No Immunity for Statements at a Public Meeting

No Immunity for Statements at a Public Meeting

  Thursday, September 19, 2013    Julie Tappendorf

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A university professor filed a lawsuit against the former vice president of student affairs alleging that statements made by the defendant at a meeting of the university's faculty council for student affairs were defamatory held to address issues resulting from recent campus protests opposing CIA recruitment on campus.  Capeheart v. Terrell, 2013 IL App (1st) 122517.   At the council meeting, the professor alleged that a student had circulated a flyer accusing her of organizing recent protests.  The defendant responded that the student had filed a stalking complaint against the professor  with campus police. Although the student had filed a statement with police alleging that the professor had chased her down while she was handing out information, no formal stalking complaint had been filed.  That statement served as the basis for the professor's complaint against the defendant.

 

The defendant filed a motion to dismiss the lawsuit, claiming he was immune under the Illinois Citizen Participation Act (commonly referred to as SLAPP) because the defamation and retaliation claims were filed in response to his exercise of his constitutional rights to free speech and participation in government - in this case, his statements made at a public meeting of the faculty council.  The circuit court granted his motion to dismiss, finding that the defendant's statement was made during a debate over police action on campus and was "genuinely aimed at procuring a government action to resolve the situation."  The court also awarded the defendant a portion of his attorneys' fees as a prevailing party.

 

On appeal, the appellate court disagreed with the circuit court on the issue of whether the professor's defamation lawsuit constituted a SLAPP suit that would be subject to dismissal.  The appellate court determined first that the defendant was not automatically immune simply because he spoke at a government meeting.  Second, the court held that the professor's lawsuit did not appear to be intended to prevent the defendant from participating in government or interfere with his speech rights, but instead was to seek damages for the personal harm to her reputation. Finally, the court determined that the professor's lawsuit was not meritless because there was no stalking complaint filed against the professor as alleged by the defendant.  As a result, the appellate court reversed the motion to dismiss, sending the case back to the circuit court for the plaintiff to establish her defamation claim.

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Murder Conviction Vacated After Facebook Communication Between Juror and Witness

Murder Conviction Vacated After Facebook Communication Between Juror and Witness

  Wednesday, September 18, 2013    Julie Tappendorf

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From Strategically Social - At the beginning of the murder trial of the defendant, the judge instructed the jury that they should not to talk to any witnesses, the defendant, or attorneys.  Nevertheless, one of the jurors (who knew the medical examiner through work) sent the witness a number of Facebook messages after her testimony.  The messages included the following:

 

Juror to Witness:  " I thought you did a great job today on the witness stand....I was in the jury...not sure if you recognized me or not!" 

 

Witness to Juror:  "I was thinking that was you. There is a risk of a mistrial if that gets out."

 

The witness notified the trial judge of the juror's communications.  Although the judge informed the lawyers of the communications, the judge did not allow the defendant's attorney to question the juror about the communications.  After the defendant was convicted of first degree murder, his attorney moved for a new trial based on the juror's communications and the judge's denial of his request to question the juror.  The appellate court denied the defendant a new trial, characterizing the Facebook communications as "mere interactions" between a juror and a third person. 

 

The state supreme court disagreed with the lower courts, finding that the judge should have conducted a hearing to determine whether the juror's communications with the witness was prejudicial to the defendant and his right to a fair trial.  The court acknowledges that the majority of cases dealing with juror communications were handed down long before social media and Facebook.  With new technology, and the ease of internet research, jurors are more likely to conduct their own research and investigations, increasing the risk of communications between jurors and third parties.  For that reason, the supreme court held, it is even more critical that judges address these third party communications prior to sending the case to the jury and risking a prejudicial outcome.  In this case, the supreme court determined that the trial judge should have immediately conducted a trial in open court after learning of the misconduct to have the juror and witness testify about their relationship and the effect of the communication on the juror's ability to serve on the jury. 

 

While the supreme court acknowledged that not every communication between a juror and a third party requires a judge to disqualify the juror, declare a mistrial, or grant a new trial, there was insufficient information in this case to determine whether any of these actions were necessary to ensure a fair trial. As a result, the supreme court remanded the case back to the trial judge to conduct a hearing.

 

You can read the case at State of Tennessee v. Smith (September 10, 2013). 

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Tenant Challenges "Nuisance Property" Ordinance

Tenant Challenges "Nuisance Property" Ordinance

  Tuesday, September 17, 2013    Julie Tappendorf

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In Norristown, Pa., landlords are responsible for the disorderly behavior of their tenants, as well as the tenants' family members and guests under a municipal ordinance.  Under the current version of the ordinance, landlords face fines if they fail to evict tenants who have repeated instances of disorderly behavior (a previous version authorized local police to evict the tenants and would revoke a landlord's license after three police responses to a property within a four month period - that ordinance had been previously repealed after the ACLU raised concerns about its constitutionality).

 

The ACLU filed a lawsuit against the city on behalf of tenant Lakisha Briggs. Ms. Briggs claimed that she avoided calling police to report domestic violence incidents involving her boyfriend for fear she would be evicted.  The lawsuit alleges that the ordinance violates her First Amendment right to petition the police as well as various due process violations.  Although tenants are not automatically evicted by the amended ordinance, the lawsuit claims that landlords are "encouraged" to evict tenants with repeated police calls to avoid increasing fines, violating the tenants' due process rights.

 

Similar "nuisance property" ordinances have been enacted and enforced in many other communities, although many ordinances expressly exclude domestic violence incidents from the list of nuisance activities that trigger an ordinance violation. 

 

The case is still ongoing, with a hearing on the preliminary injunction scheduled for later this week. You can read more about the case in a recent article posted on the American Bar Association's website.

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Second Amendment Applies Outside the Home

Second Amendment Applies Outside the Home

  Monday, September 16, 2013    Julie Tappendorf

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After the U.S. Supreme Court issued its opinion in McDonald v. City of Chicago striking down Chicago's handgun restrictions as violating the Second Amendment right to keep a handgun in the home, one question remained in Illinois - does the Second Amendment extend outside the home?  Last week, the Illinois Supreme Court answered yes to that question in People v. Aguilar, 2013 IL 112116 (September 12, 2013). 

 In People v. Aguilar, a criminal defendant challenged his convictions under the Illinois aggravated unlawful use of weapons (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)), arguing the laws violated his Second Amendment right to keep and bear arms. These statutes categorically prohibit the possession and use of an operable firearm for self-defense outside the home. Many Illinois appellate court panels have upheld the constitutionality of these statutes, finding that the U.S. Supreme Court decisions in Dist. of Columbia v. Heller and McDonald v. City of Chicago did not expressly recognize that the Second Amendment right applies outside the home. This view was rejected by the Seventh Circuit in Moore v. Madigan, but at least one Illinois appellate court concluded that the Moore “decision is not binding on Illinois courts.” People v. Moore, 2013 IL App (1st) 110793 ¶ 17.

In reversing the defendant’s AUUW conviction, the Illinois Supreme Court adopted the Seventh Circuit’s view in Moore v. Madigan, striking down these provisions of the AUUW statute because the Heller and McDonald decisions recognized a Second Amendment right to self-defense, which is “most acute” inside the home, but not necessarily limited to the home.

Next, the Illinois Supreme Court considered the defendant’s unlawful conviction for unlawful possession of a firearm by a minor. (720 ILCS 5/24-3.1(a)(1)). As recognized in Heller, the Second Amendment right is not unlimited, and the Illinois Supreme Court concluded that the possession of firearms by minors falls outside the scope of the Second Amendment right.

The Aguilar decision ends a split of authority between Illinois state courts and the Seventh Circuit. Going forward, Illinois gun regulations will likely be evaluated under the Second Amendment framework developed in federal courts, regardless of whether the challenge takes place in state or federal court.

Post Authored by Dan Bolin, Ancel Glink

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Student Can Be Disciplined for Off-Campus Social Media Activities

Student Can Be Disciplined for Off-Campus Social Media Activities

  Friday, September 13, 2013    Julie Tappendorf

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From Strategically Social - A high school student was suspended from school following a school district hearing because of threatening social media posts and text messages.  The student’s conduct included threatening to shoot people at the school and raping students, along with racist, sexist, and anti-Semitic comments. Friends of the disciplined student had raised concerns about the messages with a high school coach, who brought the allegations to the principal.  After the school district suspended the student for 90 days, the student and his father sued the school, administrators, and county under Section 1983 for violation of the student’s First Amendment rights.  The district court ruled in favor of the county. 

 

The Ninth Circuit Court of Appeals affirmed the district court, citing the U.S. Supreme Court ruling in Tinker v. Des Moines Indep. Cmty. Sch. Dist.  Wynar v. Douglas County School District, No. 11-17127 (9th Cir. Aug. 29, 2013). Under Tinker, schools can prohibit speech that "might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities or that collides with the rights of other students to be secure and to be let alone."  Here, the court had no trouble finding that it was reasonable for school authorities to foresee a substantial disruption of school activities and act based on the student’s speech.  Specifically, the Court held "[w]hatever the scope of the 'rights of other students to be secure and to be let alone,' without doubt the threat of a school shooting impinges on those rights. [Wynar's] messages threatened the student body as a whole and targeted specific students by name. They represent the quintessential harm to the rights of other students to be secure."

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Chicago Proposes Ordinance to Ban Concealed Carry in Liquor Establishments

Chicago Proposes Ordinance to Ban Concealed Carry in Liquor Establishments

  Thursday, September 12, 2013    Julie Tappendorf

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Update:  The City Council enacted the ordinance on September 11, 2013.

The state of Illinois' recently enacted concealed carry law already bans firearms in establishments where alcohol sales account for at least 50% of the establishment's revenues.  In an effort to expand the concealed carry ban to all businesses that serve alcohol, the City of Chicago recently introduced an ordinance amending its liquor license regulations. 

Under the proposed ordinance, no liquor license could be issued to an establishment that allows the carrying of concealed firearms. The ordinance would require licensed establishments to post a sign indicating that firearms are prohibited on the property in accordance with the state concealed carry law. Licensed establishments that hold a package liquor license would be exempt from the ordinance.  In addition, the concealed carry ban would not apply to police officers or the owner, lessee, tenant, or operator of the licensed establishment.  Licensed establishments that violate the ordinance could lose their liquor licenses.  The NRA has threatened to challenge the new ordinance, arguing it is preempted by state law.

The ordinance passed the City Council's Finance Committee, and will now go to the full City Council for final approval. You can read the ordinance here.   

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Meeting Held 26 Miles from District Office Violated OMA

Meeting Held 26 Miles from District Office Violated OMA

  Wednesday, September 11, 2013    Julie Tappendorf

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The Illinois Attorney General's Public Access Counselor issued its 14th binding opinion of 2013 last week.  In 2013 PAC 24845, the PAC determined that a fire protection district violated the Open Meetings Act when it held a special meeting at a location that was not "convenient and open" to the public under Section 2.01 of the OMA. 

 

The fire protection district had noticed up a special meeting to take place at the office of the district's attorney, about 26 miles from the district's regular meeting location.  The purpose of the meeting, according to the district, was for the district members to obtain legal advice.  A complaint was filed with the PAC alleging that the meeting was neither open nor convenient to the public.  The PAC did not address whether the meeting was "open."  Instead, the PAC determined that because the meeting was 26 miles from the regular meeting place and was scheduled at 9:00 a.m. on a weekday, it was likely to have discouraged attendance by persons who might otherwise have attended the district meeting. 

 

Because no action was taken at the special meeting, the PAC did not order any remedial action to cure the violation.  However, the PAC directed the district to ensure that all future meetings are held at places that are "convenient and open" to the public. 

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A Failed Motion to Approve is No Longer a Denial?

A Failed Motion to Approve is No Longer a Denial?

  Tuesday, September 10, 2013    Julie Tappendorf

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A firefighter applied for a disability pension with the Chicago pension board.  The pension board held a hearing, took evidence, and then voted on a motion to approve the pension.  Two members of the pension board voted in favor of the application and five members voted against granting the pension.  Therefore, the motion to grant the pension failed, and the pension board issued a written decision denying the pension application.  The firefighter appealed, and the circuit court affirmed the board's decision on its merits.  It's in the appellate court that this case got a little confusing. 

 

On appeal, the appellate court vacated the decision.  The appellate court did not reach the merits of the action and instead remanded the case back to the pension board with instructions that the board take formal action on the pension application.  Although the pension board clearly voted on a motion to approve the pension (that failed 2-5), the appellate court held that the pension board failed to adopt, by a majority affirmative vote, "any motion whatsoever disposing of the application and approving a written decision as required by the Open Meetings Act."  Howe v. Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago, 2013 IL App (1st) 122446.  In other words, although the pension board assumed that its failure to grant the pension resulted in a denial of the pension application, the appellate court thought otherwise.

 

The basis for the court's ruling was two-fold.  First, decisions of administrative agencies must be in writing.  Second, final action must be taken by a public vote.  Although the pension board did take final action on a motion to approve the pension application, that motion failed.  It did not, the court noted, take an affirmative vote in public to deny the pension application.  Also significant to the court's ruling is the pension board's failure to take formal action to approve the written decision to deny the pension application.  Instead, the pension board circulated the written final decision to the pension board members.  The decision was signed by the five members who voted against the pension application, and was dated the same date as the meeting at which the vote was taken.  The appellate court also rejected the pension board's argument that the 60 day statute of limitations contained in Section 3 of the Open Meetings Act applied, finding that the limitation only applies to new lawsuits by persons seeking declaratory or injunctive relief for an OMA violation. 

 

There are a couple of troubling issues with this case. 

 

The appellate court could have relied on the failure of the pension board to vote on the actual written decision at an open meeting as the basis for its ruling.  However, the court did not stop there and seems to suggest that a failed motion to approve does not result in a formal denial of a particular action.  Instead, the court would appear to expect a public body to either (1) anticipate the outcome of the vote on a particular action item before a motion is initiated so it makes the appropriate motion or (2) take multiple votes on the same action item - i.e., if the initial motion to approve fails, then the public body must go through the machinations of making and voting on a second motion to deny. This is neither practical or legally required.  Here, state law is clear that an affirmative majority vote is required in order to grant a pension.  Thus, it stands to reason that a failed motion to grant the pension is a denial of that pension.

 

Further, the Open Meetings Act clearly provides a 60 day statute of limitations.  Nothing in the OMA restricts the limitations period to lawsuits to enforce the OMA, as the court suggests.  There is a valid reason for such a limitations period - to provide some certainty to the actions of public bodies. If those actions can be opened up at any time sua sponte (as happened in this case), there will be no certainty or finality to the actions of public bodies.  This is particularly true here, where both the pension board and the plaintiff/firefighter argued that the statute of limitations applied to this case.

 

 

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No Constitutional Right to Photograph Public Records

No Constitutional Right to Photograph Public Records

  Monday, September 09, 2013    Julie Tappendorf

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Plaintiff was hired to perform a title search in Ward County, Texas.  When inspecting the records in the clerk’s office,  he took photographs of the records on his cell phone.  He was told that if he did not stop taking photographs, he would be arrested. Subsequently, he was terminated from the job, and filed suit against the county and county clerk, claiming that the county's “no photograph policy” violated his due process rights. He also claimed that he was denied equal protection when the county refused to accommodate his physical disability and that he should be awarded damages because he was fired from his job.  The district court ruled in favor of the county, and the Fifth Circuit affirmed, rejecting all of Bonnet's claims. Bonnet v. Ward County, No. 13-50007 (5th Cir. Aug. 30, 2013).

 

The Circuit first held that there is no protected right to access particular government information or sources of information under U.S. Supreme Court precedent.  Even if such a right existed, the plaintiff was not deprived of it because he had access to the records - he simply could not photograph them. The court held that the county's rationale for the policy – that records that were copied or photographed were often lost or misplaced by the user - was reasonable.

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October 1, 2013 Deadline for Healthcare Notice

October 1, 2013 Deadline for Healthcare Notice

  Thursday, September 05, 2013    Julie Tappendorf

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The U.S. Department of Labor recently issued a mandate to employers, including local government employers even if they are not otherwise subject to the insurance coverage provisions of the Affordable Care Act (commonly referred to as Obamacare), to provide notice to their employees of available insurance coverage through the employer or through the public exchange option that will be established by the federal government or the states under the Affordable Care Act.

For new employees hired on or after October 1, 2013, employers must provide notice at the time of hiring (or within 14 days of hiring in 2014 and thereafter).

For current employees that were hired before October 1, 2013, employers must provide notice not later than October 1, 2013.

The notices must be provided in writing in a manner calculated to be understood by the average employee. Notice may be provided by first-class mail or electronically if the requirements of the Department of Labor’s electronic disclosure safe harbor are met. The Department of Labor has provided information about the requirement and model notices (one for employers with health plans and another for employers without health plans) on its website. Local governments who have questions about the notice requirement or need assistance in preparing and providing the required notice are encouraged to contact their local government attorney to ensure compliance with this federal law.

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No Attorneys' Fees in Civil Rights Case Involving a Technical Victory

No Attorneys' Fees in Civil Rights Case Involving a Technical Victory

  Wednesday, September 04, 2013    Julie Tappendorf

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A plaintiff filed a civil rights lawsuit against the City of Chicago and four police officers alleging that his Fourth Amendment rights were violated when his home was searched for drugs and drug paraphernalia. Although the search was pursuant to a search warrant, the plaintiff claimed that the officers significantly damaged his home, damaging furniture and other personal belongings.  Plaintiff asked for $25,000 in compensatory damages and $100,00 in punitive damages.  The jury found for the plaintiff on only one of his claims, awarding him $100 in compensatory damages. 

 

After receiving the jury verdict, plaintiff then filed a claim for $116,437.50 in attorneys' fees, arguing that because he succeeded in his case against one of the defendants, he was a prevailing party under Section 1988 and entitled to recover his fees.  The district court judge denied the attorney fee claim, and the plaintiff appealed to the Seventh Circuit Court of Appeals.  Aponte v. Chicago, et al.

 

The court acknowledged that Section 1988 authorizes a prevailing party in a Section 1983 lawsuit to recover the party's attorneys' fees.  The court cited to U.S. Supreme Court cases holding that even a nominal victor (i.e., a plaintiff awarded only nominal damages, typically defined as $1.00) is considered a prevailing party and eligible for a "reasonable" attorneys' fee.  However, the Supreme Court also held that a reasonable attorneys' fee for a nominal victor is usually zero because a nominal award is significantly less than what the plaintiff requested as relief. 

 

In this case, the plaintiff argued that the Supreme Court's "nominal victor" analysis should not apply to him, because he was awarded $100 in compensatory damages, rather than the typical $1.00 nominal award.  The Seventh Circuit disagreed, however, ruling that the same analysis applies to "technical victories" such as plaintiffs, where the actual award is significantly less than what the plaintiff sought.  The Seventh Circuit used a mathematical analysis in determining that the damages awarded were minimal in relation to the amount of damages sought - the plaintiff had only a 0.4% success rate ($100 in damages awarded divided by the $25,000 requested = 0.4%) and he lost seven of his eight claims.  As a result, plaintiff was not entitled to an attorneys' fee award for his "insignificant" victory that merely vindicated his own personal rights.

 

This is a significant ruling for local governments in those situations where a jury awards more than a nominal victory, but far less than the amount of damages a plaintiff seeks in a civil rights case, as attorneys' fees may not be awarded in those cases.   

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Remember When...Municipal Minute Turns Two!

Remember When...Municipal Minute Turns Two!

  Tuesday, September 03, 2013    Julie Tappendorf

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Two years ago to this day, over a long Labor Day weekend in 2011, I got the fabulous idea that I should start a blog.  Never mind that I wasn't really sure how to create or design a blog or even how to post updates, stories, and articles.  I have a great love of research and writing, so a blog sounded like a fine way to combine these two activities.  Plus, I had a whole weekend to figure it out. 

 

Step 1.  Write content.  Over the weekend, I wrote up four blog posts to get the blog rolling.  I knew I was in for the long haul when I could think of at least a dozen more topics I couldn't wait to blog about.

 

Step 2.  Find a host site.  After a bit of research, I decided on Blogger.   

 

Step 3.  Come up with a URL - you know, the http:// or www. "address."  The original URL was http://localgovernmentlawyer.blogspot.com.  It wasn't super creative, but it was a start.  By the way, you can still reach the blog using this link!

 

Step 4.  Design it.  Not so easy or fun for me - I'm a lawyer, after all, not a creative type. 

 

Step 5.  Name it.  This was the hardest step of all.  The name needed to be short and memorable but also informative so people would understand what this blog is all about.  My colleagues and I had a lot of fun throwing out potential names, including a few not-so-serious suggestions such as Village Tattle, Government Gossip, and Village Vice.  After a lot of back-and-forth (and laughter), Municipal Minute made the final cut, although you might be surprised to hear that MM was not the first name of this blog... 

 

Since September 3, 2011, Municipal Minute has gone through a formal name change (can anyone remember the initial name of the blog which lasted only a few days?) and numerous redesigns. 

 

From that first blog post "Tweeting into Trouble?" to the blog post with the most hits "Social Media and the City," and 370 posts later, one thing remains constant - Municipal Minute continues to  focus on publishing stories on current and (hopefully) interesting topics of interest to local government officials, employees, and others. 

 

Thank you to all of my readers for your support and continued reading of Municipal Minute. 

 

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