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Monday, July 24, 2023

Appellate Court Upholds $1.7 Million in Fines for Violations of Municipal Codes

  Monday, July 24, 2023    

An Illinois Appellate Court recently upheld a municipality's imposition of fines against property owners for certain ordinance violations relating to six accessory structures on the owners' property, including a tree house, shed, dog house/chicken coop, gazebo, detached garage, and covered patio. The municipality brought an ordinance enforcement action against he owners for failure to obtain permits for the structures, violations of building and electrical codes, setback encroachments, height violations, and the illegal keeping of chickens on the property. The trial court found in favor of the municipality and imposed fines of $100/day the violations had continued on the property ($100 was the minimum fine in the municipal code) for 20 continuing code violations on the property in the total amount of $1,766,000. 

The owners appealed, claiming the fines were excessive in violation of the Eighth Amendment to the U.S. Constitution and that the evidence presented by the municipality was insufficient to support the fines. On appeal, the Appellate Court rejected the owners' excessive fines claim. The Court acknowledged that the fine was large but noted that it was calculated based on 20 separate code violations which remained unabated for a lengthy period of time (from 2018 to 2021). Second, the Court determined that the evidence presented before the multiple hearings conducted by the trial court sufficiently demonstrated the owners' continuing violations of municipal codes up to November 4, 2021, although the Court did reduce the fine for the period of November 4, 2021 to December 30, 2021. In sum, the Appellate Court upheld the $1,766,000 fine that was imposed by the trial court, but reduced the fine by $5,600. City of South Beloit v. Casique, et al.

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Thursday, July 20, 2023

PAC Upholds Denial of Police Reports Involving Both Juvenile and Adult Arrests

  Thursday, July 20, 2023    

The PAC issued its tenth binding opinion for 2023 finding a public body did not violate FOIA in withholding arrest report in its entirety that involved a minor arrestee even though the report also included information about an adult arrestee. PAC Op. 23-010

The public body had denied a FOIA request filed by a reporter for certain police records and withhold the reports in their entirety, citing the Juvenile Court Record Act which protects the confidentiality of minors who have been arrested. The requester filed a request for review with the PAC, arguing that the police report should have been released with redactions since the report also involved an adult arrestee who was not protected under the JCRA. 

The PAC reviewed the JCRA and found that it protected the police reports from release because they constituted "juvenile law enforcement records" under the JCRA since they concerned the investigation of multiple minors and charges against one of the minors. The PAC stated that the JCRA "does not permit disclosure of any portion of the report to an unauthorized party, regardless of the extent to which a portion of the report focuses on an adult arrestee." The PAC also noted that the public body had released other information about the adult arrestee, including the arrest information sheet, arrest card, and mugshot report. 

  

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Wednesday, July 19, 2023

Illinois Supreme Court Rules on Constitutionality of Challenged Provisions of the SAFE-T Act

  Wednesday, July 19, 2023    

We previously reported on the SAFE-T Act that modified Illinois state statutes in a number of ways, including provisions regarding cash bail and pretrial release. The Safety, Accountability, Fairness, and Equity Today Act (Act) was enacted by P.A. 101-652, as amended by P.A. 102-1104. As many of you may recall, the constitutionality of the Act was challenged in a Kankakee County circuit court and last December, the circuit court held that certain provisions of the Act violated the Illinois Constitution's bail clause, the crime victims clause, and the separation of powers clause. The State appealed the circuit court's order, and the Illinois Supreme Court issued a ruling today reversing that order, vacating the circuit court's stay effective September 18, 2023, and directing circuit courts to conduct hearings consistent with the Act and Illinois Supreme Court rules implementing the new pretrial release provisions of the Act. 

The Illinois Supreme Court's rationale for reversing the circuit court's order is set out in its opinion, but the crux of the ruling is the Court's rejection of the argument that the Illinois Constitution mandates that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public. The Court emphasized that the Illinois Constitution creates a balance between the individual rights of defendants and individual rights of crime victims, holding that the Act's pretrial release provisions include procedures that balance those rights. Rowe v. Raoul, 2023 IL 129248.

  

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Tuesday, July 18, 2023

Court Upholds Denial of PSEBA Benefits to Firefighter

  Tuesday, July 18, 2023    

After a firefighter/paramedic was granted an on-duty disability pension for a back injury, he applied for benefits under the Public Safety Employee Benefits Act (PSEBA), which provides health insurance benefits for police officers and firefighters who are catastrophically injured in the line of duty. After a hearing on the application, the Village denied the PSEBA benefits, finding that although the firefighter was injured on duty, the circumstances of his injury did not meet the requirements of PSEBA that the injury occurred as the result of a response to an emergency. The firefighter appealed to the Illinois Appellate Court which upheld the Village's denial of PSEBA benefits.

The firefighter had argued that he was injured when he slipped on ice stepping out of an ambulance at an emergency call. The Village, on the other hand, claimed his injury occurred later in the day, after he had returned to the station, when he was trying to start a chainsaw and moving heavy tools. The Appellate Court reviewed the evidence submitted before the Village's hearing examiner and determined that the evidence supported the Village's decision to deny PSEBA benefits. First, there was no corroborating evidence that the firefighter reported the ice incident to a supervisor. Second, there were no eyewitnesses to the ice incident. Third, none of the incident reports for that day reference the ice incident; instead, all of the reports discussed the chain saw and tool incident as causing his back injury. The Court concluded that the hearing examiner's analysis of the evidence and application of the PSEBA test in reaching his decision was not arbitrary and his decision to deny benefits was not unreasonable. Thomsen v. Village of Bolingbrook

  

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Friday, July 14, 2023

Court Rules in Favor of Village on Neighbor Zoning Lawsuit

  Friday, July 14, 2023    

The Illinois Appellate Court recently ruled in favor of a municipality in a lawsuit filed by property owners challenging the Village's approval of rezoning and a PUD for a newly annexed development. Lys v. Village of Mettawa, 2023 IL App (2d) 220255-U.

The Village had annexed 170 acres of land that had been developed in unincorporated Lake County as a corporate headquarters. The annexation ordinance included certain provisions regarding the company's ability to continue operation as it did in the County with certain restrictions on future development that would require Village zoning relief. Three months after annexation, the company filed an application for rezoning of the property to the O-H "office/hotel district" and approval of a planned unit development for the existing uses. The Village conducted public hearings on the rezoning and PUD request and the request was ultimately approved.

The plaintiffs (neighboring residents) filed a three count complaint shortly after the zoning request was approved, claiming that the zoning approval violated their due process rights, among other claims. The trial court ruled in favor of the Village on the due process counts. A count against the property owner regarding certain fencing remained pending. The plaintiffs appealed the ruling in favor of the Village on the due process claims.

The Appellate Court also rejected the plaintiffs' due process claims finding that there was no evidence of procedural irregularities in the zoning process and that the rezoning approval ordinance had a presumption of validity. The Court noted that the plaintiffs acknowledge they received notice of the hearings and were given an opportunity to be heard at multiple hearings and meetings. The Court also rejected their argument that the negotiations between the Village and property owner constituted "contract zoning" or were improper secret meetings, finding no factual basis to support that argument. Instead, the Court found the zoning approval to be an example of valid conditional zoning that was approved after public hearings. The Court also rejected the plaintiffs' LaSalle Factors substantive due process argument, finding that the record overwhelmingly showed that the Village had a reasoned, rational basis for rezoning the property and did not act arbitrarily in approving the rezoning request. As a result, all claims against the Village were resolved in the Village's favor.

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Friday, July 7, 2023

New Laws Affect Illinois Park Districts

  Friday, July 07, 2023    

Today, we report on a couple of new Illinois laws that affect park districts.

P.A. 103-146 amends the Park District Code to authorize park districts to enter into a lease or other agreement related to the acquisition of solar energy, including the installation, maintenance, and service of solar panels, equipment and similar technology. The lease or agreement is limited to a term not to exceed 2 1/2 times the term authorized for equipment or machinery leases (8 years), and must be approved by a vote of 2/3 of the park district board.

P.A. 103-153 amends the Child Care Act of 1969 to amend the definition of "day care center" that is subject to the Act to expressly exempt certain programs offered by park districts for children 3 years or older so long as the program does not meet more than 3 1/2 continuous hours at a time or less and no more than than 25 hours during any week, and provided the park district conducts a background investigation on employees of the program pursuant to section 8-23 of the Park District Code.

P.A. 103-235 amends the Park District Code to expand the authorized use of the special "police program" tax that is authorized by Section 5-9 of the Park District Code to include the implementation and maintenance of "public safety and security measures" within the parks and playgrounds maintained by the district. The new law defines "public safety and security measures" to include security personnel, special events staff, safety audits, safety drills, active shooter training, security improvements, or safety-related upgrades to buildings, grounds, or facilities such as security lighting, video cameras, medical detectors, and emergency call boxes. Those districts where a majority of voters have already approved a police program tax by referendum are authorized to use their tax revenues for these new public safety and security measures. 

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Thursday, July 6, 2023

Wednesday, July 5, 2023

Act Amends Drones as First Responders Act

  Wednesday, July 05, 2023    

P.A. 103-101 was recently signed by the Illinois Governor and amends the Drones as First Responders Act to provide law enforcement agencies with more latitude to use drones at certain special events, parades, races, and similar routed events. The Act also includes a number of other changes regarding drone usage by law enforcement. 

First, the Act modifies the language that allowed law enforcement agencies to use drones for locating missing persons to apply to any search and rescue operation or aiding a person who cannot otherwise be safely reached, so long as the agency is not undertaking a criminal investigation.

Second, the Act expands the exemptions for law enforcement agency use of drones to include the following new activities:

  • To conduct infrastructure inspections of designated buildings at the request of a local government agency.
  • To demonstrate the capabilities and functionality of police drones for public relations purposes.
  • To locate victims, assist with victi health or safety needs, or to coordinate emergency responses in response to PSAP dispatched calls for service.

Third, the Act adds a new exemption to allow use of drones by law enforcement agencies at a routed event or special event. A routed event is defined as a parade, walk or race, that is hosted by a state or local government and open to the public with estimated attendance of more than 50 people. A special event includes concerts or food festivals hosted by state or local governments that meet certain estimated attendance numbers based on the population of the venue, as set out in the Act. 

In order to use a drone for a routed event or special event, notice must be posted at least 24 hours prior to the event about use of the drone for participant safety. The notice should be posted at major entry points. 

The Act allows the agency to use the drone in advance of the event to create maps and determine appropriate access routes, staging areas, and traffice routes so long as no personal identifying information is recorded and that no recorded information is used in criminal prosecutions. During the event, the drone can be used to detect any breach of the event space, evaluate crowd size, identify public safety issues, assist in emergency response to a real-time incident, and assess traffic and pedestrian flow. 

The Act modifies the record retention requirements of the Act, including requiring information gathered by the drone for these events must be destroyed within 24 hours except for information relating to terrorist attack, locating a missing person, or photographing a crime or traffic scene, which would have to be destroyed within 30 days. The Act does include some exceptions to these requirements for training or criminal investigations.

Fourth, the Act prohibits use of facial recognition except to counter a high risk of a terrorist attack, to prevent imminent harm to life, or to prevent the imminent escape of a suspect or destruction of evidence.

The Act aksi expressly prohibits equipping a drone with a weapon.

Finally, the Acct requires each law enforcement agency that uses drones to adopt a policy consistent with the Act.


  

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Monday, July 3, 2023

PAC Orders Release of Police Report Involving Crimes Against Minor Victim

  Monday, July 03, 2023    

The Public Access Counselor of the Illinois Attorney General (PAC) issued its ninth binding opinion for 2023 finding a public body in violation of FOIA for withholding police reports for a teacher who had been arrested and convicted of a crime against a minor victim. PAC Op. 23-009.

A reporter had filed a FOIA request for records pertaining to the conviction of a public school teacher for criminal behavior against a minor student. The police department denied the request, arguing the report was exempt from release because disclosure would constitute an unreasonable invasion of personal privacy to the alleged minor victim. The reporter appealed to the PAC, and the PAC disagreed with the police department's claim that release of the report would be an invasion of privacy of the minor, finding that identifying information could be redacted and the remainder of the report released. Although the PAC acknowledged that a 2017 Appellate Court had issued an opinion finding that the public has little interest in the salacious and explicit details of crimes against a minor so the entire report could be withhold because disclosure would constitute an invasion of personal privacy of the minor victim; nevertheless, the PAC distinguished that case and ordered the police department to release the requested report to the reporter, with redactions of the minor's identifying information and limited instances where explicit details were included.

In its conclusion, the PAC stated it would provide the police department with a copy of the report with its own notes as to which portions of the record the PAC believed could be redacted. This is the first opinion that we are aware of that included such specific direction from the PAC.

Note that the opinion does not deal with any claim that the teacher had a right to privacy in not having the report released, likely because the teacher had been charged, convicted, and sentenced for his crimes. 

  

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Tuesday, June 27, 2023

Supreme Court Settles on Subjective Test for "True Threats" in First Amendment Social Media Case

  Tuesday, June 27, 2023    

Today, the U.S. Supreme Court issued a ruling in a Colorado case involving a First Amendment challenge by an individual who had been convicted of stalking for his social media communications. Counterman v. Colorado. We reported on this case previously and the Supreme Court's pending ruling. In today's ruling, the Supreme Court reversed the person's stalking conviction based on its application of a new "subjective" test for determining what constitutes a "true threat" of violence. Since the State had applied an "objective test" in convicting him of the stalking crime that was based on a reasonable person's understanding that the speech was threatening violence rather than the speaker's understanding that its speech was threatening, the case was remanded back to the trial court.

The defendant had been convicted of stalking based on Facebook posts he made about a local musician. The case involved thousands of Facebook posts made from 2014 to 2016, and just a few examples were provided in our previous reporting on this case and more are detailed in the Supreme Court's decision. The Colorado man defended his conduct by arguing that the First Amendment protects speech from government interference even when that speech may be offensive to others. He argued that he could not be held criminally liable for speech that he did not intend as a threat. The State, on the other hand, argued that the proper standard in these cases is whether a reasonable person would see the statements as a "serious expression of intent to commit physical violence," which the State argues it demonstrated in this case.

In the appeal, the Supreme Court acknowledged that "true threats" of violence are not protected by the First Amendment. The Court stated that a true threat is a “serious expression” conveying that a speaker means to “commit an act of unlawful violence.” If an individual's speech constitutes a true threat, the First Amendment would not provide that person with a defense against charges brought because of that speech (in this case, stalking charges). The issue before the U.S. Supreme Court was whether a subjective or objective test should be applied in determining whether the "speech" constituted a true threat. 

The Court ultimately determined that in order for speech to constitute a "true threat," there must be some subjective understanding by the speaker that his speech could be viewed as threatening violence. The Court held that the State must show that the speaker consciously disregarded a substantial risk that his communications would be viewed as threatening violence (i.e., a reckless standard) but is not required to prove any more demanding form of subjective intent to threaten another. Because the defendant's conviction was based on an objective test rather than the Court's new subjective standard, the Court vacated his conviction and sent the case back for further proceedings consistent with its ruling.

This is an important case for governments because the Court has adopted a more narrow test as to when a person's speech might constitute a "true threat" of violence and not be protected by the First Amendment. This case could affect how governments moderate comments on their social media pages, regulate speech at government meetings, and determine when speech might rise to the level of criminal conduct (stalking, for example). Governments may need to review their social media comment and meeting policies as well as discuss this new "subjective standard" with law enforcement to ensure that the government does not overstep when threatening speech is involved.

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Monday, June 26, 2023

Illinois Supreme Court Analyzes Breach of Contract Claims in Development Agreement Case

  Monday, June 26, 2023    

We previously reported on an Appellate Court decision in a case involving claims of breach of contract relating to the development of a 62 acre parcel of land. The developer had initiated the lawsuit by filing a breach of contract claim, among other claims, against the municipality arguing that the municipality interfered with its proposed development that was the subject of a development agreement between the two parties. The municipality filed a counterclaim against the developer, arguing that it had breached the development agreement when it failed to transfer ownership of certain property, pay property taxes on the property, and fund an escrow account with the municipality. The circuit court found that both parties had breached the development agreement but ultimately ruled in favor of the developer because finding that the municipality could not enforce the terms of the agreement because the municipality had breached the development agreement first. The circuit court awarded the developer over $6 million in damages and attorneys fees. Both parties appealed, and the Appellate Court found the circuit court erred in finding that the municipality's breach excused the developer of its own breach, as discussed here.

The case was appealed again and the Illinois Supreme Court issued its ruling on the breach of contract claims made by both parties last week. PML Development LLC v. Village of Hawthorn Woods. In its ruling, the Illinois Supreme Court upheld the circuit court's ruling in favor of the developer on its breach of contract claim against the municipality but reversed that part of the circuit court's ruling that was in favor of the developer on the municipality's breach of contract counterclaim. The Supreme Court held that both parties had viable breach of contract claims against the other party and neither was excused from its own obligations under the development agreement merely because the other party had also breached the contract or based on which party breached first. The Supreme Court remanded the case back to the circuit court and directed the court to calculate each party's respective damages for the other party's breach of contract. 

This breach of contract case is a complicated one with a long history and we have only discussed a small part of the case here but the case could provide some guidance to developers and municipalities on how the Illinois Supreme Court will analyze and decide breach of contract claims involving development agreements.

  

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Thursday, June 22, 2023

Court Addresses 911 Recordings and Caller Identity in FOIA Case

  Thursday, June 22, 2023    

The Illinois Appellate Court recently ruled in favor of a sheriff's department in a case involving a FOIA request for 911 recordings. Edgar County Watchdogs v. Will County Sheriff's Office. 

A watchdog group filed multiple FOIA requests to a sheriff's department asking for copies of 911 calls and reports and other records relating to two parks. The department provided activity and police reports, with redactions, but denied the requests for 911 recordings. The group filed a lawsuit against the department claiming its denial of the request for 911 recordings and its redaction of reports violated FOIA. The lawsuit sought attorneys fees and costs.

The department argued that the 911 recordings were exempt under FOIA because they included statements by individuals who file complaints or provide information to law enforcement and could not be altered or redacted to protect the speaker's identity. The circuit court ruled in favor of the watchdog group and ordered the department to provide either (1) altered audio recordings to mask callers' identities or (2) transcripts of the 911 calls. The court also ordered the department to provide unredacted versions of the victim statements in the police reports. 

The department appealed the court's decision ordering it to release altered video recordings. In a previous decision on this appeal, the Court upheld the circuit court's order that the department provide altered versions of the 911 calls but rejected the circuit court's order that the department provide a transcript. On the department's motion for a rehearing, the Appellate Court modified its ruling on the altered 911 recordings, holding that because the department did not have the ability to scramble or disguise audio recordings to mask the identity of a 911 caller, it did not have to provide the recordings in their unaltered form. The Court again held that producing a transcript of the 911 calls constitutes the creation of a new record which is not required by FOIA. 

It is important to note that the Court rejected the department's argument that all 911 calls are "automatically" exempt from disclosure because the content would reveal the caller's identity, finding that not all recordings would necessarily disclose a caller's identity. 

  

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