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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

Friday, January 31, 2014

Trip to Vegas Covered By FMLA Leave

  Friday, January 31, 2014    

The Family and Medical Leave Act gives eligible employees a right to 12 workweeks of leave in order to "care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition."  In Ballard v. Chicago Park District, the Seventh Circuit Court of Appeals considered whether the Act protected an employee who traveled to Las Vegas with her terminally ill mother.

Ballard was a former Chicago Park District employee.  According to the case, Ballard acted as the primary caregiver for her mother, who had been diagnosed with end-stage congestive heart failure. In 2008, she requested unpaid leave from the District to accompany her mother to Las Vegas, a trip funded by Fairygodmother Foundation, a nonprofit that works with terminally ill adults.  Although the District denied her leave request, she traveled to Vegas with her mother as planned.  Several months later, the District terminated Ballard for unauthorized absences during her Vegas trip. She sued under the FMLA, and the District argued that Ballard was not eligible for FMLA leave because she did not "care for" her mother in Vegas, and that the trip was not related to medical treatment.

The Seventh Circuit Court of Appeals spent some time interpreting what is meant by the phrase "care for" under the FMLA. The Court disregarded the District's argument that "care for" is limited to medical treatment, finding no such language in the statute. The Court also disagreed with the District's argument that care must be restricted to a particular location such as a patient's home. Instead, the Court looked to the Department of Labor regulations that define "care" by a family member to encompass activities such as "basic medical, hygienic, or nutritional needs or safety." In this case, the Court held that Ballard's mother's "basic medical, hygienic, and nutritional needs" were the same in Vegas as they would be at home, and that Ballard's assistance was necessary during the trip. In short, Ballard's trip to Vegas with her mother fell within the scope of the FMLA. 

Post Authored by Julie Tappendorf, Ancel Glink

  

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Thursday, January 30, 2014

Annexation Statute of Limitations Does Not Bar Affirmative Defense

  Thursday, January 30, 2014    

A municipality filed a lawsuit to disconnect certain property from a library district after the village had annexed those parcels.  The library district responded that because the village failed to follow all of the required statutory procedures for annexation, the parcels should remain within the library district's jurisdiction. Specifically, the district claimed that the village failed to file affidavits that it had served the library district trustees with the statutorily required notices. The village argued that the district's defenses were barred by the one-year statute of limitations contained in Section 7-1-46 of the Illinois Municipal Code.  

The trial court agreed with the village, finding that the district was barred from raising procedural deficiencies as a defense after the one year annexation statute of limitations had expired.  On appeal, however, the appellate court reversed, finding that statute of limitations bar stale claims, not defenses based on clear language in the statute that bars the commencement of an action to contest an annexation but makes no mention of defending against such a challenge.  Stivers v. Bean, 2014 IL App (4th) 130255

Post Authored by Julie Tappendorf, Ancel Glink

  

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Wednesday, January 29, 2014

Lawsuit Challenges Constitutionality of Illinois' Pension Reform

  Wednesday, January 29, 2014    

Coming as no big surprise to Illinois residents and others, a group called "We Are One Illinois Coalition" and a number of named plaintiffs just filed a lawsuit against Governor Quinn, Comptroller Topinka, Treasurer Rutherford, and others challenging the constitutionality of P.A. 98-0599, the pension reform legislation signed into legislation on December 5, 2013. The complaint was filed in the Sangamon County circuit court and challenges the constitutionality of the pension reform law on a variety of grounds, similar to lawsuits filed by other groups against the new law. Harrison v. Quinn, No. 2014 CH 00048.  

According to the complaint, the individually named plaintiffs are currently or were previously employed by the State of Illinois in a variety of jobs, including librarians, teachers, information systems analysts, public service representatives, and corrections officers, and are members of the Teachers' Retirement System of the State of Illinois (TRS), the State Employees' Retirement System of Illinois (SERS), or the State Universities Retirement System of Illinois (SURS).  "We Are One Illinois Coalition" is a coalition of labor unions formed to protect employee pensions. The lawsuit is also brought on behalf of  more than 621,000 other class members. 

First, plaintiffs allege that P.A. 98-0599 unlawfully amends various provisions of the pension code, including changes to automatic annual increases and increasing the eligible age of retirement, among others. Those changes, according to plaintiffs, violate the pension clause of the Illinois constitution that provides as follows: 

Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.  (Ill. Const. 1970, art. XIII, s. 5)

Plaintiffs also claim that P.A. 98-0599 violates the contracts clause of the Illinois constitution because it interferes with contractual relationships between the members and SERS, SURS, and TRS.  

Finally, plaintiffs claim that the pension reform statute violates the "takings clause" of the Illinois constitution that states that "[p]rivate property shall not be taken or damaged for public use without just compensation as provided by law" because the State has not offered consideration to pension members to compensate them for the impairment to their pension benefits.

The plaintiffs ask that the court declare the pension reform statute unconstitutional, enjoin the State from implementing the law, and award damages to the members as compensation for their losses.

Post Authored by Julie Tappendorf, Ancel Glink

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Tuesday, January 28, 2014

University Search of Dorm Room Upheld

  Tuesday, January 28, 2014    

Like many other universities, Indiana University has established an inspection program that allows resident advisers (RAs) to search student dorm rooms with 24 hours advance notice. A sophomore received one of those notices a week in advance of an inspection of his dorm room. Apparently, he ignored the notice, and the inspection uncovered drug paraphenalia (four pipes, two bongs, and a grow light). The search also found a six-foot-high marijuana plant growing in his closet.  The student was suspended, but granted reentry after a year suspension. 

The student filed suit against the university and the RAs, claiming that the school violated his Fourth Amendment  rights by searching his room.  He also sought damages from the RAs.

The Seventh Circuit found no merit to the student's due process claim, determining that the "in-your-face flagrancy" of the student's violation of university rules (that he had plenty of notice were being enforced) justified the university's search and later suspension. The Court also determined that the student had given consent to the search as a condition to residing in university housing - he had the opportunity to live in off-campus housing and avoid being subject to the university searches.  

In conclusion, the Court found the student's case "near frivolous" and his decision to sue the RAs offensive, and affirmed the district court's dismissal of the case.  Medlock v. Trustees of Indiana University

Post Authored by Julie Tappendorf, Ancel Glink

  

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Monday, January 27, 2014

Court Strikes Down Indianapolis Ordinance Restricting Hours of Adult Bookstores

  Monday, January 27, 2014    

Strip clubs, adult book stores, and other sexually-oriented businesses receive a great deal of constitutional protection by the courts under the First Amendment. Last week, the Seventh Circuit Court of Appeals expanded that protection when it struck down the City of Indianapolis' ordinance that restricts the hours of operation for adult businesses.  Specifically, the City's ordinance requires adult bookstores to close between the hours of midnight and 10:00 a.m. each day, and remain closed all day on Sunday.  Annex Books, Inc., the operator of an adult bookstore in Indianapolis, challenged that ordinance as a violation of its First Amendment rights.  The district court had previously upheld the ordinance, finding that the City's justification (fewer armed robberies at or near adult bookstores) was adequate.  

On appeal, however, the Seventh Circuit Court of Appeals questioned the City's justification, finding it "weak as a statistical matter."  The Court questioned why the regulation only applied to adult bookstores and not other businesses open during these others, such as pharmacies, taverns, and liquor stores.  The Court further stated that the City's obligation is to protect those who choose to visit adult bookstores from robbers, rather than simply close bookstores to reduce that risk. 

The Court concluded that the City failed to justify its hours restriction based on a secondary effects argument because many other businesses (newsstands, convenience stores, and pharmacies) are still permitted to sell reading material during these hours.  In short, the City's regulation was solely based on the content of the adult bookstore's reading materials (i.e., sexually oriented). The ordinance was unconstitutional. Annex Books v. City of Indianapolis (7th Cir. January 24, 2014).

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Friday, January 24, 2014

Bloggers Have Same First Amendment Rights as Mainstream Media

  Friday, January 24, 2014    

From Strategically Social: Bloggers Have Same First Amendment Rights as Mainstream Media:

In Obsidian Finance Group, LLC v. Cox , the Ninth Circuit Court of Appeals held that bloggers enjoy the same First Amendment rights that apply to more traditional journalists.

Blogger Crystal Cox posted a variety of accusations on her blogs alleging that Obsidian Finance Group and a bankruptcy trustee were guilty of fraud, corruption, money-laundering, and other illegal activities in connection with a pending bankruptcy. According to the opinion, Cox had a history of making similar allegations and seeking payoffs in exchange for retraction.  

Obsidian filed a defamation suit against Cox, and the federal district court held that all but one of Cox's blog posts were constitutionally protected opinions. The court allowed the defamation case to continue based on one of Cox's posts that alleged specific factual allegations. Cox argued that her blog post involved a matter of public concern, and that plaintiffs had the burden of proving her negligence in order to recover for defamation.  She alternatively argued that the plaintiffs were public figures so they were required to prove Cox made the statements with "actual malice."  The district court rejected her arguments, first finding that the negligence standard did not apply to her because she was not a journalist.  The court also held that the plaintiffs were not public figures. At the end of the trial, a jury ruled in favor of the plaintiffs, awarding them $2.5 million collectively.

On appeal, the court of appeals first reviewed the Supreme Court's standards for defamation cases. For defamation involving public officials, the plaintiff has to show "actual malice" of the defendant.  NY Times v. Sullivan.  For private defamation, the plaintiff must show negligence. Gertz v. Robert Welch.  The court of appeals rejected the plaintiffs' argument that the Gertz negligence standard only applies to institutional press, finding that although those cases had not addressed internet publication, the same standards should apply. The court of appeals cited to the U.S. Supreme Court's 2010 decision in Citizens United v. Federal Election Commission - "With the advent of the Internet and the decline of print and broadcast media...the line between the media and others who wish to comment on political and social issues becomes far more blurred."    

Because the district court had not applied the correct standard (negligence), the court remanded the case back to the district court.

Post Authored by Julie Tappendorf, Ancel Glink

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Thursday, January 23, 2014

Arrest Booking Fee Upheld by 7th Circuit

  Thursday, January 23, 2014    

The Village of Woodridge had an ordinance in place that imposed a $30 booking fee on individuals who are arrested in the Village. That fee was imposed on plaintiff after he was arrested for retail theft in 2011. The plaintiff filed a class action civil rights lawsuit against the Village to challenge the fee, claiming the fee violated both the procedural and substantive due process rights. The district court dismissed the case, and the Seventh Circuit Court of Appeals affirmed in Markadonatos v. Village of Woodridge (7th Cir., Jan. 8, 2014).

Although the Court acknowledged that the fee was imposed without hearing or any other procedure, it determined that the need for a hearing in this situation was extremely low because there was practically no risk of an erroneous deprivation in imposing the $30 fee. The fee was only imposed upon plaintiff's arrest, which he did not challenge. The Court also determined that the government had sufficient interest in imposing the $30 fee to offset a portion of the administrative costs incurred in processing arrested individuals. As a result, the balance weighed in favor of the Village, and the district court properly dismissed the due process claims.

Justice Hamilton dissented to the majority opinion.  In his opinion, the booking fee ordinance was unconstitutional on its face because it takes property from all arrestees - guilty and innocent - without due process of law, because it imposes "punishment" (in the form of the booking fee) before a verdict.

Post Authored by Julie Tappendorf, Ancel Glink

  

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Wednesday, January 22, 2014

Winter 2014 Issue of "In the Zone" Released

  Wednesday, January 22, 2014    

Ancel Glink's land use group just released its winter edition of the In the Zone e-newsletter. This issue contains a number of land-use related articles of interest to municipal planners, government officials, developers, and other land use professionals, including the following:
  • Why Food Trucks May be the Best Way to Introduce "Placemaking" Strategies in Your Community
  • Municipalities Should Review Bans on Gun Shops and Sales After Court Strikes Down Chicago Ban
  • School District Must Comply with Local Zoning
  • Court Decides Annexation Dispute Between Competing Municipalities
You can read the entire newsletter here, and subscribe to receive future issues of the e-newsletter here.

  

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Tuesday, January 21, 2014

Candidate Cannot Run for County Office While Under Court Supervision

  Tuesday, January 21, 2014    

Last week, the Cook County Officers Electoral Board voted 3-0 to remove the name of convicted felon Alfred “Al” Sanchez from the 2014 primary election ballot. The electoral board found that Sanchez was ineligible to be a candidate for Cook County commissioner in the 4th District – or for any other constitutional office in the state – because he was still under court supervision as part of a 54-month sentence for a felony fraud conviction related to his activities as the former commissioner of the Chicago Department of Streets and Sanitation.

Illinois law allows ex-cons to hold most non-municipal elected offices, including county board seats and state offices like governor and state representative. However, Article VIII, Section 1, of the Illinois Constitution, and section 5-5-5(b) of the Illinois Uniform Code of Corrections, prohibit a convicted felon from holding any office created by the Constitution “until the completion of his sentence.” Since Sanchez was still serving his sentence when he swore under oath on this statement of candidacy form that he was, at that moment, legally qualified to hold the office he was seeking, his nomination papers included a false swearing and were therefore legally invalid.

Full disclosure:  Ancel Glink Attorney Adam Lasker litigated this case before the Electoral Board on behalf of the resident who filed the petition objecting to Sanchez’s candidacy. 

Here is some newspaper coverage of the electoral board action:

Chicago Tribune (Jan. 17, 2014):
Convicted ex-Streets and Sanitation boss thrown off ballot

Chicago Sun-Times (Jan. 17, 2014):
Al Sanchez, convicted ex-Streets and San chief, kicked off ballot

Chicago Tribune (Jan. 9, 2014):
Sanchez, a convicted felon, fights to stay on Cook County ballot

Chicago Sun-Times (Jan. 7, 2014):
Conviction could knock Sanchez off County Board ballot

  

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Monday, January 20, 2014

Municipalities Should Review Gun Shop Bans After Court Strikes Down Chicago Ban

  Monday, January 20, 2014    

Recently, a federal court struck down Chicago's sweeping ban on gun sales and transfers in Illinois Ass'n of Firearms Retailers v. City of Chicago, 2014 WL 31339 (N.D. Ill. Jan. 6, 2014). The City's ban on the sale or transfer of firearms, except in the case of inheritance, was challenged by gun dealers under the Second Amendment. 

The district court found that the City failed to establish that the ordinance regulates activity generally understood to be unprotected by the Second Amendment in 1791. Next, the Court went on to test the justifications for the City's ban under heightened, but “not quite strict scrutiny,” due to the number of people affected and the heavy burden on the core Second Amendment right. In arguing for lesser scrutiny, the City pointed to the fact that gun purchases could be completed in the suburbs. The Court rejected this argument, citing the line of First Amendment cases requiring alternative channels "within the city."

The City argued that its ban on gun transfers was justified by its desire to (1) restrict criminals’ access to licensed dealers; (2) restrict gun acquisition in the illegal market; and (3) eliminate gun stores from Chicago, which are dangerous in themselves and cannot be safely regulated. Even if licensed dealers gave criminals more access to guns, the City could have used a more focused regulation that would not have burdened the rights of non-criminals. Next, the Court found the sales-and-transfer ban does not significantly reduce illegal-market gun acquisition by increasing the frictions inherent in illegal sales. Finally, the Court rejected the City's argument that a complete ban is required based on the supposed ineffectiveness of ATF in regulating gun dealers. Additionally, possible burglaries at gun shops do not justify a sweeping ban on gun sales and transfers. The City offered no evidence to justify its ban on the transfer of guns as gifts.

While the Court rejected the Chicago ban, it concluded that “nothing in this opinion prevents the City from considering other regulations—short of the complete ban—on sales and transfers of firearms to minimize the access of criminals to firearms and to track the ownership of firearms.” Chicago has decided not to appeal this decision, which means that it will not be binding on other courts.

Nevertheless, a complete prohibition on gun sales and gun shops will likely draw a Second Amendment challenge, and municipalities should review their ordinances to ensure such a ban is not on their books. Zoning codes may unintentionally prohibit gun shops, by omitting “gun shops” and “sporting goods stores” from lists of permitted and special uses. While no court has held that a gun shop must be located in every town, firearms retailers may be emboldened by the Chicago decision, and municipalities may wish to consider appropriate locations for such uses within their limits to avoid becoming the next Second Amendment test case. At least one federal court (in California)  has upheld local zoning restrictions for gun shops. Teixeira v. Cnty. of Alameda (requiring sale of guns to occur at least 500 feet away from schools, residences, establishments that sell liquor, and other gun stores). Sales of “dangerous and unusual weapons” such as machine guns and short-barrel shotguns may be prohibited. D.C. v. Heller; see also 720 ILCS 5/24-1.   

While municipalities might be tempted to tax gun sales, Cook County’s $25 gun tax is being challenged under the Second Amendment, and the preemption provisions of the Firearm Concealed Carry Act. ERP Inc. v. Ali.

Post Authored by Daniel J. Bolin, Ancel Glink

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Friday, January 17, 2014

Voter Approval Required For Cell Tower Lease

  Friday, January 17, 2014    

The Ninth Circuit Court of Appeals recently upheld a city requirement that a cellular provider obtain voter approval before installing a cell tower in a City park. Omnipoint Communications, Inc. v. City of Huntington Beach, No. 10-56877 (9th Cir. Dec. 11, 2013) The ballot approval requirement, called Measure C, is part of the City's charter and provides as follows:

No . . . structure costing more than $100,000.00 may be built on or in any park or beach or portion thereof . . . unless authorized by the affirmative votes of at least a majority of the total membership of the City Council and by the affirmative vote of at least a majority of the electors voting on such proposition at a general or special election at which such proposition is submitted.

The cellular provider refused to comply, claiming that federal law preempted the City's voter approval requirement. The appellate court disagreed, holding that the federal law "applies only to local zoning and land use decisions and does not address a municipality’s property rights as a landowner." The local requirement was not preempted because it only related to the lease of City land, not zoning or land use approvals. 
Hat tip to the IMLA Appellate Practice Blog for reporting on this case.

Post Authored by Julie Tappendorf, Ancel Glink

  

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