School's Hair-Length Policy Violates Title IX

School's Hair-Length Policy Violates Title IX

  Friday, February 28, 2014    Julie Tappendorf

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In an interesting challenge under Title IX (the federal law that protects student athletes from discrimination), the Seventh Circuit Court of Appeals struck down a policy at a middle school that required boy athletes to keep a "clean cut" hairstyle, but had no similar policy for girls.  Hayden v. Greensburg Community School Corporation (7th Cir. Feb. 24, 2014).

The case arose from a challenge by one male student athlete who did not want to cut his hair to play basketball.  His parents sued the school district on his behalf, alleging that the school's hair-length policy was unconstitutional and violated federal law.  

The Seventh Circuit first rejected the student's substantive due process claim that he had a fundamental, liberty right to wear his hair long, finding that he failed to show how the policy had no rational basis.  The Court did, however, accept the student's equal protection argument that the hair-length policy discriminated based on sex.  The Court determined that the policy only applied to boy athletes, not girls, and the school district failed to show any reason or basis for a "sex-specific grooming standard."  For that same reason, the Court also accepted the student's Title IX claim.  The case was remanded to the district court to decide the appropriate relief.

Post Authored by Julie Tappendorf, Ancel Glink

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Police Can Rely on Co-Tenant Consent for Search

Police Can Rely on Co-Tenant Consent for Search

  Thursday, February 27, 2014    Julie Tappendorf

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Earlier this week, the U.S. Supreme Court issued a ruling in favor of police in a case that should make it easier for police to search a dwelling without a warrant.  In Fernandez v. California, (USSCT, Feb. 25, 2014), the court voted 6-3 that police can search a home without a warrant, even if the suspect had previously objected to the search, as long as he is no longer on the scene and a co-tenant gives consent.

Fernandez claimed the search was unconstitutional and the evidence found during the search, including firearms and gang paraphernalia, shouldn't have been admitted at his trial, where he was sentenced to 14 years in prison for robbery. 

Justice Alito wrote the majority opinion, finding that the written consent form signed by Fernandez's co-tenant made the search legitimate.  The opinion further stated that ruling against the police could create a situation where lawful occupants are prevented from inviting the police into their homes to conduct searches. The opinion continued that "Any other rule would trample on the rights of the occupant who is willing to consent."

Justices Ginsburg, Sotomayor and Kagan all dissented, stating that the majority opinion could result in giving police an incentive to avoid asking a judge for a search warrant.

Post Authored by Julie Tappendorf, Ancel Glink

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No Unconstitutional Search of Officer for Missing Cash

No Unconstitutional Search of Officer for Missing Cash

  Wednesday, February 26, 2014    Julie Tappendorf

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The Seventh Circuit recently ruled in favor of the City of Milwaukee in a lawsuit brought by a police officer who claimed a fellow officer's search of his person was unconstitutional.  Carter v. City of Milwaukee (7th Cir. Feb. 19, 2014).  

The facts of this case are somewhat unusual, and the Court spends a lot of time discussing the circumstances surrounding the search of the officer, including the officer's (Carter) physical "condition," which at the time of the search, was affected by the officer's use of Colonix, an over-the-counter colon cleansing product Carter was taking for weight loss. It's not clear what Carter's condition had to do with the case, except that it lead to his request to leave the scene that resulted in the search.

The facts are as follows:  Carter and other officers were executing a search warrant when one of the apartment's residents accused the police of stealing $1,750 of his cash. The commanding officer ordered all officers to remain on the scene.  When Carter, in need of a restroom, asked his supervising officer if he could leave the scene to use the restroom, he was searched for the allegedly missing cash.  No cash was found (on Carter or any other officer). Shortly after the incident, Carter sued the City, claiming he was the subject of an unconstitutional search and seizure.

The district court ruled in favor of the City, as did the Seventh Circuit.  The Seventh Circuit reviewed the standard for unconstitutional searches, finding that Carter had no reason to believe he would be detained or arrested if he had refused to be searched.  Carter had also agreed to the search so he could leave the apartment to use the restroom.

Post Authored by Julie Tappendorf, Ancel Glink

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How to Wind Up a TIF District

How to Wind Up a TIF District

  Tuesday, February 25, 2014    Julie Tappendorf

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Winding up a TIF district must be carefully planned and executed.  The ambiguity of the Act and the Illinois property tax collection system create pitfalls for the unwary.  

Section 3(n)(3) of the Act requires that the redevelopment plan must include the estimated date of completion of the redevelopment project and retirement of obligations issued to finance redevelopment costs, 

which shall not be later than December 31 of the year in which payment to the municipal treasurer…is to be made with respect to ad valorem taxes levied in the twenty-third calendar year after the year in which the ordinance approving the redevelopment project is adopted…

This clause is commonly interpreted to mean that the life of a TIF district is 23 years.  (It can be extended to 35 years by an act of the General Assembly or in limited circumstances defined in §3(n).)  

But what happens at the end of 23 years?  Does the TIF district self-destruct?  No.  The municipality must take certain steps, which must be coordinated with the county clerk.  

Buried in Section 8 of the Act is the following paragraph:

Upon the payment of all redevelopment costs, the retirement of obligations, the distribution of any excess monies pursuant to this Section, and final closing of the books and records of the redevelopment project area, the municipality shall adopt an ordinance dissolving the special tax allocation fund for the redevelopment project area and terminating the designation of the redevelopment project area as a redevelopment project area….Municipalities shall notify affected taxing districts prior to November 1 if the redevelopment project area is to be terminated by December 31 of that same year.

So closing a TIF district requires timely notice to affected taxing bodies and adoption of an ordinance.  Other steps include declaration of surplus, if any, filing the termination ordinance with the county clerk, and distribution of any surplus to the affected taxing bodies.  

The timing of the termination ordinance is driven by the fact that property taxes in Illinois are collected one year in arrears, e.g., taxes levied in calendar 2014 are collected and paid to the municipality in calendar 2015.  The language of §3(n)(3) set forth above says that the date of completion of the TIF project and the retirement of obligations may be December 31 of the year in which taxes levied in the 23rd year of the TIF are paid to the municipality by the county.  This would be the end of the 24th year after the creation of the TIF district.  

Assume for purposes of illustration a TIF district for which the last day of its 23 year  lifespan is August 30, 2014.  Incremental TIF revenue generated in calendar 2014 will be collected by the county and paid to the municipality in 2015.  If the municipality were to adopt and file an ordinance terminating the TIF district on August 30, 2014, it is likely that the county clerk would not calculate or pay TIF increment in 2015.  Thus, the municipality would lose the 23rd year of its TIF revenue.  The careful practitioner will consult with the county clerk to determine how that official interprets this provision of the Act.

As noted, project costs and debt obligations issued to pay project costs must be paid by December 31 of the 24th year after creation of the TIF district.  The ordinance terminating the TIF district must be adopted “Upon payment of all redevelopment costs, [and] the retirement of obligations.”  Upon adoption of the ordinance terminating the TIF district, property taxes are to be paid by the county to the affected taxing districts “in the manner applicable in the absence of the adoption of tax increment allocation financing.”   

Post Authored by Paul Keller, Ancel Glink

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Preexisting Condition Bars Line-of-Duty Disability Pension

Preexisting Condition Bars Line-of-Duty Disability Pension

  Monday, February 24, 2014    Julie Tappendorf

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Carillo, a former firefighter/paramedic filed an application for line-of-duty disability benefits after degenerative arthritis in her knee left her unable to work.  The pension board conducted a hearing on her application, and awarded her a nonduty disability, not a duty disability. She appealed, and the appellate court upheld the pension board's award, finding that the evidence presented by doctors at the pension board hearing supported the board's decision to deny a line-of-duty disability.  That evidence showed that Carillo's knee disability was caused by a history of injuries caused by Carillo's participation in high school and college basketball, and was not aggravated by her duties as a firefighter/paramedic.  Carillo v. Park Ridge Firefighters Pension Fund, 2014 IL App (1st) 130656.

The decision is favorable for local governments, and contains a good analysis of how a preexisting condition might affect a line-of-duty disability application.

Post Authored by Julie Tappendorf, Ancel Glink

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Free Webinar on Governments & Social Media

Free Webinar on Governments & Social Media

  Friday, February 21, 2014    Julie Tappendorf

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Want to learn more about local governments and social media?  Then join me on March 20, 2014, from 1:00 p.m. to 2:00 p.m. (Central) for the following webinar:  "Tackling the Legal, Policy, and Archival Issues in SocialGov."  

Speakers include blog author Julie Tappendorf of Ancel Glink, Anil Chawla, CEO at ArchiveSocial, and Luke Stowe, Digital Services Coordinator at the City of Evanston. They will discuss best practices for government agencies participating in social media.

You can register by clicking here.  It's free, so why would you miss it?

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9th Circuit Strikes Down Concealed Carry Conditions, Sets Up Case for Supreme Court

9th Circuit Strikes Down Concealed Carry Conditions, Sets Up Case for Supreme Court

  Thursday, February 20, 2014    Julie Tappendorf

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How far does the core Second Amendment right to possess a handgun for self-defense extend beyond the home? Over the past several years, several federal circuits have weighed in on this question, sometimes reaching different conclusions. Compare Madigan v. Moore (7^th Cir. 2013)(right to bear arms implies right to carry loaded gun outside home); with Drake v. Filko (3d Cir. 2013)(regulation of public carry constitutional).  The 4th and 2nd Circuits agree with the 3rd. See Woollard v. Gallagher (4th Cir. 2013) and Kachalsky v. County of Westchester (2d Cir. 2012).

Last Thursday, the 9th Circuit came down on the 7th Circuit side, finding that the Second Amendment extends beyond the home, protecting the right of a “responsible, law-abiding citizen . . . to carry a firearm in public for self-defense.” In Peruta v. County of San Diego, concealed carry license applicants challenged San Diego County’s requirement for applicants to show “good cause” to obtain a license. Under the County’s policy, “one’s personal safety alone is not considered good cause.” The open carry of firearms is also prohibited, with or without a license. The District Court rejected the applicants’ claim that the County policy infringed on their Second Amendment rights because the County’s public safety interest trumped the applicants’ allegedly burdened Second Amendment interest.

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Caution: Statements of Economic Interest Must Be Filed With The Correct Office

Caution: Statements of Economic Interest Must Be Filed With The Correct Office

  Wednesday, February 19, 2014    Julie Tappendorf

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On February 13, 2014, the Fist District Illinois Appellate Court issued a decision in Ferrand v. City of Chicago Board of Election Commissioners, confirming that candidates for public office must file the appropriate form of the statutorily required statement of economic interests (“SOEI”) in the correct office.  In that case, Melanie “Mel” Ferrand filed nominating papers to be a candidate for state representative for the 40^th District.  Prior to filing her nominating papers, Ferrand filed her SOEI form on the local form with the Cook County Clerk. she then included a copy of the SOEI with the nominating papers she filed with the State Board of Elections. 

Objections were filed against Ferrand, alleging  that her nominating papers were invalid because she failed to file the proper SOEI form with the correct entity, which for state offices is the  Secretary of State, not the Cook County Clerk.  After the objections were filed and after the filing period for nominations had passed, Ferrand filed an “amended” SOEI with the Secretary of State. 

The Chicago Board of Elections Commissioners held a hearing and determined that Ferrand’s failure to file a state SOEI for a state office was a fatal flaw, and Ferrand was removed from the ballot.  Both the circuit and appellate courts agreed with the Board of Elections Commissioners.  The appellate court held that the form used by Ferrand was incorrect and that her “amended” SOEI did not cure the deficiency and would not "relate back" to the original filing of Ferrand’s nominating papers.  The court also rejected Ferrand's argument that she substantially complied with the statute, and concluded that Ferrand’s name should not appear on the ballot. 

The lesson for all candidates for public office in Illinois?  Make sure you file the correct SOEI form in the right office. 

Post Authored by Tiffany Nelson-Jaworski, Ancel Glink

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Bill Would Shift Burden of Attorneys Costs to Local Governments

Bill Would Shift Burden of Attorneys Costs to Local Governments

  Tuesday, February 18, 2014    Julie Tappendorf

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The Illinois Municipal League recently reported on proposed Senate Bill 2829 that would award attorneys’ fees and costs to plaintiffs who win an administrative review appeal against a unit of local government.  The bill also authorizes a court award to the plaintiff of  all reasonable costs associated with the entire case dating back to the inception of the administrative proceeding if the court finds that the decision by the unit of local government was clearly erroneous or that the plaintiff's rights to due process were violated.

This proposed legislation is unfavorable to local governments for a number of reasons, most importantly the potential financial implication of having to reimburse a plaintiff for his or her costs in suing the government. This legislation also runs contrary to the traditional "American Rule" that parties in litigation are responsible for their own attorneys' fees and other costs of litigation. The IML is asking communities to contact their legislators to oppose this legislation.

Post Authored by Julie Tappendorf, Ancel Glink

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Court Dismisses Challenge to FOIA Fees and Response Time

Court Dismisses Challenge to FOIA Fees and Response Time

  Monday, February 17, 2014    Julie Tappendorf

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In an unpublished decision, an Illinois appellate court dismissed a case challenging the legality of FOIA fees charged by the Illinois Department of Correction, and the timeliness of IDOC's response to the FOIA request.  Shehadeh v. IDOC, 2014 IL App (5th) 120523-U.

In this case, an inmate had filed a FOIA request with IDOC for various public records.  He was charged $.15/page for the documents, and filed a subsequent FOIA request for "records that indicate how much the IDOC pays for paper and toner for the copy machine used to fill FOIA requests."  That FOIA request was dated February 20, 2012.  He received a response from IDOC on March 5, 2012, (dated February 24, 2012), stating that IDOC's cost for reproducing records in response to FOIA requests was approximately $.007 per page.  Shortly after receiving IDOC's response, the inmate filed a lawsuit with the circuit court alleging that IDOC's response was untimely in violation of FOIA and that IDOC's fee of $.15/page was unreasonable.  The circuit court dismissed his case, and he appealed.  

On appeal, the appellate court first determined that FOIA allows a public body to charge a fee "reasonably calculated to reimburse its actual cost for reproducing and certifying public records," which fee "shall not exceed 15 cents per page."  According to the court, IDOC's fee of 15 cents per page was "plainly reasonable and permissible under the plain language of section 6(b) of the FOIA."  

Second, the appellate court held that IDOC responded to the FOIA request within the five business day time frame required by FOIA.  The request was submitted on February 20th, and IDOC's response was dated just 4 days later, on February 24th.  The court noted that nothing in FOIA requires receipt of the response within five business days, nor does FOIA require a public body to use U.S. mail to respond to a FOIA request.  In sum, the inmate's complaint was properly dismissed for failure to state a cause of action upon which relief could be granted.

This case provides some good guidance to public bodies on complying with FOIA requests.  First, the court upheld the 15 cent fee/page, even though that fee exceeded the actual costs for reproduction.  Second, the court made it clear that FOIA does not require responses to be received within five business days, nor does FOIA dictate the manner in which responses must be sent to a requester.

Post Authored by Julie Tappendorf, Ancel Glink

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From the IML: 10 Cases Municipal Officials Should Know

From the IML: 10 Cases Municipal Officials Should Know

  Friday, February 14, 2014    Julie Tappendorf

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In this month's Illinois Municipal Review, the IML's monthly magazine, the IML legal team reports on 10 important cases for municipalities.  All but one of these cases have been previously reported on this blog, and we have linked to each individual blog post (Q: how did we miss the Stevens case?).  

Here is the line-up:

1. Champaign v. Madigan:  Are text messages to/from council members subject to FOIA?
2. Hartney Fuel Oil Co. v. Hamer: Where does a sale occur for purpose of imposing a sales tax?
3. McBurney v. Young: Is there a fundamental constitutional right to receive documents under FOIA?
4. Peraica v. Riverside-Brookfield High School Dist: Can a local government support a referendum?
5. Dumke v. City of Chicago:  Who is the head of the public body for FOIA exemption purposes?
6. Lake County Grading Co. v. Village of Antioch:  What surety is required for a public works contract?
7. Koontz v. St. Johns River Water Mgmt Dist:  What conditions can be imposed on land use permits?
8. Stevens v. Village of Oak Brook:  Can a part-time employee agree not to take a pension?
9. Palm v. 2800 Lake Shore Dr Condo Ass'n:  When does a statute preempt home rule authority?
10. Omnipoint Communications v. City of Huntington Beach:  Can a municipality regulate the construction of telecom utilities on its own property?

You can review the article on the IML's website here.

Post Authored by Julie Tappendorf, Ancel Glink

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California's Ban on Open and Concealed Carry of Guns is Unconstitutional

California's Ban on Open and Concealed Carry of Guns is Unconstitutional

  Thursday, February 13, 2014    Julie Tappendorf

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Today, the Ninth Circuit Court of Appeals struck down California's broad ban on open and concealed carry of guns in public (with very few exceptions) as an unconstitutional infringement of the Second Amendment.  Peruta v. County of San Diego (9th Cir. Feb. 13, 2014).  

We are analyzing the 120 plus page opinion, and will provide a detailed summary of the decision (and dissenting opinion) in an upcoming blog post.

Post Authored by Julie Tappendorf, Ancel Glink

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