and its "Off Topic" Comment Rule Unconstitutional

Seventh Circuit Finds University's Social Media Page to be a Public Forum and its "Off Topic" Comment Rule Unconstitutional

  Tuesday, August 05, 2025    Julie Tappendorf

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We reported previously about a Wisconsin federal district court case that determined that a University social media page was a non-public forum, and ruled against a former student who challenged the University's deletion of her comments from the University's accounts. That 2022 ruling had been appealed to the Seventh Circuit Court of Appeals, which just recently issued an opinion reversing the district court and finding that the University's social media page was a limited public forum, and the University's actions violated the former student's free speech rights. Krasno v. Mnookin (7th Cir. August 1, 2025). 

The University of Wisconsin-Madison operates Facebook and Instagram pages where it communicates with students, faculty, and the general public. The University moderates its social media accounts in several ways, including hiding or deleting comments the University finds to be "off-topic," and using a "keyword filter" that hides comments that include words or phrases the University includes in the filter, such as "lab," "animal testing," "kill animals," and others. The University also turns off comments on certain posts to prevent users from commenting. A former student who worked in the primate testing center of the University sued the University after she claims her comments were automatically hidden or deleted by the University in violation of her First Amendment rights. In 2022, a federal district court ruled that the University's social media pages were "nonpublic forums" because the University had, by policy or practice, restricted comments by banning "off topic" comments, so the University's actions did not violate the former student's free speech rights.

The former student appealed, and the Seventh Circuit Court of Appeals rejected the district court's ruling that the University's social media pages were non-public forums. Instead, the Seventh Circuit ruled in favor of the former student on several grounds, holding that the interactive spaces on the University's social media pages (i.e., the comment section) were limited public forums and the University's "off topic" comment rule as applied to the former student was unconstitutional. 

The Seventh Circuit determined that the interactive space on the University's social media pages (i.e., the space where private users can post comments) was not government speech nor a traditional public forum, nor a nonpublic forum. Instead, the Seventh Circuit held that the interactive space on the University's social media pages was a "limited public forum" because it was opened up for the purpose of allowing the discussion of certain topics. The Seventh Circuit likened the University's social media page to the City of Boston's flag pole which the U.S. Supreme Court had found to be a public forum because Boston had opened its pole up to private groups to display their flags. Here, the Seventh Circuit found that the University opened its comment section on its social media pages to speech by private users.  

In a limited public forum, governments can establish restrictions, but those restrictions must be reasonable and viewpoint neutral. The Seventh Circuit applied that test to the University's "off topic" comment rule and found it to be unconstitutional because the University's use of a filtering program to hide comments that included certain words and phrases relating to animal testing was unreasonable and constituted viewpoint discrimination against the former student's anti-animal testing and pro-animal rights viewpoint. The Seventh Circuit also found the University's "off topic" social media statement to be too open-ended, inflexible, and vague, and the University's enforcement to be too discretionary to survive a First Amendment analysis. As a result, the Seventh Circuit reversed the district court's ruling in favor of the University, and ordered the district court to enter judgment in favor of the former student on her First Amendment claims.

There was a dissenting opinion that would have found the University's social media pages to be a nonpublic forum, similar to the National Portrait Gallery or the letters section of the University's "On Wisconsin" magazine. 

The Seventh Circuit's ruling that the University's social media pages are public forums is consistent with other federal courts of appeals that have analyzed similar challenges. We noted in our post about the district court ruling that we thought the district court's finding that the University's social media accounts were nonpublic forums was an outlier, and it is not surprising that the Seventh Circuit ruling last week was more inline with those other rulings. Governments who enforce an "off topic" comment rule may want to consult with their legal counsel to advise them whether this ruling might have an impact on their own social media moderation activities.

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Appellate Court Upholds Dismissal of Residents' Case Against Village for Flooding

Appellate Court Upholds Dismissal of Residents' Case Against Village for Flooding

  Monday, August 04, 2025    Julie Tappendorf

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Homeowners sued a municipality, claiming that the municipality was responsible for recurrent, temporary flooding in their basements over the course of several years. Specifically, they claimed that the flooding violated the "takings clause" of the U.S. Constitution and constituted a nuisance and trespass to their properties, and that the municipality should be held liable because the municipality approved the development in a flood zone. The municipality filed a motion to dismiss the case, arguing that their claims were not timely brought and did not state a valid cause of action. The trial court agreed, and dismissed the case.

On appeal, the Illinois Appellate Court upheld the dismissal of the homeowners' case against the municipality. First, the Court determined that the complaint did not include any allegations establishing that the municipality caused the recurrent, temporary flooding of the homeowners' basements. The Court noted that the homeowners did not claim the municipality constructed a structure that altered the flow of the river or caused the properties to be flooded, nor did the municipality create the rain, river, or floodplain. Instead, the Court found that the municipality did nothing more than allow the homeowners and their predecessors to "act upon their own choices" in purchasing a home in this development. As a result, the "takings" claim was properly dismissed by the trial court.

Second, the Court determined that the homeowners did not allege that their flooded basements resulted from the municipality's use of its own property, so the nuisance claim was also properly dismissed.

Third, the Court held that the flooding of the homes was caused not by the municipality's approval of construction plans, but by natural processes such as substantial rainfall, porous soil, and a shallow water table. As a result, the homeowners' trespass claim was also properly dismissed.

In sum, the Appellate Court determined that the trial court properly dismissed the homeowners' lawsuit because it did not state a valid cause of action against the municipality. Billie v. Village of Channahon.

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Residents of Mobile Home Park Entitled to Injunctive Relief for Water Shut Off

Residents of Mobile Home Park Entitled to Injunctive Relief for Water Shut Off

  Thursday, July 31, 2025    Julie Tappendorf

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An Illinois Appellate Court recently ordered a city to restore water service to a customer whose water had been shut off for nonpayment. Holmberg v. Kewanee Partners.

Residents in a mobile home park pay a monthly fee to the mobile home park owner for their water service, along with their rent payments. The owner of the mobile home park was then responsible for paying the water bill to the city for the entirety of the mobile home park's water service, which was served by a consolidated water service line. The mobile home park became the subject of a foreclosure action, and the park was placed in receivership. While in receivership, the city issued a water bill to the mobile home park for $500,000, reflecting delinquent payments for water service to the mobile home park and other properties. The city's notice stated that water service would be shut off to individual mobile homes in eh park if payment was not received by June 3rd. A few days prior to that deadline, one of the residents of the mobile home park filed a lawsuit against the city, claiming that terminating her water service would violate her constitutional rights. She also filed a request for a temporary restraining order (TRO) to stop the city from shutting off water to her mobile home. Other residents joined the lawsuit.

The trial court granted the original plaintiff's TRO, stopping the city from shutting off water to the residents' mobile homes. However, the trial court denied relief to some of the other plaintiff-residents in the mobile home park, and one of those residents appealed to the Appellate Court.

The Illinois Appellate Court determined that the trial court should have granted injunctive relief to other plaintiff-residents whose water service was disconnected. In this situation, the court determined that the mobile home park owner was the party responsible to pay for water service, and the residents who filed a lawsuit against the city had the right to receive water from the city while the lawsuit proceeded. The court rejected the city's argument that the residents whose water was already disconnected were not entitled to relief. The court also noted that the residents had established that they were making payments for water service to the receiver. 

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Courts Decide Firefighter Pension Cases

Courts Decide Firefighter Pension Cases

  Monday, July 28, 2025    Julie Tappendorf

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Two on-duty disability pension cases were decided by the Illinois Appellate Courts recently, with one court finding in favor of the firefighter-applicant and the other for the Pension Board.

In Boyles v. Bolingbrook Firefighters Pension Fund, a firefighter filed an application for on-duty disability benefits relating to a back injury. The firefighter claimed he injured his lower back while helping to lift an injured person on a stretcher. The Pension Board determined that the firefighter was disabled, but did not qualify for a line-of-duty disability pension. On appeal, the trial court upheld the Pension Board's decision but the Illinois Appellate Court reversed and sent the case back to the Pension Board to award the firefighter a line-of-duty disability pension. The Appellate Court found the testimony of certain medical professionals that determined that the injury was caused by the performance of his firefighter duties to be more persuasive than the testimony of those medical professionals that found otherwise.

In Witteman v. Brookfield Firefighters Pension Fund, a firefighter filed an application for on-duty disability benefits relating to a back injury. He claimed he injured his back while helping lift an overweight patient. After conducting a hearing, the Pension Board denied the on-duty disability pension, citing to various inconsistencies in the firefighter-applicant's testimony about the incident, including that he changed his story as to how the injury occurred, his failure to report the injury to coworkers, and his evasive demeanor at the Pension Board hearing. The Pension Board also found testimony of his coworkers to be credible to support a finding that the firefighter's injury did not occur as he claimed. On appeal, both the trial court and Appellate Court upheld the Pension Board's denial of the line-of-duty pension. While the Appellate Court acknowledged that there was some inconsistency in coworkers testimony, they noted that all of his coworkers testified that the firefighter-applicant did not take part in lifting the patient onto a stretcher to transport him to the ambulance as he claimed.

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Appellate Court Reverses Dismissal of Challenge to Rental Inspection Ordinance

Appellate Court Reverses Dismissal of Challenge to Rental Inspection Ordinance

  Wednesday, July 23, 2025    Julie Tappendorf

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A municipality adopted a rental ordinance that requires annual inspections of rental properties. The ordinance requires landlords to conduct background checks for any new adult tenant and provide proof of that at each inspection. It also requires landlords to incorporate a "crime free agreement" as an addendum to each lease. A landlord of a rental property with 21 units, as well as a tenant in that property, filed a lawsuit against the municipality to challenge the ordinance. Specifically, the lawsuit alleged that the annual inspections were an unconstitutional warrantless and unreasonable search and that the background check requirement violated rights to privacy and equal protection, among other claims.

The municipality filed a motion to dismiss the lawsuit, which the trial court granted. The trial court found that the defendants' facial challenge to the ordinance failed because they did not adequately allege that warrantless searches took place. The trial court also determined that the municipality had a legitimate interest in ensuring crime-free neighborhoods and that all landlords and tenants were treated the same, so there was no equal protection violation.

The defendants appealed, and the Illinois Appellate Court agreed with the trial court, in part, and upheld the dismissal of the defendants' "facial" challenge to the ordinance. The Court also upheld the dismissal of the defendants' right to privacy challenge to the background check requirement. However, the Appellate Court did not agree with the dismissal of the defendants' "as applied" challenge to the ordinance, and remanded those claims back to the trial court for further proceedings. The Appellate Court determined that the defendants' raised a viable argument that the ordinance, as enforced, may have violated the defendants' constitutional rights because the municipality imposed fines when an inspection was not allowed, raising potential questions of whether the ordinance enforcement violated constitutional rights against warrantless searches. The Appellate Court did, however note that the defendants would not be entitled to damages under the Tort Immunity Act and any relief they might obtain is limited to declaratory or injunctive relief.

DPH Aurora Properties LLC v. City of Aurora

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PAC Issues 8th Binding Opinion on FOIA Challenge

PAC Issues 8th Binding Opinion on FOIA Challenge

  Wednesday, July 16, 2025    Julie Tappendorf

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In March 2025, a news organization submitted a FOIA request to a school district seeking a copy of an email attachment sent by the school district’s board president to other board members. The attachment related to a billing dispute between the school district and its former legal counsel. The school district denied the request citing various FOIA exemptions.

After the news organization submitted a request for review with the Illinois Attorney General's Public Access Counselor (PAC) challenging the denial of their request, the PAC issued its eight binding opinion of 2025, concluding that the school district improperly withheld the responsive record. PAC Op. 25-008.

First, the PAC determined that the requested record was not exempt from disclosure pursuant to Section 7(1)(m) of FOIA, which exempts attorney-client privileged communications. The PAC acknowledged that billing invoices or statements containing confidential, privileged communications between a public body and its attorney for the purpose of seeking or providing legal advice are protected from disclosure under Section 7(1)(m) of FOIA. The PAC also acknowledged that billing invoices or statements describing the nature of services performed, a public body’s motive for seeking legal representation, or litigation strategy, are also protected from disclosure pursuant to Section 7(1)(m) of FOIA. Here, however, the PAC determined that the contested record was not exempt from disclosure pursuant to Section 7(1)(m) because it did not reveal the substance of matters for which the school district sought legal advice or any legal advice the school district’s former attorneys provided while acting as their legal advisor—rather, the record broadly pertained to a billing dispute between the school district and its former legal counsel. 

Second, the PAC rejected the argument that several Illinois Supreme Court Rules of Professional Conduct (Rules) prohibited the school district from disclosing the contested record. Specifically, the PAC found that the Rules apply to and govern the conduct of attorneys, not their clients. In this case, the PAC determined that the Rules do not specifically prohibit public bodies from disclosing non-exempt public records in response to a FOIA request.

Lastly, the PAC found that the contested record was not exempt from disclosure pursuant to FOIA’s deliberative process exemption in Section 7(1)(f) of FOIA because the record did not reflect deliberations with a third party acting on the school district’s behalf. Instead, the PAC opined that the contested record was a communication to the school district from its former legal counsel, which, in that correspondence, was acting with independent interests that were not aligned with the school district’s interests at the time it received the correspondence. 

Post Authored by Eugene Bolotnikov, Ancel Glink

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Quorum Forum Podcast Ep. 95: Legislative Update

Quorum Forum Podcast Ep. 95: Legislative Update

  Tuesday, July 15, 2025    Julie Tappendorf

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After the Illinois General Assembly concluded its spring session, Ancel Glink’s Eugene Bolotnikov joined the Quorum Forum Podcast to talk about recent legislation local government should know, including updates on veteran housing, grant opportunities for libraries, law enforcement hiring practices and more. You can listen here: Episode 95: Legislative Update

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Court Finds Public Body Properly Denied FOIA Request for Fatal Accident Records

Court Finds Public Body Properly Denied FOIA Request for Fatal Accident Records

  Monday, July 14, 2025    Julie Tappendorf

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An Illinois Appellate Court issued an opinion in favor of a government body after a media outlet filed a lawsuit challenging its response to the media's FOIA request for records pertaining to a fatal accident. NBC Subsidiary v. Chicago Police Department.

An investigative television producer submitted a FOIA request to a municipal police deparrment (CPD) and the Office of Emergency Management and Communications (OEMC) requesting various records relating to a fatal hit and run accident. CPD denied the request, citing various exemptions including that state law prohibited release of the officer body worn camera recordings, and that release of other records would interfere with pending law enforcement proceedings or would obstruct an ongoing criminal investigation. The OEMC also denied the request submitted to it for police observation or surveillance camera recordings on the basis that release would impede CPD's open investigation

The requester filed a lawsuit against CPD and OEMC, and the trial court ruled against the requester, finding that the denials were proper under FOIA. The trial court found persuasive an affidavit of a CPD officer that detailed how release of the requested records would compromise the current investigation because the perpetrator was still at large and release of the requested records could negatively affect the CPD's ability to obtain witness cooperation, among other things.

The requester appealed, arguing that the officer's affidavit was insufficient to satisfy CPD's and OEMC's obligations under FOIA to prove by clear and convincing evidence that release of the withheld records would interfere with pending or reasonably contemplated law enforcement proceedings. The Appellate Court disagreed, finding that the officer's affidavit contained sufficient details to meet the statutory burden, and that the affidavit was not simply a conclusory or generic statement as the requester claimed.

The Appellate Court also held that the requester was not entitled to redacted versions of the law enforcement records at issue, finding that the case involved a small number of records, and there was nothing to suggest that the records contained information that was not exempt. So, the Court held that the records were properly withheld in their entirety in this case.

The Appellate Court also found no merit in the requester's argument that the voluntary disclosure of certain information in the traffic crash report undermined a denial of other records.

Finally, the Court rejected the requester's argument that the body worn camera recordings should be released because the witnesses and victim did not have a "reasonable expectation of privacy" under the Body Camera Act because their encounter with officers was in a public place. The Court noted that the phrase "reasonable exeptation of privacy" in the Body Camera Act was dependent on the context of the law enforcement encounter and the potential distribution of the recording, so that a reasonable person engaging with law enforcement would expect that a recording would not be publicly disseminated to the news media or public at large, even where the encounter is on a public street. The Court also acknowledged that individuals who have just witnessed a traumatic incident such as a fatal car accident would not reasonably expect the police to release video to the public of their vulnerable state or that a person receiving treatment in an ambulance would not reasonably expect the police to release video footage of their treatment.

In sum, the Court upheld the CPD and OEMC's denials of the requester records in their entirety.

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Seventh Circuit Allows First Amendment Retaliation Case to Continue

Seventh Circuit Allows First Amendment Retaliation Case to Continue

  Wednesday, July 09, 2025    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently allowed a lawsuit filed by a deputy sheriff of a county sheriff's department who claimed he was retaliated against for exercising his First Amendment rights to move forward. Reilly v. Will County Sheriff's Office.

In 2017, a deputy sheriff in a county sheriff's department announced he was running a campaign for county sheriff against his boss. During his campaign, the deputy publicly criticized his boss. While the campaign was ongoing and prior to the election, the deputy took a promotional examination and was placed first on the sergeant promotional list. The sheriff had the ultimate decision on the sergeant promotion, and between 2018 and 2019, the sheriff selected five other candidates on the promotional list to be promoted to sergeant. Ultimately, the deputy lost the election, and his boss was relected as sheriff.

The deputy filed a lawsuit against the sheriff's office and the sheriff, claiming they retaliated against him because of his criticism of the sheriff during the 2017 campaign. The deputy claimed the sheriff admitted publicly that he passed the deputy over for promotion because of his criticism during the 2017 campaign. The defendants filed a motion to dismiss arguing the deputy's complaint did not state a valid claim and that it was untimely because it was filed more than 2 years after the promotional list expired. The district court agreed with the defendants, and dismissed the case and did not allow the deputy to file an amended complaint.

The deputy appealed the dismissal of his case to the Seventh Circuit Court of Appeals, which reversed the dismissal, finding that the complaint stated a plausible claim for First Amendment retaliation, and that the district court applied too high of a standard in not allowing the deputy to file an amended complaint. 

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Court Upholds Termination of School Counselor for Speech at Rally

Court Upholds Termination of School Counselor for Speech at Rally

  Wednesday, July 02, 2025    Julie Tappendorf

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A Wisconsin school district terminated a school counselor after she delivered a profanity-laden speech denouncing gender ideology and transgenderism and their impact on children at a rally at the state capitol. The guidance counselor filed a civil rights lawsuit against the school board and three school officials claiming she was unlawfully fired in retaliation for exercising her First Amendment right to freedom of speech. The district court denied her request for a preliminary injunction and dismissed her First Amendment claim, finding that the school district's interests as a public employer outweighed her speech rights under these circumstances. On appeal, the Seventh Circuit Court of Appeals upheld the dismissal in Darlingh v. Maddaleni (7th Cir. July 2, 2025).

After video of her speech at the rally appeared on YouTube, the school opened an investigation, ultimately firing her for violating school policies that prohibited abusive and intimidating language and bullying. The school also explained that her speech at the rally impaired her ability to perform as a guidance counselor, damaged the school's reputation, and undermined its mission to provide an equitable and supportive learning environment for all students.

On appeal, the Seventh Circuit Court of Appeals applied the U.S. Supreme Court's Pickering balancing test to the counselor's First Amendment claim. That test requires a court to determine whether the public employer's interests outweigh the employee's free speech rights. In applying that test, the Seventh Circuit examined whether the counselor's speech was constitutionally protected - i.e., was she speaking as a citizen on a matter of public concern? The Seventh Circuit determined that while the counselor's speech interests were strong, and the topic she spoke on was a matter of intense public concern, the context of her speech and her role as a school guidance counselor was important in the analysis. In balancing the school district's interest that guidance counselors have an "inordinate amount of trust and authority," against the guidance counselor's speech at the rally which the court found to be "a harsh, angry, and profanity-filled public pledge...that was hardly compatible with her obligation to build student and parental trust," the Seventh Circuit concluded that the school district's interests outweighed the guidance counselor's free speech rights in these circumstances. As a result, the guidance counselor's speech fell outside the scope of the First Amendment's protection as applied to public employment. 

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Post Conviction Proceeding Records Were Not Entirely Exempt Under FOIA

Post Conviction Proceeding Records Were Not Entirely Exempt Under FOIA

  Monday, June 30, 2025    Julie Tappendorf

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After an inmate submitted several FOIA requests to a state’s attorney’s office (SAO) seeking records regarding his pending post conviction proceeding, the SAO denied the request in its entirety based on the FOIA exemption that protects from release records that would interfere with a pending law enforcement proceeding. The SAO argued that disclosing the records would interfere with a pending law enforcement proceeding because the requester’s civil postconviction proceeding was still pending at the time of receiving the FOIA requests. The requester filed a lawsuit against the SAO alleging they improperly denied his FOIA requests, and the circuit court ruled in favor of the SAO, finding that disclosing the requested records to the requester would interfere with pending law enforcement proceedings.

On appeal, the First District Appellate Court reversed the circuit court, finding that the SAO did not prove that all of its responsive records were exempt from disclosure under FOIA. Taylor v. Cook County State’s Attorney’s Office.

First, the Appellate Court rejected the requester’s argument that the circuit court incorrectly treated his civil postconviction proceeding as a law enforcement proceeding, finding that civil postconviction proceedings do fall within the scope of Section 7(1)(d)(i) of FOIA (the pending law enforcement proceedings exemption).

Nevertheless, the Appellate Court determined that the SAO improperly withheld the responsive records under that exemption. Although an affidavit from the SAO’s FOIA officer stated that its responsive records were entirely exempt because disclosure would interfere with a pending postconviction proceeding, the Appellate Court determined that the affidavit was insufficient because it was conclusory and did not specifically explain which records were exempt from disclosure, and why the records were categorically exempt from disclosure. It is important to note that the Appellate Court held that the pendency of a postconviction petition, in and of itself, was not sufficient to entirely exempt records under the cited exemption.

The Appellate Court ordered the SAO to either disclose the responsive records or justify withholding its responsive records by preparing an index and a detailed affidavit explaining why disclosing each document would interfere with or harm pending or prospective law enforcement proceedings

Post Authored by Eugene Bolotnikov, Ancel Glink

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PAC Determined that a City Committee was a Subsidiary Body Subject to OMA

PAC Determined that a City Committee was a Subsidiary Body Subject to OMA

  Thursday, June 26, 2025    Julie Tappendorf

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A member of the public submitted a "request for review" to the Illinois Attorney General's Public Access Counselor's office (PAC) claiming that a City pool committee (Committee) violated the Open Meetings Act (OMA) by holding meetings closed to the public regarding building a new pool in the City. After analyzing a four-factor test established by the Illinois Supreme Court to determine whether the Committee would constitute a “subsidiary body” subject to OMA requirements, the PAC concluded that the Committee is a subsidiary body of the City subject to the requirements of OMA. PAC Op. 25-007.

First, the PAC determined that the Committee did not legally exist independently of the City, because the City created the Committee as part of the City’s planning process to construct a new pool in the City. Although the City argued the Committee was an informal advisory committee, the PAC stated that labelling the Committee or its gatherings as “informal” does not shield its gatherings or discussions about public business from OMA requirements.

Second, the PAC determined that the City exerts a significant amount of government control over the Committee, because the Mayor appoints the members of the Committee, the Committee’s recommendations are subject to City Council approval, and the City has been directly involved in and controlled multiple facets of Committee activities relating to building a pool in the City, including providing assistance related to finance, engineering and zoning, and parks and recreations matters.

Third, although the PAC noted that it was unclear whether the Committee uses any public resources for its activities (e.g., holding meetings on city property), and the City noted that Committee members are unpaid volunteers, the PAC asserted that the Committee receives at least some indirect public funding by virtue of being part of the City, and City officials and employees devote their time to supporting the Committee’s activities.

Lastly, the PAC determined that the City utilizes the Committee to perform governmental functions, because the Committee is tasked with assessing the potential designs, costs, and locations for a new City pool, and reporting its findings to the City, which the PAC argued are roles typically performed by a municipal committee.

Post Authored by Eugene Bolotnikov, Ancel Glink

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PAC Finds Public Body in Violation of FOIA Relating to Settlement Records

PAC Finds Public Body in Violation of FOIA Relating to Settlement Records

  Tuesday, June 24, 2025    Julie Tappendorf

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A city received a FOIA request seeking copies of the department’s settlement records concerning a class action lawsuit against a named alderperson. In response to the request, the city disclosed certain responsive records, but withheld a record concerning the settlement that was signed by the alderperson and a city attorney pursuant Section 7(1)(m) of FOIA, which exempts from disclosure privileged attorney-client communications between a public body and its attorneys.

After the requester submitted a request for review, the PAC issued its sixth binding opinion of 2025, concluding that the department improperly withheld the responsive record pursuant to Section 7(1)(m) of FOIA. PAC Op. 25-006. In connection with the withheld record at issue, the PAC determined that because the alderperson was represented by a private attorney, while the city was represented by attorneys from its law department, the parties had separate interests in the subject matter of the withheld record. Because (1) no legal advice pertaining to the litigation or the settlement was sought from or provided to the alderperson from the city attorney who signed the record, and (2) there was no indication the city attorney was acting as the alderperson’s attorney in connection with the settlement, the PAC determined that the withheld record was not a privileged attorney-client communication under Section 7(1)(m) of FOIA.

Additionally, because the withheld record was not a communication protected by the attorney-client privilege, and related to the obligation, receipt, or use of city funds regarding the settlement, the PAC determined that the public had a right to know the purposes for which public funds were expended in connection with the settlement. 

Post Authored by Eugene Boltnikov, Ancel Glink

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Seventh Circuit Upholds Preliminary Injunction Barring Enforcement of School’s “Sex Assigned at Birth” Restroom Policy

Seventh Circuit Upholds Preliminary Injunction Barring Enforcement of School’s “Sex Assigned at Birth” Restroom Policy

  Monday, June 23, 2025    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently upheld a district court's preliminary order prohibiting a school district (District) from enforcing its policy that requires transgender students to use restrooms that are gender-neutral or correspond to their sex assigned at birth. D.P. v. Mukwonago Area School District, et al.

The District enacted a policy requiring all students to use restrooms and locker room facilities according to their sex assigned at birth, or otherwise use gender-neutral alternatives. The policy included procedures allowing students to request an exception, which would be evaluated on a case-by-case basis with the student and their parents. Prior to adoption of the policy, a transgender middle-school student (Student) regularly used the girls’ bathroom. Following adoption of the policy, the Student and her mother sent a letter to the District demanding that the policy be rescinded. The District responded, offering to go through the evaluation process for an exception under its policy. Shortly thereafter, the Student filed a federal lawsuit claiming violations of Title IX of the Educational Amendments of 1972 (Title IX) and the Equal Protection Clause of the Fourteenth Amendment.

At the time she filed her lawsuit, the Student also submitted a motion seeking a temporary restraining order (TRO) and preliminary injunction to prevent the District from enforcing the policy while the case was ongoing. The District opposed the request for temporary relief but did not request an evidentiary hearing or submit any additional evidence. The district court granted the Student’s request for a TRO and—five days later—converted it to a preliminary injunction prohibiting enforcement of the District’s policy until the case was fully resolved. The District appealed the district court’s decision to the Seventh Circuit Court of Appeals, arguing that (1) the judge erred by not holding a hearing prior to granting the preliminary injunction, and (2) the preliminary injunction should be voided because the Student was not likely to succeed on the merits of her claims.

The Seventh Circuit ruled in favor of the Student and upheld the preliminary injunction entered by the district court. The Seventh Circuit noted that an evidentiary hearing is only required when an opposing party raises genuine issues of fact in response to a motion for preliminary injunction but because the District did not dispute the factual record established by the Student, and failed to request a hearing, the Court found no error in granting the preliminary injunction based solely on the written submissions of the parties.

The Seventh Circuit also determined that the preliminary injunction was properly entered because the Student demonstrated she was likely to succeed in the case and would suffer irreparable harm if she were made to comply with the District’s policy during litigation. The Court cited several key cases addressing the issue of transgender students’ use of restrooms and noted that the District’s policy would likely be ruled unlawful discrimination based on sex under Title IX and the Equal Protection Clause.

Post Authored by Erin Monforti, Ancel Glink

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Supreme Court Rules for Student Regarding Proper Standard for ADA and Rehabilitation Act Claims

Supreme Court Rules for Student Regarding Proper Standard for ADA and Rehabilitation Act Claims

  Friday, June 20, 2025    Julie Tappendorf

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Last week, the U.S. Supreme Court issued its opinion setting forth the standard that must be applied by courts in cases involving alleged failures to accommodate students with disabilities under the Americans with Disabilities Act (ADA) and Rehabilitation Act (Rehabilitation Act). A.J.T., et al. v. Osseo Area Schools, Indep. Sch. Dist. No. 279, et al.

In this case, a student with a rare form of epilepsy filed several claims under various federal statutes alleging that her school district failed to accommodate her when it refused to provide certain services to her, which she claimed resulted in her receiving fewer instructional hours than her peers without disabilities. The student’s disorder caused her to have frequent seizures, particularly in the mornings, which she claims prevented her from attending school before noon. For the first few years she attended school, the student was granted various accommodations, including at-home evening instruction to supplement the hours she was otherwise unable to attend school.

In 2015, the student and her family moved to a different state, and the student’s new school district (District) denied her parents’ request to include evening instruction in her individualized education program (IEP), resulting in her receiving just over 4 hours of schooling every day (significantly less time than the typical school day for her peers). In 2018, the student’s schedule was reduced even further, and the family’s requests for accommodation were continually denied by the District. 

The student first filed a claim under the Individuals with Disabilities Education Act (IDEA), alleging that the failure to accommodate her requests for evening instruction deprived her of a “free appropriate public education” as required under IDEA. Both the state board of education and a federal trial court ruled in favor of the student and ordered the District to provide her with at-home instruction on school nights.

After succeeding on her IDEA claim, the student sued the District in federal court, claiming violations of Title II of the ADA and Section 504 of the Rehabilitation Act. Both of these federal laws were enacted to ensure that people with disabilities have an equal opportunity to benefit from government services, including public education. The District argued the case should be dismissed because the student failed to meet the standard for a successful claim under the ADA or Rehabilitation Act. The district court and Eighth Circuit Court of Appeals ruled in favor of the District, finding that the student failed to show that the District acted in bad faith or with gross misjudgment when it denied her accommodations requests. The Eighth Circuit determined that a school district’s “simple failure” to provide a reasonable accommodation is not enough to trigger liability under either statute.

On appeal, the U.S. Supreme Court held that the student did not need to show bad faith or gross misjudgment by the District to move forward with her claims under the ADA and Rehabilitation Act. Instead, the student need only show that the District acted with “deliberate indifference” when it denied her reasonable accommodation requests—an easier standard to meet. The opinion of the Court (authored by Chief Justice Roberts) noted that the standard that had been advocated by the District was uniquely difficult to satisfy. Outside of the context of elementary and secondary education, claims of disability discrimination under the ADA and Rehabilitation Act do not require a showing of an intent to discriminate, or animus against individuals with disabilities. The Supreme Court found there was no evidence in the statutory language or legislative history that supported imposing such a high burden on students when other groups with disabilities would not be required to show bad faith or gross misjudgment to bring a discrimination claim. As a result, the Supreme Court ruled in favor of the student and determined that students with disabilities filing claims under these statutes are held to the same standard as other individuals alleging disability discrimination in different contexts.

In her concurring opinion, Justice Sotomayor pointed out that the ADA and Rehabilitation Act were enacted with an awareness that discrimination against individuals with disabilities is often the product of neglect and thoughtlessness, rather than deliberate hostility. 

Post Authored by Erin Monforti, Ancel Glink

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Ancel Glink Relaunches "The Workplace Report" Blog

Ancel Glink Relaunches "The Workplace Report" Blog

  Wednesday, June 18, 2025    Julie Tappendorf

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We’re excited to share that Ancel Glink has officially relaunched its labor and employment law blog, The Workplace Report! Designed for public sector employers, HR professionals, and attorneys, the blog delivers timely insights on workplace policy developments, legal trends, and key court decisions affecting employers in Illinois and beyond.

Whether you’re navigating complex personnel issues or staying ahead of legislative changes, The Workplace Report is a valuable resource for practical guidance and legal perspective.

Check out the relaunch and subscribe to receive the latest posts directly in your inbox.

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PAC Issues Binding Opinion Finding Public Body Failed to Respond to FOIA Request

PAC Issues Binding Opinion Finding Public Body Failed to Respond to FOIA Request

  Friday, June 13, 2025    Julie Tappendorf

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The Illinois Attorney General's Public Access Counselor (PAC) issued its 5th binding opinion for 2025, finding a public body in violation of FOIA for failing to respond to a FOIA request. PAC Op. 25-005. The requester had filed a multi-part FOIA request asking for all emails and texts for a 4 year period between various village officials and employees, payroll records, meeting minutes and ordinances, and resident communications regarding the mayor's salary and for a four year period. When the village failed to respond to the request, the requester filed a "request for review" with the PAC office. The PAC reached out to the village, but according to the opinion, the village did not respond, and the PAC issued this binding opinion finding the village in violation of FOIA for failing to respond to the FOIA request. Nothing new in this opinion besides a reminder that public bodies have an obligation to respond to FOIA requests.

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Ordinance Prohibiting Yoga Instruction in City Parks Struck Down

Ordinance Prohibiting Yoga Instruction in City Parks Struck Down

  Thursday, June 12, 2025    Julie Tappendorf

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In an interesting twist (pun intended), a federal court of appeals determined that yoga is a protected free speech activity under the First Amendment in a challenge to a municipality's ordinance that prohibited teaching yoga to four or more persons at City parks and beaches. Hubbard v. City of San Diego, (9th Cir. June 4, 2025)

The City had enacted an ordinance restricting the teaching of yoga on City parks and beaches. After two yoga instructors were informed by park rangers that they could no longer each yoga at City parks, they filed a lawsuit, challenging the ordinance as unconstitutional. The district court ruled in favor of the City, and the yoga instructors appealed.

On appeal, the 9th Circuit Court of Appeals first determined that yoga is protected by the First Amendment because yoga teachers communicate and disseminate information about yoga’s philosophy and practice through speech and expressive movements. Second, the Court held that the City’s shoreline parks are traditional public forums. Third, the Court determiend that the City’s prohibition on teaching yoga at those parks was content-based, and, therefore, did not qualify as a valid time, place, and manner regulation. As a result, the ordinance was subject to "strict scrutiny" under the First Amendment and, since the City could not demonstrate any plausible connection between the instructors teaching yoga and any threat to public safety and enjoyment in the City’s shoreline parks, the ordinance was an unconstitutional restriction on speech. 

Note that this decision was decided in the Ninth Circuit Court of Appeals, so it is not binding on Illinois, which is in the Seventh Circuit.

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Quorum Forum Podcast Ep. 94: Discussing Supreme Court Decisions at the APA-ISS Conference

Quorum Forum Podcast Ep. 94: Discussing Supreme Court Decisions at the APA-ISS Conference

  Wednesday, June 11, 2025    Julie Tappendorf

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Ancel Glink just released its 94th episode of its Quorum Forum Podcast - Episode 94: Recent Supreme Court Decisions. Information about this episode is below.

How can decisions issued by the nation’s highest court impact community development at the local level? Find out as Megan Mack and Erin Monforti join the APA-ISS Spring Planning Conference to discuss two recent U.S. Supreme Court decisions, City of Grants Pass v. Johnson and Sheetz v. County of El Dorado. 

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Court Dismisses Lawsuit by Former Fire Captain Terminated for Social Media Posts

Court Dismisses Lawsuit by Former Fire Captain Terminated for Social Media Posts

  Tuesday, June 10, 2025    Julie Tappendorf

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A federal court of appeals recently upheld a municipality's decision to terminate a fire captain for posting content on social media that his employer (the City) found to be offensive attacks on transgender persons. Misjuns v. City of Lynchburg (4th Cir., June 5, 2025).

While employed as a fire captain, Misjuns maintained two Facebook pages - one was a personal page and the other was a public figure page. According to the Court of Appeals opinion, in 2021, Misjuns posted four cartoons on his public figure Facebook page that depicted offensive stereotypes of transgender women in bathrooms and participating in sports. Although Misjuns didn't identify himself as a City employee on his Facebook page, City residents who saw the posts identified him as a City employee, and subsequently filed complaints with the City about the posts.

After Misjuns became aware of the resident complaints, he posted a meme on his Facebook page that stated the following: “In the beginning, God created Adam & Eve. Adam could never be a Madam. Eve could never become Steve. Anyone who tells you otherwise defies the one true God. Threatening anyone for believing & saying this is most likely a hate crime.” 

Following an investigation by the City, Misjuns was terminated, and he filed a lawsuit against the City, claiming the termination constituted a breach of contract, and violated his equal protection rights, as well as his free speech and religion rights under the First Amendment, among other claims. The district court dismissed his claims, and he appealed to the 4th Circuit Court of Appeals.

First, the Court of Appeals determined that Misjuns failed to adequately plead his First Amendment (free speech and religion) and equal protection claims against the City. To hold a municipality liable for a constitutional civil rights violation, a plaintiff must show that the execution of a policy or custom of the municipality caused the violation, commonly referred to as Monell liability. Here, the Court determined that Misjuns failed to plead Monell liability. 

Second, the Court rejected his claim that the City's employee handbook constituted a binding contract between the City and its employees, so his breach of contract claim also failed.

Finally, the Court rejected his wrongful termination and conspiracy claims since those claims were solely brought against the individual defendants (and not the City), and those defendants had been previously dismissed from the lawsuit. 

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Court Upholds Late Fee for Vehicle Sticker Tax

Court Upholds Late Fee for Vehicle Sticker Tax

  Monday, June 09, 2025    Julie Tappendorf

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 An Appellate Court upheld Chicago's city sticker tax (wheel tax) in Zibrat v. City of Chicago.  

The City adopted a "wheel tax license fee" in 2011, and vehicle owners who failed to purchase the city sticker were assessed a late fee. After a vehicle owner purchased the city sticker after the deadline and was assessed a late fee, she filed a lawsuit claiming the late fee was an unconstitutional tax or impermissible fee. The circuit court dismissed the case, finding that although the late fee was a tax, it was not unconstitutional. She appealed, and the Appellate Court upheld the dismissal, finding that whether the late fee was considered a fee, penalty, or tax, it was permissible.

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Court Upholds Denial of FOIA Request Based on Ongoing Law Enforcement Investigation Exemption

Court Upholds Denial of FOIA Request Based on Ongoing Law Enforcement Investigation Exemption

  Friday, June 06, 2025    Julie Tappendorf

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In response to separate FOIA requests submitted to a city’s police department and its office of emergency management seeking records regarding a 2021 fatal crash, both public bodies denied the requests because disclosing its responsive records would interfere with a pending or anticipated law enforcement proceeding. After the requester sued both public bodies seeking to compel disclosure of the withheld records, the circuit court ruled in favor of the public bodies, finding that disclosing the withheld records would interfere with an ongoing police investigation concerning a fatal collision, and that the requested body camera (BWC) footage was exempt from disclosure under FOIA. The requester appealed.

On appeal, an Illinois Appellate Court upheld the circuit court’s ruling in favor of the public bodies. NBC Subsidiary (WMAQ-TV), LLC v. Chi. Police Dep't & Off. of Emergency Mgmt. 

First, the Appellate Court determined that the affidavit submitted by the police department provided case-specific details demonstrating why and how disclosing its withheld records would interfere with an ongoing police investigation (e.g., disclosing footage could expose witnesses to risk of harm or retaliation because of the primary suspect’s criminal history, alter witness memories and undermine the value of subsequent interviews, alert the suspect that they were being investigation and allow them to evade capture, or give the suspect time to create an alibi or fabricate evidence).

Second, the Appellate Court rejected the requester’s argument that he was entitled to receive redacted versions of the withheld records, because the public bodies demonstrated that its responsive records were entirely exempt from disclosure pursuant to FOIA’s pending or contemplated law enforcement exemption, because the court held that this particular FOIA exemption broadly protects entire records, in contrast to other FOIA exemptions which generally authorize redacting only discrete exempt information contained in records.

Third, the Appellate Court rejected the requester’s argument that the police department’s prior disclosure of information concerning the accident undermined its argument that disclosing the withheld records at issue would interfere with an ongoing police investigation. The Appellate Court explained that the police department’s prior, more limited disclosure of information about the accident in a crash report and a community alert did not eliminate the risk of interference to the police department’s pending investigation if the department were forced to disclose the more detailed records at issue.

Finally, the Appellate Court rejected the requester’s argument that the body camera recordings capturing witness statements should have been disclosed, because the witnesses made their statements to police officers on a public street and allegedly did not have a “reasonable expectation of privacy” in their statements. The Appellate Court explained that reasonable people in the position of the witnesses would reasonably expect that their statements would not be publicly disclosed, because disclosure could expose them to acts of retaliation and otherwise depict the witnesses in a vulnerable state after witnessing a traumatic accident. Therefore, because the witnesses captured in the withheld BWC recordings had a reasonable expectation of privacy at the time of the recordings, and the witnesses did not provide their written consent to disclose the recordings, the public bodies properly withheld the BWC recordings from disclosure.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Bill Requiring Local Libraries to Stock “Opioid Antagonists” Passes Both Houses of General Assembly

Bill Requiring Local Libraries to Stock “Opioid Antagonists” Passes Both Houses of General Assembly

  Thursday, June 05, 2025    Julie Tappendorf

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The spring 2025 legislative session of the Illinois General Assembly has come to an end after months of debate on a wide variety of proposed legislation. One update that caught our attention is the unanimous approval of House Bill 1910 (Bill) by both chambers. If signed by the Governor, this Bill would amend the Local Library Act to require all "libraries open to the public" to maintain a supply of approved “opioid antagonists,” such as Naloxone (Narcan), for use in assisting individuals experiencing an opioid overdose.

The Bill requires libraries to take all reasonable steps to make sure that, during operating hours, there is at least one person present in the library trained to (1) recognize and respond to an opioid overdose and (2) administer the opioid antagonist to reverse the effects of the overdose. Library personnel may administer an opioid antagonist to any person who they believe is experiencing an overdose on library property or at a library-sponsored event. The Bill provides immunity for libraries and their personnel related to the administration of an opioid antagonist, except in situations where they engage in willful or wanton misconduct.

After reviewing the Bill, we want to flag two items of interest for our readers. 

First, the Bill only amends the Local Library Act, and there appears to be no corresponding legislation to amend the Public Library District Act. While the Bill states that these new requirements apply to "[a]ll libraries open to the general public" in Illinois, the Local Library Act (the only statute this Bill amends) only covers public libraries established under the Local Library Act and not library districts. This raises a question as to the scope of the Bill's application, given the inconsistency of language used in the Bill (applies to all public libraries) and the only statute the Bill proposes to amend (the Local Library Act).

Additionally, the Bill provides that libraries may obtain an approved opioid antagonist from “any lawful source,” but does not reference funding to cover the cost of the medication or training for library personnel. Absent further legislation, grants, or other opportunities for funding, libraries may need to be prepared to cover the costs associated with compliance.

The Bill has been sent to Governor Pritzker for consideration. If the Bill is signed into law, Illinois libraries (at the very least, those libraries established under the Local Library Act) will need to stock a supply of opioid antagonists, work with staff to complete the required training, and otherwise ensure compliance with the requirements of the new law. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Seventh Circuit Upholds Constitutionality of Indiana’s Buffer Law

Seventh Circuit Upholds Constitutionality of Indiana’s Buffer Law

  Wednesday, June 04, 2025    Julie Tappendorf

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The State of Indiana has a "buffer law" that makes it a crime for a person to knowingly or intentionally approach an officer who is “lawfully engaged in the execution of the law enforcement officer’s duties after the law enforcement officer has ordered the person to stop approaching.” A citizen journalist who maintains a YouTube channel with over 23,000 subscribers, records and livestreams police conduct in the City, was told by City police officers to move backwards while he was recording the police after shots were fired, invoking the buffer law. The citizen journalist filed a lawsuit against the City, bringing a "facial challenge" to the buffer law, meaning he challenged its constitutionality "on its face” rather than as it was applied to him specifically. The district court ruled in favor of the City, finding the buffer law to be constitutional because it only had an “incidental effect” on the public’s First Amendment right to record and scrutinize police activity. He appealed to the Seventh Circuit Court of Appeals.

The Seventh Circuit upheld the ruling in favor of the City. First, the Seventh Circuit determined that the buffer law was content-neutral, because it regulates all forms of speech equally. 

Next, the Seventh Circuit determined that the law was narrowly tailored because it does not burden substantially more speech than necessary to further the government’s interests in passing the law. The Court found that the buffer law reasonably served the government’s interest in maintaining police, citizen, and onlooker safety and protecting the integrity of police investigation. Because the law still allows those who are already present and recording to continue doing so beyond the buffer area, the Court held that the law does not burden substantially more speech than necessary.

Finally, the Court determined there were adequate open alternative channels of communication because under the buffer law, an onlooker could stay in place and record, or move to a different location to record, as long as they were not approaching an officer after being told to stop. As a result, the Seventh Circuit upheld the state's buffer law finding it to be a reasonable "time, place, and manner" restriction within the bounds of the First Amendment. Nicodemus v. City of South Bend, Indiana, No. 24-1099 (7th Cir. 2025)

Post Authored by Rachel Defries & Julie Tappendorf, Ancel Glink

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School Board Member's Blocking of Users on Social Media Violated First Amendment

School Board Member's Blocking of Users on Social Media Violated First Amendment

  Tuesday, June 03, 2025    Julie Tappendorf

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Last March, we reported on two cases decided by the U.S. Supreme Court addressing challenges to government officials' deletion of comments and blocking of users from their personal social media pages. (Lindke v. Freed and Garnier v. O'Connor-Ratcliff). The U.S. Supreme Court adopted a new two-part test for when a government official's social media activities on their personal accounts might tigger the First Amendment. The Court held that a government official can be liable under the First Amendment for actions taken on their personal social media accounts if (1) the official had the authority to speak on behalf of the government and (2) the official exercises that authority. The Supreme Court then remanded the two cases back to the lower courts to apply the new test.

Last month, the Ninth Circuit Court of Appeals issued a ruling in the Garnier v. O'Connor-Ratcliff case. That case involved a challenge to two school board members who had blocked parents from their personal social media pages. The Ninth Circuit applied the U.S. Supreme Court's new two-part test. First, the Ninth Circuit held that one of the board members (the school board president) had actual authority to speak on the school district's behalf through California state statute and the school district's bylaws that encouraged electronic communication of school business and delegated communication authority to the board president. Second, the Ninth Circuit held that the board president was purporting to exercise that official authority on the president's social media accounts when she regularly communicated about district business, and had no disclaimer that her views were personal rather than official. The Ninth Circuit concluded that the board president's social media activities constituted "state action" under the civil rights statute and, as a result, the First Amendment limited her abilities to delete comments or block users if those actions would violate users' free speech rights. The Ninth Circuit found the case against the other board member was moot because he was no longer on the school board.

The Ninth Circuit acknowledged that public officials can limit the risk of liability as the U.S. Supreme Court advised last year, stating as follows:

We emphasize that public officials assuredly do have the right to speak on public affairs, including issues related to their official duties, in their personal capacity. As the Supreme Court advised in Lindke, public officials can limit the risk of liability for personal speech on social media by, for instance, “keep[ing] personal posts in a clearly designated personal account,” including a disclaimer, or refraining from labelling their personal pages as official means of communication. (cite omitted)

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Illinois Supreme Court Upholds Village's Prosecution of Cannabis DUI For Driver’s Education Student

Illinois Supreme Court Upholds Village's Prosecution of Cannabis DUI For Driver’s Education Student

  Monday, June 02, 2025    Julie Tappendorf

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In Village of Lincolnshire v. Olvera the Illinois Supreme Court upheld the conviction of a 16-year-old high school student for driving under the influence (DUI) during a driver’s education class. 

The Village brought state DUI charges against the student, who was later found guilty in a bench trial. The student appealed and his case made its way to the Illinois Supreme Court, where he argued that (i) the Village lacked authority to prosecute the DUI and (ii) there was insufficient evidence to prove he was under the influence of cannabis.

The student claimed that the Village lacked authority to prosecute the DUI because it failed to present written permission from the State to prosecute the case under state statute. He argued that the Village was required to submit evidence of its written permission into the record during trial. Both the Appellate Court and the Illinois Supreme Court rejected that argument, holding that the statute does not require the Village to submit written authority into the record at trial.

The student also argued that the Village failed to prove beyond a reasonable doubt that he was under the influence of cannabis, and that it was to a degree that “rendered him incapable of safely driving.” The Illinois Supreme Court noted that at trial, the Village presented testimony from the driving instructor, who observed the defendant’s erratic driving, head slumping, nervousness, and failure to stop the vehicle, which required the instructor to manually intervene several times by grabbing the wheel or applying the instructor-side brake. The instructor testified that by itself this behavior is often observed in any nervous inexperienced driver, however additional evidence supported the DUI charge, including the student's failure of multiple field sobriety tests administered by the school resource officer. Although, the student did not exhibit the smell of burnt cannabis, a student safety search revealed a “joint” in his wallet. Also, the student acknowledged possession of marijuana and admitted to the Dean of Students that he had used marijuana the night before. Surveillance footage from the high school was admitted into evidence showing the student stumbling through the school hallways before exiting to the driver’s education vehicle.

When viewing all evidence in the light most favorable to the State, the Illinois Supreme Court held that the evidence supported a finding beyond a reasonable doubt that the student was under influence of cannabis and was incapable of safely driving, upholding his conviction.

Post Authored by Glen Batista and Megan Mack, Ancel Glink

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In the Zone: Court Upholds Zoning Board's Denial of Variance for Accessory Structure

In the Zone: Court Upholds Zoning Board's Denial of Variance for Accessory Structure

  Friday, May 30, 2025    Julie Tappendorf

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In 2022, building plans were submitted to the County for approval of a proposed reconstruction of a boathouse. According to the relevant County ordinances, in order for a structure to qualify as a boathouse, it must be used to store boats, may not contain other rooms, must be built over an earthen floor or water slip, and may not be used for human habitation. If a structure does not qualify as a boathouse under the regulations, it must be built at least 30 feet from the shoreline, unless it is granted a variance.

The building plans that were submitted to the County depicted a structure with two stories, an enclosed wooden floor that was heated, windows, recessed lighting, cabinetry, sky lights, ceiling fans, and a door – all of which indicated atypical features and activities for boathouses. The building plans also depicted people congregating inside the structure, indicating that it was intended to be used for human habitation. For these reasons, the County Zoning Board decided that the structure was not a boathouse under the County’s regulations and was, therefore, subject to the 30-foot setback requirement.

The builders also sought a variance for their structure to avoid the 30-foot setback requirement. The builders argued that because the area 30 feet from the shoreline was particularly steep, exceptional circumstances and practical difficulties existed in adhering to the setback requirement to justify a variance. The builders also argued that their plan was harmonious with the purpose of the regulations because the structure would not be used for habitation and because the large floor plan was justified by their extensive storage needs.

The Zoning Board denied the variance, finding that there was nothing so unique about the builders’ property that would not allow them to either build the structure 30 feet from the shoreline or modify their plans so that the structure would qualify as a boathouse. On appeal, the Appellate Court upheld the Zoning Board's decision, finding, among other things, that a builder's dissatisfaction with the County's zoning regulations and personal preferences do not “manufacture a practical hardship justifying a variance.” Atwater v. Lake Cnty. Zoning Bd. of Appeals, 2025 IL App (2d) 240276-U.

Post Authored by Rachel Defries & Julie Tappendorf, Ancel Glink

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Seventh Circuit Rules in Favor of Federal Agency in Federal FOIA Dispute

Seventh Circuit Rules in Favor of Federal Agency in Federal FOIA Dispute

  Thursday, May 29, 2025    Julie Tappendorf

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After a federal law enforcement agency did not respond to a FOIA request seeking records relating to a named person and his application for legal permanent residency, the requester filed a lawsuit claiming the agency violated the federal FOIA statute. During the litigation, the agency disclosed several responsive records, but withheld others citing a federal FOIA exemption that protects certain law enforcement records related to ongoing enforcement proceedings. The district court ruled that (1) the requester was not entitled to a declaratory judgement that ICE violated FOIA solely because ICE did not timely respond to his FOIA request, (2) that ICE properly withheld certain records under the federal FOIA statute, but needed to disclose certain personal information about the requester within the records, and (3) that the FOIA statute provides an adequate remedy for delayed disclosures, which precluded the requester’s claim under the Administrative Procedure Act.

After the requester appealed, the Seventh Circuit Court of Appeals upheld the district court’s rulings. Libarov v. United States Immigr. & Customs Enf't. First, the Seventh Circuit rejected the requester’s argument that he was entitled to relief because the request became moot once the agency disclosed its responsive records, and there was no “case or controversy” regarding the adequacy of the records disclosed, so the requestor could not seek a declaratory judgment resulting solely from a delayed response. 

Second, the Seventh Circuit agreed that the agency properly withheld some records under the law enforcement exemption because the district court had reviewed the record in camera, and had an adequate factual basis to determine that (1) the records were compiled for law enforcement purposes and (2) disclosing parts of the records could reasonably be expected to interfere with the agency’s enforcement proceedings.

Finally, the Seventh Circuit found that the requestor could not seek relief under the Administrative Procedure Act for a violation of FOIA, because the FOIA statute provided an adequate remedy to a requester seeking the disclosure of documents, namely a court order requiring compliance with FOIA.

Although this case interprets the federal FOIA statute, the Illinois FOIA statute is patterned after the federal statute, so decisions interpreting federal FOIA are sometimes relevant to construing similar provisions in the Illinois law.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Fifth Circuit Dismisses Patron Free Speech Challenge to Library Book Removal Decision

Fifth Circuit Dismisses Patron Free Speech Challenge to Library Book Removal Decision

  Wednesday, May 28, 2025    Julie Tappendorf

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A federal court of appeals issued a ruling last week dismissing a First Amendment lawsuit brought by library patrons to challenge the removal of certain books from a public library in Texas on free speech grounds. Little, et al. v. Llano County, et al.

Library patrons sued the librarian and board members of a county public library after the library officials removed 17 books because of their treatment of racial and sexual themes. The patrons claimed that the removal of these books violated their right to receive information under the free speech clause of the First Amendment. The federal district court agreed and issued a preliminary injunction against the library. 

Last year, a panel of the Fifth Circuit upheld the federal court's injunction. However, the Fifth Circuit Court of Appeals granted an "en banc" rehearing of the appeal, and last week issued a lengthy ruling holding that the "right of information" does not apply to a public library's decision to remove books. Instead, the court of appeals determined that the library's collection decisions are government speech and, therefore, not subject to free speech protections under the First Amendment. 

The court of appeals also rejected the patrons claims that the library's actions were in the nature of book banning, holding that patrons could still purchase the removed books from a bookstore or online. 

The court of appeals also determined that the U.S. Supreme Court's decision in Island Trees Union Free Sch. Dist. v. Pico (a school book removal case) carries "no precedential weight" in the Fifth Circuit. The court of appeals also overruled a 30 year old decision in their own circuit court (Campbell v. St. Tammany Parish School) that found unconstitutional a school's book removal decision, finding that this case created confusion because libraries are not able to determine whether a book removal violates the First Amendment.

There were a number of justices who joined in a dissenting opinion that disagreed with the majority's ruling. The dissenting justices would apply the U.S. Supreme Court's decision in Pico and find that the book removal decision of the county library was based on discriminatory intent rather than simply "weeding" books from the library's collections. The dissenting justices would also have left in place the 30 year old Fifth Circuit decision in Campbell that the majority overruled.

This decision is limited to the Fifth Circuit and the three states within its jurisdiction (Texas, Mississippi, and Louisiana), and does not apply in Illinois. However, because the decision appears to limit the Pico decision on book removals that was previous issued by the U.S. Supreme Court, this case might make its way to the U.S. Supreme Court, which could have an impact on Illinois libraries.

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Court Upholds Denial of Police Officer’s Line-of-Duty Disability Benefits

Court Upholds Denial of Police Officer’s Line-of-Duty Disability Benefits

  Friday, May 23, 2025    Julie Tappendorf

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A police officer filed an application for line-of-duty disability benefits after being injured during mandatory “wellness and resiliency” training, which involved classroom instruction and stretching, yoga, and other physical movements. During the stretches, the officer experienced back pain and was later diagnosed with various spinal conditions, undergoing two unsuccessful surgeries. Despite receiving treatment, the officer was unable to return to work with the police department.

The Retirement Board of the Policemen’s Annuity and Benefit Fund of the City of Chicago (Pension Board) found that the officer was entitled to ordinary disability benefits, but denied her duty disability benefits because her injury did not result from an “act of police duty inherently involving special risk,” as required by the Illinois Pension Code. Ordinary disability benefits are 50% of the officer’s salary, as opposed to 75% for duty disability benefits.

On appeal, both the circuit court and the appellate court affirmed the Pension Board’s denial of the officer’s duty benefits. To determine if an officer is injured “in the performance of an act of duty” to be eligible for duty disability benefits, courts look at the capacity in which the officer was acting when injured, rather than the precise physical act that caused the injury. Here, the courts found that the officer was stretching and performing breathing exercises while dressed in plain clothes, for the purpose of relaxing and living a healthier lifestyle. As a result, the courts found that the officer was injured in the capacity of an individual seeking to calm herself and live a healthier lifestyle, as any regular civilian might do – but not in a police officer capacity. Additionally, although the training was mandatory, an activity being mandatory does not automatically make it an “act of duty” when the activity has a clear counterpart in civilian life. Gonzales v. Retirement Bd. of the Policemen’s Annuity and Benefit Fund of the City of Chicago, 2025 IL App (1st) 242166-U.

Post Authored by Rachel Defries & Julie Tappendorf, Ancel Glink

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PAC Finds Police Department in Violation of FOIA for Withholding Arrest Video

PAC Finds Police Department in Violation of FOIA for Withholding Arrest Video

  Thursday, May 22, 2025    Julie Tappendorf

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A municipal police department denied a FOIA request seeking a video recording of a former deputy chief's DUI arrest citing Section 7(1)(n) of FOIA, which exempts records relating to a public body's adjudication of employee grievances or disciplinary cases. After the requester submitted a request for review with the Illinois Attorney General's Public Access Counselor (PAC) challenging the denial, the PAC issued its fourth binding opinion of 2025 concluding that the Village improperly withheld the video recording. PAC Op. 25-004.

The Village argued that because the video recording was used as evidence in an adjudicatory proceeding to determine the appropriate disciplinary measures to impose against the former deputy chief, that the recording was therefore “related to” an adjudicatory proceeding of an employee disciplinary matter. However, the PAC disagreed that the video was “related to” the adjudicatory proceeding, because it was created before any disciplinary proceeding took place and existed independently on the subsequent adjudication. Instead, the PAC determined that records can only "relate to" an adjudication within the meaning of the FOIA exemption contained in Section 7(l)(n) if they are created in the process of conducting the adjudication itself.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Court Upholds Dismissal of FOIA Lawsuit Against Sheriff's Office

Court Upholds Dismissal of FOIA Lawsuit Against Sheriff's Office

  Wednesday, May 14, 2025    Julie Tappendorf

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 An Illinois Appellate Court upheld the dismissal of a lawsuit challenging a sheriff's department's response to a FOIA request in Tynis v. McHenry County Sheriff's Department. 

An inmate in county jail filed a FOIA request with a county sheriff's department seeking certain electronic communications and other records relating to a specific police report. The sheriff responded that (1) it had no text messages responsive to the request, (2) it released a copy of certain redacted emails; and (3) it withheld certain records because they contained confidential witness and juvenile information, LEADS records protected by state law, among other exempt information under FOIA and other laws. 

The inmate filed a lawsuit against the sheriff's office asking the court to order the release of the requested records and to award him fees and costs. The sheriff's office filed a motion to dismiss the lawsuit. While that motion was pending, the court reviewed the unredacted records "in camera" (a confidential review outside of public view) and found the sheriff's office in compliance with FOIA when it redacted and/or withheld information that was exempt under FOIA and other applicable laws. As a result, the court dismissed the FOIA complaint, and the inmate appealed.

On appeal, the Appellate Court determined that the sheriff's redaction of email addresses, the address and phone number of the victim, and certain investigatory information from the responsive records was proper, as this information was exempt from FOIA. The Appellate Court also upheld the sheriff's decision to withhold LEADS information as that information is prohibited from release under state law. Finally, the Court determined that an award of fees and costs was not appropriate as the inmate did not prevail in the proceeding since the trial court's dismissal of the lawsuit was proper. 

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Quorum Forum Podcast Ep 93: APA-CMS Bar Exam

Quorum Forum Podcast Ep 93: APA-CMS Bar Exam

  Monday, May 05, 2025    Julie Tappendorf

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 Ancel Glink's Quorum Forum Podcast just released Episode 93: 2025 APA-CMS Bar Exam.

The American Planning Association Chicago Metro Section recently teamed up with Ancel Glink’s Quorum Forum podcast for the 10^th annual “Bar Exam” planning law session. This event is a realistic simulated law school experience testing planners and land use professionals on important planning law cases on group housing, short-term rentals, and more! The 2025 session featured in this episode was recorded live at One Lake Brewing in Oak Park. As is tradition, everyone literally "passed the bar" after attending this session. This episode also marks seven years of Ancel Glink's Quorum Forum podcast! 

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PAC Finds Public Body in Violation of FOIA For Not Responding

PAC Finds Public Body in Violation of FOIA For Not Responding

  Thursday, May 01, 2025    Julie Tappendorf

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A requester filed a FOIA request with a transit authority asking for certain records relating to the authority's use of security K-9 animals. The requester filed a request for review with the PAC claiming the transit authority violated FOIA by failing to respond to the FOIA request. In the PAC’s third binding opinion of 2025, the PAC concluded that the transit authority violated FOIA by not timely complying with or denying the FOIA request. PAC Op. 25-003. 

While this opinion does not provide any new guidance to public bodies in complying with FOIA that hasn't already been said through other binding opinions, it is a reminder to public bodies that they are obligated to respond to FOIA requests in a timely manner or utilize the various extension or other provisions of FOIA to provide additional time for response. 

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink

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