William C. Westfall

Thursday, July 21st, 2016

New Law Creates Additional Fines for FOIA Violations

Earlier this week, Governor Rauner signed two bills collectively known as “Molly’s Law.”  The bills are seemingly unrelated with regard to topic, but developed as a result of a terrible set of facts. Essentially, this new law extends the statute of limitations for wrongful death suits and amends possible fines for FOIA violations. The law becomes effective on January 1, 2017.

Regarding wrongful death suits, the law extends the time in which to file a claim from 2 years to 5 years. As it relates to the FOIA violations, and in addition to other penalties previously provided, the law allows a judge to impose per diem violations against the public body in the amount of $1,000, if three conditions are met:

  • the public body fails to comply with a court order after 30 days;
  • the court’s order is not on appeal or stayed; and
  • the court does not grant the public body additional time to comply with the courts order to disclose the record.

Further, there is a separate and distinct issue addressed in the new law concerning the “willful and intentional” nature of a public body’s failure to comply with FOIA. Specifically, the new law creates a rebuttable presumption that the public body willfully and intentionally failed to comply with FOIA if:

  • the attorney general issued a binding opinion pursuant to section 9.5;
  • the public body did not file for administrative review of the binding opinion within 35 days after the binding opinion is served on the public body; and
  • the public body does not comply with the binding opinion within 35 days after the binding opinion is served on the public body.

The relationship between “Molly’s Law” and these binding opinions came after the attorney general’s office issued a Public Access Counselor (PAC) opinion finding that the Illinois State Police improperly denied Molly’s father access to her post-mortem photographs. For more information on this PAC opinion, please see our March article.

In short, the potential for liability as it relates to FOIA violations is increasing. As such, public bodies need to educate themselves, constantly stay apprised of PAC opinions, and consult with their attorneys when questions arise.


William C. Westfall

Author: William C. Westfall

Thursday, May 12th, 2016

Lucas Museum Litigation Highlights Problems for All Levels of Government

The Lucas Museum of Narrative Art is the brainchild of the one and only George Lucas, and was slated to be completed in 2019-2020 in Chicago’s Near South Side, just south of Soldier Field and adjacent to Burnham Harbor. And, it would be built primarily on land that is currently a parking lot used for the stadium. However, just like Lucas’s original plan for the museum in San Francisco, it has been met with opposition. This time from a conservation group named Friends of the Park (FOTP). This is the unofficial and self-appointed oversight committee for Chicago’s Park District and Cook County Forest Preserve.

The museum would focus on paintings, photography, illustration, cinematic art, and digital art.  The primary contributor would be Lucas himself, who has a personal collection with an estimated value of $1 billion. Now, the hang-ups begin with the very issue that enticed Lucas to abandon San Francisco and come to Chicago in the first place: cheap, public land. The museum would lease land from the Chicago Park District for a period of 99 years at $1 per year.  FOTP claims the terms essentially give the property to a private entity, despite the land belonging to the public and being required to be used for public use.  Furthermore, while the initial cost of building the museum appears to be Lucas’s responsibility, the maintenance is borne by the taxpayers.  Also, the design of the museum, while ever changing, has faced criticism by many for its size, its cost to the public, and its destruction of scenic lakefront property.

FOTP filed a federal lawsuit to prevent the project from going forward, alleging multiple grounds. But in March 2015, a federal judge ruled in favor of the conservation group, stating the land in question is held in public trust, and the Illinois Legislature was the only body with the authority to approve such construction. Well, the legislature quickly gave that approval, and the City of Chicago and the Park District also signed off. But the lawsuit remains. The trial court denied the City’s Motion to Dismiss the lawsuit, and the City is currently appealing the decision, stating if the lawsuit continues, and FOTP gets their day in court, Lucas will simply abandon his plans, much like he did in San Francisco, and move to Los Angeles or any other city that has been begging him to build and trigger tourism and development.  Lucas’s wife confirmed these intentions in a public statement last week.

FOTP recently issued a statement claiming Lucas isn’t serious about abandoning his years of planning a second time. And he is, more or less, bluffing. Clearly, FOTP does not morally oppose the project. For if they were actually opposed, they would be at the enemy’s gates and have already claimed victory. They are using the legal proceedings as stall tactics, forcing the given parties to re-negotiate the terms: the size, the length of the lease, the tax payers footing the maintenance bill, and perhaps even the particular site. Further, FOTP now has a seat at the negotiating table, albeit indirectly. But, how serious is Lucas? How serious is FOTP? How will this all affect the taxpayers?  This is a very interesting case, and it relates to issues and decisions faced and made by units of government every day. It exposes the dichotomy of interests faced by governments and the balancing act that is public office.


William C. Westfall

Author: William C. Westfall

Thursday, April 14th, 2016

New Bill Seeks to Redefine Municipal Authority to Regulate School Zoning

Last September, we reported on Gurba v. Community High School District No. 155, where the Illinois Supreme Court found that “school property is subject to municipal zoning laws.” Now, one state representative has taken the initiative to codify a municipality’s authority to regulate school districts operating within their respective zoning jurisdictions. However, the bill comes at a cost to municipalities. As the bill specifically preempts home rule authority, even home rule municipalities will be subject to the bill’s requirements.

As currently written, the bill would provide municipalities with less control than indicated in Gurba. Under the bill, municipalities “shall not deny or attach inappropriate or unreasonable conditions to a zoning permit that would frustrate a school board’s ability to provide educational services and programs for its students.”

Furthermore, it provides expedited procedures for zoning applications by school districts. For example, if a decision is not made by the municipality within 90 days, the application is passed automatically. It also provides a deferential appeal process for the school district. If the reviewing court believes the zoning ordinance unduly interferes with the functions of the board, the zoning ordinance simply does not apply to the school district.

We will continue to provide updates on the status of this bill as it moves through the Illinois legislature.


William C. Westfall

Author: William C. Westfall

Friday, March 4th, 2016

Recent Case Interprets Video Gaming Act

In the last few months, the First District Appellate Court has dealt with a variety of cases concerning video gaming. We previously reported on these emerging video gaming cases in December 2015. In one such case, Illinois Coin Machine Operators Association v. County of Cook, the appellate court affirmed these prior decisions, while also avoiding any real substantive discussion regarding the specific dollar amount of fees, licenses, and taxes.

In this case, four arguments were made by the Plaintiffs, most of which have already been unsuccessfully argued:

  • The responsibility and tax at issue were not matters of local government, and, as such, the authority to regulate lies with the State.
  • The Riverboat Gambling Act preempts the County’s home rule authority.
  • The ordinance is an impermissible occupations tax.
  • The ordinance was an impermissible license for revenue.

The Court summarily dismissed all of these arguments. In its holding, the Court stated that it is nonsensical to claim that a tax assessed by a home rule unit of government does not pertain to that unit of government’s affairs.  Furthermore, the issue of preemption was not at issue because the very law by which Plaintiffs relied on was not passed with a super-majority, which is required for any law that infringes upon a home rule unit’s ability to tax. Finally, the issues of occupational tax and license for revenue were denied on a similar basis as prior cases.

Despite the recent cases having been decided, there are more to come. The cases to come will likely hold more pressing issues and rulings.


William C. Westfall

Author: William C. Westfall

Thursday, October 1st, 2015

New Law Prohibits Ordinances from Punishing Those Who Call Police

Not long ago, Governor Rauner signed into law a public act prohibiting ordinances from penalizing tenants who contact police or other emergency services. Specifically, the law was enacted so that tenants do not fear punishment for calling the police in cases of domestic or sexual violence.

As one AP article indicates, the issue reached a fever pitch in 2012 when police in Pennsylvania indicated to a woman that she could face eviction if she made one more call concerning her ex-boyfriend. Eventually, the ex-boyfriend returned and stabbed the woman, and a neighbor had to call the police as the woman was afraid of being evicted if she called.

In sum, the act essentially prevents ordinances from punishing tenants who call police or other emergency services for issues concerning domestic or sexual violence. Municipalities should review their existing ordinances so as to ensure that they are in conformity with this new law.


William C. Westfall

Authors: William C. Westfall, Jacob Caudill

Wednesday, September 2nd, 2015

Public Act Relieves Non-Home Rule Units from Burdensome Requirements

Governor Rauner recently signed a new bill that relieves non-home rule units of local government from complying with arduous administrative law requirements. Specifically, this new law relieves non-home rule units from satisfying the laborious task of registering administrative judgments with the Circuit Court.

In short, a copy of the order entered by the hearing officer and a preprinted form from the Circuit Court is all it takes. Non-home rule units of government can now record the judgments, lien troublesome properties, apply various other collections tactics, and, ultimately, obtain higher rates of compliance.

The original bill as introduced attempted to do more, but unfortunately the legislative process cut out many of the other perks. Nonetheless, this is a step forward and affords new and more efficient opportunities for non-home rule municipalities.


William C. Westfall

Author: William C. Westfall

Wednesday, May 20th, 2015

New Case Further Highlights Illinois’s Tort Immunity Act

Recently, an Illinois appellate court determined that a local government was protected from liability under the Tort Immunity Act where the municipality’s sewage system flooded residents’ homes. In Nichols v. City of Chicago Heights, the municipality, in response to the residents’ negligence claims for the ineffective maintenance of the sewer system, sought protection under the Tort Immunity Act.

Under the Tort Immunity Act, discretionary acts by the government are immune to liability; however, ministerial acts are not afforded the same protection. Here, the plaintiffs claimed that the local government’s inability to adequately implement repairs to the sewage system was a ministerial, not discretionary, action. In its defense, the municipality rebutted this contention, stating its decision to repair the sewage system overtime was discretionary because the municipality’s budget had been created with regard to this extended schedule for repairs.

Ultimately, the appellate court agreed with the local government that the actions concerning the maintenance of the sewage system were discretionary. Precisely, the court found that a “municipality must function while balancing many interests, including a limited budget,” and that the local government, in its discretion, was going forward with its maintenance plan while balancing its budgetary interests.

Municipalities should rest easy knowing that courts are actively looking to the budgetary interests of municipalities when deciding whether discretion exists for purposes of the Tort Immunity Act.


William C. Westfall

Authors: William C. Westfall, Jacob Caudill

 

Thursday, March 26th, 2015

Recent Case Discusses Age Discrimination During Closed Executive Sessions

An Illinois Appellate Court recently decided a case involving age discrimination and closed executive meetings. In Cipolla v. Village of Oak Lawn, a village employee was terminated after the village board met in a closed executive session. During the meeting, the former employee claimed that the board discussed her age, calling her “older.” The Board claimed that the employee was terminated due to budget concerns, specifically the village needed to cut $1.4 million. After the termination of the employee, however, the village hired a new budget director and gave raises to employees in the finance department.

In determining the veracity of the former employee’s claims, the court heard conflicting testimony as to whether the employee’s age was discussed. The court was ultimately able to hear the recordings of the closed session and determined that no discussion as to the employee’s age was conducted.

Nonetheless, the former employee still claimed that the evidence at trial was insufficient to support a finding that she was terminated due to budget reasons. Specifically, she claimed that the closed executive session was improper due to the fact that budget concerns were discussed and that the raises and hiring of employees proves that the budget concerns were just a pretext to terminate her employment.

The court disagreed. It found that numerous witnesses testified that the village was having financial issues and needed to make cuts from its budget. Additionally, the court also found that though there was conflicting testimony as to what was discussed in the closed session there was still enough evidence to support a finding that she was not terminated due to her age. For these reasons, the court upheld the decision that the budget concerns were not a pretext to the employee’s termination.


William C. Westfall

Authors: William C. Westfall, Jacob Caudill

Wednesday, February 11th, 2015

A Reminder as to the Enforceability of Private Property Agreements

Under Illinois law, the Illinois Vehicle Code (IVC) is not enforceable on private property. However, municipalities and counties may choose to enter into private property agreements (PPAs) with private entities (i.e. shopping centers, apartment complexes, commercial and industrial facilities, churches, etc.) to enforce traffic regulations on private property. The process is that the property owner and municipality execute an agreement allowing for traffic enforcement on the private property. That agreement is then recorded.

The requirements for establishing a PPA are rather straightforward. First, the private party must own or lease the property in question. Secondly, the PPA cannot last for longer than 20 years, or the length of the lease. Finally, the agreement must be recorded. The failure to record will render the PPA unenforceable.

Home rule units have more latitude and are not strictly required to record each PPA, but an attorney should be consulted because the law is nuanced as to how to avoid the expense of recording each PPA and still comply with legal requirements.


William C. Westfall

Author: William C. Westfall

Thursday, December 4th, 2014

Avoiding Police Checkpoint Not a Proper Basis for Investigatory Stop

The case of People v. Timmsen addressed whether a police officer had reasonable suspicion to initiate a traffic stop on a vehicle that made a lawful U-turn within 50 feet of a police safety checkpoint. At play were an individual’s right to privacy versus the government’s ability to effectively conduct police powers. The Third District Appellate Court ruled that avoiding police in a lawful manner does not create reasonable, articulable suspicion that a criminal offense did or is likely to occur, and thus does not create a basis, in itself, for a person to be stopped by police.

Reasonable suspicion to effectuate a stop of a person or vehicle is commonly referred to as a Terry stop (named after the famous Supreme Court decision from Terry v. Ohio). A Terry stop requires a lesser standard than is required to arrest a person, which requires probable cause. However, if there is not a sufficient basis to conduct the Terry stop in the first place, anything the officer finds will be suppressed and excluded from any judicial proceeding against a defendant, even if the officer establishes probable cause to make the arrest based on what is discovered during the stop.  In the Timmsen case, the majority held that merely avoiding interaction with the police is not a crime, it is not indicative of a crime, and it is not reasonable and articulable grounds to believe criminal activity is afoot. Had the driver broken the law in avoiding the police checkpoint, however, such conduct would have seemingly arose to the level of reasonable suspicion.

An elaborate dissent was issued with the Timmsen decision that challenged the principle that lawful activity cannot give rise to reasonable suspicion and cited other situations where Terry stops were held proper where drivers were similarly avoiding contact with police officers. While the Timmsen decision is at this point binding on all Illinois trial courts, there is a possibility that one or more other appellate districts could rule differently and the possibility that the Illinois Supreme Court or even the United States Supreme Court could overturn the decision on further appeal. We will continue to monitor the issue as it may proceed through the court system.


William C. Westfall

Author: William C. Westfall