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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

Wednesday, June 30, 2021

Supreme Court Tackles "Takings" Question Presented by California Labor Statute


NOTE: UPDATED TO CORRECT REFERENCE TO AUTHOR OF DISSENTING OPINION

On June 23, 2021, the U.S. Supreme Court issued its opinion in Cedar Point Nursery v. Hassid. The case involved two fruit-growing businesses in California that challenged a 2020 regulation enacted by the California Agricultural Labor Relations Board that mandated agricultural employers to allow union organizers onto their property to solicit support for unionization efforts for up to three hours per day, 120 days per year.

Two of the agriculture businesses challenged the regulation after union organizers attempted to enter their properties under the new regulation— in one case, the union organizers were prevented from entering, and in the other, the organizers entered the property but had not provided the required notice to the business before doing so. The District Court dismissed the businesses’ claims, and the Ninth Circuit affirmed the dismissal finding that the access that the regulation granted to each property was not a per se, or outright, taking of their property as prohibited under the Fifth and Fourteenth Amendments to the Constitution. The businesses appealed to the U.S. Supreme Court, which disagreed with the lower courts' rulings and found the regulation to be an unconstitutional taking.

Five justices joined Chief Justice Roberts in the majority opinion, which held that the regulation impermissibly authorized a permanent, physical invasion of the growers’ properties because it gave third parties the ability to infringe on the grower’s right to exclude others from their properties. The Court held that the right to exclude others is so fundamentally important to property ownership that encroaching on that right without compensation qualifies as a taking under the Constitution. Despite arguments from the union organizers that the regulation did not rise to the level of a taking because it did not authorize a constant, physical presence on the growers’ land, the Court held that the intermittent access that the regulation required was serious enough to rise to the level of a taking. The Court also rejected an argument that this case would set a precedent for challenges to other government-authorized physical invasions.

Justice Kavanaugh, concurring with the majority, provided insight into the labor context of the regulation. He opined that even with the protections afforded by national labor laws and regulations, the union organizers have no right to encroach on the growers’ land because access to the laborers was not contingent on access to their employer’s property.

In dissent, Justice Breyer and two other Justices argued that the majority opinion’s analysis was flawed, as the regulation was not a permanent physical invasion. The dissent advocated for a more multifactor test to determine whether the regulation was unconstitutional, and criticized the majority’s holding as jeopardizing “large numbers of ordinary regulations in a host of different fields that, for a variety of purposes, permit temporary entry onto . . . a property owner’s land,” such as those which authorize inspections of private property for safety or environmental purposes. Whether this fear as expressed by the dissent will be realized remains to be seen in the context of federal, state, and local regulatory activity.  

Post authored by Eugene Bolotnikov and Erin Monforti, Ancel Glink

Tuesday, June 29, 2021

Supreme Court Finds in Favor of Cheerleader in Social Media Speech Challenge


It's rare when we see a case involving the First Amendment and social media but even rarer when that case comes out of the U.S. Supreme Court. As many of you may have read in the news, B.L., a high school cheerleader, was suspended from participating in her school's cheerleading program after images and statements she made on social media were brought to the school's attention. According to the court, she posted the following in two Snapchat stories:

The first depicted B.L. and a friend with middle fingers raised, and bore the following caption (note that we have modified the swear words):

F**k school f**k softball f**k cheer f**k everything

The second image was blank, but included the following caption:

Love how me and [another student] get told we need a year of jv before we make varsity but tha[t] doesn’t matter to anyone else? [this image also included an upside-down smiley face emoji]

B.L. had about 250 friends on Snapchat and at least one of them took a photo of the two images and shared them with School officials. Shortly after, B.L.'s JV cheerleading coaches suspended B.L. from cheerleading for the upcoming year.

B.L. sued, claiming that this decision violated her First Amendment free speech rights. Both the District Court and the Court of Appeals found in her favor, and held that the School had violated her rights when it suspended her from cheer for posting these messages on social media. The School appealed to the U.S. Supreme Court, which upheld the rulings in B.L.'s favor. Mahanoy Area School District v. B.L.

In its analysis, the Supreme Court acknowledged that previous Supreme Court cases had established that schools can regulate and restrict the speech of school children on school grounds and even off school grounds where a school is acting "in loco parentis."' The Supreme Court gave the example of schools regulating and controlling bullying between students on social media even when that conduct occurs off campus. However, the Supreme Court noted that schools do not have unfettered power to regulate students' off campus speech, and where that regulation impedes protected speech, it violates the First Amendment. Here, B.L.'s social media activities occurred off-campus and on B.L.'s personal cell phone, did not mention the school by name, and did not cause any substantial disruption at school. Instead, the messages conveyed criticism of a school decision, which the Court found was protected by the First Amendment. In short, the Supreme Court found the School's decision to suspend B.L. from the cheerleading squad for her off-campus criticism of the School to be a violation of her free speech rights under the First Amendment. 

This case is worth a read as it not only presents a thorough analysis of the Supreme Court's past rulings on student First Amendment rights but also discusses how these more "traditional" free speech cases apply to social media speech. I suspect we will see more and more of these First Amendment challenges in the context of social media speech in the future, and this case will provide some guidance on how a court might analyze those claims.


Monday, June 28, 2021

More Detail on Governor's Most Recent Disaster Declaration & Remote Meetings


As we reported late on Friday, the Illinois Governor extended the State's Disaster Declaration and various Executive Orders relating to the COVID-19 pandemic. That decision means, among other things, that public bodies can continue to meet remotely (or in a hybrid fashion) under the recently amended OMA procedures that allow remote meetings without a physical quorum, at least for another 30 days.

Last spring, the General Assembly amended the Open Meetings Act to add a new section 7(e) that allows public bodies to meet without a physical quorum under certain conditions, including the following language, in part:

(1) the Governor or the Director of the Illinois Department of Public Health has issued a disaster declaration related to public health concerns because of a disaster as defined in Section 4 of the Illinois Emergency Management Agency Act, and all or part of the jurisdiction of the public body is covered by the disaster area...

* * *

(4) for open meetings, members of the public present at the regular meeting location of the body can hear all discussion and testimony and all votes of the members of the body, unless attendance at the regular meeting location is not feasible due to the disaster, including the issued disaster declaration, in which case the public body must make alternative arrangements and provide notice pursuant to this Section of such alternative arrangements in a manner to allow any interested member of the public access to contemporaneously hear all discussion, testimony, and roll call votes, such as by offering a telephone number or a web-based link; 5 ILCS 120/7(e).

As you know, the Governor had issued a disaster proclamation relating to COVID-19 last March and extended that every 30 days. Those decisions allowed public bodies to take advantage of this new remote meeting procedure as the disaster proclamations met the requirements of 7(e)(1). After the State of Illinois went into Phase 5 of the Restore Illinois, it was not clear whether the Governor would extend the disaster procomation for another month; however, last Friday afternoon, he did, and extended the disaster proclamation through July 24, 2021. The 6/25/2021 proclamation includes, among other things, the following:

Section 12. For purposes of Public Act 101-0640, Article 15, section 15-5, amending the Open Meetings Act, new section 5 ILCS 120/7(e)(4), I find that the ongoing public health concerns at issue in this proclamation continue to render in-person attendance of more than ten people at the regular meeting location not feasible. However, as the number of fully vaccinated individuals in Illinois continues to increase, I do not expect to make this finding again, and public bodies should plan on its expiration as of July 24, 2021.

The Governor also signed an executive order (EO 2021-14) that extended prior executive orders, including EO 2020-07, as stated below:

Executive Order 2020-07 (In-person meeting requirements):

Section 6 of Executive Order 2020-07, as amended by Executive Order 2020-33 and Executive Order 2020-44, is re-issued and extended through July 24, 2021, whereafter Section 6 shall be rescinded.

Based on the language in this latest disaster declaration, public bodies may want to prepare to go back to in person meetings starting July 24, 2021, if they haven't already been meeting in-person. At that time, public bodies can still take advantage of the "traditional" remote meeting procedures that allow members to attend electronically if they meet certain statutory reasons (illness, work, emergency), but an in-person quorum will have to be physically present at the meeting place if the Governor no longer finds in-person meetings to be "not feasible." 

Post Authored by Dan Bolin & Julie Tappendorf


Friday, June 25, 2021

New Governor Disaster Declaration


We will have more for you early next week, but we wanted to let our readers know that the Governor did extend the Disaster Declaration and suspended the requirement of a physical quorum of a public body at meetings subject to the Open  Meetings  Act for another month. That means that public bodies can rely on the statutory authority in the Open Meetings Act that allows remote/hybid meetings until July 24th.

Language from this most recent disaster declaration is below:

"Section 12. For purposes of Public Act 101-0640, Article 15, section 15-5, amending the Open Meetings Act, new section 5 ILCS 120/7(e)(4), I find that the ongoing public health concerns at issue in this proclamation continue to render in-person attendance of more than ten people at the regular meeting location not feasible. However, as the number of fully vaccinated individuals in Illinois continues to increase, I do not expect to make this finding again, and public bodies should plan on its expiration as of July 24, 2021."

 Post authored by Dan Bolin & Julie Tappendorf

Monday, June 21, 2021

Bill Would Amend Affordable Housing Laws


Since the Affordable Housing Planning and Appeal Act (Act) became effective in January 2004, housing affordability has inspired much debate in Illinois. 

The Act requires all non-exempt municipalities (those with less than 10% affordable housing units in their communities) to adopt an affordable housing plan that includes, at a minimum, (1) a report indicating how many affordable units would need to be constructed to make a local government exempt from the reporting requirements (i.e., how many units would be needed to make 10% of all year-round housing within the locality affordable); (2) information on plots of land and existing structures which are best suited for affordable housing development; (3) potential incentives that may be used to attract affordable housing development to a locality; and (4) the identification of a goal for increasing affordable housing according to the Act’s specified benchmarks. 

HB 2621 (which passed both houses and is now before the Governor) proposes various significant amendments to the Act, the Illinois Housing Development Act, and the Illinois Income Tax Act, as well as enacting the COVID-19 Affordable Housing Grant Program Act. The changes of most interest to municipalities are discussed below.

The amendments to the Act, if passed, would require non-exempt municipalities to provide notice and hold a public hearing on any new affordable housing plan or amendment to an existing plan.

The amendments also provide for remedies for non-compliance with the Act’s reporting requirements. The Attorney General is now authorized to enjoin noncompliance, mandate compliance, or enforce the Act “by means of other appropriate relief.”

The proposed legislation would also amend the Act to preempt home rule authority, providing that home-rule units of local government may not take action to regulate affordable housing development in a more restrictive manner than the state has under the Act. 

The COVID-19 Affordable Housing Grant Program Act, if signed into law by Governor Pritzker, would create a scheme by which the Illinois Housing Development Authority is required to administer special grant funding to sponsors of qualified affordable housing projects. This proposed legislation identifies several considerations which will be used to prioritize funding allocation, including whether an area has been disproportionately affected by the pandemic; whether local organized labor will be used in the development process; and whether the developments involve contracting with disadvantaged businesses or businesses that are owned by minority groups. With the availability of this new grant funding as a supplement to the Federal Low-Income Housing Tax Credit, towns can expect renewed interest in developing affordable housing, placing even greater emphasis on having a plan in place.

Post authored by Adam Simon and Erin Monforti

Friday, June 18, 2021

Don't Forget to Check Out the The Workplace Report Blog


Thursday, June 17, 2021

Liquor Laws to Know for Phase 5 and Beyond


With the State moving to Phase 5 of the Restore Illinois plan last week, municipalities should be aware of various changes affecting liquor sales and delivery.

State Guidance on Temporary Delivery and Off-Premises Sales Ends July 1, 2021

The Illinois Liquor Control Commission (ILCC) recently announced that many of its COVID-19 bulletins would be lifted July 1, 2021, including its “Guidance on Temporary Delivery of Alcoholic Liquor” and  “Guidance to Local Liquor Control Commissions for On-Premises Only Retailers.” The ILCC guidance allowed all licensed retailers, including on-premises only licensees, to make “to go” sales, curbside deliveries, and home residential deliveries, subject to conditions and local liquor commissioner approval. However, as of July 1, 2021 on-premises only licensed retailers may not sell alcoholic liquor for delivery. Only retail license holders with combined on/off premises consumption and off-premises with consumption only licenses may sell alcoholic liquor for delivery, subject to local ordinances.

ILCC’s COVID-19 Compliance FAQ for Phase 5 is available on its website.

New Liquor Delivery Law Effective January 1, 2022

Governor Pritzker also recently signed legislation preempting home rule and non-home rule units (except for Chicago) and allowing certain state-authorized liquor deliveries effective January 1, 2022. “Delivery” means the movement of alcoholic liquor purchased from a licensed retailer to a consumer through:

1.  delivery within the licensed retailer’s parking lot, including curbside, for pickup by the consumer;

2.  delivery by an owner, officer, director, shareholder, or employee of the licensed retailer; or

3.  delivery by a third-party contractor, independent contractor, or agent with whom the licensed retailer has contracted to make deliveries of alcoholic liquors.

Deliveries must be made within 12 hours from the time the alcoholic liquor leaves the retailer’s licensed premises, and “delivery” does not include use of common carriers. Where the new law preempts the local power to determine the kind and classification of liquor licenses, “on-premises only” licensees and other licensed retailers could potentially make the liquor deliveries authorized by the new law. Further ILCC guidance may be forthcoming, but municipalities may wish to review their liquor regulations to prepare for these changes in the coming months.

State Issues New Guidance on Cocktails and Wine To-Go

After Governor Pritzker recently extended “to-go” sales of cocktails and single-servings of wine through January 3, 2024, the ILCC issued new guidance this week. The guidance only allows the authorized to-go sales by retailers with a combined license for on-premises/off-premises sales. The guidance also includes packaging and labeling requirements, and service requirements for employees. The to-go cocktail or single-serving wine may be delivered to the consumer over-the-counter inside the business, by curbside delivery by a retailer employee, or by home delivery by a retailer employee. Deliveries through a drive-through or by third party delivery companies are prohibited.

Local municipalities may prohibit or further restrict the sales and delivery of to-go cocktails and single servings of wine. Additionally, the guidance notes that off-premises and combined on-premises/off-premises licensees may deliver liquor in the original packaging subject to applicable local law or ordinance.

Post Authored by Dan Bolin & Adam Simon, Ancel Glink

Wednesday, June 16, 2021

Illinois Municipal Handbook (2021) Just Released


The Illinois Municipal League (IML) just released the most recent edition of the Illinois Municipal Handbook (2021), the 19th edition  of this publication. The Municipal Handbook provides a complete overview of municipal government, home rule, elections, FOIA, Open Meetings, employment laws, zoning, property sale and purchase, ethics, and many other topics of interest to municipal officials and employees. The Municipal Handbook is published by the IML, and each chapter of the Handbook is authored by Ancel Glink attorneys who volunteer their time on this publication.

This release is great timing for newly elected officials who would like a comprehensive overview of laws and regulations that affect municipal governance. 

You can order a copy of the Handbook on the IML's website here.


Tuesday, June 15, 2021

PAC Issues 4th Binding Opinion of 2021 Interpreting the "Deliberative Process" FOIA Exemption


Thanks to a Municipal Minute reader who submitted a FOIA to the PAC asking for copies of any binding PAC opinions issued during the time that the Attorney General's website has been down, we have a copy of the fourth binding PAC opinion of 2021. 

In PAC Op. 21-004, the PAC found a municipality in violation of FOIA after it denied a FOIA request for communications between the city and an applicant for a zoning change. The city had denied the request arguing that the communications were part of the city's "deliberative process" on the zoning application and were exempt under 7(1)(f) of FOIA. The PAC determined that the deliberative process exemption is limited to internal documents and does not cover records or communications shared with third parties. Because the requested record were exchanged between the city and a third party (the zoning applicant), they did not fall within the type of "inter- and intra-agency predecisional or deliberative material" that would be covered by the section 7(1)(f) exemption and, as a result, the PAC said they should have been released to the FOIA requester.

Monday, June 14, 2021

Trailer Bill to SAFE-T Act Sent to Governor


One of the bills that many municipalities were carefully monitoring was the trailer bill that proposed certain amendments to P.A. 101-0652, the "SAFE-T Act."

HB 3443 is a follow-up bill to the SAFE-T Act which was passed during the January General Assembly legislative session. This bill would provide updated and clarifying information to the massive set of provisions related to criminal justice and law enforcement reform. While the bill represents many comprehensive changes to the previous legislation, those most relevant to municipalities include the delay of newly mandated officer training to January 1, 2022 (from July 1, 2021), clarifications regarding use-of-force provisions, and relaxing restrictions for officer review of body camera footage, among many other changes. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Friday, June 11, 2021

Legislature Sends Finance-Related Bills to Governor


The Illinois General Assembly sent a few finance-related bills to the Governor that may be of interest to local governments.

TIF Reporting Requirements

HB 0571 would amend the Tax Increment Allocation Redevelopment Act to require municipalities to prepare an analysis for the Comptroller and relevant taxing districts indicating the (1) nature and term of the obligation; (2) the projected debt service including required reserves and debt coverage; and (3) the actual debt service. Starting in FY-2022, municipalities will also be required to submit to the Comptroller and taxing districts certain information about job growth, property tax increment, and any identified rate of return stemming from the project area in question.

Broadening Eligibility for Tourism Grants

SB 0317 would amend the Illinois Promotion Act to expand the eligibility for units of local government for certain tourism grants from the Illinois Department of Commerce and Economic Opportunity. Rather than limiting the use of grants to municipalities or counties, this amendment allows for the provision of funds to all units of local government as defined in Article VII of the Illinois Constitution.

Publishing Vendor and Subcontractor Demographic Data

HB 0453 would require taxing districts with an aggregate property tax levy of more than $5 million to make a good faith effort to collect and publish data from all vendors and subcontractors doing business with the district. The data should reflect whether the vendor or subcontractor: (1) is minority-owned, women-owned, or veteran-owned; and (2) holds any certifications for those categories or self-certifies and qualifies as a small business under federal standards.

Permit Fee Relief in the Wake of COVID-19

HB 2454 would amend the Counties Code and the Illinois Municipal Code to allow county and municipality officials to pass resolutions to waive or reconsider the imposition of fees for certain licenses and fees, including business licenses, liquor licenses, construction permits, food service permits, and other activities that are normally regulated by the public bodies. The bill specifies that applicants must be able to demonstrate their need for these fees to be waived based on tangible hardships experienced during and because of the COVID-19 pandemic.

Replacing Lead Service Lines

HB 3739 would create the Lead Service Line Replacement and Notification Act to direct the Illinois EPA to create programs to assist community water suppliers in collecting water protection fees and the administration of programs and activities to replace and update service lines to eliminate the use of lead pipes for carrying drinking water. The Act would create the Lead Service Line Replacement Fund, which will be allocated as grant funding according to certain factors explicitly mentioned in the text, including the prevalence of low-income households, the presence of lead service lines, and the affordability of water services in a given community. 

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

Thursday, June 10, 2021

Court Dismisses Case Against PAC in FOIA Appeal


in 2017 and 2018, a FOIA requestor submitted seven FOIA requests to three different public bodies. After the public bodies denied each request based on applicable FOIA exemptions, the requestor appealed each denial to the Illinois Attorney General’s Public Access Counselor (PAC). The PAC notified the requestor that no further action would be taken in response to his appeals. The requestor then filed a lawsuit against the PAC, alleging it violated FOIA by refusing to perform “a clear ministerial duty” by denying his requests for review.  

The trial court ruled in favor of the PAC and dismissed the requester's lawsuit holding that it lacked jurisdiction to review the PAC’s decision because the PAC did not issue a binding opinion in response to any of the requester's appeals. The requester appealed.

In Shehadeh v. Raoul, the appellate court upheld the trial court’s dismissal of the requestor’s complaint. The appellate court ruled that a courts cannot review a PAC decision to not issue a binding opinion, because a PAC decision to resolve a request for review by issuing an advisory rather than a binding opinion is entirely discretionary and, therefore, not subject to review by the courts.

Post Authored by Eugene Bolotnikov, Ancel Glink