SIGNIFICANT CASES IN MUNICIPAL LAW September 17, 2009 through September 1, 2010

Illinois Municipal League Attorneys Session Thursday, September 24, 2010

Michael F. Zimmermann Eric J. Yehl Raysa & Zimmermann, LLC 22 South Washington Park Ridge, IL 60068 847-268-8600 www.rzllc.com

[email protected]

Table of Contents

Open Meetings Act/FOIA...... 1 Doe v. Reed, 130 S.Ct. 2811 (6/24/2010)*...... 1 In re Foxfield Subdivision, 396 Ill.App.3d 989 (2d Dist. 12/9/2009)...... 1 National Assoc. of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1 (1st Dist. 2/25/2010) ...... 1 Zoning / Annexation / Miscellaneous Cases Involving Real Property...... 2 1350 Lake Shore Associates v. Randall, 401 Ill.App.3d 96 (1st Dist. 4/20/2010) ...... 2 Austin Bank of Chicago v. Village of Barrington Hills, 396 Ill.App.3d 1 (1st Dist. 11/9/2009) ...... 2 Capital Fitness of Arlington Heights, Inc. v. Village of Arlington Heights, 394 Ill.App.3d 913 (1st Dist. 9/17/2009) ...... 2 Clear Channel Outdoor, Inc. v. City of St. Paul, 2010 WL 3325617 (8th Cir. 8/25/2010)*...... 3 Condominium Ass'n of Commonwealth Plaza v. City of Chicago, 399 Ill.App.3d 32 (1st Dist. 3/5/2010)...... 3 Curtis v. Wilks, 2010 WL 1292481 (N.D. Ill. 3/29/2010)...... 3 Dixon v. Town of Coats, 2010 WL 2347506 (E.D. N.C. 6/9/2010)* ...... 3 Falcon Funding, LLC v. City of Elgin, 399 Ill. App. 3d 142 (2d Dist. 3/11/2010) ...... 4 Flava Works, Inc. v. City of Miami, 609 F.3d 1233 (11th Cir. 6/5/2010)* ...... 4 Forest Preserve District of Du Page County v. First National Bank of Franklin Park, 930 N.E.2d 477 (2d Dist. 5/27/2010)...... 4 Gallagher et al. v. Magner et al., 2010 WL 3419820 (8th Cir. 9/1/2010)*...... 5 In re Village of Campton Hills, 399 Ill.App.3d 160 (2d Dist. 2010) ...... 5 Louis and Karen Metro Family, LLC v. Lawrenceburg Conservancy District, 2010 WL 2944219 (7th Cir. 7/29/2010)...... 5 Melrose, Inc. v. City of Pittsburgh, 2010 WL 2814284 (3d Cir. 7/20/2010)*...... 5 Muscarello v. Ogle County Board of Commissioners, 610 F.3d 416 (7th Cir. 6/24/2010) ...... 6 Our Savior Evangelical Lutheran Church v. Saville, 397 Ill.App.3d 1003 (2d Dist. 12/31/2009) ...... 6 Passalino v. City of Zion, 237 Ill. 2d 118 (12/17/2009) ...... 6 Peeples v. Village of Johnsburg, 2010 WL 2780770 (2d Dist. 7/9/2010) ...... 6 River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367 (7th Cir. 7/2/2010)...... 7 Rock Energy Cooperative v. Village of Rockton, 2010 WL 3122637 (7th Cir. 8/10/2010)*...... 7 Rocky Mountain Christian Church v. Bd. of County Cmm'rs of Boulder County, 605 F.3d 1081 (10th Cir. 5/17/2010)*...... 7 Strong v. City of Peoria, 930 N.E.2d 561 (3d Dist. 6/9/2010)...... 8 Trinity Evangelical Lutheran Church v. City of Peoria, 591 F.3d 531 (7th Cir. 12/30/2009) ...... 8

i U.S. Residential Management and Development, LLC v. Head, 397 Ill.App.3d 156 (1st Dist. 12/18/2009)...... 8 Village of Ringwood v. Foster, 2010 WL 2440814 (2d Dist. 6/9/2010) ...... 8 Village of Woodridge v. Board of Education of Community High School Dist. 99, 2010 WL 2994182 (2d Dist. 7/26/2010) ...... 9 Vo-Land, LLC v. Village of Bartlett, 395 Ill.App.3d 694 (1st Dist. 9/23/09) ...... 9 Wedgewood Ltd. Partnership I v. Township of Liberty, 610 F.3d 340 (6th Cir. 6/28/2010)* ...... 9 World Outreach Conference Center v. City of Chicago, 591 F.3d 531 (7th Cir. 12/30/2009) ...... 10 World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676 (9th Cir. 5/26/2010)*...... 10 Ziller v. Rossi, 395 Ill.App.3d 130 (2d Dist. 9/18/2009)...... 10 Civil Rights ...... 10 American Atheists, Inc. v. Duncan, 2010 WL 3239486 (10th Cir. 8/18/2010)* ...... 10 Best v. Malec, 2010 WL 2364412 (N.D. Ill. 6/11/2010) ...... 11 Brayshaw v. City of Tallahassee, 2010 WL 1740832 (N.D. Fla. 4/30/2010)*...... 11 Carmichael v. Village of Palatine, 605 F.3d 451 (7th Cir. 5/21/2010) ...... 11 Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, 130 S.Ct. 2971 (6/28/2010)* ...... 12 City of Ontario v. Quon, 130 S.Ct. 2619 (6/17/2010)...... 12 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178 (9th Cir. 6/9/2010)*...... 12 First Vagabonds Church of God v. City of Orlando, 610 F.3d 1274 (11th Cir. 7/6/2010)* ...... 12 Harrington v. City of Nashua, 610 F.3d 24 (1st Cir. 6/29/2010)* ...... 13 Harrington v. Suffolk County, 607 F.3d 31 (2d Cir. 6/4/2010)* ...... 13 Kodish v. Oakbrook Terrace Fire Protection District, 604 F.3d 490 (7th Cir. 5/10/2010) ...... 13 Marion County Coroner's Office v. Equal Employment Opportunity Commission, 2010 WL 2899112 (7th Cir. 7/27/2010)...... 13 Mosley v. City of Chicago, 2010 WL 2943907 (7th Cir. 7/29/2010) ...... 14 Parra v. Neal, 2010 WL 2507725 (7th Cir. 6/23/2010)...... 14 Portis v. City of Chicago, 2010 WL 2867961 (7th Cir. 7/23/2010)...... 14 Salazar v. Buono, 130 S.Ct. 1803 (4/28/2010) ...... 14 Wragg v. Village of Thornton, 604 F.3d 464 (7th Cir. 5/7/2010)...... 15 Zarnow v. City of Wichita Falls, 2010 WL 3093443 (5th Cir. 8/9/2010)*...... 15 Disability/Pensions ...... 15 Bell v. Retirement Board, 398 Ill. App. 3d 758 (1st Dist. 2/19/2010)...... 15 Cole v. Retirement Bd. of Policemen's Annuity and Ben. Fund of City of Chicago, 396 Ill.App.3d 357 (1st Dist. 11/30/2009)...... 16 Devaney v. Board of Trustees of Calumet City Police Pension Fund, 398 Ill.App.3d 1 (1st Dist. 1/25/2010)...... 16

ii Kaczka v. Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago, 398 Ill. App. 3d 702 (1st Dist. 5/26/2010)...... 16 Kouzoukas v. Retirement Bd. of Policemen's Annuity and Benefit Fund of City of Chicago, 234 Ill.2d 446 (9/24/2009) ...... 17 Kramarski v. Board of Trustees of Village of Orland Park Police Pension Fund, 2010 WL 2675001 (1st Dist. 6/30/2010) ...... 17 Lemmenes v. Orland Fire Protection Dist., 399 Ill.App.3d 644 (1st Dist. 3/23/2010)...... 17 Peacock v. Board of Trustees of Police Pension Fund, 395 Ill.App.3d 644 (1st Dist. 10/20/2009) ...... 17 Philpott v. Board of Trustees of City of Charleston Firefighters' Pension Fund, 397 Ill.App.3d 369 (4th Dist. 1/12/2010)...... 18 Reed v. Retirement Bd. of Firemen's Annuity and Benefit Fund of Chicago, 395 Ill.App.3d 1 (1st Dist. 10/19/2009) ...... 18 Romano v. Municipal Employees Annuity and Benefit Fund, 2010 WL 2635816 (1st Dist. 6/29/2010)...... 18 Ross v. Illinois Mun. Retirement Fund, 395 Ill.App.3d 1073 (5th Dist. 12/1/2009) ...... 18 Williams v. Board of Trustees of Morton Grove Firefighters' Pension Fund, 398 Ill.App.3d 680 (1st Dist. 2/2/2010) ...... 18 Gun Control...... 19 McDonald v. City of Chicago, 130 S.Ct. 3020 (6/28/2010)* ...... 19 U.S. v. Skoien, 2010 WL 2735747 (7th Cir. 7/13/2010) ...... 19 Labor & Employment...... 19 Alvarez v. City of Chicago, 605 F.3d 445 (7th Cir. 5/21/2010) ...... 19 Anthoine v. North Central Counties Consortium, 605 F.3d 740 (9th Cir. 5/24/2010)*...... 20 Berry v. Chicago Transit Authority, 2010 WL 3294720 (7th Cir. 8/23/2010)* ...... 20 Blair v. Bethel Sch. Dist., 608 F.3d 540 (9th Cir. 6/14/2010)* ...... 20 Brownfield v. City of Yakima, 2010 WL 2902503 (9th Cir. 7/27/2010)*...... 20 Budde v. Kane County Forest Preserve, 597 F.3d 860 (7th Cir. 3/4/2010) ...... 21 City of Chicago v. Fraternal Order of Police, 399 Ill. App. 3d 707 (1st Dist. 3/24/2010)...... 21 Deutsch v. Jordan, 2010 WL 3310028 (10th Cir. 8/24/2010)*...... 21 Dodaro v. Illinois Workers' Compensation Commission, 2010 WL 3035744 (1st Dist. 8/3/2010)*...... 21 Egonmwan v. Cook County Sheriff, 602 F.3d 845 (7th Cir. 4/22/2010)...... 22 Fercello v. County of Ramsey, 2010 WL 2945312 (8th Cir. 7/29/2010)*...... 22 Frame v. City of Arlington, 2010 WL 3292980 (5th Cir. 8/23/2010)*...... 22 Fraternal Order of Police Lodge No. 89 v. Prince George's County, 608 F.3d 183 (4th Cir. 6/23/2010)*...... 22 Genius v. County of Cook, 398 Ill.App.3d 321 (1st Dist. 2/23/2010)...... 23 Goelzer v. Sheboygan County, 604 F.3d 987 (7th Cir. 5/12/2010) ...... 23 Gross v. Town of Cicero, 2010 WL 3365285 (7th Cir. 8/27/2010)*...... 23

iii Keel v. City of Harvey, 2010 WL 310768 (N.D. Ill. 1/21/2010)...... 23 Kinneary v. City of New York, 601 F.3d 151 (2d Cir. 3/19/2010)*...... 24 Lalowski v. City of Des Plaines, 2010 WL 145860 (N.D. Ill. 1/8/2010)...... 24 Leonard v. Eastern Illinois University, 606 F.3d 428 (7th Cir. 5/26/2010) ...... 24 Lewis v. City of Chicago, 130 S.Ct. 2191 (5/24/2010)...... 25 Matos v. Cook County Sheriff's Merit Bd., 401 Ill.App.3d 536 (1st Dist. 5/13/2010)...... 25 O'Neal v. City of Chicago, 588 F.3d 406 (7th Cir. 11/17/09)...... 25 Ogden v. Atterholt, 606 F.3d 355 (7th Cir. 4/13/2010) ...... 25 Paige v. Coyner, 2010 WL 2976052 (6th Cir. 7/26/2010)*...... 26 People ex rel. Department of Labor v. Sackville Construction, Inc., 930 N.E.2d 1063 (3d Dist. 6/9/2010)...... 26 Swearnigen-El v. Cook County Sheriff, 602 F.3d 852 (7th Cir. 4/22/2010) ...... 26 Torgerson v. City of Rochester, 605 F.3d 584 (8th Cir. 5/21/2010)*...... 27 Village of Broadview v. Illinois Labor Relations Board, 2010 WL 2521017 (1st Dist. 6/22/2010)...... 27 Village of Maryville v. Illinois Labor Relations Board, 2010 WL 2672925 (5th Dist. 6/29/2010)...... 27 Westlake v. City Of Springfield, Ill., 348 Fed.Appx. 155 (7th Cir. 9/17/2009) ...... 27 Wisbey v. City of Lincoln, 612 F.3d 667 (8th Cir. 7/6/2010)*...... 27 Licenses/Fees/Taxation...... 28 ACME Markets, Inc. v. Callanan, 236 Ill.2d 29 (10/29/2009) ...... 28 In re County Collector of Du Page County for Judgment for Taxes for Year 1999, 397 Ill.App.3d 301 (2d Dist. 11/17/2009)...... 28 P & S Grain, LLC v. County of Williamson, 399 Ill.App.3d 836 (5th Dist. 4/2/2010)...... 28 Pro's Sports Bar & Grill, Inc. v. City of Country Club Hills, 589 F.3d 865 (7th Cir. 12/16/09) ...... 28 Sorce v. Armstrong, 399 Ill.App.3d 1097 (2d Dist. 4/26/2010) ...... 28 Attorneys Fees ...... 29 City of McHenry v. Suvada, 396 Ill.App.3d 971 (2d Dist. 12/16/2009)...... 29 Housing Authority of Champaign County v. Lyles, 395 Ill.App.3d 1036 (4th Dist. 11/20/2009) ...... 29 Robinson v. City of Harvey, 2010 WL 3069566 (7th Cir. 8/6/2010)* ...... 29 Tort Immunity...... 30 Callaghan v. Village of Clarendon Hills, 401 Ill.App.3d 287 (2d Dist. 4/29/2010) ...... 30 Del Real v. Northeast Illinois Regional Commuter Railroad Corp., 2010 WL 3221917 (1st Dist. 8/13/2010)*...... 30 Donovan v. Village of Ohio, 397 Ill.App.3d 844 (3d Dist. 1/11/2010) ...... 30 Doria v. Village of Downers Grove, 397 Ill.App.3d 752 (2d Dist. 12/29/2009) ...... 30 Gutstein v. City of Evanston, 929 N.E.2d 680 (1st Dist. 6/4/2010)...... 31 Hemminger v. Nehring, 399 Ill. App. 3d 1118 (3d Dist. 4/8/2010)...... 31

iv Krywin v. Chicago Transit Authority, 2010 WL 2780319 (7/15/2010) ...... 31 Peters v. Herrin Community School District No. 4, 401 Ill.App.3d 356 (5th Dist. 5/19/2010)...... 31 Valle v. City of Houston, 2010 WL 2977456 (5th Cir. 7/30/2010)* ...... 32 Vaughn v. Barton, 2010 WL 2705051 (5th Dist. 7/8/2010)...... 32 Municipal Ordinances ...... 32 Brandt v. Village of Winnetka, 2010 WL 2813648 (7th Cir. 7/20/2010) ...... 32 City of Wheaton v. Loerop, 399 Ill.App.3d 433 (2d Dist. 3/31/2010)...... 32 Metro. Taxicab Bd. of Trade v. City of N.Y., 2010 WL 2902501 (2d Cir. 7/27/2010)*...... 32 N.Y. SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97 (2d Cir. 6/30/2010)*...... 33 Palm v. 2800 Lake Shore Dr. Condo. Assoc., 929 N.E.2d 641 (1st Dist. 5/28/2010) ...... 33 Village of Northfield v. BP America, Inc., 2010 WL 2977598 (1st Dist. 7/27/2010)...... 33 Village of Wheeling v. Evanger's Dog and Cat Food Co., 399 Ill. App. 3d 304 (1st Dist. 3/23/2010)...... 33 Miscellaneous...... 34 Cellini, et al. v. Village of Gurnee, et al., 2010 WL 2854171 (1st Dist. 7/20/2010) ...... 34 Graham County Soil Conservation Dist. v. US. ex rel Wilson, 130 S.Ct. 1396 (3/30/2010) ...... 34 Howard v. Chicago Transit Authority, 2010 WL 2305554 (1st Dist. 6/7/2010) ...... 34 Morgan, Lewis and Bockius LLP v. City of East Chicago, 2010 WL 2199660 (1st Dist. 5/28/2010)...... 34 Rivera v. Garcia, 401 Ill.App.3d 602 (1st Dist. 4/30/2010)...... 34 Rusch v. Leonard, 399 Ill. App. 3d 1026 (2d Dist. 4/16/2010) ...... 35 State Farm Mutual Automobile Insurance Company v. City of Chicago, 398 Ill. App. 3d 832 (1st Dist. 2/26/2010) ...... 35 U.S. v. Boender, 2010 WL 680952 (N.D. Ill. 2/23/2010)...... 35 Wisnasky-Bettorf v. Pierce, 2010 WL 3331286 (5th Dist. 8/19/2010)*...... 35

* This case description was obtained from an Illinois Municipal League Legal Bulletin posted on the Illinois Municipal League’s website: http://legal.iml.org.

v Open Meetings Act/FOIA

Doe v. Reed, 130 S.Ct. 2811 (6/24/2010)*

The petitioners in this case signed petitions advocating that a referendum be placed on the ballot opposing the expansion of rights in Washington State for state-registered domestic partners, including same-sex partners. After the Secretary of State verified the petitions and qualified the referendum, respondent interveners invoked Washington's Public Records Act (PRA) -- which is equivalent to the Illinois FOIA -- to obtain copies of the petitions, which contained the signers' names and addresses. Out of fear of retaliation for signing the petitions, the petitioners filed suit to prevent the Secretary of State from releasing their private information. The petitioners argued that the PRA violates the First Amendment as applied to referendum petitions in general. The only issue raised on appeal to the Supreme Court was whether disclosure of referendum petitions in general would violate the First Amendment. The Court determined that the interests of preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability outweighed the petitioners' privacy interests. Therefore, the Court held that the disclosure of referendum petitions in general do not violate the First Amendment. The Court then remanded the case back to the district court for a determination of whether disclosure of the information in this particular petition would violate the First Amendment.

In re Foxfield Subdivision, 396 Ill.App.3d 989 (2d Dist. 12/9/2009)

Plaintiffs brought suit against the Village alleging various violations of the Open Meetings Act (“OMA”) by the Village Board. The Appellate Court held that the OMA does not require that an agenda be posted in a specific place so that it is publicly accessible for 48 continuous hours before a special meeting, but simply that the agenda be posted 48 hours before the meeting. The court also held that the OMA does not require that an agenda be specifically detailed, but only that the action taken at a special meeting be germane to the agenda listed in the notice. Finally, the court held that the OMA does not place time and convenience requirements on closed sessions, rejecting Plaintiffs’ argument that the Village Board violated the OMA by holding a closed session until 1:15 a.m., before opening the meeting up to the public.

National Assoc. of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1 (1st Dist. 2/25/2010)

This case involved a FOIA request concerning the underlying data used to assemble a study on the effectiveness of the sequential method for eyewitness identification procedures. The FOIA request was directed to the participants in the study: the Illinois State Police, the Chicago police department (“CPD”), the Joliet police department (“JPD”), and the Evanston police department (“EPD”). The FOIA request sought information pertaining directly to the study, including police procedures, training materials and records, retention records, criminal court case numbers, photos and recordings of lineups, all lineup photos shown to eyewitnesses, and the complete database of information used in the report. While the EPD reached an agreement on the FOIA request, the CPD and JPD denied the request. The Appellate Court determined that: (1) the affidavits submitted by the CPD and JPD were entirely conclusory and inadequate to invoke the law enforcement and privacy exemptions; (2) the records concerning open investigations had to be produced, with all personal identifying information and other unique identifiers redacted; (3) the burden was on the CPD and JPD to demonstrate on a case-by-case basis specifically how an individual investigation could be compromised by disclosure of a record; (4) the faces in the photographic lineups were not exempt from disclosure under the personal privacy exemption because the insignificant degree of invasion of personal privacy did not outweigh the public’s interest in a meaningful

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 1 analysis of the lineups used in the study; (5) the CPD and JPD could not claim the undue burden exemption because neither sought to confer with the FOIA requestor in an attempt to reduce the request; (6) even if the CPD and JPD could claim the undue burden exemption, the public’s interest in reducing the number of wrongful convictions on the basis of mistaken eyewitness identification outweighed the CPD and JPD’s burden of dedicating several weeks of full-time work by highly knowledgeable and sophisticated personnel.

Zoning / Annexation / Miscellaneous Cases Involving Real Property

1350 Lake Shore Associates v. Randall, 401 Ill.App.3d 96 (1st Dist. 4/20/2010)

Landowner sought a writ of mandamus directing the City of Chicago’s Department of Planning and Development to issue an approval letter for architectural plans for a high-rise residential development. Landowner and the City had originally agreed on a zoning change for his property in 1978 but Landowner took no action until 1997. In 1998, the City passed a down-zoning ordinance and this petition followed. Originally, the petition had been appealed to the Illinois Supreme Court who remanded the matter to the trial court for a determination of the amount of expenses incurred by Landowner as of the date the down- zoning ordinance was proposed, and whether those expenses were sufficiently substantial to give Landowner a vested right to develop the property under the former zoning classification. On remand, the circuit court found that landowner failed to prove a clear right to mandamus relief because Landowner had incurred $272,022.18 in expenditures before the down-zoning ordinance was proposed which amounted to less than ½ of 1% of the total projected cost of the development. Landowner appealed and the Appellate Court affirmed the circuit court’s decision.

Austin Bank of Chicago v. Village of Barrington Hills, 396 Ill.App.3d 1 (1st Dist. 11/9/2009)

Landowner sought disconnection of his property from the Village. The Village objected to disconnection because it would leave two “barrier parcels” of land isolated from the remainder of the Village. The Appellate Court agreed that isolation would occur but found that disconnection was proper nonetheless because the only reason the Village had retained jurisdiction over the two “barrier parcels” when it granted an earlier property disconnection was to “protect its border through legal gimmickry.”

Capital Fitness of Arlington Heights, Inc. v. Village of Arlington Heights, 394 Ill.App.3d 913 (1st Dist. 9/17/2009)

Plaintiff, a fitness center, brought a declaratory judgment action seeking to invalidate the Village’s creation of a tax increment financing (“TIF”) district. Plaintiff alleged that: (1) the redevelopment project area was not blighted; (2) the redevelopment project area was subject to growth and development through investment by private enterprise and could be developed without adoption of the redevelopment plan; and (3) the redevelopment plan did not conform to the Village's comprehensive plan. After trial, the court denied Plaintiff’s request for a declaratory judgment and the Appellate Court affirmed. Plaintiff failed to show by clear and convincing evidence that the Village abused its discretion when it designated the area as a TIF district. While Plaintiff offered little evidence on its allegations, the Village presented evidence and offered testimony from multiple persons refuting the first two allegations. Additionally, even though there were discrepancies between the redevelopment plan and the Village's comprehensive plan, the discrepancies were too minor to invalidate the TIF district.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 2 Clear Channel Outdoor, Inc. v. City of St. Paul, 2010 WL 3325617 (8th Cir. 8/25/2010)*

The City of St. Paul first received a recommendation from their planning commission to institute a fee for permits to temporarily extend the size of billboards. After research and debate, the City Council adopted an ordinance banning extensions of billboards completely. Clear Channel, which had previously used billboard extensions on a regular basis, filed suit after being asked to remove their billboard extensions and refrain from using them in the future. Their suit was based on the argument that the City's act was unconstitutional and unreasonable use of police power, and that there was a violation of due process and equal protection. The Eighth Circuit Court of Appeals affirmed the district court decision that the banning of extensions violated procedures set out in Honn v. City of Coon Rapids, 313 N.W.2d 409 (Minn. 1981), which require reasons for zoning decisions to be recorded or at least reduced to writing. Further, the City's ban was arbitrary and capricious because the council failed to articulate any rational basis for its action.

Condominium Ass'n of Commonwealth Plaza v. City of Chicago, 399 Ill.App.3d 32 (1st Dist. 3/5/2010)

Plaintiffs, neighboring property owners, brought suit against the City of Chicago to invalidate a City Ordinance that changed the zoning classification of certain land near Plaintiffs’ property because it violated a preexisting zoning ordinance. Plaintiffs argued that passing the City Ordinance in violation of the preexisting zoning ordinance violated the Illinois Constitution and Plaintiffs’ due process rights. The Appellate Court held that a home rule unit could constitutionally enact an ordinance in violation of its own self-imposed ordinances and that doing so did not constitute a violation of Plaintiffs’ due process rights.

Curtis v. Wilks, 2010 WL 1292481 (N.D. Ill. 3/29/2010)

Property owner brought action against the Village and various officials alleging, among other things, that his First Amendment rights were violated and that Village officials committed mail fraud under the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1962(c)). The Village moved for summary judgment. The district court granted the Village’s motion on a majority of the claims, but denied the motion on the First Amendment and mail fraud claims. The court determined that the property owner had sufficiently alleged a First Amendment violation because a reasonable jury could infer that the Village’s actions, which included threats of eminent domain proceedings and obtaining an administrative search warrant for his property, were motivated by retaliation for the property owner’s public announcement of the redevelopment plan for his property that did not require use of any public funds. The court also determined that the property owner had sufficiently alleged mail fraud because he claimed that Village officials knew they would attempt to take ownership of his property at the time they sent him a letter informing him that they were not interested in purchasing his property for redevelopment.

Dixon v. Town of Coats, 2010 WL 2347506 (E.D. N.C. 6/9/2010)*

In this case, a United States District Court held that a landlord, who wanted to rent property as a church, had standing to make a "substantial burden" claim under the Religious Land Use and Institutionalized Persons Act after the Town refused to permit the property to be used as a church because the landlord alleged that he suffered foreseeable financial harm. Nevertheless, the court found that the Town was entitled to summary judgment because the landlord failed to show that prohibiting religious assemblies within the mixed-use zone rendered religious exercise effectively impracticable within the Town as a whole. Dismissal of landlord's "equal terms" claim was granted as well because the landlord was not a religious assembly or institution. The landlord's First Amendment claim failed as well because the Establishment Clause does not restrict towns from making land use decisions.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 3 Falcon Funding, LLC v. City of Elgin, 399 Ill. App. 3d 142 (2d Dist. 3/11/2010)

In this case, the Defendant City attempted to assert the affirmative defense of equitable estoppel to a petition to disconnect. The City and Plaintiff executed an annexation agreement which provided that Plaintiff intended, but was not bound, to develop certain Property and that the City would construct sanitary sewer and water system improvements for that Property. As time passed, the City constructed the improvements, Plaintiff never developed the Property, the annexation agreement expired, and Plaintiff sought to disconnect the Property. The City asserted the affirmative defense of equitable estoppel to prevent disconnection, alleging that Plaintiff induced the City to improve the Property at the City’s expense in reliance on the annexation agreement. The Appellate Court concluded that equitable estoppel could be asserted as an affirmative defense to pevent disconnection. However, the court ruled in favor of Plaintiff, holding that the City failed to prove the misrepresentation element of equitable estoppel – namely the City failed to prove that Plaintiff, when it entered into the annexation agreement, never intended to develop the property.

Flava Works, Inc. v. City of Miami, 609 F.3d 1233 (11th Cir. 6/5/2010)*

Plaintiff, a Florida corporation, operated an Internet-based adult website out of a residence in a residential zone. The persons living at the residence were independent contractors of Plaintiff who were recorded engaging in sexual relations in the residence for the purpose of posting those recordings on Plaintiff’s website. The City of Miami found Plaintiff guilty of violating zoning ordinances by operating an adult entertainment business that was not permitted in that zone, and by illegally operating a business in a residential zone. Plaintiff sued the City and the City moved for summary judgment. The Eleventh Circuit Court of Appeals determined that the activities taking place at the residence violated the City's prohibition against operating a business in a residential zone. The activities taking place at the residence were part and parcel to Plaintiff's business operations, as Plaintiff would be unable to deliver content to its subscribers without these endeavors and the sole reason those particular persons lived at the residence were to engage in sexual activities in the residence.

Forest Preserve District of Du Page County v. First National Bank of Franklin Park, 930 N.E.2d 477 (2d Dist. 5/27/2010)

Plaintiff filed a condemnation action against Defendants, seeking to take 204 acres of land. Approximately eight years later, a jury found that just compensation for the taking was $10,725,000, based on the fair market value of the property in 1999. Defendants appealed, first arguing that Plaintiff failed to negotiate in good faith as required by the Eminent Domain Act (735 ILCS 5/7-102) because Plaintiff's offer for the land was less than the appraised value. The Appellate Court rejected that argument because there were two appraisals and Plaintiff’s offer was more than the second appraisal and because Defendants never made a counteroffer. Next, Defendants argued because the annexation agreement controlling the property had expired before trial, the trial court erred in baring all evidence concerning the Defendants’ ability to have the property rezoned to allow for a more valuable use. The court rejected that argument as well, reasoning that the annexation agreement contained a survival clause, which left all zoning designations in place unless changed by further agreement. In their final argument, Defendants claimed that they were denied just compensation by the trial court's refusal to hold a Kirby hearing – a post-trial evidentiary hearing to determine the value of the land as of the time of the trial (2007), instead of when the condemnation proceedings began (1999). The court agreed that Defendants were entitled to a Kirby hearing because there was an eight year delay from filing to trial, Defendants were not at fault for the delay, and there was a substantial change in valuation of the land within those eight years.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 4 Gallagher et al. v. Magner et al., 2010 WL 3419820 (8th Cir. 9/1/2010)*

In this case, owners of low-income rental properties failed to demonstrate that the city defendants violated the Fair Housing Act under the theories of disparate treatment, retaliation, and failure to affirmatively further fair housing by their aggressive enforcement of the city's housing code on low-income rental properties. Thus, the city defendants were entitled to summary judgment on those claims. But, they were not entitled to summary judgment on the disparate impact claim because the plaintiffs' claims reasonably demonstrated that the city's aggressive enforcement of the housing code resulted in a disproportionate adverse effect on racial minorities.

In re Village of Campton Hills, 399 Ill.App.3d 160 (2d Dist. 2010)

In a matter of first impression, the Appellate Court determined the meaning of the phrase “upon the border” in section 7-3-1 of the Illinois Municipal Code (the “Section”) concerning disconnection of territory. The Section allowed disconnection, after meeting other requirements, of any territory that was “upon the border, but within the boundary of the municipality.” The territory sought to be disconnected had a border located, not on the municipality's outer boundary line, but on a line dividing the municipality from a forest preserve that was located within the municipality’s boundaries. The petitioners for disconnection argued that the line between the municipality and the forest preserve was an internal boundary line that met the requirement of “upon the border.” The Appellate court disagreed. First, the court interpreted the term “border” to mean “fringe,” “edge,” or “periphery.” Second, the court determined that the legislature included “the” in the phrase “upon the border” because a municipality can have only one continuing and connected boundary line. Based on these interpretations, the court determined that petitioners’ territory did not meet the Section’s “upon the border” requirement because the territory was not located on the “outer boundary line” or “outer periphery” of the municipality.

Louis and Karen Metro Family, LLC v. Lawrenceburg Conservancy District, 2010 WL 2944219 (7th Cir. 7/29/2010)

In anticipation of a flood control project, Plaintiff entered into a contract with a City and Conservancy District, where Plaintiff would sell its property (“Plaintiff’s Property) in exchange for monetary consideration and a option contract to buy certain City property (“City Property”) upon completion of the flood control project. The flood control project was eventually abandoned, Plaintiff’s Property was used for the construction of a bridge, and the City Property was used for a highway extension. Plaintiff brought suit against the District and the City for breach of contract. Applying Indiana law, the Seventh Circuit held that the District and City breached the contract by failing to fully compensate Plaintiff because full consideration for Plaintiff’s Property included the dishonored option contract. The court went on to determine that Plaintiff was entitled to the difference between the actual value of the City Property and the option price for the City Property on the date the option contract became impossible to exercise.

Melrose, Inc. v. City of Pittsburgh, 2010 WL 2814284 (3d Cir. 7/20/2010)*

Under the test the Third Circuit delineated in Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994), the Pittsburg zoning board's rejection of the plaintiff's applications to change its identification signs did not violate the First Amendment or the Equal Protection Clause of the Fourteenth Amendment. The board determined that the signs were prohibited in the zoning area because they were "advertising signs," not "identification signs." Under Rappa, the board's application of the criteria to make its determination constituted a permissible "context-sensitive" analysis, and the plaintiff was not similarly situated to the entities that it claimed were treated differently.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 5 Muscarello v. Ogle County Board of Commissioners, 610 F.3d 416 (7th Cir. 6/24/2010)

Plaintiff brought suit against the County Board of Commissioners (“Board”), among others, after the Board granted a special use permit for a wind farm to be erected on property adjacent to Plaintiff’s. The Seventh Circuit held that the Board’s granting of the special use permit did not violate the Takings Clause because it did not result in a denial of all economically beneficial or productive use of Plaintiff’s land; and even if it had, the claim was not ripe for adjudication because Plaintiff had failed to exhaust all available state remedies for compensation. Additionally, in upholding the dismissal of Plaintiff’s Due Process Claim, the court held that Plaintiff did not have a property interest in the lifting of a zoning restriction on property she did not own.

Our Savior Evangelical Lutheran Church v. Saville, 397 Ill.App.3d 1003 (2d Dist. 12/31/2009)

A church applied for a site plan review or a special use permit for certain improvements to the church's property, which the City denied. The church filed suit, claiming that the denials of its applications were contrary to the manifest weight of the evidence and denied the church due process. The court of appeals first determined that the inclusion of churches within a group of similar uses that must seek special use permits under the applicable City zoning ordinance was not sufficient to show facial discrimination against religious uses. Next, the City did not substantially burden the church in applying the zoning ordinance to the church because the City treated the church’s application in the same manner it treated non-religious applications. Finally, the court remanded the case so the trial court could address the zoning decision de novo as a legislative action, instead of de novo, because the relevant provision of the Municipal Code was amended during pendency of the appeal. (See Public Act 95-843 amending 65 ILCS 5/11-13-25).

Passalino v. City of Zion, 237 Ill. 2d 118 (12/17/2009)

Plaintiff brought a declaratory judgment action seeking to invalidate a City zoning ordinance that amended the City’s zoning map, prohibiting the construction of multifamily buildings on Plaintiff’s land. Plaintiff claimed that the City’s notice by use of newspaper publication pursuant to section 11-13-2 of the Illinois Municipal Code was not sufficient to satisfy the due process requirements of the federal constitution. Following Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), the Illinois Supreme Court concluded that section 11-13-2 of the Illinois Municipal Code was unconstitutional as applied to the facts and type of zoning amendment at issue. The court reasoned that notice by publication was inadequate because it was not reasonably calculated to inform Plaintiff, who clearly had an interest in the ordinance, and Plaintiff’s name and address were easily ascertainable. The court noted that its holding did not affect the continuing validity of the use of publication under section 11-13-2 of the Illinois Municipal Code.

Peeples v. Village of Johnsburg, 2010 WL 2780770 (2d Dist. 7/9/2010)

Objectors to the Village’s creation of a special service area filed suit seeking a declaration that the ordinance creating the special service area was void because Objectors had filed a timely petition opposing the proposal. The trial court ruled in favor of the Objectors, finding that the Objectors’ petition contained the signatures of 51% of the electors residing in the area and 51% of the owners of record of the land within the area as required under Section 27-55 of the Property Tax Code (35 ILCS 200/27-55). The Appellate Court reversed the trial court’s decision and found that the Objector’s petition did not contain the required signatures. First, the court determined that the proper method of ascertaining the total number of electors living in the area was to rely upon the county clerk's list of registered voters. Second, the Objectors’ evidence attempting to establish that certain electors had moved was insufficient to remove

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 6 any names from the list because the evidence did not comply with the required procedure specified under section 4-12 of the Election Code. Finally, the court determined that based on the proper method of ascertaining the number of total electors in the special service area, the Objectors’ petition failed to meet the required veto threshold of 51%.

River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367 (7th Cir. 7/2/2010)

Based on the existence of an intercircuit conflict with respect to the proper test for applying the equal- terms provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), the full Seventh Circuit Court of Appeals considered this case to decide on a proper test. The Seventh Circuit’s new test provides that: a regulation will violate the equal-terms provision of RLUIPA only if it treats religious assemblies or institutions less favorably than secular assemblies or institutions that are similarly situated as to accepted zoning criteria. This test basically adopts the Third Circuit’s test except that the Seventh Circuit’s test replaces the Third Circuit’s reliance on “the regulatory purpose” with “accepted zoning criteria.” The Seventh Circuit reasoned that “accepted zoning criteria” constituted objective criteria, whereas “the regulatory purpose” test was subjective and manipulable.

Rock Energy Cooperative v. Village of Rockton, 2010 WL 3122637 (7th Cir. 8/10/2010)*

The plaintiff, an energy utility, and the village expressed interest in the purchase of gas and electric utility assets that were owned by Alliant Energy. The plaintiff submitted a bid for the assets, and the village council passed an ordinance authorizing the village to acquire the assets by purchase or condemnation. The village and the plaintiff entered a Memorandum of Understanding (MOU) expressing a mutual intent to explore the feasibility of the village purchasing the assets from the plaintiff, and giving the village an agreement to sell the assets to it if certain conditions were met. The plaintiff then purchased the assets from Alliant. The village subsequently expressed intent to acquire the assets, and threatened to condemn the assets. The plaintiff filed a complaint in federal court stating that the village had not met the requirements to purchase. The trial court dismissed plaintiff’s suit due to lack of standing under diversity jurisdiction. The Seventh Circuit Appellate Court found that subject-matter jurisdiction was met because of the value of the assets in question was approximately $10 million, and that value was not constrained by the MOU. Further, the appellate court held that the district court was correct in dismissing the action due to lack of ripeness, because the village had not yet brought a suit for eminent domain, and, if it did, the plaintiff would be able to raise its issues in that action.

Rocky Mountain Christian Church v. Bd. of County Cmm'rs of Boulder County, 605 F.3d 1081 (10th Cir. 5/17/2010)*

The county's planning commission voted against a mega-church's application to expand its complex because the expansion did not comply with the Comprehensive Plan and was incompatible with the character of the surrounding area as an "over-intensive" use. The church sued, claiming a violation of its rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The church argued, among other things, that the county violated RLUIPA's substantial burden, equal terms, and unreasonable limitations provisions because it previously approved the expansion of a school in the same area, which was half the size of the church's proposed expansion in terms of raw square footage. After a trial, the jury found that the county's denial of the church's application violated the RLUIPA, and the district court entered a permanent injunction requiring the county to approve the church's special use application. On appeal, the Tenth Circuit affirmed the grant of the injunction. The evidence showed that the expansion of the school and that of the church, while not identical, had many substantial similarities that would allow for a reasonable jury to conclude that the church and the school were similarly situated. Additionally, the

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 7 evidence at trial was sufficient to demonstrate that the county applied its zoning ordinance "non- neutrally" by treating the church less favorably than the school.

Strong v. City of Peoria, 930 N.E.2d 561 (3d Dist. 6/9/2010)

In this case, Plaintiff paid the delinquent property taxes and received a tax lien certificate for a parcel of residential property in the City. After the period of redemption on the tax lien had expired but before the tax deed was issued to Plaintiff, the City demolished the home located on the property. Plaintiff filed a negligence action against the City for failing to notify Plaintiff of its intention to demolish the home. The Appellate Court held that the City breached its duty to notify Plaintiff, which was required under Section 21-410 of the Property Tax Code and Section 11-31-1 of the Illinois Municipal Code. The court awarded Plaintiff compensatory damages totaling the amount Plaintiff paid in property taxes for the property. The court reasoned that Plaintiff was not entitled to the difference in market value of the property before and after the demolition because Plaintiff had not yet acquired title to the property when the home was demolished.

Trinity Evangelical Lutheran Church v. City of Peoria, 591 F.3d 531 (7th Cir. 12/30/2009)

Plaintiff, a religious organization, sued the City alleging the City imposed a substantial burden on its religious activates, as prohibited under the Religious Land Use and Institutionalized Persons Act, by denying Plaintiff’s request to demolish a landmark-designated building in order to build a family-life center. The Seventh Circuit held that the burden imposed on Plaintiff was not “substantial” because the landmark-designated building was still habitable, there were other suitable alternative sites for building a family-life center, and Plaintiff could sell the building and use the proceeds to acquire another suitable site.

U.S. Residential Management and Development, LLC v. Head, 397 Ill.App.3d 156 (1st Dist. 12/18/2009)

Plaintiff, a company managing a Chicago Housing Authority public housing development, brought a forcible entry and detainer action against Defendant, a tenant of Plaintiff. Defendant had been arrested for possession of cannabis in his rental residence, and the possession of illegal drugs violated Defendant’s lease terms. Defendant filed a motion to suppress evidence of the cannabis based on the arresting officer’s violation of Defendant’s Fourth Amendment rights. The Appellate Court held that forcible entry and detainer actions are not quasi-criminal in nature because the action does not seek a penalty, a forfeiture of defendant's personal property, or a fine from defendant, but merely seeks to settle a dispute over possession of real property. Therefore, the exclusionary rule did not apply to Plaintiff’s forcible entry and detainer action.

Village of Ringwood v. Foster, 2010 WL 2440814 (2d Dist. 6/9/2010)

The Village filed suit seeking authorization pursuant to section 11-31-1 of the Code (65 ILCS 5/11-31-1) to demolish Defendant’s two-story apartment building because it had not been occupied for more than a year after it was extensively damaged by a fire. After a bench trial, the circuit court held in favor of the Village. On appeal, the Appellate Court determined that pursuant to section 11-31-1: (1) the apartment building could be deemed “dangerous and unsafe” even if the danger was confined to those connected to the property, rather than the public at large; (2) the 50% standard comparing the damage with the replacement cost of a building in order to determine if a building could be repaired or must be demolished was valid; (3) the Village was not required to include a “right to repair” clause in its notice to Defendant because Defendant did not in fact have a right to repair; and (4) the Village was required to notify any lien holders on the building prior to the trial court’s entry of a demolition order.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 8 Village of Woodridge v. Board of Education of Community High School Dist. 99, 2010 WL 2994182 (2d Dist. 7/26/2010)

The Village filed eminent domain proceedings against a school district. The school district filed traverse and a motion to dismiss, which were both denied by the circuit court, and the school district appealed. First, the school district claimed that the case was not justiciable because it required the court to resolve competing legislative determinations. The Appellate Court disagreed, reasoning that the court’s role was limited to considering whether the Village’s actions were authorized by section 11-61-2 of the Code (65 ILCS 5/11-61-2). Second, the school district claimed that the Village’s taking was not authorized by section 11-61-2. The court again disagreed, reasoning that the statute authorized municipalities to take land held by certain governmental entities in order to develop it. Moreover, the taking would not materially interfere with an existing use of the property, nor would it be detrimental because suitable replacement property existed.

Vo-Land, LLC v. Village of Bartlett, 395 Ill.App.3d 694 (1st Dist. 9/23/09)

Plaintiff sued the Village, seeking to disconnect its property from the Village and to invalidate a restrictive covenant with the Village. The covenant granted special zoning for the development of a certain section of the property but required a separate section of the property be maintained as open space. The Court held that Plaintiff was estopped from seeking to invalidate the restrictive covenant because Plaintiff had developed the property, thereby accepting the covenant’s benefits and burdens. However, the court held that disconnection of the property from the Village was proper. The restrictive covenant did not obligate Plaintiff to keep the property within the Village’s jurisdiction. Moreover, the Village’s argument that disconnection of the property would result in other land becoming isolated failed because the disconnection resulted in an irregularly-shaped connection, not isolation.

Wedgewood Ltd. Partnership I v. Township of Liberty, 610 F.3d 340 (6th Cir. 6/28/2010)*

The town approved a planned unit development (PUD) for the Wedgewood Commerce Center. The plaintiff owned a lot in that area and wished to develop it as a Wal-Mart Supercenter. According to the township's development standards, the lot was in an area that was zoned for commercial development, with a maximum of 220,857 square feet of commercial building space. The plaintiff applied for variances to exceed this maximum. After the residents rallied against the development, the variances were denied, and the town's board of trustees responded by enacting zoning "Instructions" -- including on the existing development standards and development plan -- that created a "floating commercial gap and required all new applicants seeking to construct retail or other arguable commercial development in the area to seek approval as a major plan of modification. The plaintiff scaled back its plan and resubmitted its proposal to conform to the maximum square footage. This, too, was denied. When the plaintiff's agreement with Wal-Mart collapsed, it filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that the adoption of the Instructions constituted an unauthorized amendment to the development plan, violating its state and federal due process rights, or, in the alternative, that the plan was unconstitutionally vague. The Sixth Circuit Court of Appeals held that the town's adoption of zoning instructions constituted an unauthorized amendment to the plaintiff's existing development plan, and it was unconstitutionally vague. The instructions improperly amended the development plan without providing the plaintiff with advance notice and a hearing, and the plaintiff had a vested interest in the zoning classification prior to the adoption of the zoning instructions.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 9 World Outreach Conference Center v. City of Chicago, 591 F.3d 531 (7th Cir. 12/30/2009)

Plaintiff, a religious organization, sued the City of Chicago under the Religious Land Use and Institutionalized Persons Act, alleging the City deliberately and irrationally discriminated against Plaintiff by refusing to grant it single-room-occupancy licenses (SROs) to house victims of Hurricane Katrina. The City refused to grant the SROs on the basis that Plaintiff had not obtained a special use permit, however, the previous owner routinely obtained SROs without a special use permit. The City then amended the zoning ordinance so that special use permits could no longer be granted. The district court dismissed the suit for failure to state a claim. The Appellate Court reversed, holding that by denying Plaintiff the SROs and then subsequently amending the zoning ordinance, the City imposed a substantial burden for which there was no possible justification.

World Wide Rush, LLC v. City of Los Angeles, 606 F.3d 676 (9th Cir. 5/26/2010)*

The plaintiffs -- outdoor advertisers -- sued the city to enjoin enforcement of its ban on freeway facing signs. The city's ban prohibited billboards located within 2,000 feet of and viewed primarily from a freeway or an on-ramp/off-ramp. It also banned "Supergraphic" and off-site signs. The ban on both the Supergraphic and off-site signs exempted signs that were specifically permitted pursuant to certain legally adopted development plans or agreements. The plaintiffs argued that the city's ban on freeway-facing signs was an unconstitutionally underinclusive restriction on commercial speech because the city had, in fact, permitted some freeway facing billboards despite the ban. It challenged the Supergraphic and off- site sign bans as facially unconstitutional prior restraints on speech, arguing that the exceptions vested the city council with unbridled discretion to select among preferred speakers because those exceptions lacked objective criteria for their application. On appeal, the Ninth Circuit determined that the city's ban on and exceptions for freeway facing signs, "Supergraphic" signs, and off-site signs were not unconstitutional. The prior restraint doctrine did not apply to a legislative function, the exceptions were rooted in the city's legislative discretion, and the exceptions did not undermine the city's legitimate interests.

Ziller v. Rossi, 395 Ill.App.3d 130 (2d Dist. 9/18/2009)

Plaintiffs, residents of the Township, brought suit to enjoin the Trustees of the Township from taking any action in relation to construction of a new town hall. The Circuit Court granted, and the Appellate Court affirmed, a preliminary injunction enjoining the Trustees from taking any further action because inadequate notice was given for the meeting at which Trustees approved construction of a new town hall. Further, when proper notice was given, Plaintiffs filed a petition under 60 ILCS 1/140-5(a) requesting that the issue be submitted via referendum. Once Plaintiffs filed the 140-5(a) petition, it became mandatory that the question of constructing a new town hall be determined by the voters before the Trustees could take any further action.

Civil Rights

American Atheists, Inc. v. Duncan, 2010 WL 3239486 (10th Cir. 8/18/2010)*

The Utah Highway Patrol Association, with the permission of Utah state authorities, erected a number of twelve-foot high crosses on public land to memorialize fallen Utah Highway Patrol troopers. The plaintiffs -- a Texas non-profit organization, and three individual members of American Atheists who reside in Utah -- challenged the legality of these memorials under the Establishment Clause of the federal constitution. The appeals court held that these memorials have the impermissible effect of conveying to the reasonable observer the message that the State prefers or otherwise endorses a certain religion. They therefore violate the Establishment Clause of the federal constitution.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 10 Best v. Malec, 2010 WL 2364412 (N.D. Ill. 6/11/2010)

Plaintiff brought a § 1983 lawsuit against the City, among others, after the television show Female Forces aired an episode showing two police officers’ detention and arrest of Plaintiff. The episode showed the two police officers making fun of Plaintiff and a computer screen in the police vehicle that revealed certain personal information, including a juvenile arrest. The episode aired despite Plaintiff’s refusal to sign a consent form. The City filed a motion to dismiss. The District Court began by holding that Plaintiff had adequately alleged facts sufficient to sustain an invasion of privacy by publication of public facts claim. The court reasoned that the juvenile arrest was private information, and that the combination of personal information revealed, given the risk of identity theft, would be highly offensive to a reasonable person. Next, the court held that Plaintiff had adequately alleged facts sufficient to sustain a claim for intentional infliction of emotional distress by alleging that the City had assented to the airing of the Female Forces episode, knowing that Plaintiff had refused to grant consent. Finally, the court held that Plaintiff failed to state a claim under the Personal Information Protection Act (815 ILCS 530/12) because the Act and the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 530/1(c)) did not provide for a private right of action against a municipality.

Brayshaw v. City of Tallahassee, 2010 WL 1740832 (N.D. Fla. 4/30/2010)*

Plaintiff posted a series of comments about a Tallahassee police officer on the website Ratemycop.com. The information he posted about the officer, was a personal profile: age, marital status, children, home address, cell phone number, and e-mail address – all of which was truthful and publicly available. Plaintiff was charged with a violation of the Tallahassee code, based on Florida law, which made it illegal to publish such information. Plaintiff brought a § 1983 lawsuit against the City of Tallahassee and the state's attorney, arguing that the Florida law on which the code provision was based was unconstitutional and violated his First Amendment free speech rights. Defendants argued that the provision in the statute (requiring malice and intent to intimidate on the part of the speaker) was sufficient to bring the proscribed speech out of the realm of speech protected by the Constitution. The court held that the speech was constitutionally protected and the law was unconstitutional. The law was not narrowly tailored to serve the interest of protecting police officers from harm or death, and punishing Plaintiff for his dissemination of information which was already publicly available was relatively unlikely to advance the interests claimed by the state. Likewise, the law was underinclusive in its failure to punish parties who actually wished to harm or intimidate police officers. Furthermore, the court determined that the release of personal information, even with the intent to intimidate, was not per se a true threat and that state action to punish the publication of truthful information seldom can satisfy constitutional standards.

Carmichael v. Village of Palatine, 605 F.3d 451 (7th Cir. 5/21/2010)

Two Plaintiffs brought a § 1983 action against the Village and two of its police officers claiming unreasonable search and seizure. Plaintiffs’ vehicle had been pulled over by the officers and one of the plaintiffs was required to partially expose himself while being searched. The officers gave conflicting reasons for making the stop, telling Plaintiffs they had been stopped for tinted windows and a missing front license plate while stating in their official report that they had stopped Plaintiffs for inoperable brake and tail lights. The trial court granted summary judgment for the Village on the unreasonable search and seizure claims for both the initial vehicle stop and the body search of the plaintiff after finding probable cause for the initial vehicle stop. The Appellate Court overruled, finding that the officers did not have probable cause to make the vehicle stop because, at the moment the officers made the stop, they did not have sufficient facts to conclude probable cause existed. The court relied on two important facts: (1) one of the officer’s testimony stating that at the time of the stop, he did not know the car had tinted windows or a missing front license plate; and, (2) the vehicle’s brake and tail lights were found to be operational by

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 11 an investigator after the arrest. The court also determined that the officer who forced the plaintiff to partially expose himself during the search was not entitled to qualified immunity because he did not have probable cause to make the stop.

Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, 130 S.Ct. 2971 (6/28/2010)*

Hastings College required student organizations to register, and registered groups were entitled to benefits, such as funding, office space, use of the school's logo and e-mail. As a condition to be allowed to register as an organization, the student group had to comply with open membership and a policy that banned discrimination on the basis of sexual orientation and other grounds. The Christian Legal Society (CLS) applied for, and was denied, recognition by the College because CLS bylaws required members to sign a statement affirming belief in the Christian faith, and barred those who engaged in "unrepentant homosexual conduct" from becoming members or officers. CLS sued, alleging a violation of First and Fourteenth Amendment rights. The Supreme Court, in a 5-4 decision, held that public universities could deny recognition and funding to groups with exclusionary membership rules. The majority held that the college's "all-comers" policy was a reasonable, viewpoint-neutral condition on access to the "Registered Student Organization" forum; therefore, it did not transgress First Amendment limitations.

City of Ontario v. Quon, 130 S.Ct. 2619 (6/17/2010)

Plaintiffs, police officers in the City of Ontario Police Department, filed suit alleging that the City violated their Fourth Amendment rights and the federal Stored Communications Act (“SCA”) (18 U.S.C. §§ 2701, et seq.) by obtaining and reviewing the transcript of Plaintiffs’ pager messages sent from City- provided pagers. The City had come to obtain the messages after Plaintiffs exceeded their usage limits, thereby costing the City additional fees, and the City sought to determine whether Plaintiffs were using the pagers strictly for work-related matters. The United States Supreme Court began by assuming arguendo that: (1) Plaintiffs had a reasonable privacy expectation in the text messages, (2) the City’s review of the text messages constituted a Fourth Amendment search, and (3) the principles applicable to a government employer's search of an employee's physical office apply as well in the electronic sphere. The court then went on to hold that the search of the text messages was reasonable, and thus did not violate the Fourth Amendment. The search was justified because there were reasonable grounds for suspecting that the review was necessary for a non-investigatory work-related purpose (that the City was not paying for extensive personal communications) and the review was not excessively intrusive.

Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178 (9th Cir. 6/9/2010)*

In this case, the Ninth Circuit Court of Appeals held that the City of Redondo Beach's ordinance, which prohibited the act of standing on a street or highway and soliciting employment, business, or contributions from the occupants of an automobile, was a valid time, place, or manner restriction under the analysis in ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986). The ordinance was content-neutral, as it was aimed narrowly at barring acts of solicitation directed toward the occupants of vehicles, and not related to any particular message or content of speech; it was narrowly tailored to the single issue of traffic flow; and it offered alternative avenues of communication as the ordinance still permits persons to solicit business, employment, or contributions from people on sidewalks or in similar public forums.

First Vagabonds Church of God v. City of Orlando, 610 F.3d 1274 (11th Cir. 7/6/2010)*

The city enacted a Large Group Feeding Ordinance, which requires such organizations like the church to obtain a permit before conducting large food sharing events in a public park, and limits the number of

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 12 permits an organization can obtain for such events. The appeals court ruled that the ordinance, as applied to the church, does not offend the United States Constitution or violate the Florida Religious Freedom Restoration Act because the regulated conduct is not, on its face, an expressive activity.

Harrington v. City of Nashua, 610 F.3d 24 (1st Cir. 6/29/2010)*

The plaintiff was arrested, charged, and prosecuted for filing a false police report. The trial court dismissed the case, and the plaintiff then sued the city under § 1983 for false imprisonment. But her claim was time-barred because she filed the claim more than three years after she was released from custody, which was the state's statute of limitations for tort claims. She also failed to show a cognizable Fourth Amendment violation on her malicious prosecution claim because the judicial allegation admission was neither clear nor a basis for her prosecution.

Harrington v. Suffolk County, 607 F.3d 31 (2d Cir. 6/4/2010)*

After their son died in a car accident, the plaintiffs sued the county in federal court claiming that the police failed to adequately investigate the accident. The plaintiffs claimed that, as a result of the inadequate investigation, they were "deprived of their property interest" in receiving "adequate police services" and a "proper and adequate investigation of the accident." The plaintiffs argued that they had a cognizable property interest in an adequate police investigation because the county police ordinance stated that, "[i]t shall be the duty of the Police Department to preserve the public peace, prevent crime, detect and arrest offenders, protect the rights of persons and property and enforce all laws and ordinances applicable to the county." The Second Circuit Court of Appeals held that despite its use of the word "shall," the ordinance does not deprive police departments of discretion in enforcing the law or investigating possible criminal acts. Accordingly, it does not give plaintiffs or any other victim of crime a legitimate claim of entitlement" to a police investigation. Additionally, under the Due Process Clause, only individual benefits may become a property interest -- universal benefits may not. A general duty of police departments to maintain public order and safety is a benefit for the general public, not an individual entitlement.

Kodish v. Oakbrook Terrace Fire Protection District, 604 F.3d 490 (7th Cir. 5/10/2010)

Firefighter brought a § 1983 action against his employer, the Fire Protection District, alleging he was terminated in violation of his due process and First Amendment rights. On the date of his termination, the Firefighter had been employed for over a year, but due to an extended medical leave, had only worked for 11 months. Under the Illinois Fire Protection Act, a firefighter could be fired at will unless the firefighter “held that position for one year,” after which the firefighter could not be discharged without just cause, thereby giving the firefighter a property right in continued employment. 70 ILCS 705/16.13b. Ultimately, the Seventh Circuit held that the Firefighter had a property right in his employment because, under the plain language of the Act, the right attached one year from appointment, regardless of time missed. The court went on to consider the Firefighter’s § 1983 claims, determining that the Firefighter should survive summary judgment based on the evidence he presented tending to show he may not have been terminated but for his pro-union speech.

Marion County Coroner's Office v. Equal Employment Opportunity Commission, 2010 WL 2899112 (7th Cir. 7/27/2010)

Plaintiff, a former chief deputy coroner of the County, was stripped of supervisory duties and ultimately fired by the County coroner (“the coroner”). Plaintiff filed suit against the County alleging race discrimination and retaliatory discharge for an internal complaint Plaintiff filed against the coroner. The

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 13 Appellate Court determined that the coroner’s reasons for firing Plaintiff were pretextual and supported a finding of race discrimination. However, the court reversed the $200,000 judgment that had been awarded to Plaintiff, reasoning that $20,000 would better reflect Plaintiff’s damages.

Mosley v. City of Chicago, 2010 WL 2943907 (7th Cir. 7/29/2010)

Plaintiff, a suspect in a murder investigation who was ultimately acquitted at trial, brought a § 1983 action against the City of Chicago, alleging certain police officers committed a Brady violation by withholding an exculpatory witness statement. The witness had stated he saw the Plaintiff at the scene of the murder, but did not see the Plaintiff participate in the homicide. The trial court granted the City’s motion for summary judgment and the Appellate Court affirmed. The Appellate Court reasoned that the prosecution proceeded under the accountability theory of murder in its prosecution of the Plaintiff, which meant the state did not need to show Plaintiff actively participated in the murder. Therefore, even if a Brady violation had occurred, it would not meet the standard set forth in Bielanski v. County of Kane, 550 F.3d 632 (7th Cir. 2008), because the violation would not have altered the prosecution’s decision to go to trial.

Parra v. Neal, 2010 WL 2507725 (7th Cir. 6/23/2010)

Plaintiffs, all registered voters, brought a § 1983 action against Board of Election Commissioners for the City of Chicago (“Board”) alleging the Board denied them equal protection by invalidating their votes. Plaintiffs all placed their votes for Ambrosio Medrano in the primary election for the alderman of the 25th Ward in Chicago; however, those votes were disregarded because the Illinois Supreme Court had determined that Medrano could not hold office due to a prior felony conviction. The Appellate Court affirmed a grant of summary judgment in favor of the Board because Plaintiffs did not allege, nor offer proof of, any wrongdoing on the part of the Board.

Portis v. City of Chicago, 2010 WL 2867961 (7th Cir. 7/23/2010)

In this case, Plaintiffs brought a class action suit against the City of Chicago alleging that the length of their custodial detention for fine-only offenses were unreasonable and violated their Fourth Amendment rights. Plaintiffs contended that taking more than two hours to perform the steps needed to get from the generation of their central booking number to their release makes detention unreasonable. The Seventh Circuit Court of Appeals rejected that argument and noted that implementing an arbitrary time limit would only complicate the administration of the criminal justice system. The court determined that the reasonableness requirement of the Fourth Amendment was a standard that must be assessed one case at a time. Therefore, the court decertified the class and instructed the plaintiffs that they carried the burden of proof that their particular detention was excessive and unreasonable.

Salazar v. Buono, 130 S.Ct. 1803 (4/28/2010)

In 1934, the Veterans of Foreign Wars (“VFW”) erected a large Latin cross on Sunrise Rock in San Bernardino, California, commemorating veterans of World War I. In 2004, ten years after Sunrise Rock became federal parkland, Frank Buono sued the Secretary of the Interior. Buono argued that the cross’ presence on federal land violated the Establishment Clause. The District Court decided in favor of Buono. While the case was on appeal, Congress attempted to transfer the land to the VFW. After the Court of Appeals affirmed Buono’s victory, Buono moved to enforce the judgment. The District Court then blocked the land transfer and ordered the removal of the cross and the Court of Appeals affirmed. The Supreme Court reversed and remanded the case, holding that: (1) Buono had standing to bring the motion to enforce the injunction; (2) the District Court failed to consider the context in which the statute was enacted and the reasons for its passage; and (3) the District Court failed to acknowledge the statute's

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 14 significance as a substantial change in circumstances bearing on the propriety of the requested injunctive relief. The Supreme Court remanded the case to allow the District Court to conduct a proper analysis regarding the continued necessity for injunctive relief.

Wragg v. Village of Thornton, 604 F.3d 464 (7th Cir. 5/7/2010)

In this case, the Plaintiff was a minor who had been molested by the Village’s fire chief while participating in the Village’s fire cadet program. Plaintiff brought a § 1983 action against the Village alleging his substantive due process rights were violated when the Village deliberately retained the fire chief despite knowledge of prior improprieties with other minors. The Seventh Circuit Court of Appeals held that Plaintiff’s claim failed as a matter of law because he did not present any evidence showing that either the Village board of trustees or mayor knew that maintaining the fire chief in employment would pose a substantial risk to Plaintiff. The court reasoned that Plaintiff presented evidence that only one trustee had knowledge of the fire chief’s prior acts, when Plaintiff needed to present evidence that a quorum of the board knew in order to survive summary judgment. Moreover, the court determined that evidence of the mayor’s knowledge of the fire chief’s alcohol and drug-related misbehavior with cadets, knowledge of the fire chief’s prior cocaine use, knowledge of an anonymous complaint claiming the fire chief molested a child, and knowledge that various fire department members commented on the fire chief’s propensity to molest young boys was insufficient to prove that the mayor acted with such knowledgeable, deliberate indifference that the Village could be liable for his inaction.

Zarnow v. City of Wichita Falls, 2010 WL 3093443 (5th Cir. 8/9/2010)*

In this case, police officers had a warrant to search the plaintiff's home. The warrant authorized the officers to search for explosives, weapons, and related documents. In conducting the search, police officers seized weapons, ammunition, currency, bonds, silver, band-aids, books, prescription medicines, and over-the-counter medications. These items were not covered under the search warrant, but the police justified their seizure by citing to the "plain view" doctrine. The officers understood "plain view" to permit them to collect anything that might be evidence of any crime. It was the practice of the police chief to seize more than was necessary during an initial search, so that he could later "rule things in or out." The plaintiff sued the city in a § 1983 action, alleging violations of the Second, Fourth, Fifth, Sixth, and Fourteenth Amendments. The trial court granted summary judgment for the city on most of the counts, but it denied summary judgment for the alleged violation of the Fourth Amendment. The city appealed. The Fifth Circuit Court of Appeals determined that the police chief was a policymaker because he had the general authority to issue a general order concerning the policy of the plain view doctrine -- although he never exercised that authority and issued such an order. The court then determined that the officers' incorrect interpretation of the plain view doctrine did not constitute a "custom or policy" of the city. The plaintiff failed to show that a pattern of the alleged unconstitutional conduct by the city or that a single instance of the alleged unconstitutional conduct by the policymaker existed.

Disability/Pensions

Bell v. Retirement Board, 398 Ill. App. 3d 758 (1st Dist. 2/19/2010)

In this case, the Appellate Court held that the widow of a firefighter who died while receiving disability benefits for duty-related injuries was entitled to receive duty death benefits under section 6-140 of the Pension Code from the date of the firefighter’s death. The court also found that the Retirement Board of the Fireman’s Annuity and Benefit Fund of Chicago (“Board”) did not provide fair and adequate notice of its decision to the widows regarding their pension applications because the letters of notice informed the

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 15 widows that their applications were granted but failed to notify them that the Board was denying a substantial portion of the benefits by not providing benefits from the firefighter’s date of death.

Cole v. Retirement Bd. of Policemen's Annuity and Ben. Fund of City of Chicago, 396 Ill.App.3d 357 (1st Dist. 11/30/2009)

Plaintiff, a police officer who had a preexisting back injury, was injured when her patrol car was struck by fleeing carjackers. Plaintiff claimed her back injury worsened due to the accident and filed an application for duty disability benefits. The Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (“Board”) denied Plaintiff’s application because the Board determined that Plaintiff’s disabled state was due to her preexisting back injury, which was not aggravated by an on duty injury. The Circuit Court reversed the Board’s decision and directed the Board to grant Plaintiff duty disability benefits. The Appellate Court affirmed the circuit court’s ruling, holding that the evidence clearly established that Plaintiff’s disability resulted from her preexisting back injury being aggravated by the on duty accident with the carjackers. The court further held that the court had authority not only to reverse the Board’s decision but also to direct the Board to award a specific disability benefit to Plaintiff.

Devaney v. Board of Trustees of Calumet City Police Pension Fund, 398 Ill.App.3d 1 (1st Dist. 1/25/2010)

Plaintiff, a police officer, filed an application for line-of-duty disability benefits with the Board of Trustees of the Calumet City Police Pension Fund (“Board”). Plaintiff, who had back surgery in 1985, performed full police duties from 1989 until 2001, when he was injured attempting to arrest a suspect in March 2001 (“Incident”). Although Plaintiff reported leg pain immediately following the Incident, he did not report back pain until May 2001. Plaintiff subsequently aggravated his back pain in early 2002 while off duty. The Board denied Plaintiff’s line-of-duty disability application after concluding that Plaintiff’s back injury was preexisting and was not aggravated by the Incident. The circuit court reversed the Board’s decision and granted Plaintiff line-of-duty benefits. The Appellate Court affirmed the circuit court’s ruling, holding that the Board’s denial of Plaintiff’s application was against the manifest weight of the evidence, particularly medical evidence, showing that Plaintiff aggravated a prior back injury during the Incident. While emphasizing Plaintiff’s uninterrupted performance of police duties from 1989 to 2001, the court rejected the Board’s conclusion that Plaintiff’s failure to immediately report back pain and Plaintiff’s three doctor visits for back pain between the 1985 surgery and the Incident in 2001 showed that Plaintiff’s back injury was preexisting. Moreover, the court held that the Board could not deny Plaintiff line-of-duty benefits merely because Plaintiff’s back injury was further aggravated by non-duty accidents that occurred after the line-of-duty injury.

Kaczka v. Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago, 398 Ill. App. 3d 702 (1st Dist. 5/26/2010)

Plaintiff’s wife, a police officer, died 12 days after becoming married. Plaintiff was originally awarded a widower’s annuity under the Pension Code but had those benefits terminated when he got remarried. In 2007, the Pension Code was amended so that a widower’s annuity is no longer subject to termination upon remarriage. Plaintiff applied for reinstatement of his annuity benefits, which the Retirement Board of the Policemen's Annuity and Benefit Fund of the City of Chicago (“Board”) denied. The Appellate Court upheld the Board’s decision. The court reasoned that according to the Pension Code enacted at the time of Plaintiff’s wife’s death, Plaintiff did not have a right to a widower's annuity because he was married for less than one year. Therefore, there were no benefits for which Plaintiff could reapply.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 16 Kouzoukas v. Retirement Bd. of Policemen's Annuity and Benefit Fund of City of Chicago, 234 Ill.2d 446 (9/24/2009)

Plaintiff, a police officer, was denied disability benefits by the Retirement Board of the Policeman’s Annuity and Benefit Fund of City of Chicago (“Board”). The circuit court reversed the Board’s decision and rewarded Plaintiff pre-judgment interest and appellate court affirmed the circuit court. In a matter of first impression, the Illinois Supreme Court held that, absent evidence of purposeful wrongdoing on the part of a pension board in denying a benefits claim, the Pension Code does not authorize an award of prejudgment interest on an award of disability benefits from a public pension fund. The court also held that the Board’s decision to deny Plaintiff’s application for duty disability benefits was against the manifest weight of the evidence rejecting the Board’s findings regarding the credibility of Plaintiff’s and her doctor’s testimony. Moreover, the Board’s finding that Plaintiff was no longer disabled under the Pension Code was erroneous because the Police Department never offered Plaintiff a position within the physical restrictions prescribed by her doctor.

Kramarski v. Board of Trustees of Village of Orland Park Police Pension Fund, 2010 WL 2675001 (1st Dist. 6/30/2010)

Plaintiff, a police officer, was denied disability pension benefits by the Board of Trustees of the Village of Orland Park Police Pension Fund (“Board”). Plaintiff appealed the Board’s decision. The Appellate Court began by rejecting Plaintiff’s claim that she was denied a fair and impartial hearing because her allegation that two members of the board, who had been named in a previous sexual harassment lawsuit filed by Plaintiff, declined to recuse themselves did not amount to evidence of bias. The court also upheld the Board’s decision denying Plaintiff disability benefits because the record contained evidence to support the Board’s decision and because it was within the province of the Board to determine witness credibility.

Lemmenes v. Orland Fire Protection Dist., 399 Ill.App.3d 644 (1st Dist. 3/23/2010)

Plaintiff, a firefighter who was unable to continue working after he injured his knee in the course of testing exercise, brought action against fire district for declaration that the district was required by the Public Safety Employee Benefits Act (820 ILCS 320/10) (the “Act”) to pay his health insurance premiums and to reimburse him for premiums he already paid in order to prevent lapse. The circuit court granted Plaintiff’s motion for summary judgment and the fire protection district appealed. The court of appeals determined that plaintiff’s injury qualified as an injury that occurred in “response to what is reasonably believed to be an emergency” as required under the Act because the training exercise required the firefighters to respond as if they were in an actual emergency. Moreover, the term “emergency” was broad enough to encompass urgent situations that arose spontaneously during the course of the plaintiff's firefighting duties, including those that occurred during training exercises.

Peacock v. Board of Trustees of Police Pension Fund, 395 Ill.App.3d 644 (1st Dist. 10/20/2009)

In this case, the Appellate Court found that the Board of Trustees of the Police Pension Fund for the village of South Chicago Heights (“Board”) deprived a police officer of his right to due process. The Board failed to notify the police officer and failed to hold a hearing prior to discontinuing payment of his disability benefits, and any notice and hearing after discontinuing payment was insufficient to satisfy due process.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 17 Philpott v. Board of Trustees of City of Charleston Firefighters' Pension Fund, 397 Ill.App.3d 369 (4th Dist. 1/12/2010)

In this case, the Appellate Court determined that a firefighter’s nonduty disability pension benefits should commence on the day the firefighter filed his nonduty disability pension application. The court rejected the firefighter’s argument that his nonduty pension benefits should start on the day he filed his original line-of-duty pension benefits application because he had voluntarily withdrawn that application eighteen months earlier.

Reed v. Retirement Bd. of Firemen's Annuity and Benefit Fund of Chicago, 395 Ill.App.3d 1 (1st Dist. 10/19/2009)

In this case, the Appellate Court held that a firefighter was collaterally estopped from pursuing a claim for ordinary disability benefits from the Retirement Board of the Fireman’s Annuity and Benefit Fund of Chicago (“Board”). The firefighter had previously sought duty disability benefits for the same injury and was denied after the Board determined the firefighter was not disabled from that injury. Since the same injury was the basis for both disability claims, the firefighter was collaterally estopped by the Board’s earlier decision that the firefighter was not disabled. Moreover, the Board’s decision that the firefighter was not disabled was not erroneous in the face of the fact the firefighter was not allowed to return to duty because his employer deemed him unable to perform the essential duties of a firefighter.

Romano v. Municipal Employees Annuity and Benefit Fund, 2010 WL 2635816 (1st Dist. 6/29/2010)

Plaintiff, an operating engineer for the City of Chicago, was convicted of felony federal mail fraud. Plaintiff and a former City employee (“Former Employee”) had previously worked together for twenty years. The Former Employee approached Plaintiff about a scheme to bribe the First Deputy Commissioner of the City’s Department of Water in order to receive trucking business from the City and Plaintiff agreed. After being convicted, the Municipal Employees Annuity and Benefit Fund of Chicago (“Fund”) declared Plaintiff ineligible to receive pension benefits based on section 8-251 of the Pension Code. Plaintiff appealed the Board’s decision. The Appellate Court reversed the Board’s decision, finding that the forfeiture of plaintiff's benefits was not justified because there was no clear and specific connection between his felony conviction and his public employment. The court reasoned that there were no facts to support an inference that the relationship between Plaintiff and the Former Employee or any of the other co-conspirators was cultivated because Plaintiff was an employee of the City or that Plaintiff had ever used his position as a City employee for the benefit of the Former Employee or the other co- conspirators.

Ross v. Illinois Mun. Retirement Fund, 395 Ill.App.3d 1073 (5th Dist. 12/1/2009)

In this case, the Appellate Court concluded that pursuant to Administrative Review Law the court lacked jurisdiction to consider a petitioner’s appeal from a decision by the Illinois Municipal Retirement Fund because the petitioner had voluntarily dismissed her initial appeal of the decision, rendering the decision final and unappealable.

Williams v. Board of Trustees of Morton Grove Firefighters' Pension Fund, 398 Ill.App.3d 680 (1st Dist. 2/2/2010)

In this case, the Appellate Court held that the Board of Trustees did not abuse its discretion in permitting the Village of Morton Grove to intervene in a Firefighter’s pension application hearing because the Village sought to ensure the expenditure of the pension funds to which it contributed, the Village filed its

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 18 petition before the hearing started, and the issue was briefed fully before the Board of Trustees heard any evidence. The case was remanded, however, because the court found that the actions of the Village attorney, who sat on the Board of Trustees, infected the proceedings, which denied the Firefighter a fair and impartial hearing. The Village attorney’s actions before and during the Firefighter’s hearing demonstrated that “she was advocating on behalf of the Village rather than acting as a disinterested decision maker.”

Gun Control

McDonald v. City of Chicago, 130 S.Ct. 3020 (6/28/2010)*

Plaintiffs, residents of Chicago and Oak Park, sued those municipalities claiming that their handgun bans violated the Second Amendment pursuant to the United States Supreme Court's decision in District of Columbia v. Heller, 128 S.Ct. 2783 (2008). Following the only precedent available at the time, the federal district court and the Seventh Circuit federal appeals court ruled in favor of the municipalities. The United States Supreme Court reversed the Seventh Circuit and remanded the matter. Following its ruling in Heller -- which held that the Second Amendment protects an individual right to possess a handgun in the home for the purpose of self-defense, but the ruling only applied to a federal jurisdiction -- the Supreme Court in this case held that the ruling in Heller also applies to the States, and hence their political subdivisions, through the Due Process Clause of the Fourteenth Amendment. Thus, like the First Amendment, the Supreme Court incorporated the protections of the Second Amendment enunciated in Heller to the Bill of Rights. As such, a complete ban on handguns by either state or local governments violates the Second Amendment.

U.S. v. Skoien, 2010 WL 2735747 (7th Cir. 7/13/2010)

The defendant was forbidden under federal law (18 U.S.C. §922(g)(9)) from carrying firearms in or affecting interstate commerce because of his two misdemeanor convictions of domestic violence. While on probation, he was found in possession of three firearms: a pistol, a rifle, and a shotgun. Pursuant to a conditional guilty plea, he was sentenced to two years' imprisonment for possession of the shotgun. But, he reserved his right to challenge the federal law under the Second Amendment. The appeals court heard this appeal en banc to decide whether §922(g)(9) violates the Second Amendment as interpreted by the Supreme Court in D.C. v. Heller, 128 S. Ct. 2783 (2008). The majority of the Court determined that those with misdemeanor convictions of domestic violence are properly placed in a category for the legal exclusion of firearms, and such exclusion does not violate the Second Amendment. Therefore, the appeals court affirmed the defendant's federal criminal conviction.

Labor & Employment

Alvarez v. City of Chicago, 605 F.3d 445 (7th Cir. 5/21/2010)

In this case, the Seventh Circuit Court of Appeals reversed the trial court’s dismissal of a collective action brought by paramedics for the Chicago Fire Department against the City of Chicago. The paramedics alleged the City committed ten separate violations of Fair Labor Standards Act (“FLSA”) by willfully failing to pay overtime to the paramedics. The claims, however, were not common to the more than three hundred paramedics, with different groups of paramedics claiming a different set of the ten FLSA violations. The trial court dismissed the action on the grounds that their claims were “hopelessly heterogeneous” and directed the paramedics to pursue arbitration pursuant to their collective bargaining agreement with the City. The Court of Appeals reversed the trial court’s decision. The Court of Appeals

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 19 determined that the City’s liability to any particular paramedic on any given FLSA violation turned upon a single uniform policy and whether that policy impacted a particular paramedic. Therefore, the paramedics could be similarly situated even though recovery of any given paramedic had to be determined by only a certain number of the FLSA violations. The Court of Appeals also reversed the trial court’s direction to proceed to arbitration, finding that even if a collective action was not the most efficient method of judicial resolution, the paramedics had a right to proceed individually.

Anthoine v. North Central Counties Consortium, 605 F.3d 740 (9th Cir. 5/24/2010)*

Plaintiff, a low-level public employee, was disciplined and terminated after he jumped the chain of command to report directly to the chairman of his employer's governing board that his immediate supervisor had misrepresented the status of the employer's compliance with its legal obligations. Although the U.S. Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006), that public employees do not have First Amendment protection for statements made pursuant to their official duties, the Ninth Circuit held that Plaintiff in this case presented triable issues of fact on his First Amendment retaliation claim. Plaintiff's speech qualified as a matter of public concern, and the defendants failed to show that his speech was made pursuant to his official duties.

Berry v. Chicago Transit Authority, 2010 WL 3294720 (7th Cir. 8/23/2010)*

The CTA was not entitled to summary judgment on plaintiff's hostile work environment claim regarding a male employee's inappropriate actions and the CTA's liability for those actions because, although her allegations were uncorroborated, her allegations were sufficient to survive summary judgment. But, the plaintiff's supervisor was entitled to summary judgment because she failed to show that his comments were severe or pervasive enough to create hostile work environment. And, the CTA was entitled to summary judgment on the plaintiff's gender discrimination claim because she failed to produce evidence of an adverse employment action.

Blair v. Bethel Sch. Dist., 608 F.3d 540 (9th Cir. 6/14/2010)*

The school board's removal of the Plaintiff as vice president of the school board after his critical comments to a reporter about the school district's superintendent did not violate the First Amendment. The board's action did not prevent Plaintiff from continuing to speak out, vote his conscience, and serve his constituents as a board member because, even though he was no longer the vice president, he was still a member of the school board. While Plaintiff certainly had a First Amendment right to criticize the superintendent and vote against his retention, his fellow board members had the same and corresponding right to replace Plaintiff with a vice president who, in their view, represented the majority view of the board.

Brownfield v. City of Yakima, 2010 WL 2902503 (9th Cir. 7/27/2010)*

Plaintiff, a former police officer to the City of Yakima, was involved in several incidents that raised concerns about his emotionally volatile behavior, prompting the City to order that he undergo a fitness- for-duty exam. The doctor diagnosed Plaintiff with a mood disorder, found that he was unfit for police duty, and that his disability was permanent. As a result, Plaintiff was put on FMLA leave. Plaintiff obtained a letter from his personal doctor that cleared him for physical duty, but did not include a psychological exam. The City ordered another fitness-for-duty exam before it would return Plaintiff to police duty. Plaintiff refused to undergo the exam and the ultimately terminated Plaintiff. Plaintiff filed suit alleging that the City violated the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA). The Ninth Circuit held in favor of the City. The court held that the City did not violate the

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 20 ADA by requiring a fitness-for-duty exam after Plaintiff repeatedly exhibited emotionally volatile behavior while serving as an officer because the City had an objective, legitimate basis to doubt Plaintiff's ability to perform the duties of a police officer. The court held that the FMLA claim lacked merit because Plaintiff’s personal physician's letter did not state that Plaintiff had recovered from the psychological issues that rendered him unfit for duty.

Budde v. Kane County Forest Preserve, 597 F.3d 860 (7th Cir. 3/4/2010)

Plaintiff, the police chief for the Forest Preserve District (“District”), brought suit against the District claiming that it discriminated against him on the basis of his disability, alcoholism, in violation of the Americans with Disabilities Act (“ADA”). After Plaintiff had been charged with a DUI, causing him to lose his license, District terminated him. The Seventh Circuit found that Plaintiff’s termination was proper because Plaintiff had violated a District workplace rule of driving while intoxicated. The court further held that the District’s termination was proper because Plaintiff’s inability to operate a vehicle (because of a suspended license) was not a result of his disability, but “a consequence of choosing to drive his car after consuming four or five glasses of wine.”

City of Chicago v. Fraternal Order of Police, 399 Ill. App. 3d 707 (1st Dist. 3/24/2010)

The City of Chicago appealed an arbitrator’s monetary award to certain Chicago police officers under the City’s collective bargaining agreement. The City alleged that the arbitrator exceeded his authority by awarding a monetary award, despite the lack of such a remedy in the pertinent sections of the collective bargaining agreement. The Appellate Court upheld the arbitrator’s decision. The court reasoned that the pertinent sections of the collective bargaining agreement were silent as to a remedy, neither providing a remedy nor specifically providing no remedy for a violation. Further, the remedy the arbitrator awarded was the same remedy provided in similar sections of the collective bargaining agreement for similar violations to the ones committed.

Deutsch v. Jordan, 2010 WL 3310028 (10th Cir. 8/24/2010)*

After being fired as the police chief, the plaintiff filed federal civil rights and state law claims against the city and the city manager. The plaintiff alleged that he was terminated in retaliation for bringing a defamation lawsuit against a private citizen and for his testimony during that litigation. A private citizen alleged that the plaintiff used public funds to purchase a personal computer, and the city manager claimed that he lied in his testimony during that trial. The district court granted summary judgment to the municipal defendants on all claims except for the claim against the city manager in her individual capacity. The appeals court determined that the plaintiff's speech defending against allegations of his misuse of public funds was inherently a matter of public concern, affirming the district court's decision denying the city manager’s motion for summary judgment.

Dodaro v. Illinois Workers' Compensation Commission, 2010 WL 3035744 (1st Dist. 8/3/2010)*

The Workers' Compensation Act (820 ILCS 305/) requires the payment of benefits to an injured employee. Under that Act, the definition of the term "employee" specifically excludes a "duly appointed member" of the City of Chicago's police department. In this case, the claimant was injured while she was training to become a police officer for the city. The arbitrator concluded that the claimant, as a police recruit, was excluded from receiving benefits under the Act because she was not an "employee". The appellate disagreed, holding that the claimant was an employee under the Act. The court determined that the statutory exclusion in the Act applied only to sworn police officers, as they are the only "duly

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 21 appointed member[s]" of the city's police department, and therefore, the statutory exclusion did not apply to the claimant.

Egonmwan v. Cook County Sheriff, 602 F.3d 845 (7th Cir. 4/22/2010)

Plaintiff, an African American male correctional officer for the women’s division of the Cook County Sheriff’s Department, was criminally charged with custodial sexual misconduct with female detainees and placed on paid suspension pending a Loudermill hearing. Plaintiff was eventually acquitted of the criminal charges but was terminated by the Sheriff’s Department after his administrative hearing on the charges. Plaintiff subsequently filed suit against the Sheriff’s Department alleging discriminatory termination because of his gender and race. The Appellate Court first determined that Plaintiff could not prove his gender discrimination claim because his superior, who Plaintiff claimed discriminated against him, was not the ultimate decision maker in terms of brining criminal charges or terminating his employment. The court then determined that Plaintiff could not prove his race discrimination claim, reasoning Plaintiff could not prove a similarly situated Caucasian officer was treated more favorably and the mere fact Plaintiff was acquitted of the criminal charges was not enough to demonstrate pretext.

Fercello v. County of Ramsey, 2010 WL 2945312 (8th Cir. 7/29/2010)*

In this case, the Eighth Circuit Court of Appeals held that Plaintiff, a County of Ramsey employee, failed to establish a prima facie case and, alternatively, was unable to meet her burden of showing that the County's proffered reasons for its actions were a pretext for unlawful retaliation. Even though Plaintiff engaged in protected conduct by reporting sexual harassment, the County's actions were not constructive dismissal, a "functional demotion," or materially adverse employment actions. Rather than intentionally rendering Plaintiff’s work conditions intolerable, the record shows that the County sought to accommodate her at nearly every turn. On the performance review, even if some of the criticism was without merit, absent some evidence of retaliatory motive, the court refused to second guess the County's judgment of Plaintiff’s performance, and a reasonable jury would not find that it was causally related to the plaintiff's report of the harassment. The discharge (revoked a day later) took place well after her harassment claim, and Plaintiff did not otherwise show evidence of causation.

Frame v. City of Arlington, 2010 WL 3292980 (5th Cir. 8/23/2010)*

The plaintiffs were persons with disabilities who depended on motorized wheelchairs for mobility. They alleged that the city, by failing to make the city's curbs, sidewalks, and parking lots ADA-compliant, violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The City argued that the claim was out of time; that the plaintiffs lacked standing to invoke Title II or Section 504 of the Rehabilitation Act; and that the alleged facts did not state a legal claim of discrimination (that an enforceable duty only arose when new construction or alteration triggered the duty). The Fifth Circuit Court of Appeals held that a city's curbs, sidewalks, and parking lots do not, themselves, constitute a "service, program, or activity" within the meaning of Title II, and the two-year statute of limitations period for a claim begins to run on the date the plaintiff knew or should have known that he or she was excluded from a city service, program, or activity.

Fraternal Order of Police Lodge No. 89 v. Prince George's County, 608 F.3d 183 (4th Cir. 6/23/2010)*

In this case, the county imposed furlough days upon its employees to save money. The county employees covered by collective bargaining agreements sued, arguing that the plan violated the Contract Clause of the U.S. Constitution. The Fourth Circuit Court of Appeals determined that the county's requirement that employees take furlough days did not violate the Contract Clause of the U.S. Constitution because the

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 22 furlough plan was reasonable and necessary. Further, the plan did not substantially impair the collective bargaining agreement because a county law authorizing furloughs was part of the agreements.

Genius v. County of Cook, 398 Ill.App.3d 321 (1st Dist. 2/23/2010)

Plaintiff appealed from the judgment of the circuit court confirming a decision by the Cook County Employee Appeals Board, which terminated his employment as a police officer with the Forest Preserve District of Cook County, and denied his request for backpay during the period of his suspension. The court of appeals found that the Board lacked jurisdiction to render its decision and, therefore, vacated the Board’s decision. This matter, which was ultimately transferred to the Employee Appeals Board for a decision, was originally initiated in September 2001, when the District filed written charges with the Civil Service Commission, seeking to discharge plaintiff as an employee of the District. However, at the time the charges were filed, the Civil Service Commission had been abolished by ordinance through the Board of Commissioners of Cook County pursuant to its home rule powers, and therefore, had no authority to exercise any jurisdiction over the charges filed by the District.

Goelzer v. Sheboygan County, 604 F.3d 987 (7th Cir. 5/12/2010)

Plaintiff, a County employee, was terminated by the County two weeks before she was to take medical leave. Plaintiff brought suit against the County, claiming both interference and retaliation under the Family Medical Leave Act (“FMLA”) and the trial court granted summary judgment for the County. The Seventh Circuit Court of Appeals reversed, holding that Plaintiff’s claims should have survived summary judgment because a jury could conclude from the facts that the County interfered with her FMLA rights and retaliated against her for taking FMLA leave. Plaintiff had presented evidence that she received good performance reviews until she began taking significant amounts of FMLA leave, that her boss had commented numerous times on the amount of FMLA leave Plaintiff was taking, and that Plaintiff was terminated just prior to taking FMLA leave.

Gross v. Town of Cicero, 2010 WL 3365285 (7th Cir. 8/27/2010)*

The plaintiff sued the town, his former employer, after he was terminated and the town countersued. The Seventh Circuit determined that the town did not violate the First Amendment when it terminated the plaintiff because his attempts to speak with the town president about and urging his daughter to file an EEOC charge for sexual harassment in the police department were not matters of public concern. Further, the plaintiff was not liable to the town on its breach of fiduciary claim when, in his capacity as town employee, he appointed police officers whom he knew the town president desired but whom he personally believed were unqualified, because the Illinois Municipal Code provisions cited do not speak in terms of fiduciary duties. (See, 65 ILCS 5/10-2.1-4 & 5/10-2.1-6).

Keel v. City of Harvey, 2010 WL 310768 (N.D. Ill. 1/21/2010)

Plaintiffs, police officers for the City of Harvey, Illinois, both were hired as commanders for the police department. In 2006, both were put on indefinite administrative leave with pay. One plaintiff was on administrative leave until November 2009 and the other eventually received written reasons for his suspension over a year after the fact and was forced to resign. Plaintiffs sued the city alleging a civil conspiracy against them and due process violations, claiming they were not given written reasons for the suspensions or a hearing, despite numerous requests, and that they were deprived of pension benefits, retroactive pay raises, welfare benefits, unused sick leave, and promotional opportunities. The city filed a motion to dismiss and the district court granted its motion. The court dismissed Plaintiffs due process claims because they had not yet availed themselves of state remedies or shown that state remedies would

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 23 be inadequate. Moreover, because Plaintiffs’ constitutional due process claims were dismissed, their civil conspiracy claim failed for lack of an underlying constitutional violation.

Kinneary v. City of New York, 601 F.3d 151 (2d Cir. 3/19/2010)*

The plaintiff was a sludge boat captain for the City of New York. As a condition of his employment, he was subject to federally-mandated random drug tests to maintain his captain's license. Unfortunately, he was unable to urinate within the three-hour time limit on numerous occasions. The plaintiff claimed that he suffered from a disability -- paruresis, also known as "shy bladder syndrome." As a result, the city instructed him to be evaluated by his physician and to obtain a sufficient evaluation within five working days. The plaintiff returned with an insufficient note from his doctor. Later, the plaintiff's saliva and hair tests came back negative for illegal drug use. Nevertheless, because he was unable to take the required urine tests and because he did not have a sufficient evaluation from his physician, his captain license was terminated. As a result, the city terminated him from his position as captain because he didn't maintain his captain's license. The plaintiff sued the city claiming that the city violated the Americans with Disabilities Act by refusing to reasonably accommodate his disability. The Second Circuit Court of Appeals held that the city did not violate the ADA because the city offered the plaintiff a reasonable accommodation -- to cancel his required drug test if he returned with a sufficient physician's evaluation -- but he failed to satisfy the requirements of that accommodation.

Lalowski v. City of Des Plaines, 2010 WL 145860 (N.D. Ill. 1/8/2010)

Plaintiff, a former police officer for the City of Des Plaines, publicly expressed his disagreement with protesters during an abortion protest. The plaintiff claims that he expressed his views as a private citizen and while off duty, however, the protestors complained to the City about the manner in which the plaintiff expressed his views. The plaintiff was subsequently suspended without pay and eventually terminated by the Des Plaines Board of Fire & Police Commissioners (“Board”). Plaintiff filed suit against the City and the Board alleging various First Amendment claims and seeking administrative review of his termination pursuant to section 5/3-101 of the Code (735 ILCS 5/3-101). The Board brought a motion to dismiss and the district court granted that motion, determining that the Board was an extension of the City of Des Plaines Police Department, and therefore, not an independent suable entity.

Leonard v. Eastern Illinois University, 606 F.3d 428 (7th Cir. 5/26/2010)

Plaintiff, a Native-American employee of Eastern Illinois University, brought a suit under Title VII against the University. After suing and settling with the University over its “Chief Illiniwek” logo, Plaintiff was interviewed by a panel of superiors, two of whom were wearing shirts with the “Chief Illiniwek” logo. Plaintiff subsequently filed a complaint with the University’s Office of Civil Rights regarding the incident. Several months later, Plaintiff was interviewed again for a promotion but was passed over for another candidate. Plaintiff then initiated this suit, claiming the decision not to promote him was in retaliation for his complaint with the University’s Office of Civil Rights. The Appellate Court affirmed a grant of summary judgment in favor of the University because Plaintiff was unable to establish a causal connection between the civil rights complaint and the University’s decision not to promote him. Plaintiff failed to introduce any evidence that his interviewees were angered over his civil rights complaint and failed to refute evidence that he was continually passed over for promotions before the civil rights complaint because of his poor work and interview performances.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 24 Lewis v. City of Chicago, 130 S.Ct. 2191 (5/24/2010)

In this case, the City of Chicago administered a written examination to over 26,000 applicants seeking to serve in the Chicago Fire Department. The City ranked the exam scores in three tiers, with the “well qualified” tier consisting of those who scored 89 or above, the “qualified” tier consisting of those who scored between 65 and 88, and the “failing” tier consisting of those who scored below 65. The City based its applicant selection process on the tier system, in that it would only select applicants from the “well- qualified” tier until there were no more “well-qualified” applicants. Plaintiff, an African-American applicant who scored in the “qualified” tier and had not been hired as a candidate firefighter, filed a charge of discrimination with the EEOC. After receiving his right-to-sue letter, Plaintiff filed suit against the City claiming that its practice of selecting for advancement only “well-qualified” applicants caused a disparate impact on African-Americans in violation of Title VII. The only issue on appeal to the United States Supreme Court was whether Plaintiff filed his EEOC charges within 300 days after the claimed unlawful employment practice occurred, as required under 42 U. S. C. §2000e-5(e)(1). The Supreme Court held that Plaintiff met the filing deadline because the deadline is 300 days from an employer’s use of an unlawful employment practice, not the adoption of that practice. However, the Supreme Court did not decide whether the City’s employment practice was unlawful, leaving the Seventh Circuit Court of Appeals to determine whether the City’s continued use of the “well-qualified” list had a disparate impact.

Matos v. Cook County Sheriff's Merit Bd., 401 Ill.App.3d 536 (1st Dist. 5/13/2010)

Plaintiff was terminated after the Cook County Sheriff's Merit Board (“Board”) determined he violated a sexual harassment policy by intentionally making unwanted physical contact with a female employee. Plaintiff appealed the Board’s decision claiming the Board did not adequately consider evidence that his physical contact with the other employee was accidental. The Appellate Court upheld the Board’s decision as not against the manifest weight of the evidence and determined that termination was a fair punishment based on employee policy and Plaintiff’s disciplinary record.

O'Neal v. City of Chicago, 588 F.3d 406 (7th Cir. 11/17/09)

Plaintiff, a police sergeant, sued the Chicago Police Department (“CPD”) under Title VII of the Civil Rights Act, claiming she had been transferred numerous times between departments and eventually terminated in retaliation for filing a previous lawsuit against the CPD. The Seventh Circuit held that Plaintiff provided insufficient evidence that her transfers occurred because of her previous lawsuit. Though Plaintiff was transferred ten times following her previous lawsuit, Plaintiff offered no evidence that those transfers were retaliatory in nature. Moreover, Plaintiff could not refute CPD’s assertion that Plaintiff was fired for being borderline insubordinate, having a confrontational attitude, and having a poor performance record.

Ogden v. Atterholt, 606 F.3d 355 (7th Cir. 4/13/2010)

Plaintiff, an employee of the Indiana Department of Insurance, was required to resign after he wrote a memorandum criticizing the performance of his direct superior and asking that the Title Insurance Division be removed from her control. Three days before writing the memorandum, Plaintiff also filed a formal complaint against his direct superior regarding alleged unethical behavior. Plaintiff brought suit against his employer claiming that his memorandum was protected speech under the First Amendment and therefore, his forced resignation based on the memorandum violated his constitutional rights. Following Garcetti v. Ceballos, 547 U.S. 410 (2006), the Seventh Circuit Court of Appeals held that Plaintiff’s constitutional rights were not violated because he wrote the memorandum in his capacity as, and pursuant to his official duties as, an employee of the Indiana Department of Insurance, not as a

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 25 private citizen. The court reasoned that the memo was not of public concern because it did not reference Plaintiff’s formal complaint or any unethical behavior on behalf of his direct superior, but only criticized her work performance and asked for a departmental reorganization.

Paige v. Coyner, 2010 WL 2976052 (6th Cir. 7/26/2010)*

The plaintiff brought an action under § 1983 against county entities and an official, alleging a violation of her free speech rights. Plaintiff attended a public meeting and spoke out at the meeting against a proposed interstate highway project. Even though she never mentioned where she worked or what she did for a living, a county official at the meeting contacted Plaintiff’s private employer and said that she had publicly announced that she was an employee of this employer when she spoke out against the project. Plaintiff was subsequently terminated for her alleged public pronouncement. The defendants claimed that they were entitled to dismissal of the Plaintiff's complaint because they were not the ones that terminated her employment -- it was the private employer that performed the ultimate act that caused her harm, not the defendants. The Sixth Circuit Court of Appeals determined, however, that the proper test for the scope of responsibility in this case was reasonable foreseeability – weather a jury could find that Plaintiff’s termination was reasonably foreseeable because of the state action (the phone call providing false information). Therefore, Plaintiff's allegations were sufficient to survive a motion to dismiss because: (i) the county official was a state actor and it was reasonably foreseeable that her actions led to the plaintiff's termination; (ii) the plaintiff sufficiently alleged a First Amendment retaliation claim; and (iii) the plaintiff sufficiently alleged that the official acted according to an unconstitutional policy or custom.

People ex rel. Department of Labor v. Sackville Construction, Inc., 930 N.E.2d 1063 (3d Dist. 6/9/2010)

Defendant, a subcontractor, was hired by a private developer to supply laborers for a construction project and the developer failed to notify Defendant that the project was subject to the Prevailing Wage Act. Ultimately, the Illinois Department of Labor filed a complaint against Defendant for violating the Act alleging Defendant was paying its workers less than the prevailing wage. Defendant claimed that the Act did not apply because the private developer was not a “public body” and the construction project was not a "public work" as defined under the Act; or in the alternative, that the Act did not apply because Defendant was never given notice of its applicability. The Appellate Court held that the Act did apply to Defendant and the lack of notice did not relive Defendant of its obligations under the Act. In reaching its holding, the court determined that the private developer was a “public body” because the construction project was supported in part by a $150,000 contribution from the City of Rock Island and in part by conveyance of the project site by the City for nominal consideration. Furthermore, a “public work” is any fixed work constructed by any public body paid for in whole or in part by public funds, regardless of whether it is or is not financed through one of the financing statutes listed in section 2 of the Act.

Swearnigen-El v. Cook County Sheriff, 602 F.3d 852 (7th Cir. 4/22/2010)

Plaintiff, an African American male correctional officer for the women’s division of the Cook County Sheriff’s Department, was criminally charged with custodial sexual misconduct with female detainees, transferred to another position and placed on paid suspension pending a Loudermill hearing. Plaintiff resigned before the Loudermill hearing and was eventually acquitted of the criminal charges. Plaintiff subsequently filed suit against the Sheriff’s Department alleging discriminatory termination because of his gender, race, and protected speech. The Appellate Court began by determining that Plaintiff could not prove the Sheriff’s Department took an adverse employment action against Plaintiff because his transfer did not impact his pay or job conditions and Plaintiff voluntarily resigned; therefore, Plaintiff’s race and gender discrimination claims failed. Next, Plaintiff alleged he was terminated because his superior had

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 26 commented that she wanted to move all of the men out of the women’s division six months prior to Plaintiff being transferred and Plaintiff had verbally responded to her in disagreement. The court, however, determined that Plaintiff’s speech was not protected because Plaintiff was speaking as an employee in opposition to a proposed policy change, and not as a concerned citizen.

Torgerson v. City of Rochester, 605 F.3d 584 (8th Cir. 5/21/2010)*

The plaintiffs claimed that the city's reason for not hiring them was discriminatory. The Native American male claimed racial discrimination and the white female alleged gender discrimination. The appeals court held that the plaintiffs may present their claims to a jury because they created the requisite inference of unlawful discrimination under a McDonnell Douglas analysis (McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)), including sufficient evidence of pretext. The plaintiffs made out a prima facie case of discrimination because they did present evidence showing they had similar qualifications to the candidates who were ultimately hired, and the plaintiffs established a material question of fact regarding pretext.

Village of Broadview v. Illinois Labor Relations Board, 2010 WL 2521017 (1st Dist. 6/22/2010)

In this case, the Appellate Court affirmed a decision by Illinois Labor Relations Board that determined sergeant-ranked police officers in the Village of Broadview were non-supervisory employees, and therefore were certified as members of the Illinois Fraternal Order of Police Labor Council. The court reasoned that the sergeants did not meet all three parts of the test created under 5 ILCS 315/3(r). Specifically, the court noted that while the rules and regulations of the Village’s police department provided sergeants with some supervisory authority, the Village’s chief of police testified that only he or lieutenants could exercise those supervisory powers.

Village of Maryville v. Illinois Labor Relations Board, 2010 WL 2672925 (5th Dist. 6/29/2010)

In this case, the Appellate Court reversed a decision by Illinois Labor Relations Board that determined sergeant-ranked police officers in the Village of Maryville were non-supervisory employees, and therefore were certified as members of the Illinois Fraternal Order of Police Labor Council. The court determined that the Board improperly assigned weight to the number of times sergeants had actually exercised their supervisory authority, instead of simply whether the sergeants had supervisory authority.

Westlake v. City Of Springfield, Ill., 348 Fed.Appx. 155 (7th Cir. 9/17/2009)

Plaintiff, a City police officer, brought suit under Title VII against the City alleging she was terminated in retaliation for filing a sexual harassment claim. The Appellate Court affirmed a grant of summary judgment in favor of the City because Plaintiff was unable to establish a causal connection between filing of the complaint and her termination. Plaintiff could not remember when she filed the complaint, there was no record of a complaint ever being filed, and Plaintiff had a history of professionalism complaints and internal affairs investigations directed towards her.

Wisbey v. City of Lincoln, 612 F.3d 667 (8th Cir. 7/6/2010)*

The city did not violate the ADA or the FMLA when it terminated the plaintiff's employment as an emergency 911 operator after a fitness-for-duty examination showed that she was unfit for duty due to her chronic relapsing depression and excessive tiredness, which resulted in excessive absenteeism. The plaintiff failed to show that she was a disabled person within the meaning of the ADA, and the city did not interfere with her FMLA leave or retaliate against her for her use of FMLA leave.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 27 Licenses/Fees/Taxation

ACME Markets, Inc. v. Callanan, 236 Ill.2d 29 (10/29/2009)

Taxpayers brought suit against the County to obtain a refund of taxes levied by the County pursuant to the County Shelter Care and Detention Home Act. See 55 ILCS 75/5. Taxpayers alleged the tax was unauthorized because a levy was never submitted to a direct referendum of County voters as required under section 18-190 of the Property Tax Extension Limitation Law (“PTELL”). See 35 ILCS 200-18- 190. PTELL required a direct referendum for all new rate or rate increases authorized by statute, and at issue was whether that requirement was applicable to all statutes or only those statues enacted after PTELL took effect. In reaching its decision, the Supreme Court interpreted PTELL to mean that “a taxing district levying a new rate must submit the proposed new rate to a direct referendum regardless of whether the statute authorizing the rate was adopted before or after January 1, 1994, when PTELL took effect.” Therefore, the County’s tax levy was an illegal levy, invalidating the initial levy and all successive levies for the tax at issue.

In re County Collector of Du Page County for Judgment for Taxes for Year 1999, 397 Ill.App.3d 301 (2d Dist. 11/17/2009)

Taxpayers brought suit against the Forest Preserve District (“District”) alleging that the District had no authority to levy a tax for certain years for its annual contribution to the Illinois Municipal Fund because the District did not make an appropriation for the contribution prior to levying the tax. In reaching its decision, the Appellate Court interpreted section 7-171 of the Pension Code (40 ILCS 5/7-171) providing that the District “may levy a tax which shall not exceed the amount appropriated.” The court determined that the language created a limit on the amount that could be levied, rejecting Taxpayers argument that the language required the District to adopt an appropriation ordinance before it adopted its levying ordinance.

P & S Grain, LLC v. County of Williamson, 399 Ill.App.3d 836 (5th Dist. 4/2/2010)

In this case, the Appellate Court held that Plaintiffs, two retail store entities, had standing to challenge a retail sales tax imposed by the County. The court determined that: (1) Plaintiffs were adversely affected by the tax because retail stores had to pay the tax, regardless of whether or not the store passed the tax along to its customers; and (2) a corporate entity has as much of a right to challenge a tax obligation as an individual citizen because it qualifies as a corporate citizen.

Pro's Sports Bar & Grill, Inc. v. City of Country Club Hills, 589 F.3d 865 (7th Cir. 12/16/09)

Plaintiff, a local bar, sought and obtained a preliminary injunction to prevent the City from enforcing different hours than were granted to Plaintiff by its liquor license. The City argued that the ordinance granting Plaintiff’s liquor license contained a scrivener’s error and did not reflect the city council’s intent, which was to grant a liquor license with restricted hours. The Court rejected the City’s arguments based on video evidence of the council meeting that showed a discussion favoring restricted hours for Plaintiff’s liquor license but ended with a vote on a liquor license ordinance that lacked such a restriction.

Sorce v. Armstrong, 399 Ill.App.3d 1097 (2d Dist. 4/26/2010)

In this case, the Appellate Court determined that taxpayers who had voluntarily paid property taxes that were based on erroneous calculations of their property assessment could not recover refunds from those tax payments. The taxpayers argued that section 20-175 of the Property Tax Code, which provides taxpayers with a five-year period to seek a refund for overpayment of taxes, applied to their past property

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 28 tax payments. In rejecting this argument, the court determined the section 20-175 of the Property Tax Code did not apply to tax bills that were incorrectly calculated but voluntarily paid in full.

Attorneys Fees

City of McHenry v. Suvada, 396 Ill.App.3d 971 (2d Dist. 12/16/2009)

The City obtained an injunction against the Owner of an apartment building requiring all tenants to evacuate the building while repairs were made to bring the building in compliance with the City code. After repairs were made, the trial court declined to award the City attorneys’ fees or statutory fines and the Appellate Court reversed. The court held that the City was entitled to attorneys’ fees but noted that on remand, the trial court had discretion to determine the amount of attorneys’ fees, taking into account the trial court’s finding that the City was overly aggressive with its litigation strategy against the Owner in light of the Owner’s cooperation with the City. Moreover, the court held that the City was entitled to statutory fines because the penalty provision of the City code mandated imposition of a fine for a violation regardless of whether the violation was remedied.

Housing Authority of Champaign County v. Lyles, 395 Ill.App.3d 1036 (4th Dist. 11/20/2009)

Plaintiff, the Housing Authority of Champaign County, brought a forcible entry and detainer action against Defendant, a tenant of Plaintiff. The Circuit trial entered judgment in favor of Defendant and awarded attorneys fees to Defendant based on the lease agreement. Plaintiff appealed the award of attorneys’ fees. The Appellate Court held that Defendant was not entitled to attorneys fees under the lease, which provided “In the event one party to this lease defaults in fulfilling any of the provisions of this lease, the nondefaulting party may recover all costs and reasonable attorney fees incurred in enforcing this lease.” The court explained that Defendant was merely defending the charge that she had breached the lease, and was not suing to compel the covenants of the lease as required by the language of the lease to collect attorneys’ fees.

Robinson v. City of Harvey, 2010 WL 3069566 (7th Cir. 8/6/2010)*

In a civil action in 2002, a jury found a police officer guilty of shooting the plaintiff without a good reason, and trying to frame him with possession of a gun. The plaintiff was awarded $25,000 in compensatory and $250,000 in punitive damages and, in 2004 the district court ordered the officer and the city to pay $507,000 in attorney's fees. The city paid both the compensatory damages and the award of attorney's fees. Four years later, the plaintiff filed a supplemental request for additional attorney's fees. He sought compensation for legal work performed from 2002 through 2008, which included legal work for: dealing with the police officer's post-verdict motions for relief; defeating the officer's attempts to stay enforcement; prosecuting the earlier motion for attorney's fees; and preparing the appellate proceedings and the supplemental fee petition. The district court rejected the City's argument that a supplemental award is barred by principles of issue or claim preclusion and awarded the plaintiff an additional $277,462. The city appealed. The Seventh Circuit Court of Appeals agreed that the district court properly rejected the city's argument that a supplemental award is barred by principles of issue or claim preclusion. But the court held that the city was not liable to pay for any legal work concerning the award of punitive damages because the city was not jointly and severally liable for those damages, and, therefore, not jointly and severally liable for the associated attorney's fees. The court also held that the plaintiff had represented that the original award was final, which prevented him from later holding an inconsistent position. Further, the plaintiff was not entitled to supplemental damages because he did not timely file the motion for them -- the motion was filed nearly a year after the appeal was decided.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 29 Tort Immunity

Callaghan v. Village of Clarendon Hills, 401 Ill.App.3d 287 (2d Dist. 4/29/2010)

Plaintiff brought suit against Defendants, the Village and Park District, alleging negligence and willful and wanton conduct after she sustained injuries from slipping on an allegedly unnatural accumulation of ice and snow on a Village sidewalk. Defendants moved to dismiss Plaintiff’s suit claiming they were immune from the negligence claim under Section 3-106 of the Tort Immunity Act (745 ILCS 10/3-106) because the sidewalk was recreational property, and claiming Plaintiff failed to state a cause of action for willful and wanton conduct. The Appellate Court ruled in favor of Defendants. The court determined that, even though the sidewalk was owned by the Village and not the Park District, the sidewalk was intended to be used for recreational purposes because it was included in the development of the park, maintained by the Park District, and increased the usefulness of the park by providing access to the park. The court also determined that Plaintiff’s willful and wanton conduct claim failed because Plaintiff did not provide sufficient evidence to support a finding that the accumulation of ice and snow was a result of Defendants’ utter indifference or conscious disregard for the safety of persons such as Plaintiff.

Del Real v. Northeast Illinois Regional Commuter Railroad Corp., 2010 WL 3221917 (1st Dist. 8/13/2010)*

The plaintiff filed an action against the defendant (Metra) -- a not-for-profit corporation organized for the purpose of conducting public business -- for damages claiming breach of contract and negligence. The plaintiff alleged that she was injured when she slipped and broke her back while attempting to enter a train platform owned and operated by Metra. The trial court granted Metra's motion to dismiss finding that the Tort Immunity Act barred her claims. The appellate court noted that Metra is entitled to use the Tort Immunity Act as a defense because it is a not-for-profit corporation organized for the purpose of conducting public business. Metra was immune from liability for negligence under Section 3-102(a) of the Act because the plaintiff, who was attempting to climb onto the platform where there was no staircase, was not an intended and permitted user of the property where she was injured. In addition, Metra was immune under the determining policy provision of Section 2-201 because where to place a staircase is a policy determination.

Donovan v. Village of Ohio, 397 Ill.App.3d 844 (3d Dist. 1/11/2010)

Plaintiff was the widow of a tavern fire victim (“Victim”). The Victim died in a tavern fire, during which numerous 911 calls were made but not received by the Bureau County Emergency Board (“Board”) because of equipment failure. Plaintiff filed suit against the Board alleging the Board failed to perform duties owed to the Victim under Illinois’ Emergency Telephone System Act (50 ILCS 750/15.1). The Appellate Court ruled for the Board, holding that under the Public Duty Rule the Board did not owe a duty to the Victim. The court reasoned that under the Public Duty Rule the Board owed certain duties to the public at large, but that the Board did not owe those duties to each citizen individually.

Doria v. Village of Downers Grove, 397 Ill.App.3d 752 (2d Dist. 12/29/2009)

Plaintiff brought suit against the Village after he fell and injured himself while trying to remove a package from his car that was parked in a gravel lot. At issue was whether the gravel lot was intended to be used as a parking lot, which would ultimately determine whether Plaintiff was an intended user of the gravel lot as required under the Governmental Employees Tort Immunity Act. The Appellate Court determined that the gravel lot was not intended to be used as a parking lot, and thus Plaintiff was not an intended user of the lot. The court reasoned that the Village had never paved or painted the lot, and had

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 30 never placed parking meters, public parking signs, or concrete parking bumpers in the lot. The court rejected two arguments by Plaintiff in his attempt to show the lot was intended to be a parking lot: that the lot did not have “no parking” signs, and that the historical use of this gravel lot showed it was habitually used for parking.

Gutstein v. City of Evanston, 929 N.E.2d 680 (1st Dist. 6/4/2010)

A Homeowner in the City brought suit against the City after she fell and injured herself in an unimproved City alley while carrying trash to a City provided trash bin. The City argued that the Homeowner was not an intended user of the alley as required under the Governmental Employees Tort Immunity Act. Disagreeing with the City, the Appellate Court held that the Homeowner was an intended user of the alley because the City manifested its intent that the Homeowner use the alley by passing an ordinance requiring residents to place their trash in City provided trash bins and then placing those trash bins in the alley. Alternatively, the City argued that it had discretionary immunity because the City’s public works supervisor (“Supervisor”), who had the duty of maintaining the City’s alleys, was exercising discretion when he chose not to repair the Homeowner’s alley before her injury. The court again disagreed with the City. The City had a mandated yearly regrading policy for its unimproved alleys and the Supervisor determined the timing of each alley’s regrading. The court determined that the Supervisor was merely determining the manner in which the City policy was carried out, which did not qualify the City for discretionary immunity.

Hemminger v. Nehring, 399 Ill. App. 3d 1118 (3d Dist. 4/8/2010)

Plaintiff brought a wrongful death action against Defendants, a municipal hospital and its employees, alleging the employees were negligent in failing to correctly interpret the results of his wife’s Pap smear, which ultimately resulted in her death. Plaintiff’s wife had a Pap smear conducted at the municipal hospital and was informed that the test was normal. Shortly after, the wife was separately diagnosed with cervical cancer and died sixteen months later. Defendants brought a motion for summary judgment claiming that they were immune from liability for failure to diagnose under Section 6-105 and 6-106 of the Tort Immunity Act. The Court of Appeals upheld summary judgment for the Defendants, reasoning that a Pap smear was a screening test and that interpreting the results of that test was part of the diagnostic process, conduct that both Sections 6-105 and 6-106 immunized.

Krywin v. Chicago Transit Authority, 2010 WL 2780319 (7/15/2010)

Plaintiff brought suit against the Chicago Transit Authority (CTA) alleging negligence and willful and wanton conduct after she sustained injuries from slipping on a natural accumulation of ice and snow while deboarding a CTA train. The Illinois Supreme Court held that the CTA was not liable for Plaintiff’s injury because under the “natural accumulation rule” the CTA had no duty to remove or warn of the natural accumulation of ice and snow on its train platform.

Peters v. Herrin Community School District No. 4, 401 Ill.App.3d 356 (5th Dist. 5/19/2010)

Plaintiff, the mother of a child injured during a football camp sponsored by the Herrin Community School District No. 4, brought a suit claiming negligence and willful and wanton conduct against the School District. Plaintiff’s son was injured when the camp’s coaches instructed the son to run and the son tripped over a shot-put pit bumper that was situated on the route he was instructed to take. The School District filed a motion to dismiss claiming immunity under Section 3-106 of the Tort Immunity Act because the injury occurred on recreational property – a football field. The Appellate Court denied the School District’s motion. As for the negligence claim, the court reasoned that there was an inference that the

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 31 football field was being used for educational purposes because the property was located on school grounds and was being used by the School District for a summer camp. As for the willful and wanton claim, the court reasoned that the allegation that Plaintiff’s son had been instructed by the camp’s coaches to encounter the hazard was sufficient to support a cause of action for willful and wanton conduct.

Valle v. City of Houston, 2010 WL 2977456 (5th Cir. 7/30/2010)*

The city was entitled to summary judgment in plaintiffs' § 1983 case for the death of their son, who was mentally ill and shot by city police officers. The decision to enter the plaintiffs' home was not made by a city policymaker; therefore, no city policy was a moving force in causing their injuries. Furthermore, the plaintiffs failed to show that a city policymaker acted with deliberate indifference and that the allegedly inadequate training of officers was a moving force in bringing about any constitutional violation.

Vaughn v. Barton, 2010 WL 2705051 (5th Dist. 7/8/2010)

Plaintiff, a spectator at a youth recreational baseball game, was struck by a baseball while sitting in the stands. The baseball was thrown by a minor baseball player (“Player”) warming up behind the dugout. Plaintiff brought a negligence action against the Association who controlled the baseball field through a lease with the Park District, and its alleged agent, the Player’s baseball coach (“Coach”). The Association and Coach claimed each was immune from liability under the Recreational Use of Land and Water Areas Act (“Act”) (745 ILCS 65/1 et seq.). The Appellate Court agreed, holding that the Act provided immunity to both the Association and Coach. The court reasoned that the Association (and the Coach as its agent) satisfied the requirements to qualify under the Act because the Association was in control of the land, which was used for the recreational purpose of baseball, and because it never charged spectators an admission fee. In addition, the court mentioned that while the issue was moot, the Association would also be immune from liability under the Baseball Facility Act (745 ILCS 38/10 et seq.).

Municipal Ordinances

Brandt v. Village of Winnetka, 2010 WL 2813648 (7th Cir. 7/20/2010)

In this case, the Seventh Circuit Court of Appeals considered a suit brought by a political promoter seeking a declaratory judgment that a Village ordinance was invalid because it violated his First Amendment rights. The ordinance required an event sponsor to pay for all special services the Village was required to provide. The court held that based on the probability that he would host another event requiring special services, the political promoter had standing to challenge the ordinance. However, based on a lack of evidence presented by the political promoter, the court dismissed the suit as premature.

City of Wheaton v. Loerop, 399 Ill.App.3d 433 (2d Dist. 3/31/2010)

In this case, the Appellate Court determined that a City ordinance could impose a minimum fine for a DUI offense even though the applicable Illinois statute (625 ILCS 5/11-501(a)(2)) did not provide a minimum fine because the ordinance did not conflict with state law.

Metro. Taxicab Bd. of Trade v. City of N.Y., 2010 WL 2902501 (2d Cir. 7/27/2010)*

The plaintiffs, who were mostly taxi fleet owners, were entitled to a preliminary injunction from the enforcement of the city's new lease caps on taxis because the lease caps were preempted by federal law. The city's lease caps, which were based expressly on the fuel economy of a leased vehicle, plainly fell

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 32 within the scope of the preemption provision of the Energy Policy and Conservation Act, 49 U.S.C. § 32919(a). The plaintiffs, therefore, demonstrated a likelihood of success on the merits of their claims.

N.Y. SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97 (2d Cir. 6/30/2010)*

Four national telecommunications service providers brought an action to challenge the town's ordinance regulating the installation of wireless facilities on the grounds that it was preempted by the Telecommunications Act of 1996. The ordinance was intended to give the town the ability to control visual and aesthetic aspects of wireless telecommunications facilities within the town, and, in particular, it sought to implement a preference in residential areas for smaller and less intrusive antennas. The Second Circuit Court of Appeals held that the town's ordinance governing the installation of wireless telecommunications facilities, implementing a "preference" in residential areas for smaller and less intrusive antennas, was preempted by the federal Telecommunications Act. The provisions setting forth a preference for alternate technologies were preempted because they interfered with the federal government's regulation of technical and operational aspects of wireless telecommunications technology, a field that was occupied by federal law. The ordinance's preference for alternative technologies was so substantial that it effectively mandated their use and interfered with the federal regulatory scheme that occupied the field. While the Act preserved the authority of local governments over zoning and land use matters, this did not extend to technical and operational matters, over which the FCC and the federal government have exclusive authority.

Palm v. 2800 Lake Shore Dr. Condo. Assoc., 929 N.E.2d 641 (1st Dist. 5/28/2010)

In this case, a condominium unit owner brought suit against the condominium association seeking production of financial records pursuant to a City of Chicago ordinance. The City's ordinance required condominium associations to allow unit owners to inspect its financial records within three business days of the request. The condominium association claimed the City ordinance was invalid because it conflicted with the Condominium Property Act (765 ILCS 605/) and the Illinois General Not for Profit Corporation Act (805 ILCS 105/). The City intervened alleging its ordinance was valid. The Appellate Court held that the City ordinance was a valid exercise of the City's home-rule powers. The court reasoned that while the City ordinance conflicted with the statutes, those statutes did not specifically prohibit a home-rule unit from governing the process by which a unit owner may gain access to a condominium association's financial records. Moreover, the court determined that a home rule unit has the power to provide for attorney fees to a prevailing party, as long as it is not specifically preempted by statute.

Village of Northfield v. BP America, Inc., 2010 WL 2977598 (1st Dist. 7/27/2010)

In this case, the Appellate Court determined that the Village acted within its authority under section 11- 31-1 of the Illinois Municipal Code (65 ILCS 5/11-31-1) when the Village cited the owner of an abandoned gasoline station for violating a Village nuisance ordinance. The court reasoned that the Village ordinance was a valid exercise of its non-home rule power because the ordinance was not preempted by state statute, nor did it conflict with state statute.

Village of Wheeling v. Evanger's Dog and Cat Food Co., 399 Ill. App. 3d 304 (1st Dist. 3/23/2010)

In this case, the Appellate Court determined that a trial court exceeded its authority when it imposed court supervision as the penalty for a municipal ordinance violation when the applicable ordinance did not provide for supervision. Consequently, the trial court’s subsequent order terminating supervision and imposing a $168,000 fine was also void.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 33 Miscellaneous

Cellini, et al. v. Village of Gurnee, et al., 2010 WL 2854171 (1st Dist. 7/20/2010)

This case involves a settlement agreement entered into following injuries that occurred as a result of high speed chase. A U-Haul truck had been involved in a crime and was, at various times, pursued by different police agencies. As Buffalo Grove police officers were pursuing the U-Haul truck at a high rate of speed, the U-Haul truck collided with a car causing the death of one person and injuries to two others. Plaintiffs filed suit against all of the municipal police departments involved and certain U-Haul entities. After all of the municipalities reached settlements with the plaintiffs, the U-Haul entities filed an opposition to Buffalo Grove’s settlement agreement. The Appellate Court held that the settlement agreement was made and entered into in good-faith within the meaning of the Joint Tortfeasor Contribution Act (740 ILCS 100/1). The court rejected U-Haul’s argument that the agreement violated public policy by shifting an inequitable portion of damages onto U-Haul because Buffalo Grove’s degree of liability far exceeded U- Haul's alleged fault. The court reasoned that U-Haul's argument concerning the potential damage award against U-Haul was speculative and that U-Haul failed to provide any evidence of bad-faith.

Graham County Soil Conservation Dist. v. US. ex rel Wilson, 130 S.Ct. 1396 (3/30/2010)

In this case, the United State Supreme Court held that the term “administrative” in category 2 of section 3730(e)(4)(A) of the False Claims Act (31 U.S.C. §§ 3729-3733) was not limited to federal sources, but included state and local sources as well. The pertinent part of the Act contained a provision barring qui tam actions based upon the public disclosure of allegations or transactions in certain specified sources, which included “administrative” reports. The question before the court was whether disclosures in “administrative” reports encompassed disclosures made in state and local reports as well as federal reports.

Howard v. Chicago Transit Authority, 2010 WL 2305554 (1st Dist. 6/7/2010)

In this case, the Appellate Court dismissed a class action lawsuit against the Chicago Transit Authority holding that the terms printed on CTA transit cards were valid and enforceable against the card’s purchaser. The court concluded that the purchase of a CTA transit card entered the purchaser and CTA into a contract, at which time the terms and conditions printed on the back of the transit card became part of the contract.

Morgan, Lewis and Bockius LLP v. City of East Chicago, 2010 WL 2199660 (1st Dist. 5/28/2010)

Plaintiff, an Illinois law firm, brought suit against the City of East Chicago (located in Indiana) for nonpayment of legal fees. The City filed a motion to dismiss for lack of personal jurisdiction and the trial court denied that motion. The City appealed and the Appellate Court affirmed the trial court’s ruling. The Appellate Court determined that Illinois courts had specific jurisdiction to hear the case through Section 2-209(c) of the long-arm statute (735 ILCS 5/2-209(c)) because the City established sufficient minimum contacts to support personal jurisdiction when it intentionally sought a business relationship with an Illinois-based law firm. The court reasoned that the City had initiated contact with the Illinois law firm and had derived benefits from that law firm’s representation.

Rivera v. Garcia, 401 Ill.App.3d 602 (1st Dist. 4/30/2010)

Plaintiffs were parents of minors who were injured or killed by police officer gunfire following a high speed pursuit brought a battery and willful and wanton action against the officers and the City. The

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 34 pursuit was initiated by an off-duty detective in a “covert” police vehicle who decided to investigate the robbery of personal property from his son. Gunfire was exchanged during the pursuit, but after the two vehicles had come to a stop, officers fired upon the minors’ vehicle, injuring one minor and killing another. Following a jury trial, the jury returned a verdict in favor of both plaintiffs. The trial judge set aside the jury verdicts, determining as a matter of law that the plaintiffs did not prove proximate cause. The Appellate Court reversed the trial court and reinstated the jury verdict. The court reasoned that proximate cause was proven based on the ample evidence (including Chicago Police Department procedures) that injury or death was a foreseeable result of a high speed pursuit and that “but for the recklessly joined pursuit by the [police officers], the injury and death here would not have occurred.”

Rusch v. Leonard, 399 Ill. App. 3d 1026 (2d Dist. 4/16/2010)

In this case, the Appellate Court determined that a firemedic’s negligence claim for injuries he suffered while responding to an emergency call were not barred by the "fireman's rule" or the "open and obvious rule." The court reasoned that the “fireman’s rule” did not apply because the firemedic went to the premises to attend to an injury victim who had fallen from the attic to the second floor and the firemedic was instead injured on a defective stairway from the first floor to the second floor; thus the firemedic’s injuries were unrelated to the reason the firemedic went to the premises. Additionally, the court reasoned that the "open and obvious rule" did not bar the firemedic’s claim because the defective stairway that injured the firemedic was the only stairway available to the firemedic to access the injury victim; therefore, the “deliberate encounter” exception the rule applied.

State Farm Mutual Automobile Insurance Company v. City of Chicago, 398 Ill. App. 3d 832 (1st Dist. 2/26/2010)

Following an accident involving Plaintiff and a City of Chicago-owned vehicle, the City sent a notice to Plaintiff demanding payment and threatening possible of garnishment or discharge but made no mention of an opportunity for an administrative hearing to contest the debt. State Farm, on behalf of Plaintiff, filed a declaratory judgment action against the City seeking to enjoin the City from prosecuting its property damage claim against its insured. The City moved to dismiss the case on the ground that Plaintiff’s complaint did not allege an actual controversy and the trial court granted its motion. The Appellate Court reversed, holding that the City’s payment demand notice created an actual controversy ripe for adjudication because the notice, and its failure to inform Plaintiff of his right to an administrative hearing, constituted a sufficient final determination on his debt owed to warrant judicial consideration.

U.S. v. Boender, 2010 WL 680952 (N.D. Ill. 2/23/2010)

Petitioners, current and former City of Chicago Aldermen filed a motion to bar testimony in an upcoming criminal trial in which the defendant was accused of federal program bribery. The indictment alleged that the defendant had bribed a city alderman, who was not one of the plaintiffs, as part of a scheme to have property rezoned. Sought to bar testimony “as to why they voted in the manner they did” on the zoning ordinance. The district court denied petitioners’ motion because there was no evidentiary privilege for local legislators who have been called on to testify in a criminal case, and the court was unwilling to recognize such a privilege.

Wisnasky-Bettorf v. Pierce, 2010 WL 3331286 (5th Dist. 8/19/2010)*

Under Section 7-61 of the Illinois Election Code, the petitioner's name was properly stricken from being placed on the November 2nd general election ballot because the established political party failed to file its resolution nominating the petitioner for the elective office within three days of its action.

SIGNIFICANT CASES IN MUNICIPAL LAW Michael F. Zimmermann September, 2010 35