OMA Amendment Passes Both Houses

OMA Amendment Passes Both Houses

  Wednesday, June 03, 2015    Julie Tappendorf

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House Bill 175 just passed both houses of the Illinois General Assembly and is off to the Governor. This bill is one of many proposed bills this session to amend the Open Meetings Act.  In this case, the bill would modify the existing 60 day limitation period to file a complaint with the Public Access Counselor of the Attorney General's office alleging a violation of the OMA.  Currently, an individual has 60 days from the date of the alleged violation to file a complaint.  Under the new bill, an individual would have 60 days from the date that they discovered the violation (but no later than 2 years after the alleged violation) to file a complaint with the PAC.  

Interestingly, the bill does not change the 60 day statute of limitation for bringing an action in circuit court alleging an OMA violation.  

Post Authored by Julie Tappendorf

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USSCT Issues Ruling in Facebook Threat Case

USSCT Issues Ruling in Facebook Threat Case

  Tuesday, June 02, 2015    Julie Tappendorf

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The United States Supreme Court issued a decision in a social media case yesterday. Elonis v. United States (June 1, 2015).  You might recall that we posted about this case on the blog previously.  This case involved a Pennsylvania man who had been convicted after he posted several violent messages on Facebook after his wife left him. The federal statute he was convicted of violating was 18 U. S. C. §875(c), which makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.”  The Court overturned his conviction, holding that negligence alone is insufficient in a criminal threat case.

The lower court had convicted him based on the “reasonable person” standard – i.e., the jury was told the standard was whether a "reasonable person" would have understood his Facebook posts to be a threat. The question before the Court was whether the statute also requires that the defendant be aware of the threatening nature of the communication, and—if not—whether the First Amendment requires such a showing. The Court rejected the government's argument that evidence of an intent to make a threat was not required because the express language of the law did not require it. The Court held that "The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.” Because the jury was instructed that the government need prove only that a reasonable person would regard Elonis’s communications as threats, without evidence of his mental state or intent, his conviction could not stand. 

Examples of some of his posts are below:

In a post about his wife, he wrote:  

There's one way to love you but a thousand ways to kill you.

In another post he wrote:  

That’s it, I’ve had about enough I’m checking out and making a name for myself. Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a Kindergarten class The only question is . . . which one? 

Post Authored by Julie Tappendorf

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Police Body Camera Bill Goes to Illinois Governor

Police Body Camera Bill Goes to Illinois Governor

  Monday, June 01, 2015    Julie Tappendorf

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Police-involved shootings have been a frequent subject of the news lately, leading some states to consider legislation to encourage an increased use in police body cameras.  Illinois is no exception. Just last week, the Illinois Senate approved House amendments to SB 1304, which establishes the "Law Enforcement Officer-Worn Body Camera Act." 

The bill does not mandate that police departments require their officers to wear body cameras, but it does establish certain guidelines for their use and requires local police departments to adopt policies consistent with those statutory guidelines.  A few of these guidelines are summarized below:

1.  The cameras must be capable of recording at least the 30 seconds prior to camera activation.

2.  The camera must be capable of recording for at least 10 hours.

3.  The camera must be turned on at all times when the officer is in uniform and is responding to calls or engaged in any law enforcement-related encounter or activity that occurs while the officer is on-duty.  This requirement contains a number of exceptions to protect witness confidentiality, etc.

4.  The camera must be turned off when the officer is engaged in community caretaking functions.

5.  The officer must notify a person of the recording if that person has a reasonable expectation of privacy.

6. Access to recordings is restricted, although they might be subject to release under FOIA in limited circumstances.

7.  Recordings must be retained for 90 days.

8. Recordings cannot be used in officer disciplinary proceedings except in certain limited circumstances.

Now that the bill has received approval by both houses, it has gone to the Governor.  You can read the bill here.

Post Authored by Julie Tappendorf

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Court Rejects Village's Defense of Commercial Sign Code

Court Rejects Village's Defense of Commercial Sign Code

  Friday, May 29, 2015    Julie Tappendorf

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From our friends at the Law of the Land Blog: Fed District Court in IL Denies Motion to Dismiss Claim Challenging Sign Ordinance's Content-Based Restrictions

10 years ago, the Village of Downers Grove amended its sign regulations that relate to commercial signage. The owner of a storage and van company sued the Village in federal court, alleging that the new regulations violated his free speech rights under the First Amendment.  Specifically, he said the new regulations would negatively impact his ability to advertise his business, including making several of his large existing signs illegal. 

The village filed a motion to dismiss, claiming that the owner did not have standing to bring a facial challenge to the constitutionality of the entire sign code.  The village also argued that the sign regulations were proper "time, place, and manner restrictions."  The court disagreed with the Village on both arguments, and denied its motion to dismiss.  First, the court noted that the case involved an "as-applied" not facial challenge to the constitutionality of the commercial sign regulations.  Second, the court said that because the Village distinguished between commercial and non-commercial signs, the regulations were content-based, and the village's justifications for the ordinance were not sufficient.  Peterson v Village of Downers Grove, 2015 WL 1929737 (ND Ill. 4/27/2015)

Post Authored by Julie Tappendorf

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Time to Update Your FOIA Policy?

Time to Update Your FOIA Policy?

  Thursday, May 28, 2015    Julie Tappendorf

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It's been five years since the Illinois General Assembly overhauled the state's Freedom of Information Act (FOIA). Since 2010, there have been a number of amendments to FOIA, some of them pretty significant. For example, FOIA was amended in 2011 to add provisions relating to recurrent requesters and to eliminate the pre-authorization process for using the personal privacy or preliminary document/deliberative process exemptions. Most recently, new provisions were added to FOIA relating to voluminous requests, and the ability for public bodies to refer requesters to their website for public records. 

Many of you have adopted FOIA policies and forms to help your FOIA officers administer and respond to FOIA requests that probably need to be updated to reflect these new regulations.  Others may be interested in adopting a policy to assist in responding to FOIA requests.  Ancel Glink has prepared FOIA policies for Illinois public bodies across the state. These policies include a variety of forms, including requests, denials, extensions of time to respond, notice to narrow the scope of a request, recurrent and voluminous request forms, among others.

If you would like assistance in updating your current policy or preparing a new one, please contact Julie Tappendorf.

This post may constitute advertising material as defined under the Illinois Rules of Professional Conduct. 

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Court Upholds Rental Housing Support Fee Imposed by Recorders' Office

Court Upholds Rental Housing Support Fee Imposed by Recorders' Office

  Wednesday, May 27, 2015    Julie Tappendorf

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The Illinois Supreme Court recently overturned a trial court ruling that the $10 Rental Housing Support Program fee collected by the county at the time a document is recorded was unconstitutional. Marks v. Vanderventer, 2015 IL 116226.

State statute authorizes counties to collect a $10 fee at the time any real-estate related document is recorded with the county recorder of deeds.  $1 of the fee is retained by the county, and $9 funds the state rental housing support program.  The Marks sued the Lake County recorder of deeds arguing that the $10 surcharge was unconstitutional on various grounds, including equal protection, due process, and the uniformity clause. The trial court certified a a class action of plaintiffs against all county recorder of deeds in the state, and then ruled in favor of the plaintiffs class, finding the fee unconstitutional based on the state constitution's uniformity and due process clauses.

On appeal, the state supreme court rejected the trial court's reasoning that the fee violated the uniformity clause, finding that there is a reasonable relationship between people who have to pay the surcharge and the recording of real-estate related documents because people with a legal interest in real estate benefit from stable real estate values.  The supreme court also rejected the trial court's finding that the fee violated the due process clause for the same reason - providing financial stability to vulnerable residents through housing subsidies improves property values, which benefit people who record real estate documents.

Post Authored by Julie Tappendorf

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Illinois Supreme Court Hears Bleacher Case

Illinois Supreme Court Hears Bleacher Case

  Tuesday, May 26, 2015    Julie Tappendorf

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We have an update on the school bleachers case that we have reported on in the past. Gurba v. Community High School District No. 155. This is the case involving a high school district's installation of bleachers on property adjacent to residential backyards without obtaining the necessary zoning approvals. In defense of its actions, the school argued it was exempt from local zoning; the city and neighbors argued that state law does not exempt schools from complying with applicable local zoning. The trial and appellate courts both agreed with the city and neighbors, and the school district appealed to the Illinois Supreme Court, which heard oral argument last week.

At oral argument, counsel for the school district, city, and neighbors presented arguments in support of their positions in the case. The Justices asked very pointed questions of the school district's counsel about local regulatory control, including asking the school district whether its argued local zoning "exemption" would allow it to ignore storm water regulations, construct a 20 story building, or raise cattle on its property all in the name of "school purposes." 

If you are as interested in this case as we are, you can watch the video of the oral argument here.  It's a little less than an hour long.

We will let you know when the Court issues its ruling in this case.  And in case you forgot what the bleachers look like:

Post Authored by Julie Tappendorf

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Court Upholds Ban on Non-attended Displays in Public Parks

Court Upholds Ban on Non-attended Displays in Public Parks

  Friday, May 22, 2015    Julie Tappendorf

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In 1994, the City of Santa Monica banned unattended displays in all its parks. That ordinance was later amended to include an exception for "winter displays.”  After it was flooded with requests for winter displays and there wasn’t enough space in the park to accommodate all of the applications, the City implemented a lottery system to divvy up the display space.  As a result of the lottery, most of the spaces were used for atheist group displays, and the City decided to go back to its original policy of banning all unattended displays. 

After the City adopted the ban, the Santa Monica Nativity Scenes Committee sued, claiming the ban violated its right to free speech by amounting to a prohibited "heckler's veto." The district court disagreed, and dismissed the Committee’s lawsuit. On appeal, the Ninth Circuit Court of Appeals upheld the ban, finding that the heckler's veto doctrine was inapplicable and the ordinance was a content-neutral time, place, and manner restriction that was narrowly-tailored to its legitimate purpose and left open alternative channels of communication. Santa Monica Nativity Scenes Committee v. City of Santa Monica, No. 13-55011 (9th Cir. Apr. 30, 2015). 

First, the Court held that the Committee's claim might have had merit if the city had banned all religious displays based on the atheists’ complaints, but it did not do so.  The Court also evaluated whether the regulation was a neutral time, place, and manner restriction. The important government interests were protecting the park for aesthetic purposes and conserving the government's resources. The Court also found the ordinance was narrowly tailored, and that it left open alternative channels of communication, including that the Committee could "erect its unattended nativity scenes on private property, and it [could] speak in many other ways in Palisades Park, including erecting one-day, attended displays, leafleting, preaching, holding signs, and caroling." 

Post Authored by Julie Tappendorf

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Case Against City for Injuries Sustained While Walking Dog Continues

Case Against City for Injuries Sustained While Walking Dog Continues

  Thursday, May 21, 2015    Julie Tappendorf

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An appellate court recently addressed the "recreational purposes" provision of the Tort Immunity Act in Fennerty v. City of Chicago, 2015 IL App (1^st) 140679 (May 18, 2015).

Fennerty was injured after she tripped and fell over a metal electrical box in a grassy area while walking her dog one summer evening. The electrical box provided service to the nearby lights along the grassy area where she was walking. She first argued that the city carelessly and negligently (1) constructed and maintained the metal box so that it was a tripping hazard; (2) failed to maintain the surrounding grassy area; (3) failed to provide sufficient lighting; (4) failed to warn of a dangerous and defective condition; and, (5) failed to maintain the surrounding ground to ensure a level surface. She next argued that the city was willful and wanton because it had knowledge of the allegedly defective and dangerous conditions. 

The city filed a motion for summary judgment arguing that it was immune from liability because the area where Fennerty fell was "recreational" in nature. Section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) states that:

Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury. 745 ILCS 10/3-106. 

The court granted the city’s motion for summary judgment, and Fennerty appealed. 

The appellate court found there was conflicting testimony as to whether the tree-lined grassy area that is bordered by traffic lanes was used for recreational purposes to fall within section 3-106’s immunity. The court reasoned that the testimony showed that the grassy area could either be a median between the traffic lanes or a parkway and that because of the conflicting testimony, the court remanded the case back to the trial court to determine if the grassy area falls within public property that is intended or permitted to be used for recreational purposes. 

The appellate court did agree with the trial court's rejection of Fennerty's "willful and wanton" argument. Although the city’s conduct might be characterized as negligent, there was no support for Fennerty's claim that the city had actual or constructive knowledge of the allegedly dangerous and defective conditions. 

Post Authored by Christy Michaelson, Ancel Glink

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Non-Home Rule Unit May Buy Land in Foreclosure Sale

Non-Home Rule Unit May Buy Land in Foreclosure Sale

  Wednesday, May 20, 2015    Julie Tappendorf

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Sometimes courts have to answer a question that nobody thought was a question.  In this case, the question arose from an unusual challenge to the authority of the Cook County Forest Preserve District (“FPD”) to acquire title to real estate.

In the case of Baker, et al. v. Forest Preserve District of Cook County, et al., 2015 IL App. (1^st) 141157, decided May 18, 2015, the Illinois Appellate Court held that the Forest Preserve District, a non-home rule unit, has authority to acquire property in a foreclosure sale.

Plaintiffs had guaranteed a mortgage loan to purchase “Horizon Farms.”  The borrowers defaulted on the loan and the property went into foreclosure.  FPD purchased the borrowers’ note from the mortgage lender for $14 million, made the highest bid at the foreclosure sale and acquired fee simple title to the property by sheriff’s deed. 

Plaintiffs, who had lost title to the property when they defaulted on the mortgage, filed a “taxpayers’ suit” claiming that FPD had no authority to acquire Horizon Farms by purchase of the note and bidding in the foreclosure sale.  Plaintiffs’ arguments included the claims that FPD does not have statutory authority to expend public funds in private foreclosure litigation, purchase commercial paper (the borrowers’ note), or to act as a speculative investor, and violated its own policies in acquiring the property.  Plaintiffs asked the court to declare the purchase void and order the lender to return the public funds paid by FPD.  The circuit court granted FPD’s motion for summary judgment and the appellate court affirmed. 

The appellate court began its analysis of the merits of the arguments by noting that FPD, as a non-home rule governmental unit, has only the powers granted to it by statute.  The Cook County Forest Preserve District Act (“Act”) authorizes FPD to acquire property by purchase.  The court disagreed with plaintiffs’ contention that FPD exceeded its authority to “purchase” property when it bought the mortgage note, because it did not receive a deed for fee simple title in exchange for the public funds paid.  The court declined to interpret the Act to require the simultaneous exchange of money and title in order to constitute a purchase.  The court disagreed with plaintiffs’ argument that purchase of land in a private foreclosure sale is not acquisition for a “public purpose,” for which the expenditure of public funds is authorized.  The court also rejected plaintiffs’ position that FPD’s acquisition of Horizon Farms conflicts with the Eminent Domain Act.  Finally, the court refused to overturn FPD’s acquisition on the grounds that FPD had not followed its own code in purchasing the property, holding that, “[C]ourts may not adjudicate actions brought to overrule decisions of a legislative body based upon that legislative body’s alleged failure to follow self-imposed requirements.”  

Post Authored by Paul Keller, Ancel Glink

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Luxury Tree House Spurs Municipalities and Owners to Review Regulations for Tree Houses and Short-Term Rentals

Luxury Tree House Spurs Municipalities and Owners to Review Regulations for Tree Houses and Short-Term Rentals

  Tuesday, May 19, 2015    Julie Tappendorf

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A nearly 200 square-foot Schaumburg luxury tree house available for rent on Airbnb for $195/night (complete with a fireplace, air conditioning, full size bed and twin sleeping loft, kitchenette with sink, microwave, fridge, wifi, and HDTV (with HBO, Showtime, Cinemax, etc.)) recently made headlines and reminded communities and property owners to review local regulations governing tree houses and short-term rentals. The owner’s Airbnb listing reports that he is permitted to rent a room in his home, and grant guests use of the tree house, in accordance with local zoning laws; however, going forward, the Village of Schaumburg is now considering new zoning regulations pertaining to setbacks, size, location, and height of tree houses in the rear yard.

While renting a room in your house might be allowed in Schaumburg, such activity might be prohibited in other communities’ home occupation restrictions for commercial activity in residential neighborhoods. Other regulations targeting transients may limit uses in residential districts to “permanent resident purposes.” Communities should review their local zoning regulations to consider the impact that sometimes extravagant tree houses might have in a residential area. Additionally, as sites like Airbnb increase in popularity, local regulations for short-term rentals may be increasingly appropriate where regular commercial transient activity might erode the residential character of a neighborhood.

In addition to zoning regulations, there may be tax implications for short-term rentals to consider. The Cook County Assessor’s office, which is in the midst of reclassifying bed-and-breakfasts from residential to commercial property, is reportedly evaluating the property tax implications of the Schaumburg luxury tree house. Additionally, the Illinois Hotel Operators’ Occupation Tax imposes a tax on the occupation of renting, leasing, or renting rooms to person for living quarters for periods of less than 30 days. This state tax is imposed in addition to whatever local hotel taxes are imposed. Anecdotally, Airbnb users simply are not paying the required taxes, but short-term lessors should be cautioned to review their local regulations because the Airbnb terms of service squarely place responsibility for compliance with zoning and tax laws on the user creating the listing. As Airbnb increases in popularity, local governments will need to develop strategies to ensure they are recovering the hotel taxes that are due, at least so local hotels are not put at an unfair disadvantage.

Post authored by Daniel J. Bolin, Ancel Glink

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Candidate Convicted of “Infamous Crimes” Was Ineligible for Office

Candidate Convicted of “Infamous Crimes” Was Ineligible for Office

  Monday, May 18, 2015    Julie Tappendorf

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Late last year, the Cook County State’s Attorney prevailed in a case against a member of the Board of Education for Thornton Township High School District 205 (in Illinois), when a trial court found the board member ineligible to hold the office based on his conviction for an “infamous crime.” The board member had been convicted of felony forgery in the state of Indiana. Alvarez v. Williams, 2014 IL App (1st) 133443. 

On appeal, the board member argued that his due process rights were violated because the term “infamous crime” was vague. Under Section 29-15 of the Illinois Election Code: 

any person convicted of an infamous crime as such term is defined in Section 124-1 of the Code of Criminal Procedure of 1963, as amended, shall thereafter be prohibited from holding any office of honor, trust, or profit, unless such person is again restored to such rights by the terms of a pardon for the offense or otherwise according to law.

Under Section 124-1 of the Illinois Code of Criminal Procedure of 1963, an “infamous crime” was defined as: 

the offenses of arson, bigamy, bribery, burglary, deviate sexual assault, forgery, incest or aggravated incest, indecent liberties with a child, kidnapping or aggravated kidnapping, murder, perjury, rape, robbery, sale of narcotic drugs, subornation of perjury, and theft if the punishment imposed is imprisonment in the penitentiary.” Ill.Rev.Stat.1983, ch. 38, ¶ 124–1 (repealed by Pub. Act 84–1047, § 2 (eff. July 1, 1986)). 

The board member argued that when Section 124-1 of the Code of Criminal Procedure was repealed, Section 29-15 of the Election Code was no longer effective.  The court disagreed, finding that the legislature intended to keep individuals convicted of infamous crimes from holding office, and applied the list of “infamous crimes” from the repealed Section 124-1 of the Code of Criminal Procedure to disqualify the board member from holding office based on his forgery conviction.

Months later, the State of Indiana expunged the former board member forgery conviction, and former board member filed nomination papers to be a candidate for his former position on the school board. Objections were filed against the candidate’s nomination papers based on the candidate’s prior forgery conviction. The Cook County Officers Electoral Board struck the candidate from the ballot, and the circuit court denied the candidate’s appeal.

Last week, the Illinois First District Appellate Court affirmed the trial court’s decision. Williams v. Cook Cnty. Officers Electoral Bd., et al., 2015 IL App (1st) 150568. On appeal, the candidate argued that because of his forgery conviction was expunged, he is now statutorily qualified to seek and hold public office.  The court disagreed, however, because the candidate failed to show the State of Indiana’s expungement had the same effect as a pardon for the offense, which would have restored the candidate’s eligibility under Section 29-15 of the Election Code. 

Post authored by Dan Bolin & Sam Singer, Ancel Glink

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