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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

Tuesday, November 5, 2013

2014 Illinois Municipal Handbook Now Available

  Tuesday, November 05, 2013    

We are pleased to report that the 2014 edition of the Illinois Municipal Handbook is now available for purchase from the Illinois Municipal League on its website.
 
The Illinois Municipal Handbook is the must-have, go-to reference book for municipal officials and municipal attorneys.
 
Ancel Glink attorney Stewart Diamond was the primary editor of the 2014 edition, which was produced by the Illinois Municipal League and authored and edited by Ancel Glink attorneys on a non-compensated basis.  This edition provides valuable updates on the laws impacting municipalities and municipal officials.
 
Order your copy now!

 

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Monday, November 4, 2013

Seventh Circuit Upholds Denial of Zoning for Bible Camp

  Monday, November 04, 2013    

A summer camp operator alleged that the Town of Woodboro and Oneida County violated the camp's constitutional rights and RLUIPA in prohibiting the camp from running a year-round bible camp on residentially zoned property.  The district court ruled in favor of the Town and County, and the camp operator appealed to the U.S. Court of Appeals for the Seventh Circuit.  The Seventh Circuit affirmed, also ruling in favor of the Town and County in Eagle Cove Camp & Conference Center v. Town of Woodboro, (7th Cir. October 30, 2013).
 
The Town had enacted a land use plan in 1998 that encouraged low density single family residential development along its lake and river-fronts.  In 2009, the Town adopted a comprehensive plan that incorporated these goals.  The zoning around Squash Lake reflects these goals, and all but seven of the properties in that area were zoned for single family uses.  The seven non-residentially zoned lots were grandfathered with pre-existing uses.  Eagle Cove (plaintiff) wanted to construct a bible camp on 34 acres of property they own on Squash Lake. Those parcels are all zoned for residential and/or residential and farming uses. Eagle Cove filed an application to rezone the property to a recreational zoning district to allow the bible camp.  The County denied the rezone petition, and shortly thereafter Eagle Cove sought a conditional use permit to permit the bible camp while maintaining the residential zoning of the property.  The Town recommended that the County deny the CUP because it was not consistent with the goals of the comprehensive plan, and the County agreed, denying the CUP.
 
Shortly after the denial of the CUP, Eagle Cove filed suit, claiming violations of various constitutional and federal statutes, including RLUIPA, ADA, the Rehabilitation Act. The County and Town filed motion for summary judgment, which the district court granted.
 
The Seventh Circuit first addressed Eagle Cove's "total exclusion claim" under RLUIPA, finding that the zoning decisions did not preclude Eagle Cove from conducting any religious assembly on the properties, just not in the form of a bible camp. Moreover, Eagle Cove could operate a bible camp in many other parts of the County, just not on this parcel.  Second, the Court rejected Eagle Cove's substantial burden claim under RLUIPA, finding that there were numerous other locations within the County for Eagle Cove to place its bible camp.  The comprehensive plan was a neutral land use regulation, and Eagle Cove does not get a "free pass" or special treatment on the basis of any religious purpose.  Third, the fact that Eagle Cove spent considerable time and money on its various zoning applications does not constitute a substantial burden under RLUIPA. Eagle Cove's "equal terms" claim was also rejected, because the ban on year-round recreational camps applies equally to both religious and secular assemblies.

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Friday, November 1, 2013

Court Dismisses 1983 Claims Against School District Relating to Failed Referendum

  Friday, November 01, 2013    

Defendants sued an Illinois school district alleging the district violated their civil rights in engaging in activities relating to a failed referendum to increase the school district's property tax rate.  Peraica v. Riverside-Brookfield H.S. Dist. 208, 2013 IL App (1st) 122351.  Specifically, the defendants argued that the district engaged in illegal electioneering and that the referendum was misleading and understated the amount of the proposed tax increase.  The circuit court dismissed plaintiff's case, and they appealed. 
 
On appeal, the appellate court first analyzed the standard for sufficiently alleging a section 1983 claim against a governmental entity, including a requirement that a plaintiff allege that the government (1) had an express policy that, when enforced, causes a constitutional deprivation; (2) had a widespread practice not authorized by law or express policy, but well settled so as to constitute custom or usage; or (3) the plaintiff's injury was caused by a person with final policymaking authority.  The case contains a detailed analysis of the pleading standards for a 1983 case.
 
The district argued that defendants' complaint failed to allege sufficient facts to support any one of these required allegations.  Plaintiffs conceded that they were not claiming that there was a municipal policy at issue, and the court found that Plaintiffs failed to even attempt to show either widespread practice or that the injury was caused by a final policymaker.  Moreover, the court held that plaintiffs failed to allege a violation of their rights under federal law since their complaint focused on violations of the state election code provisions relating to electioneering, and upheld the circuit court's dismissal. 

  

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Thursday, October 31, 2013

Court of Appeals Stays Ruling in NY "Stop and Frisk" Case

  Thursday, October 31, 2013    

Today, the Second Circuit Court of Appeals granted a stay in the "stop and frisk" case against New York City.   Ligon v. City of New York.  In its ruling, the Court of Appeals criticized the district court judge and removed her from the case, finding an "appearance of partiality surrounding the litigation." The ruling also criticized the district court judge for granting media interviews and for making public statements while the case was pending before her.

Judge Scheindlin (the district court judge) had previously ruled that the NYPD stop-and-frisk tactics violated the rights of minorities in the city.  The Second Circuit did not address the substance of Judge Scheindlin’s decision, instead remanding the case to be assigned to a new judge and to enforce the stay of Judge Scheindlin's previous ruling.

  

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Wednesday, October 30, 2013

Subscription Delays and Problems

  Wednesday, October 30, 2013    

I am getting feedback from loyal readers and subscribers to the Municipal Minute blog that they are not regularly receiving blog updates via email or RSS feed.  In looking into this issue, it seems as if the problem lies with Feedburner, the service I use to send out email and RSS updates. 
 
If you did not receive today's blog post (Ethical Advertising Rules Apply to Lawyers) or yesterday's blog post (Local Government Law Seminar in December), please send me an email or comment to this post. 
 
Unfortunately, it does not look as if Feedburner is doing anything to fix this known problem.  I would like to avoid moving all of my subscribers to another service because it will require everyone to revalidate your subscriptions.  However, if the blog posts are not going out, it may be necessary.
 
Thank you for your response and support!

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Ethical Advertising Rules Apply to Lawyer's Blogs

  Wednesday, October 30, 2013    


Lawyers are subject to a variety of rules of professional conduct, including restrictions on advertising. These rules of professional conduct differ from state-to-state, and are often enforced by the state supreme court, state bar association, or state attorney disciplinary commission or association.

The Virginia Supreme Court recently considered a case involving a state bar association investigation of an attorney's blog where the author discussed a variety of legal issues and cases. Most of the cases discussed on the blog involved cases in which the attorney obtained favorable results for his clients. The state bar association had ruled that the blog constituted advertising under the Virginia Rules of Professional Conduct and violated three separate professional rules of conduct. First, the bar association determined that the blog violated Rule 7.1 of the Virginia rules prohibiting a lawyer from making "a false or misleading communication about the lawyer or the lawyer's services." Second, the attorney violated Rule 7.2 because his blog posts about specific client results did not include prominent disclaimers. Third, the bar found a violation of Rule 1.6 on the grounds that he disseminated client confidences without their consent. Based on these three violations, the bar association ordered the attorney to remove case-specific content for which he had not received client consent and to post a disclaimer on all case-related posts

The attorney appealed to the Virginia Court of Appeals, claiming that the blog constituted political speech, not commercial speech, so it was not subject to the advertising requirements. The court of appeals overturned the bar's ruling that the blog violated Rule 1.6, finding that the information was all public information and the attorney had First Amendment rights to report on what happened in a courtroom. However, the court of appeals did find that the blog posts were commercial, rather than political, speech and required the attorney to post the following disclaimer: "Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future case."

On appeal, the supreme court agreed with the court of appeals that the attorney did not violate client confidentialities in reporting on public case information. The court also affirmed the court of appeals ruling that the speech was commercial, not political, and therefore subject to the advertising requirements. The supreme court also upheld the disclaimer requirement for case-related posts.

The attorney appealed to the U.S. Supreme Court, which denied certiorari.

You can read the case here, and a detailed analysis of the case on the American Bar Association's website.

  

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Tuesday, October 29, 2013

Local Government Law Seminar in December

  Tuesday, October 29, 2013    

The Illinois Institute for Continuing Legal Education (IICLE) will present a Local Government Law Institute on December 13, 2013.  You can register for the conference here and learn more about the sessions, agenda, and conference faculty here.  Ancel Glink Attorneys Julie Tappendorf and Heather Kimmons will both be presenting at the seminar.
 
The details of the conference and a list of the topics that will be covered are below: 
 
Local Government Law Institute
December 13, 2013
9:30 a.m. to 4:30 p.m.
UBS Tower & Conference Center, Chicago

Intensive training for attorneys whose practices require them to work with and for units of local government.

Government as an Employer
· Interplay Between Disability/PSEBA/PEDA/Workers’ Compensation

Government as a Regulator
· Land Use — LULUs, NIMBYs, NAYOs & Other Controversial Issues
· Commercial, Political, Religious, and Cyber Speech

Government as the Regulated
· Public Access Counselor — A Practical Approach to Dealing with Investigations

Government as a Business
· Risk Management & Defense: Protecting and Defending Units of Local Government From Liability

Government as Government
· Dealing with the Challenging Boards

  

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Monday, October 28, 2013

Village Cannot Impose Stormwater Fee on Tribal Land

  Monday, October 28, 2013    

The Village of Hobart, Wisconsin enacted an ordinance imposing storm water management fees on all land within the Village to finance the construction and operation of a storm water management system.  Members of the Oneida Nation of Wisconsin, an Indian tribe, sued the Village, claiming that the Village was prohibited from imposing the fee on 148 parcels of land owned by the Oneida tribe.  The tribe relied on federal law that prohibits the taxation of "tribal trust land."  In this case, the 148 parcels of land were located throughout the Village rather than within the confines of an Indian reservation. The district court ruled for the tribe, and the Village appealed to the Seventh Circuit.  Oneida Tribe of Indians of Wisconsin v. Village of Hobart, Wisconsin.
 
The Seventh Circuit stated the question of the case as follows:  Has the federal government authorized municipalities to assess fees on Indian land in the Village to pay for its storm water management program?   Although the court acknowledged that municipalities have some limited authority over Indian territory within their boundaries, in this case the Village had no authority to impose fees to fund its storm water management program because federal law forbids states and local authorities to tax Indian lands.  The storm water fees, in this case, were more in the nature of a tax because it is designed to generate revenue to pay for a government project, not a fee for a service provided to a particular property owner.  As a result, the appellate court agreed with the district court that the storm water management fees could not be imposed on Indian land.

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Friday, October 25, 2013

Cities Have No Authority to Trademark their Seals or Insignias

  Friday, October 25, 2013    

A federal circuit court recently held that the Lanham Act (15 U.S.C §1051) prevents municipalities from obtaining federal trademark protection for their official seals and insignias.
 
In the consolidated cases of In Re City of Houston & In Re Government of the District of Columbia, (October 1, 2013), the City of Houston and the District of Columbia had filed applications to register their respective government seals/insignias as trademarks under the Lanham Act. In both cases, the U.S. Patent and Trademark Office denied the applications, citing §2(b) of the Lanham Act as prohibiting municipalities from registering city seals on the federal register. Both cities appealed the decision to the Federal Circuit, and the cases were consolidated.　
 
The Lanham Act allows an applicant to register its mark on the principal register, but only if the mark complies with the provisions of the Act. Section 2(b) of the Act provides that an applicant is prohibited from registering a proposed trademark that "[c]onsists of or comprises the flag or coat of arms or other insignia of the United States, or of any State or municipality, or of any foreign nation, or any simulation thereof." The Federal Circuit cited Section 2(b) in upholding the administrative denial of the two trademark applications.
 
The court concluded that municipalities may have other means of "preventing 'pirates and cheats' from using its city seal to deceive the public" such as passing an ordinance to prohibit such activity.  Alternatively, the court suggested that municipalities could seek a legislative amendment from Congress.

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Thursday, October 24, 2013

Reminder to Post Sign for Concealed Carry Ban

  Thursday, October 24, 2013    

As you know, Illinois recently enacted the Firearm Concealed Carry Act to allow limited concealed carry in the state. Certain facilities in the state are listed in the new law as "prohibited areas" where the carrying of a firearm is banned. These banned facilities must "clearly and conspicuously" post 4" x 6" standardized signs approved by Illinois State Police ("ISP") at the entrance informing the public that firearm possession is not allowed.

Although the law became effective on July 9, 2013, the ISP only recently released its approved sign on its website. A reduced-size image of the approved sign is below:
　

　
The Act does not identify who is responsible for posting the sign, or whether the failure to post a sign will affect the validity of the prohibition on firearm possession. Nevertheless, many of these listed prohibited areas are owned or controlled by units of local government, and we recommend that the governmental body take action to post the required sign in the facilities they own or control. Prohibited areas include:
    government buildings
    schools and areas within 1,000 feet of school grounds
    parks and playgrounds
    universities
    day cares 
    public gatherings requiring a permit
    jails
    hospitals
    public transit vehicles
    racetracks, stadiums, and casinos
    libraries
    airports
    amusement parks, museums, and zoos
    establishments that primarily serve alcoholic beverages (bars and taverns)

The approved sign should be posted in prohibited areas as soon as possible. However, local governments may want to consider using a temporary sign at this time because the ISP is considering proposed rules that would allow prohibited areas to install larger signs that include additional language. The proposed rules will be subject to a hearing in December 2013, and we will keep you posted on these draft rules.

Post Authored by Dan Bolin, Ancel Glink.

  

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Wednesday, October 23, 2013

City Not Liable for Bicyclist’s Injuries

  Wednesday, October 23, 2013    

A bicyclist suffered injuries when he struck a large pothole in an alley.  The bicyclist sued the City for negligence.  The City then filed a motion to dismiss, contending that Section 3-102(a) of the Tort Immunity Act provided the City immunity as the bicyclist was not an intended user of the alley.  The bicyclist argued that he was an intended user of the alley by presenting a bicycle map and arguing that his bicycle qualified as a “vehicle” under the municipal code.
 
The circuit court ruled in favor of the City, finding that Section 3-102(a) granted the City immunity.  The trial court reasoned that the bicycle did not qualify as a vehicle, and as such, the bicyclist was not an intended user of the alleyway.
 
On appeal, the bicyclist argued that the circuit court erred in dismissing his complaint.  The appellate court affirmed the circuit court’s dismissal, finding that the alley was not intended for bicycle use.  The court noted that the Illinois Supreme Court has advised that Section 3-102(a) “only imposes a duty of ordinary care on municipalities to maintain property for uses that are both permitted and intended.”  The appellate court noted that nothing in the alley suggested that it was intended for bicycle use.  Ultimately, the court determined that while bicyclists were permitted to  use the alley, they were not the intended users.  Baez v. City of Evanston, 2013 IL App (1st) 123763 (Sept. 27, 2013).
 
Post Authored by Erin Baker, Ancel Glink

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Tuesday, October 22, 2013

Illinois Supreme Court Strikes Down Internet Sales Tax

  Tuesday, October 22, 2013    

In 2011, Illinois passed Public Act 96-1544, a so-called "click-through" (aka "Amazon tax") law that imposes the state sales tax on out-of-state internet retailers that have a contract with a person in Illinois who displays a link on his or her website.  This type of contractual relationship is known as "performance marketing" and involves an affiliate relationship between the person who hosts the link and the retailer.  Shortly after the law was enacted, a trade group that represents performance marketing businesses filed a lawsuit claiming the law was unconstitutional because it imposed a use tax on activities that lacked a substantial nexus with the state of Illinois and the law was preempted by federal law.  The trial court ruled in favor of the plaintiffs, and the state appealed.  In Performance Marketing Assoc., Inc. v. Hamer, the Illinois Supreme Court struck down the state law, finding it preempted by federal law.
 
The Internet Tax Freedom Act prohibits a state from imposing discriminatory taxes on electronic commerce.  The plaintiffs argued that the state tax applied only to out-of-state internet retailers who entered into affiliate agreements to publish links on the internet, but did not apply to retailers who enter into affiliate agreements with print or over-the-air publishers or broadcasters.  As a result, the use tax discriminated between out-of-state retailers based on the method of publication of the affiliate advertisement (Internet vs. other broadcast).  The Illinois Supreme Court agreed, finding the use tax discriminatory because it treated like agreements differently.  The Court did not address the unconstitutional argument, having found the tax invalid based on the preemption argument.

  

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