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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Monday, October 7, 2013

FOIA Request for Attorney General Records Denied as Unduly Burdensome

  Monday, October 07, 2013    

The Illinois Attorney General's office often wears two hats when it comes to the Illinois Freedom of Information Act.  First, the Attorney General is a "public body" subject to the FOIA.  Second, the Attorney General office is home to the Public Access Counselor, the "enforcer" of the FOIA (as well as the Open Meetings Act). 
 
Recently, the Attorney General had occasion to wear both hats (public body subject to FOIA and enforcement agency).  In  Shehadeh v Madigan, 2013 IL App (4th) 120742 (October 4, 2013), the AG office received and denied a FOIA request, and then issued an opinion finding that the denial was appropriate.  Without even mentioning the potential conflict of interest in this unlikely scenario, both the circuit court and appellate court ruled in favor of the Attorney General, finding that the Attorney General's denial of the request based on the unduly burdensome exception was proper.
 
The facts leading up to that decision, including a timeline of events, are summarized below: 
  • On February 11, 2013, the plaintiff filed a FOIA request with the Attorney General for "copies of any publications, opinions, reports or other records that would or could be used for guidance by [the Attorney General's] office or any other public body in complying with Illinois' FOIA laws."
  • On February 15, 2012, the Attorney General stamped the FOIA request as received.
  • On February 24, 2012, the Attorney General responded to the FOIA request by stating that the office had determined that producing copies of all of the requested records would be unduly burdensome under Section 3(g) of FOIA.  The response asserted that a search had turned up 9,200 potentially responsive records, and that it would be unduly burdensome for staff to go through each file to determine which of these records were responsive and then review and redact exempt information from those responsive records.  The response also requested that plaintiff narrow his request.
  • On February 27, 2012, plaintiff responded that the response was untimely because it was not meet the 5 business day requirement of FOIA.  Plaintiff also rejected the request to narrow and stated that the office was trying to circumvent FOIA.
  • On February 28, 2012, plaintiff filed an appeal with the Public Access Counselor of the Attorney General's office.
  •  On March 8, 2012, the Attorney General responded to plaintiff's 2/27/12 letter by stating its response  was timely, and reiterating its unduly burdensome argument.
  • On March 9, 2012, the PAC office of the Attorney General responded to plaintiff's 2/28/12 appeal by stating that the Attorney General's response was timely and finding that the request was unduly burdensome in light of the 9,200 potential responsive records.
  • On March 15, 2012, plaintiff filed suit in circuit court.  The circuit court ruled in favor of the Attorney General, finding that it had complied  with FOIA. 
On appeal, the appellate court agreed with the lower court, finding that the Attorney General properly cited and used the "unduly burdensome" exception to FOIA, for the reasons that follow: 
 
First, a public body is not required to prove the adequacy of its search for requested records.  Here, the Attorney General asserted that its search turned up over 9,000 records, and that was sufficient for the court.
 
Second, nothing in FOIA precluded the Attorney General from asserting the unduly burdensome exception even after plaintiff refused to narrow his request.
 
Third, the Attorney General was not required to provide affidavits of staff members or otherwise prove its claim that producing the records would be unduly burdensome.  Section 3(g) only requires a public body to specify in writing the reasons compliance would be unduly burdensome and the extent to which compliance would burden the operations of the public  body.  Here, the Attorney General explained that staff would have to go through 9,000 records to determine if they were responsive and then review and redact exempt information.  That was sufficient justification for the court.
 
The court also rejected plaintiff's argument that the Attorney General has substantial resources at its disposal to deal with FOIA requests, finding that reviewing these documents would impede staff's ability to "perform its other duties in a timely fashion."
 
This case is an important one for public bodies, as there has been little or no guidance from the courts on what is meant by the "unduly burdensome" exception to FOIA.  Although FOIA is clear that a public body is entitled to use this exception after it has requested that a requester narrow a FOIA request, many public bodies have been hesitant to use this exception because of the very liberal review of FOIA challenges, particularly by the PAC office of the Attorney General, where all but one PAC binding opinion has gone against the public body. 
 
Public bodies now appear to have permission to use this exception, and a road map as to how to cite this exception by first requesting that the requester narrow his or her request, and if he or she refuses, citing written support for the exception by explaining why compliance would be unduly burdensome and the extent of those burdens.  One would hope that the PAC and the courts will now be receptive to public body use of this exception so long as the public body's use is reasonable and justified.

  

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Thursday, October 3, 2013

Agreement Not Enforceable Without Prior Appropriation

  Thursday, October 03, 2013    

In 2002, a municipality and owners of 145 acres of undeveloped agricultural land entered into an annexation agreement to provide for the annexation and development of the property as a residential subdivision within the municipality.  Pursuant to the annexation agreement, the Village agreed to install a sewer main with sufficient capacity to serve 450 homes, including a lift station if necessary.  The agreement provided that the sewer line would be constructed within 12 months of the completion of a road widening project of nearby Illinois Highway 15.  The agreement provided a penalty provision requiring the Village to pay a late fee in the amount of $300 per day. 
 
In 2011, the Village filed a complaint for declaratory judgment with the circuit court seeking a determination of its obligations under the annexation agreement.  The Village acknowledged that the road widening project had been completed in 2009, and that the property owners had sent several requests to the Village for payment of the $300/day penalty fee.  Shortly thereafter, the owners filed a counterclaim based on breach of contract. 
 
The Village argued that the owners' counterclaim should be dismissed because the Village had not made a "prior appropriation" of the funds necessary to construct the sewer project. The Village's argument was based on a provision of state law, 65 ILCS 5/8-1-7(a), that prohibits the Village from making any contract for the expenditure of Village funds unless a prior appropriation for that expense has been made.  That statute also provides that any contract made without a prior appropriation is null and void.   The trial court agreed with the Village, and dismissed the case.
 
On appeal, the court reviewed the Village's appropriation ordinances and determined that no prior appropriation had been made for the sewer project.  Village of Freeburg v. Helms, 2013 IL App (5th 120288-U (Rule 23 Order).  Pursuant to state law, therefore, the annexation agreement obligation to construct the sewer line could not be enforced against the Village because the Village lacked authority to approve the annexation agreement without the prior appropriation.  The court rejected the owners' argument that declaring the annexation agreement obligation void was "unconscionable," finding that the promise made by the Village was expressly forbidden by Illinois law. 

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Wednesday, October 2, 2013

Chicago's Landmark Ordinance Not Unconstitutionally Vague

  Wednesday, October 02, 2013    

An Illinois appellate court recently upheld the City of Chicago's landmark ordinance in a case challenging the ordinance as unconstitutionally vague. Hanna v. City of Chicago, et al., 2013 IL App (1st) 121701-U (unpublished opinion). 
 
Plaintiffs (property owners of buildings in landmark districts) had filed suit against the City of Chicago on numerous counts, including that the criteria used to make a landmark recommendation (value, exemplary, critical, historic, and significant) were vague and that the City's designation of their properties was unconstitutionally vague and a violation of their equal protection and due process rights.  The trial court had dismissed the plaintiffs claims and they appealed.  The appellate court affirmed that part of the decision upholding the constitutionality of the City's ordinance but reversed that part of the ruling dismissing the plaintiffs equal protection and due process claims.
 
With respect to the facial challenge to the ordinance, the court held that while the terms may not be "mathematically precise", they all have popular understandings and are used commonly enough to not be considered vague.  The court acknowledged that these and other terms in the landmark ordinance may be somewhat subjective, but that this is to be expected in the area of historic preservation. 
 
The court also determined that the ordinance did not unlawfully delegate legislative authority because the ordinance contains adequate standards for the landmark commission to apply in making its determinations.  Furthermore, the commissions is an advisory body that makes recommendations to the city council, and only the city council can enact the ordinance designating a property or building as a landmark.
 
Although the court ruled in favor of the City in upholding the constitutionality of the City's landmark ordinance, the court reversed the dismissal of the plaintiffs' equal protection and due process claims regarding the landmark designation of their properties, and sent it back to the trial court for further proceedings on these two counts.

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Tuesday, October 1, 2013

Townships Free to Sell Surplus Property on eBay

  Tuesday, October 01, 2013    

Illinois lawmakers have cleared the way for local officials to sell used bulldozers and backhoes online.  A recent amendment to the Illinois Township Code gives township boards and road districts the authority to sell unused pavement saws, front end loaders and other surplus property on auctioneering Websites like eBay.

Previous changes to the Township Code eased restrictions on the sale of surplus equipment, eliminating the need to put the matter to a vote of the electors, but there was confusion among some township officials as to whether they had authority to sell surplus equipment online. There was also uncertainty about which surplus property was eligible for online sale, and whether officials had to first conduct a sealed-bidding process before posting unsold items on the Internet.
 

Public Act 98-0549 attempts to end that confusion by clarifying the rules governing the lease and sale of surplus property. The new law makes it much easier to unload unwanted fire hoses, snow plows and other items collecting dust in township storage facilities.  The changes went into effect on August 26, 2013, the same day they were approved by Governor Quinn.
 
Now, after township boards and highway commissioners declare specific property as "surplus," they can sell that surplus property by public auction conducted by a licensed auctioneer or through an approved Internet auction service. 
 
The amendment also eliminates language that drew a distinction between surplus property valued at $2,500 or less, giving officials more flexibility over what equipment can be sold. Once property is declared as surplus, township boards and highway commissioners will assess its value and recommend a listing price.

The Township Officials of Illinois led the push for approval of Senate Bill 2268. Jerry B. Crabtree, TOI associate director, called the legislation a "clean up bill" that streamlines the process of selling surplus property.
 
"It was kind of a gray area," Crabtree said. "With this, you can just go directly to eBay once the property is approved as ‘surplus.’"

Authored by Nate Hernandez.  Initially published in Ancel Glink's Local Government News (Fall 2013)

  

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Monday, September 30, 2013

No Contract Right to Arbitrate Off-Duty Work

  Monday, September 30, 2013    

A police officer filed a grievance with a municipality after the City failed to hire the officer to perform off-duty snow removal services for the City.  The officer claimed he had a contractual right under the union contract with the City to the snowplow work.  The City responded that the grievance was invalid because it did not implicate an "express provision" of the union contract and, therefore, under the union contract, the issue was not subject to arbitration.  The union continued to pursue the grievance and the matter eventually was assigned to an arbitrator.  The arbitrator ruled against the City, finding that the snowplow work was an "express provision" of the contract as it fell under that section of the contract that allows the City to make reasonable rules and regulations.  The City filed a complaint with the circuit court asking the court to declare whether the grievance was subject to arbitration.  The court dismissed the City's case, and the City appealed.

On appeal, the appellate court first determined that it is the court, not the arbitrator, who has the authority to determine whether a right to arbitration exists under a contract.  The court then reviewed the union contract and determined that there is "no provision in the CBA that directly states that a police officer may seek to arbitrate the City's failure to hire him to drive a snowplow while he was off duty."  Naperville v. Illinois Fraternal Order of Police, 2013 IL App (2d) 121071.  As a result, the City was not obligated to arbitrate its decision not to hire a police officer to perform off-duty snowplow work.

  

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Friday, September 27, 2013

Illinois Governor Cannot Suspend Legislators' Salaries

  Friday, September 27, 2013    

The blog previously reported on Illinois Governor Quinn's decision to veto the appropriations bill to effectively suspend the Illinois General Assembly members' salaries.  His rationale at the time of his veto was that legislators should not be paid for not doing their jobs - in this case, failing to pass pension reform.  The legislators brought suit against the Governor, and the circuit court judge issued a ruling yesterday against Governor Quinn finding that Illinois law prohibits any change (increase or decrease) to a legislator's salary during that officer's term of office.  Immediately after the court issued its order, the state comptroller issued checks to the legislators. Governor Quinn has stated he will appeal the ruling, so stay tuned. 

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Thursday, September 26, 2013

PSEBA Emergency Must Involve Unforeseen Circumstances

  Thursday, September 26, 2013    

The state courts have been fairly active in deciding what type of injury entitles a public safety officer to PSEBA benefits.  The statute requires a municipality to pay health insurance premiums for the injured employee, spouse, and dependent children if that employee has suffered a "catastrophic injury or is killed in the line of duty."  The statute further provides that the injury or death must have occurred as the result of one of the following: (1) response to fresh pursuit; (2) response to what is reasonably believed to be an emergency; (3) an unlawful act perpetrated by another; or (4) during the investigation of a criminal act. 
 
In Springborn v. Village of Sugar Grove/Cecala v. Village of Carpentersville, two police officers filed claims for PSEBA benefits with their employer municipalities based on injuries they sustained in clearing roadway obstructions.  Both argued that they incurred their injuries while responding to what they reasonably believed to be emergency situations.  The appellate court focused on the factual circumstances surrounding their injuries and concluded that both incidents fell within the definition of emergency under PSEBA to qualify the officers for benefits.
 
 In the Sugar Grove incident, the officer encountered a roadway blocked by large chunks of asphalt that, in his opinion, created an unsafe roadway condition during rush hour.  In the Carpentersville incident, a traffic light had fallen into the roadway, and he testified that the pole had to be removed or it would create a hazardous condition for traffic.   The court noted that based on previous cases interpreting "emergency" under the PSEBA statute, an emergency must result from an unforeseen circumstance.  Here, the court found that both of the roadway situations involved unforeseen circumstances that, in the officers' opinions, required an urgent and immediate response. As a result, the appellate court upheld the officers' awards of PSEBA benefits.

  

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Holiday Displays: Can Government Restrict Private Holiday Displays on Public Property?

  Thursday, September 26, 2013    

As we start to approach the "holiday season" (which now officially begins in August according to Hallmark and Wal-Mart), government officials may begin to make plans for seasonal decorations on public property, including Christmas trees, menorahs and other traditional holiday symbols. In the course of making these plans you may have a local resident or community organization apply to erect their own, private, holiday display either alongside or separately from the community’s. Uh oh, alarm bells are ringing in your head – have I just stepped into Constitutional quicksand? Do I have to permit the private holiday display? Should I remove the government-sponsored display? What do I have to do to avoid getting sued, or to win a potential claim?

The questions presented by this issue affect two parts of the First Amendment, the freedom of religion and the establishment clause. If the government denies a private party the opportunity to display religious-oriented symbols has it engaged in an unconstitutional, content-based regulation of religious speech? If the government selectively chooses to display the symbols of only one holiday has it violated the establishment clause, which protects against the government conditioning the receipt or exercise of rights, privileges or benefits on the practice of or affiliation with a particular religion? This article will briefly explain the applicable rules.

The Supreme Court and the Seventh Circuit each have found that publicly-funded holiday displays, unrelated to the provision of any other public service, are not a violation of the establishment clause. For nearly 30 years judicial decisions have held that the publicly-sponsored display of holiday symbols is not necessarily the endorsement of a particular religion or any religion. Rather, this is recognized as "governmental speech." This is not to say it cannot be used as evidence of an unlawful preference when viewed in the totality of the circumstances. Therefore, officers should exercise their discretion with care.

The Government Speech Doctrine acknowledges the ability for governmental entities to make content-based choices and to engage in viewpoint-based funding decisions. The doctrine stands for the principle that when the government itself speaks, rather than making a forum available for private speech, it is constitutionally entitled to make content-based choices. As a result, public holiday displays are permitted where there is no evidence that private sponsors exercised any editorial control and the government bears the ultimate responsibility for the content of the display.

Whether or not the government may restrict a resident from also displaying a private holiday display on public property is a separate question. For this purpose, the courts have identified a three-step framework for analyzing restrictions on private speech on government property, including: 1) whether the speech is protected by the First Amendment; 2) identifying the Government’s ability to limit access based on the nature of the public or non-public forum; and 3) whether justifications for exclusion from the relevant forum satisfy the requisite standard.

In the case of religious displays, the type of expression being exercised is clearly protected by the First Amendment. The protection of political and religious speech strikes at the core of the protections guaranteed by the First Amendment. However, the second two steps in the analysis largely turn on whether the property where the display is erected is considered a traditional public forum.

A traditional public forum, such as a street or a park, is property that by long tradition or by government fiat has been devoted to assembly and debate. A designated, or limited, public forum, in contrast, is a forum created by the government, not through inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for communicative conduct. Courts look to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.

In both a traditional and a designated public forum, reasonable time, place and manner regulations are permissible, but any content-based prohibition is permissible only if it is necessary to serve a compelling state interest and is drawn narrowly to achieve that interest. This standard places a great burden on the government to justify its regulation. In nonpublic forums the government may restrict access to such forums so long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view. This test is much more deferential to a governing body’s legislative decisions.

Based on the foregoing reasoning, the ability for the government to restrict private holiday displays on public property depends on whether the location of the proposed display is a traditional public forum. If so, the government may only enforce content neutral restrictions. The types of permitted conditions include size, duration, registration, and insurance, so long as the application of such rules does not necessarily result in more favorable treatment for any particular point of view. The availability of space for private displays may be limited on a first-come, first-serve basis. Finally, the rules may ensure that the principal purpose of the public property is protected (e.g. limitation of displays interfering with a bike path traversing a community park).

In contrast, a citizen may not demand permission to place a holiday display on any parcel of public property, especially if the location is not a public forum. For example, property owned and used for the operation of public utilities may not be a public forum unless the government has expressly created an area for expressive conduct or communication. In this case, the government may deny the resident the opportunity to erect a private holiday display.

Moving forward, it is important to take an inventory of the public property owned or controlled by the public body to determine which parcels may be considered a traditional or designated public forum. In addition, the establishment of content neutral rules in advance will help you be prepared for when a resident makes the request. It is much more difficult to deny or limit private displays when the decision is made on an ad hoc basis or if the rules are put in place after the application has been filed.

Authored by Adam Simon.  Initially published in Ancel Glink's Local Government News (Fall 2013)

  

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Wednesday, September 25, 2013

Court Upholds Waiver and Release Clause

  Wednesday, September 25, 2013    

A waiver and release clause in a fitness club’s membership agreement was proper and enforceable, barring a man who was paralyzed in a freak gym accident from suing for damages, an Illinois Court of Appeals recently held. In Hussein v. L.A. Fitness International, LLC., 2013 IL App (1st) 121426, the plaintiff fell while using an “assisted dip/chin” exercise machine, a piece of fitness equipment with an adjustable bench.  Hussein was severely injured and was rendered a quadriplegic.  He sued, alleging that the fitness club was negligent in that it had failed to appropriately monitor, supervise, or instruct club members who use the equipment.
 
The trial court, however, granted the defendant’s motion to dismiss because the membership agreement signed by Hussein included a release and waiver of liability and indemnity.  On appeal, Hussein argued that the waiver should not be enforced because it was confusing, it did not reflect the clear format and language required by law, and it was not explained to him by L.A. Fitness representatives when he signed the agreement.
 
The Court reviewed the case under Minnesota law, which is where the plaintiff entered into the membership agreement, and found that Minnesota and Illinois share “the same perspective” on exculpatory clauses. 
 
In both states, the public interest in freedom to contract is preserved by recognizing exculpatory clauses as valid, the Court said. And while exculpatory clauses are not favored by the courts and are strictly construed against the drafter, “if a clause lacks clarity or purports to release a party from liability from intentional courts or willful or wanton recklessness, then it will not be enforced,” the Court added.
 
In this case, the Court found that the waiver and release language was unambiguous and that the fitness services offered to the plaintiff were not essential services offered to him on a “take it or leave it” basis.  The Court found that Hussein’s application for membership was voluntary, did not involve services that were of great public importance or of a practical necessity, and he had agreed to the terms that came with the membership. 
 
Additionally, the Court did not accept Hussein’s argument that the form was confusing or that L.A. Fitness representatives had a duty to explain the waiver and release to him.  The agreement included language that the person who was signing it “has read and understands the Agreement including the Release and Waiver of Liability and Indemnity on the reverse side”.  The Court ruled that a person who signs a contract cannot invalidate the agreement by claiming that he did not read it, and also found that the form itself was not defective. 
 
The Court recognized that this was a harsh result, based on the severity of the plaintiff’s injuries, but found that the law dictated a finding that this exculpatory clause was enforceable. 
 
This case serves as a reminder to park districts and other public bodies who operate fitness facilities that they should continue to require their members and participants to sign waiver and release agreements prior to allowing them to participate in fitness activities, as the courts will uphold a properly drafted waiver.  In addition, the mere existence of a signed waiver and release may discourage a potential plaintiff from considering litigation against the public body.
 
Authored by Jim Rock.  Initially published in Ancel Glink's Local Government News (Fall 2013)
 

  

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Tuesday, September 24, 2013

Lessons on Debarring Contractors from Bid Process

  Tuesday, September 24, 2013    

A recent case provides good news and bad news on governments that bar contractors from bidding.  In Blackout Seal Coding vs. Terry Peterson, a case involving the Chicago Transit Authority, the Seventh Circuit Court of Appeals provides us with hints about the dangers of "debarring" contractors from bidding on government contracts. The good news is that Blackout Seal Coating did not make the right allegations to win a damage award against the CTA for debarring it from bidding on CTA business for a period of one year.  The bad news is that the court suggested some alternate methods under which a lawsuit might be brought and did not completely invalidate such a cause of action.

Blackout was debarred because it had hired a man who had previously been debarred by the CTA. Although the CTA did not cancel any prior contract of Blackout, it did indicate that the CTA would not allow Blackout to bid on other business for a period of a year.  Blackout brought a civil rights lawsuit against the CTA, alleging that the CTA deprived the two owners of the company of "occupational liberty" without due process of the law.   The trial court judge dismissed the complaint, in part because the judge determined that Blackout did not allege that the decision by the CTA stopped the company’s ability to work for public or private entities other than the CTA.

On appeal, the Seventh Circuit affirmed the dismissal. However, the appellate court also seemed to suggest that Blackout could at least have tried in state court to assert that the action of the CTA constituted a breach of contract because it deprived it of a property interest. The court also suggested that a libel suit could have been brought because the plaintiff insisted that every public announcement of debarment was defamatory. The Seventh Circuit wrote, "repeated failure to get work under circumstances where success is normal could support an inference that debarment by the CTA amounted to blackballing from the industry". The Court went on to say, "plaintiffs might have made up for the lack of personal experience by showing what happened to other contractors that the CTA had debarred, but the complaint does not contain any allegations along those lines".
 
The opinion does contain some good news and recommendations for the way in which governmental bodies that seek to debar should act. The CTA sent Blackout a "notice of intent to debar." Blackout was entitled to and used its opportunity to respond in writing. The Seventh Circuit decision deals with these facts as follows: "What the due process clause requires is notice and then opportunity to respond – people must be given some kind of notice and afforded some kind of hearing...often an opportunity to comment in writing is all the hearing required. Indeed, that’s all the hearing most litigants in Federal Court receive." Blackout asked the Court to impose an obligation for a more rigorous and lengthy process before it could be debarred. The Appellate Court wrote, "the due process clause requires notice and an opportunity present one’s position; it does not requires an extended to-and-fro in which every internal recommendation kicks off a new round of submissions." The Appellate Court, clearly interested by the facts of this case ends the opinion by raising a question on whether corporations have "occupational liberty". In fact, the Court argues that the two people who owned the stock in Blackout Seal Coating could start a new corporation which would be free from the debarment.

The lesson of the Blackout Seal Coating case is that decisions by governmental bodies to prevent individuals or corporations from bidding on projects should be reviewed by attorneys who have read the cases cited and understand the risks of governmental action.
 
Post Authored by Stewart Diamond, Ancel Glink



　
　
   

  

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Monday, September 23, 2013

School District Not Liable for Bullying

  Monday, September 23, 2013    

A student and the student's mother sued the Urbana School District No. 116 for violations of state statute, fraud, retaliation, and emotional distress, claiming that the District failed to respond to bullying incidents against the student.  Hascall v. Williams, 2013 IL App  (4th) 121131 (September 18, 2013).  The mother had contacted the District to request that her daughter be reassigned because of alleged bullying involving her classmates.  The District did not reassign the student, and the mother claims that the bullying continued, including incidents where the other classmates slapped a book in the student's hands, kicked open a restroom stall door, and threatening to kill her.  The mother contacted the police, and requested a meeting with the school superintendent, who declined to meet.  The lawsuit was filed shortly thereafter.
 
The trial court judge granted the School District's motion to dismiss the complaint, finding that the School District and individual defendants were immune from liability under Section 2-201 and 2-109 of the Tort Immunity Act.  On appeal, the appellate court affirmed the trial court's dismissal of the complaint, finding that the District and individual defendants were immune from liability as their acts or omissions were discretionary acts and policy determinations.  The District had a policy on bullying in compliance with the School Code.  That policy directs the superintendent and principals to implement and maintain a program to enforce the bullying policy.  How the policy is enforced and programs implemented is within the discretion of the superintendent through the individual school principals. The court also rejected the plaintiffs' argument that the defendants' conduct fell under a "willful and wanton misconduct" exception to immunity, finding that no such exception exists in the applicable statutes.  Finally, the court also rejected the plaintiffs' argument that the District had a "special duty" to the student. 

  

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Thursday, September 19, 2013

A Facebook "Like" is First Amendment Speech

  Thursday, September 19, 2013    

Last year about this time, we reported on a case in Virginia where the judge held that clicking "like" on a candidate's Facebook page was not protected speech under the First Amendment.  Bland et al. v. Roberts.  That case involved employees of the local sheriff who supported the sheriff's opponent in the election.  To the employees' misfortune, their supported candidate lost the election, and the sheriff terminated them.  The employees sued, claiming that the sheriff retaliated against them in violation of their First Amendment rights by terminating them for engaging in protected speech activities - in this case, clicking "like" on the candidate's Facebook page.  The district court judge ruled in favor of the sheriff, finding that the mere action of clicking "like" on Facebook was not "speech."  You can read the original blog post here.
 
The employees appealed to the U.S. Circuit Court of Appeals, Fourth Circuit.  That court issued its opinion today reversing the district court and finding that the employees did engage in protected speech activities in their conduct on the sheriff's opponent's Facebook page. Bland v. Roberts (U.S. Court of Appeals, 4th Cir. September 18, 2013). 

First, the court reviewed the Supreme Court political speech retaliation cases in determining which of the employees were protected and which employees were exempt as occupying a "policymaking or confidential position."  Under the Supreme Court's decisions in Elrod v. Burns and Branti v. Finkel, a public employee who has a confidential, policymaking, or public contact role has substantially less First Amendment protection than a lower level employee.  The purpose of the Elrod-Branti test is to ensure loyalty with employees in certain policymaking or confidential positions.  In this case, the court determined that the plaintiff deputy sheriffs were not in policymaking positions where their political allegiance to the sheriff was a job performance requirement. 

Second, the court looked at the conduct of the employees to determine whether their activities (supporting the sheriff's opponent on the opponent's Facebook page) were a substantial motivation for the sheriff's decision not to reappoint the employees.  The court looked at the sheriff's conduct as well, including his statements to employees that those who openly support his opponent would lose their jobs, and specifically referencing his disapproval of the decision of some employees to support his opponent's candidacy on Facebook. 

Third, the court addressed the question whether the employees' activities were speech.  As noted above, the district court had ruled that merely clicking "like" on Facebook was not speech.  The appellate court disagreed with the district court, stating that "clicking on the 'like' button literally causes to be published the statement that the User 'likes' something, which is itself a substantive statement."  (emphasis added).  Particularly in this context, clicking "like" on a candidate's Facebook page sends a message that the user approves the candidacy.  The court found this to be pure political speech, as well as symbolic expression - a "thumbs up" symbol that the user supports the campaign by associating the user with it.  As the court noted, liking a candidate's campaign page "is the Internet equivalent of displaying a political sign in one's front yard." 

Finally, the court addressed the sheriff's argument that he is entitled to qualified immunity for not reappointing the employees.  The court determined that the sheriff is entitled to qualified immunity concerning the claims of the three sworn deputy sheriffs, because a reasonable sheriff could have believed he had a right to choose not to reappoint his sworn deputies for political reasons, including the deputies' support of his opponent.  However, qualified immunity only applies to the employees' money damages claims, not their reinstatement claims.

One justice issued a concurring/dissenting opinion, disagreeing with the majority's ruling applying qualified immunity to the sheriff's actions.  The dissenting justice stated that the sheriff should be held accountable for political retaliation.

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