Illinois General Assembly Fall Session

Illinois General Assembly Fall Session

  Wednesday, November 15, 2023    Julie Tappendorf

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The Illinois General Assembly adjourned its fall veto session last week. Before the session ended, the General Assembly acted on a few bills of interest that may be of interest to local governments. We summarized just a few of these below but note that these bills have not yet been enacted and are still awaiting Governor action. We will provide updates if these bills become law.

Electric Vehicle Charging Act Amendment (SB 0384)

We previously reported on the Electric Vehicle Charging Act. If signed by the Governor, this would clarify current language in the Act that refers to multi-family housing. Instead of using both “multi-unit” and “multifamily” residential buildings, this bill solves the ambiguity by only using the term “multifamily” residential buildings. Also, the bill would expand the definition of who is subject to the Act to include unit owners, tenants, landlords, associations of both newly constructed and existing single-family homes, and multifamily residential buildings with parking spaces.

2024 Township Elections (SB 0690)

If signed by the Governor, this bill would prevent a municipality from placing a mental health measure on their primary or general election ballot in 2024 if that municipality is in the same township where a community mental health measure was approved on the 2022 general election ballot.

Eligibility for Public Office (HB 0351)

If signed by the Governor, this bill would do two things. First, it would create a task force comprised of officials responsible for reviewing what criminal conduct currently disqualifies individuals from holding public office and making recommendations as to what criminal conduct should prevent an individual from holding public office. Then, the task force would produce a report, due May 1, 2025, to share its findings. Second, the bill would ban any person convicted of a felony, bribery, or perjury while serving as a public official from holding any local public office unless that person’s conviction was reversed or pardoned by the Governor.

Post Authored by Daniel Lev, Ancel Glink

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Record Creation Requirements of FOIA

Record Creation Requirements of FOIA

  Wednesday, November 08, 2023    Julie Tappendorf

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As a general rule, the Illinois Freedom of Information Act (FOIA) does not require a public body to create records – instead, it requires a public body to provide access to records the public body already has in its possession or under its control, subject to applicable exemptions. However, there are a few provisions in FOIA that do require the creation, retention, and, in some cases, the posting of certain records by public bodies. These requirements are listed below:

1. List of documents or categories of records that are immediately disclosable upon request.
2. Current list of all types or categories of records under the control of the public body. 
3. A description of the manner in which electronic records will be provided to persons who do not have reasonable access to computers or printers.
4. A brief description of the public body.
5. A short summary of the public body’s purpose.
6. A block diagram of its functional subdivisions.
7.  Total amount of the operating budget.
8. Number and location of the public body’s offices.
9. Approximate number of full and part time employees.
10. Membership of all advisory boards, commissions, committees, or councils.
11. Description of the method by which persons can file FOIA requests.
12. Directory of FOIA Officers.
13. Address where FOIA requests can be directed.
14. FOIA fees.

Requirement 1 is contained in Section 3.5 of FOIA and is required to be developed by the FOIA Officer. Requirement 2 is contained in Section 5 of FOIA and must be maintained and made available upon request. A public body could meet both requirements by creating a list of the general categories of records that the public body maintains, and identifying on that list which of the records are immediately available upon request. For example, records that are posted on the public body’s website (e.g., ordinances, codes, minutes, agendas) would be the type of records that are immediately available under Requirement 1, as well as any paper records that the public body maintains and could make readily available (e.g., zoning map, OMA total compensation chart).

Regarding Requirement 3, Section 5 of FOIA requires a public body to provide, upon request, a description of the manner in which electronic public records can be obtained in a form comprehensible to persons lacking computer knowledge or access. For example, if a person is unable to reasonably access electronic public records, the public body could make those records available for physical inspection or copying.

Requirements 4-14 are all contained in Section 4 of FOIA. These requirements must be displayed at the public body’s administrative offices and posted on the public body’s website. Requirements 11-14 could be met by posting a public body’s FOIA policy, if the public body has adopted one. Posting a copy of the current adopted budget would satisfy requirement 7. To comply with the remainder of the Section 4 requirements, a public body could create a record that contains the rest of this information, post it at its administrative offices and on its website, and then update the record on a regular (i.e., annual) basis.

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Seventh Circuit Rejects injunction Against Enforcement of Protect Illinois Communities Act

Seventh Circuit Rejects injunction Against Enforcement of Protect Illinois Communities Act

  Tuesday, November 07, 2023    Julie Tappendorf

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Last week, the Seventh Circuit Court of Appeals issued a lengthy opinion in a Second Amendment challenge involving six consolidated cases. Bevis et al., v. State of Illinois et al..

The underlying cases involved challenges to the constitutionality of the State of Illinois "Protect Illinois Communities Act," that restricted the sale, delivery, manufacture, and possession of certain types of semi-automatic weapons and high capacity magazines and also challenges to various municipal ordinances that imposed similar restrictions. The nature of these appeals varied as some of the district courts had issued injunctions against the enforcement of challenged restrictions and other district courts had denied requests to enjoin the laws. 

In its opinion, the Seventh Circuit agreed with the underlying court decisions that refused to enjoin enforcement of the challenged law/ordinances, finding that the State of Illinois and the municipalities have a strong likelihood of success in the underlying lawsuits that challenged their restrictions. In analyzing the Second Amendment challenges, the Seventh Circuit discussed the difference between a handgun (which the Court acknowledged that law-abiding citizens have the right to keep for self defense) and nuclear weapons (which the Court said would not be protected by the Second Amendment right to bear arms) and determined that the type of weapons restricted by the challenged law and ordinances fell closer to the latter category, which the Court determined were more like military weaponry than civilian weaponry. The Court concluded that military weaponry does not fall within the type of "arms" protected under the Second Amendment.

The opinion includes a very detailed analysis of the Second Amendment and the cases that have been decided before this one, both in the majority opinion (which ruled in favor of the State and municipalities) and in the dissenting opinion. While lengthy, it is an interesting read.

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Quorum Forum Podcast Ep. 77: Housing Affordability at the ACSP2023

Quorum Forum Podcast Ep. 77: Housing Affordability at the ACSP2023

  Monday, November 06, 2023    Julie Tappendorf

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Ancel Glink has released a new episode of its Quorum Forum Podcast: Episode 77: Housing Affordability at ACSP2023. In this episode (recorded live at the 2023 Association of Collegiate Schools of Planning Annual Conference), Ancel Glink attorneys David Silverman and Dan Bolin discuss how communities are promoting housing affordability and review legal and practical approaches to addressing housing opportunities in Illinois and across the country. Thanks to APA Illinois for inviting us to the conference. 

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Court Distinguishes between "Private" and "Personal" Information under FOIA

Court Distinguishes between "Private" and "Personal" Information under FOIA

  Friday, November 03, 2023    Julie Tappendorf

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In response to a 2016 FOIA request seeking records relating to the requestor’s criminal case, the Chicago Police Department disclosed certain records subject to certain redactions. A few years later, the requestor submitted another FOIA request seeking records and statements attributed to a specific witness that testified at the requestor’s criminal trial. Attached to the second FOIA request was a notarized statement from the witness consenting to disclosure of her personal information to the requestor. After CPD refused to disclose the private information of the witness, the requestor sued CPD alleging that it violated FOIA by withholding the private information because the witness provided her written consent to disclose her personal information. The circuit court ruled in favor of the City, finding that CPD’s redactions were proper.

After the requestor appealed, the Appellate Court in Brewer v. City of Chicago agreed with the circuit court. The Court noted that “personal information” and “private information” are not interchangeable terms under FOIA, and rejected the requestor’s argument that CPD was required to disclose the phone number of the witness because the witness consented to disclosure of her personal information. Instead, the Court held that a personal phone number is “private information” that is expressly exempt from disclosure under FOIA exemption 7(1)(b). Unlike “personal information” under FOIA exemption 7(1)(c), which can be disclosed if “consented to in writing by the individual subjects of the information,” FOIA authorized CPD to redact the private information exempt under a different FOIA exemption (section 7(1)(b)), even if the person who is the subject of the information that is being requested provides their written consent.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Illinois County Has No Authority to Secede from Illinois According to the Attorney General

Illinois County Has No Authority to Secede from Illinois According to the Attorney General

  Thursday, November 02, 2023    Julie Tappendorf

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The Illinois Attorney General doesn't issue very many general opinions (separate from the PAC opinions) but a recent opinion is worth a read as it involves an unusual issue - a county's secession from one state to an adjoining state.

At the request of the Jerseyville County Board, the County States Attorney requested an opinion from the Illinois Attorney General (AG) as to whether an Illinois county could secede from the State of Illinois and join the State of Missouri. According to the AG's opinion, the issue had arisen in connection with a discussion by the County Board about the placement of a referendum on the ballot to shift the border between Illinois and Missouri in order to relocate the Jerseyville County to the Missouri side.

The AG first reviewed the Illinois Constitution in connection with a county's non-home rule authority. While the AG acknowledged that the Illinois Constitution contains provisions for relocation of county borders, the AG found nothing that would authorize the relocation of county borders across state lines. Similarly, while the Counties Code discusses the transfer of territory between counties, those provisions relate to the transfer of territory within Illinois. The AG also found no authority in the Election Code to allow a county to secede from Illinois by referendum. Finally, the AG noted that secession could implicate various federal laws and the U.S. Constitution. 

In sum, the AG concluded that a non-home rule county does not have the authority to secede from Illinois in order to join Missouri. Ill. Att'y Op. 23-001.

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ICE Did Not Violate Federal FOIA in Redacting Records

ICE Did Not Violate Federal FOIA in Redacting Records

  Wednesday, November 01, 2023    Julie Tappendorf

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A requestor filed several FOIA requests with United States Immigration and Customs Enforcement (ICE) under the federal FOIA statute, seeking records regarding his transfer from ICE custody to Indiana where he faced criminal charges. ICE produced certain records, but redacted (1) information protected by attorney-client, work product, or deliberative process privileges under FOIA exemptions; and (2) identifying information of government employees under other FOIA exemptions because disclosure would put employees at risk of harassment and serve no public benefit. The requestor sued ICE, alleging ICE’s redactions were improper. The district court ruled in favor of ICE, finding it properly redacted information. On appeal, the Seventh Circuit Court of Appeals also ruled in favor of ICE in Vidal-Martinez v. United States Department Of Homeland Security

First, the Seventh Circuit rejected the requester's argument that ICE could not rely on the attorney-client privilege to redact or withhold records because of the crime-fraud exception to the attorney-client privilege, finding no evidence to support the requestor’s claims that ICE engaged in any criminal conduct or sought to mislead the court.  

Second, the Seventh Circuit rejected the requestor’s petition for attorney’s fees, finding that ICE consistently maintained its intent to respond the FOIA requests both before and after the requestor sued, and any administrative delay in ICE responding to the FOIA requests did not trigger any award of attorney's fees under the federal FOIA statute.

Post Authored by Eugene Bolotnikov, Ancel Glink

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11th Annual Local Government Law Institute - December 1st

11th Annual Local Government Law Institute - December 1st

  Monday, October 30, 2023    Julie Tappendorf

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Shout out to local government lawyers who follow Municipal Minute, don't forget to register for the IICLE Local Government Law Institute. This year's seminar takes place on Friday, December 1, 2023, and provides attendees with the opportunity attend in-person attendance at the UBS Tower in Chicago or by webcast. 

Here's a sneak peak of the sessions at this year's seminar:

• Caselaw & Legislative Update
• The First Amendment & Government Social Media Activities
• Civil Rights: Supreme Court Shockwaves - 6 Months Later
• Avoiding the Quagmire of Reasonable Accommodation Under the ADA: Municipal Best Practices
• Lunch Panel: Advising Clients on Conflicts Issues
• A Chat with the PAC
• Representing Counties
• Conflicts of Interest in Municipal Law (presented by the ARDC)

This seminar qualifies for 5.25 hours of general CLE, and 1 hour of Professional Responsibility CLE.

For more information, visit IICLE's website here.

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Court Rejects Challenge to City's "Shared Housing" Ordinance

Court Rejects Challenge to City's "Shared Housing" Ordinance

  Thursday, October 26, 2023    Julie Tappendorf

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The City of Chicago allows the owner of a two to four unit residential building to rent out a unit as a short term rental provided the building is the owner's primary residence. An owner who does not primarily reside in the building can request an "adjustment" from the City if the owner can establish certain factors. An owner of multiple residential buildings who received an adjustment for one building but was denied other adjustments in another building sued the City on several grounds, including arguing that the City ordinance was unconstitutional. The case made its way to the Appellate Court which ruled in favor of the City in Henderson v. City of Chicago.

The Appellate Court first rejected the owner's argument that the Ordinance was unconstitutional because it it required owners to provide sensitive or personal financial information in order to demonstrate a financial burden, in violation of the privacy clause of the Illinois Constitution. Second, the Court held that the Ordinance did not constitute an unreasonable property seizure under the federal or state constitutions, finding that the stated purpose of the Ordinance (to limit the number of shared housing units to reduce the burden or nuisance on neighboring residents) was a rational means to achieve the City's purpose. Third, the Court rejected the owner's argument that the investigation by the City to discover noncompliant rental listings was a warrantless search in violation of the constitution, finding that the owner did not meet his burden of showing how an electronic search by City investigators violated his constitutional rights. The Court also upheld the City's imposition of fines in the amount of $5,000 for the owner's failure or refusal to remove unregistered rental listings.

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7th Circuit Upholds Dismissal of Challenge to Demolition of Nuisance Structure

7th Circuit Upholds Dismissal of Challenge to Demolition of Nuisance Structure

  Wednesday, October 25, 2023    Julie Tappendorf

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The Seventh Circuit Court of Appeals upheld the dismissal of a civil rights lawsuit against a municipality over the demolition of a public nuisance property. Willow Way, LLC v. Village of Lyons. 

After a real estate investment firm bought a dilapidated house and failed to make repairs to the property, the municipality sought to tear down the house as a nuisance. The municipality provided notice of the demolition to the investment firm and, after demolishing the house, sold the property at an auction to satisfy the municipality's lien for demolition expenses. The real estate investment firm sued the municipality claiming the demolition of the home was a taking and a violation of its substantive due process rights. The firm also raised an inverse condemnation claim under Illinois law. The district court ruled in favor of the municipality finding its demolition of the house as a public nuisance was not a due process violation and did not require compensation.

On appeal, the Seventh Circuit agreed with the dismissal, rejecting the real estate investment firm’s claims. First, the Court held there was no due process violation as federal law only requires property owners be proved fair notice and opportunity for a hearing to determine if the structure is a public nuisance. Since the municipality had provided prior notice of the condemnation to the real estate investment firm, and the firm failed to challenge the condemnation at a hearing, the Seventh Circuit found no due process violation. Next, the Court dismissed the inverse condemnation claim on jurisdictional grounds finding that the municipality was not liable for fluctuations in the market price of real estate or a decline in home value when the property was unoccupied and condemned as a public nuisance.  

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

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Quorum Forum Episode 76: Back to School at the APA-IL State Conference

Quorum Forum Episode 76: Back to School at the APA-IL State Conference

  Tuesday, October 24, 2023    Julie Tappendorf

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Don't miss Quorum Forum's Episode 76: Back to School at the APA-IL State Conference where Ancel Glink attorneys engage conference attendees with recent land use and planning law cases and share their experiences attending and presenting at the conference.

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7th Circuit Dismisses City's Lawsuit Against Internet Streaming Services

7th Circuit Dismisses City's Lawsuit Against Internet Streaming Services

  Monday, October 23, 2023    Julie Tappendorf

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In a recent decision, the Seventh Circuit Court of Appeals ruled against a municipality that had sued Netflix and other internet streaming services claiming the services were operating as unlicensed video service providers in violation of the Illinois Cable and Video Competition Law. City of East St. Louis v. Netflix.   

The city claimed the streaming services were "covered video service providers" operating without statewide authorization under the Illinois Cable and Video Competition Law (CVCL) and were required to pay a portion of their revenue to each municipality in Illinois. The city also raised common law trespass and municipal ordinance violation claims. The district court dismissed the city’s lawsuit, ruling the CVCL only allowed the state Attorney General to sue entities alleged to be operating without the required statewide authorization.

The city appealed, and the Seventh Circuit upheld the dismissal, rejecting the city’s claims. First, the Court held that internet streaming services were exempt from the CVCL’s definition of video service, and that content streamed over the internet is not covered under the CVCL’s regulatory scheme. Second, the Court held that transmitting streaming content through wires that crossed city-owned land was not a trespass. Finally, the Court held that internet streaming services did not violate a city ordinance prohibiting the re-sale of cable television services as the streaming services provided different services than traditional cable television providers. 

Post Authored by Tyler Smith & Julie Tappendorf, Ancel Glink

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