The following is a synopsis of selected decisions of the Illinois Appellate Courts, the Illinois Supreme Court and Federal Courts that have been rendered since the 1987 Illinois Municipal League Annual Conference.

There have been a number of notable decisions in the past year and we have attempted to highlight those which appear most significant to municipal attorneys and public officials.

I. ILLINOIS APPELLATE COURT DECISIONS

ANNEXATION

People, ex rel. Leland Grove v. Springfield
155 Ill. App. 3d 943,520 N.E.2d 1205,117 Ill. Dec. 854 (4th App. Dist. 1988)

Ordinance authorizing publication of intention to annex property, just as ordinance expressing desire to annex property, was only preliminary step to legal annexation. Legal annexation occurs with passage of annexation ordinance itself.

Prospect Heights v. Arlington Heights
171 Ill. App. 3d 766,525 N.E.2d 970,121 Ill. Dec. 663 (1st App. Dist. 1988)

The Village of Arlington Heights gained priority as to the annexation of adjoining land by filing notice that it contemplated annexing territory. Prospect Heights subsequently filed a similar notice. However, since Arlington Heights initiated proceedings first it cannot be ousted unless it abandons or rejects the annexation ordinance.

Village of Kildeer v. Lake Zurich
167 Ill. App. 3d 783, 521 N.E.2d 1252, 118 Ill. Dec. 559 (2nd App. Dist. 1988)

In an action over annexed land, the court held that the Village of Kildeer had standing to bring a quo warranto action against the Village of Lake Zurich (which had attempted to subsequently annex the same land as Kildeer) notwithstanding claim that Kildeer's ordinances were invalid at the outset, where Kildeer's ordinances were undefeated at time of quo warranto action.

Village of Long Grove v. Village of Buffalo Grove
160 Ill. App. 3d 455,513 N.E.2d 408, 111 Ill. Dec. 965 (2nd App. Dist. 1987)

Erroneous inclusion of land not properly subject to annexation is jurisdictional defect which invalidates petition for annexation and such petition is not entitled to priority over subsequently filed petition to annex or incorporate same territory.

BILLBOARD REGULATION

Dingeman Advertising, Inc. v. Village of Mount Zion
166 Ill. App. 3d 70,519 N.E.2d 504,116 Ill. Dec. 612 (4th App. Dist. 1987)

The Highway Advertising Control Act did not preempt all municipal zoning controls and established, as a minimum advertisement requirement for all commercial areas adjoining federal-aid primary highways, the same maximum limitation set forth in the Act, thus village had right to regulate size, lighting and spacing of advertising signs consistent with customary use.

Cherry Valley Co. v. City of Rockford
_Ill. App. 3d _, —N.E.2d _, _Ill. Dec. _ (1st App. Dist. 1988)

The Highway Advertising Control Act (Ill. Rev. Stat., 1985, ch. 121, par. 501 et seq.) does not pre-empt local municipalities from enacting more restrictive sign regulation.

The Court found that the enactment of more restrictive local advertising sign regulation would not jeopardize continued receipt of federal highway funds and it was for that purpose the legislature adopted the Highway Advertising Control Act. Thus, the Highway Advertising Control Act (Ill. Rev. Stat., 1985, ch. 121, par. 501 et seq.) does not pre-empt local municipalities from enacting more restrictive sign regulation.

National Advertising v. Downers Grove
166 Ill. App. 3d 58, 519 N.E.2d 502, 116 Ill. Dec. 610 (2nd App. Dist. 1988)

State Highway Advertising Control Act, regulating outdoor commercial advertising signs, does not preempt more restrictive regulation of those signs by home rule municipality.

COLLECTIVE BARGAINING

City of Rockford v. Illinois State Labor Relations Board
Ill. App. 3d 166, 512 N.E.2d 100158, 111 Ill. Dec. 196 (2nd App. Dist. 1987)

December 1988 / Illinois Municipal Review / Page 15

City and City's public library were joint employer's for purposes of collective bargaining due to City's past and present role in funding the library which has a major effect on negotiations over wages.

EMPLOYEES; ARBITRATION

City of Freeport v. Illinois State Labor Relations Board
523 N.E.2d 214,169 Ill. App. 3d 151,119 Ill. Dec. 746 (2nd App. Dist. 1988)

The decision of the Board in finding that the police department's lieutenants and sergeants were not supervisors and were thus included within the rank and file's bargaining unit was erroneous since the Board gave an undue amount of consideration to: (i) the time the officers spent on backup to their subordinates ignoring the fact this is often necessary to exercise commend authority, and (ii) the actual number of times a supervisory function was in fact exercised by the officers ignoring the facts that personal leadership is different among officers as is the amount of crime occurring in each city.

EMPLOYEES; BARGAINING

City of Chillicothe v. State Labor Relations Board
165 Ill. App. 3d 217, 518 N.E.2d 734,116 Ill. Dec. 112 (3rd App. Dist. 1988)

Municipality, which had previously recognized informal labor organizations based on seven year course of bargaining between them to negotiate labor packages, could not subsequently refuse to negotiate with organizations without committing "unfair labor practice".

EMPLOYEES; COLLECTIVE BARGAINING

Village of Wheeling v. Illinois Labor Relations Board
170 Ill. App. 3d 934,524 N.E.2d 958, Ill. Dec. 776 (1st App. Dist. 1988)

Lieutenants of village's fire department were included with the rank-and-file for collective bargaining purposes due to the fact that the Lieutenants failed to satisfy statutory test to qualify as supervisors since they did not perform work substantially different from their subordinates and exercised very little supervisory authority.

EMPLOYEES; WRONGFUL DISCHARGE

Zueck v. Nokomis
159 Ill. App. 3d 140, 513 N.E.2d 125, 111 Ill. Dec. 879 (5th App. Dist. 1987)

Charge of dishonesty or immorality in connection with employment is an accusation which places accused's reputation, honor or integrity at stake and thus infringes on his constitutionally protected liberty interest so as to require a hearing on charge, regardless of whether the accused possesses a protected property right to continued employment.

EMPLOYEES; PENSION

Johnson v. State Employees Retirement System
155 Ill. App. 3d 616, 508 N.E.2d 351,108 Ill. Dec. 190 (1st App. Dist. 1987)

Notice to claimant by State Employees Retirement System decision denying him survivor's benefits, without informing claimant of right to appeal and time limit for doing so, denied claimant due process of law, and defective notice tolled 35-day filing period for appeal.

HARBORS

Broechl v. Chicago Park District
170 Ill. App. 3d 1063, 524 N.E.2d 1045, 120 Ill. Dec. 863 (1st App. Dist. 1988)

City was entitled to operate its harbor at a profit and statutory provision charging non-residents higher rates is not unconstitutional since it does not violate the privileges and immunities clause because the distinction between resident and non-resident does not affect the nation as a whole; and it does not violate the equal protection clause since the city is favoring its residents in the use of a finite resource.

LABOR

Bernardi v. Illini Community Hospital
163 Ill. App. 3d 987, 516 N.E.2d 1320, 114 Ill. Dec. 926 (4th App. Dist. 1987)

A not-for-profit, nonsectarian hospital, which received public funds through tax monies assessed for its benefit, was a "public institution" and a public body for purposes of Prevailing Wage Act.

LIQUOR CONTROL ACT/LICENSING

Henderson v. Graham
167 Ill. App. 3d 256, 521 N.E.2d 143, 118 Ill. Dec. 75 (3rd App. Dist. 1988)

A challenge to filing of referendum petitions concerning prohibition of sale of alcohol in the city also contests validity of petitions, not validity of election; therefore, under Section 4 (Ill. Rev. Stat., 1973, ch. 43, par. 169) of the Liquor Control Act, challenge to petitions had to be lodged not more than thirty days prior to election and post-election challenges were untimely.

Black Knight Restaurant, Inc. v. City of Oak Forrest
159 Ill. App. 3d 1016, 513 N.E.2d 109, 111 Ill. Dec. 863 (1st App. Dist. 1987) No. 86-988

The Court ruled that extended-hour license did not constitute a right entitled to due process protections since a license to sell alcoholic beverages is a privilege, not a property right and thus the City does not need to give notice or hold a hearing with respect to an ordinance eliminating an extended-hour license.

City of Peoria v. Johnson
167 Ill. App. 3d 592, 521 N.E.2d 576,118 Ill. Dec. 294 (3rd App. Dist. 1988)

Municipal ordinance requiring bartending permits is invalid since the power to license bartenders was not specifically granted by the Liquor Control Act and was not reasonably necessary to carry out the enumerated powers of the Act. (Note: The existence of home rule powers to support the licensing scheme was nut argued in the Trial or Appellate Court.)

OFFICERS AND EMPLOYEES

Bank of Pawnee v. Joslin
166 Ill. App. 3d 927, 521 N.E.2d 1177,118 Ill. Dec. 484 (4th App. Dist. 1988)

Where employee of village purports to bind village by oral contract for purchase of land from intermediary without required approval of village board and beyond authority conferred on employee

Page 16 / Illinois Municipal Review / December 1988

by village, the village was not estopped from asserting defense of statute of frauds. The Appellate Court felt it was the unauthorized actions of the employees not the acts of the municipality itself which induced the reliance by the intermediary upon the alleged oral contract.

Chicago Food Management, Inc. v. City of Chicago
163 Ill. App. 3d 638, 516 N.E.2d 880,114 Ill. Dec. 725 (1st App. Dist. 1987)

Vending machine company had no valid contract with municipality since contract on behalf of city was entered into by superintendent of police who had received no specific delegation of power from the city's department of purchases, contracts and supplies who is the sole agent of municipality in so contracting. Also, company could not rely upon equitable estoppel since it made no effort to find out whether the superintendent could enter into such a contract and the company was aware that its authority could be terminated at any time.

Daniels v. City of Venice
162 Ill. App. 3d, 516 N.E.2d 701, 114 Ill. Dec. 546 (5th App. Dist. 1987)

Appellate Court held that position of volunteer firemen was not "office" which alderman was barred from holding under Section 3-4-3 prior to July 1, 1982, and alderman was thus entitled to receive compensation for his services as volunteer fireman while also serving as alderman.

Kinzer v. City of Chicago
No. 86-3178

Comptroller of Chicago created a fund solely for administrative convenience. Since the fund was not a special fund, it was illegal because the fund involved expending public moneys without an appropriation being made therefore by the City Council. Also, Tort Immunity Act was inapplicable when a taxpayer was seeking injunctive relief against a public official. This cause of action has its origins in equity and, the Court said, since the taxpayer is not suing in tort, the public official cannot avail himself of the protection of the Act.

ORDINANCES

David E. Shelton Productions, Inc. v. City of Chicago
167 Ill. App. 3d 54, 520 N.E.2d 1073,117 Ill. Dec. 722 (1st App. Dist. 1988)

City had right to pass ordinance barring "juice bars" from opening during early morning hours. The Appellate Court held: (1) ordinance was regulating licenses, and not zoning, due to the fact that ordinance regulated establishments based on type of business, not location, and thus laws pertaining to nuisance were inapplicable, (2) ordinance had rational relationship to objective of city council in preventing violations of curfew laws, (3) provision which allowed "juice bars" to operate longer hours by obtaining consent of majority of local voters was not an unconstitutional delegation of city council's authority.

City of Decatur v. Waste Hauling Incorporated
ILL. App. 3d 630, 509 N.E.2d 716, 156, 109 Ill. Dec. 55 (4th App. Dist. 1987)

Court held that a city ordinance prohibiting refuse haulers from collecting garbage at residences outside their assigned district was constitutional since the ordinance assigned areas to refuse haulers to limit the number of garbage trucks in residential areas and thus was reasonably calculated to promote public interest.

POLICE

City of Belleville Board of Police and Fire Commissioners v. Human Rights Commission
167 Ill. App. 3d 834, 522 N.E.2d 268 (5th App. Dist. 1988)

Municipality's refusal to hire applicant for probationary police officer position, and removal of applicant from auxiliary police force, violated Human Rights Act, where applicant demonstrated that he could qualify on pistol range with or without glasses and where some current officers on police force did not meet eyesight requirements. In addition. Court found that Municipality requirement of 20/30 vision for its police officers was discriminatory.

Levitt v. Gorris
167 Ill. App. 3d 88, 520 N.E.2d 1169, 117 Ill. Dec. 818 (1st App. Dist. 1988)

Probationary police officer had no right to continued employment under State Municipal Code nor did she have an implied contract with the village. The Court held that the village fire and police board rule stating that "if the appointee's services have not been satisfactory, he will be discharged" was not a voluntary promise forming the basis of a contract with probationary officer.

Rockford Memorial Hospital v. Schueler
167 Ill. App. 3d 358, 521 N.E.2d 251, 118 Ill. Dec. 183 (2nd App. Dist. 1988)

City was responsible, under statute, for medical expenses of arrestee incurred after his arrest by police officers, but prior to his being charged or placed in sheriff's custody pursuant to Section 16 of the County Department of Corrections Act (Ill. Rev. Stat, 1985, ch. 125, par. 216).

POLICE AND FIRE COMMISSIONERS

Nelmark v. Board of Fire and Police Commissioners of DeKalb
159 Ill. App. 3d 751, 512 N.E.2d 1021, 111 Ill. Dec. 480

Failure of disciplinary complaint to list specific incidents upon which a fire fighter was to be discharged gave the fire fighter insufficient notice of the charges and cannot serve as a basis for the dismissal.

POLLUTION

Daubs Sandfill, Inc. v. Pollution Control Board
166 Ill. App. 3d 775, 520 N.E.2d 977,117 Ill. Dec. 626 (5th App. Dist. 1988)

A defect in the legal description of the proposed landfill location did not invalidate an otherwise accurate narrative description of the property in the notice of hearing mailed to adjoining landowners and published in the local newspaper, and was sufficient to vest the county board with jurisdiction.

December 1988 / Illinois Municipal Review / Page 17

PUBLIC UTILITIES

Schroeder v. City of Grayville
166 Ill. App. 3d 814, 520 N.E.2d 1032,117 Ill. Dec. 681 (5th App. Dist. 1988)

In a discrimination action by nonresidents over water service, Appellate Court held that although municipality is not obligated to serve nonresidents, it could not discriminate unreasonably in the rates or manner of service when it chose to serve nonresidents.

STREETS AND PUBLIC WAYS

Fountain Head Drainage District v. City of Champaign
160 Ill. App. 3d 341, 514 N.E.2d 12,112 Ill. Dec. 616 (4th App. Dist. 1987)

Municipality bears the ultimate responsibility for construction, maintenance, repair and replacement of bridges and sidewalks located within the municipality and is potentially liable for failure to maintain bridges and sidewalks in safe condition.

SUBCONTRACTOR'S RIGHTS

Northwest Water Commission v. Santucci
162 Ill. App. 3d 877, 516 N.E.2d 287,114 Ill. Dec. 132 (1st App. Dist. 1987)

In a case concerning the issue whether a municipal corporation should pay subcontractors' claims pursuant to Public Funds Lien Act for labor materials furnished for a public work project the court held: (i) subcontractors compliance with notice requirements of Public Funds Lien Act automatically conferred jurisdiction on court to compel municipality to release withheld lien funds, (ii) municipalities rights under general contract to withhold funds to cover claims against general contractor were not superior to subcontractor's rights under the Act; and (iii) municipal corporation lacked standing under contract for Public Works Act to compel surety to pay subcontractor's lien claims.

TAXATION—SALES TAX

Village of Niles v. K-Mart Corporation
158 Ill. App. 3d 521, 511 N.E.2d 703,110 Ill. Dec. 526 (1st App. Dist. 1987)

Municipality which has enacted a one percent (1%) sales tax pursuant to Ill. Rev. Stat., 1985, ch. 24, par. 8-11-1, does not have the right to bring an action against a taxpayer to recover sales taxes and fines allegedly due under the statute. Language of the Municipal Retailers Occupation Tax Act clearly vests authority for administration and enforcement of act with the State Department of Revenue.

TORT IMMUNITY

Bellino v. Village of Lake in the Hills
166 Ill. App. 3d 702, 520 N.E.2d 1196, 117 Ill. Dec. 845 (1st App. Dist. 1988)

Local governmental and governmental Employee-Tort Immunity Act section, providing that city is not liable for injuries sustained due to effects of weather on use of streets and sidewalks, precluded driver from bringing negligent action against village for automobile accident which he alleged occurred due to his obstructed vision around a snowpile.

Bosen v. City of Collinsville
166 Ill. App. 3d 848, 520 N.E.2d 638, 117 Ill. Dec. 287 (5th App. Dist. 1987)

In a negligence action against City of Collinsville, the Court held that City was entitled to use Tort Immunity Act as limitation on liability despite City's membership in IMLRMA, a risk management pool, since Illinois Supreme Court in Antiporek had previously decided that such risk management pools were self-insurance and did not subject their members to waiver of immunities under the Act.

Koh v. Village Greens of Woodridge
158 Ill. App. 3d 226, 511 N.E.2d 854, 110 Ill. Dec. 677 (2nd App. Dist. 1987)

Page 18 / Illinois Municipal Review / December 1988

In a tort action against the Village for injuries sustained when plaintiff was hit by a golf ball while on a public golf course owned by the Village, the Court held that the Village did not waive its immunity under the Tort Immunity Act by charging nominal fees for use of the golf course nor did the Village waive statutory immunity by belonging to a risk management association.

TORT LIABILITY

Anthony v. City of Chicago
168 Ill. App. 3d 733, 523 N.E.2d 22, 119 Ill. Dec. 554 (1st App. Dist. 1988)

City and firefighters were liable for injury to civilian under special duty exception to negligence because the firefighter affirmatively placed plaintiff in a hazardous position by instructing him to open elevator door which caused his injuries and firefighter should have been uniquely aware of risk to the citizen.

UTILITY TAXATION/REGULATION

Concannon v. Illinois Bell Telephone Company
163 Ill. App. 3d 509, 516 N.E.2d 756, 114 Ill. Dec. 601 (1st App. Dist. 1987)

Directory advertising revenues of telephone company are not subject to messages tax since the revenue is not derived from monies telephone customers of the telephone company pay for telephone services.

City of Evanston v. AT&T Information Systems
161 Ill. App. 3d 850, 515 N.E.2d 726, 113 Ill. Dec. 741 (1st App. Dist. 1987)

In a declaratory judgment action by Evanston against the telephone and telegraph company seeking declaration that the company was subject to municipal utility tax, the court held that the company's sale and rental of telephone equipment was not business of transmitting messages and thus was not subject to utility tax.

AT&T v. Village of Arlington Heights, etc., et al.
528 Ill. App. 3d 1000, 174 N.E.2d 381, 124 Ill. Dec. 109 (1st App. Dist. 1988)

In a challenge to franchising and right-of-way regulations of numerous municipalities, the Court held the Public Utilities Act and the Telephone Company Act grant authority to telephone companies to construct facilities upon public streets without municipal approval. (This case is presently pending on a petition for rehearing).

ZONING

Bank of Elk Grove v. City of Joliet
171 Ill. App. 3d 321, 525 N.E.2d 569, 121 Ill. Dec. 511 (3rd App. Dist. 1988)

Subsequent acquisition of home rule power does not validate existing ordinances in and of itself.

ZONING; SPECIAL USE PERMITS

Homeowners Organized to Protect the Environment v. First National Bank of Barrington
176 Ill. App. 3d 714, 521 N.E.2d 1202, 118 Ill. Dec. 509 (2nd App. Dist. 1988)

In a case concerning a village ordinance granting a special use permit for the construction of an office building on residential property the court held. The ordinance granting special use permit was not established to be invalid since it was not established the property values would decrease or that the office buildings were out of character with established uses.

Marquette Properties, Inc. v. City of Wood Dale
159 Ill. App. 3d 307, 512 N.E.2d 371, 111 Ill. Dec. 255 (2nd App. Dist. 1987)

A municipal zoning code requirement that two-thirds of the city council must approve special use permits if Zoning Board of Appeals has recommended against approval of permit is invalid. Because of silence of state statute on number of council votes required to approve a special use ordinance, the provision of the Municipal Code requiring only a simple majority is applicable to this situation (Chapter 24, Sections 3-11-17, 11-13-1.1).

December 1988 / Illinois Municipal Review / Page 19

II.
ILLINOIS SUPREME COURT DECISIONS

EMPLOYEES: ARBITRATION

City of Decatur v. AFSCME, Local 268
122 Ill. 2d 353, 522 N.E.2d 1219, 119 Ill. Dec. 360 (1988)

Municipality was required to bargain over union's proposal to submit disciplinary matters to arbitration, notwithstanding city's adoption of civil service system. The court was persuaded by the fact that the legislature has expressed clear preference for arbitration as a means of resolving labor disputes and the city could amend its civil service system to allow for arbitration.

HOME RULE

Bernardi v. City of Highland Park
520 N.E.2d 316, 121 Ill. 2d 1, 117 Ill. Dec. 155 (1988)

Home rule municipalities must conform to Prevailing Wage Act in seeking bids and awarding contracts for public works and projects. The Court found that departure from the prevailing wage is beyond the authority of home rule units because it directly affects matters outside the municipality. In addition, this field of labor law has traditionally been subject to comprehensive state regulation outside the power of local officials to contradict. Finally, the court feared that if home rule municipalities could ignore the Prevailing Wage Act they could ignore all other labor laws and divide and disrupt the power of the state government.

ORDINANCES; FUEL TAX

Illinois Gasoline Dealers v. City of Chicago
519 N.E. 447,119 Ill. 2d 391, 116 Ill. Dec. 555 (1988)

City vehicle fuel tax ordinance did not impose impermissible tax upon "occupations" in contravention of the Illinois Constitution. The court relied heavily on previous cases involving tangible objects (liquor, cigarettes) which were found to be proper home rule taxes on purchases rather than "occupation" taxes. In addition, the court held the tax was not unconstitutional as multiple taxation since the tax was on a privilege and there was no showing that Chicago had placed another tax on this privilege.

POLICE

Beazley v. Wosik
519 N.E.2d 468,119 Ill. 2d 437,116 Ill. Dec. 576 (1988)

The Court held that job applicant for Chicago police department had no right to a hearing concerning his failure to be hired and therefore the lower court erred in ordering the personnel board to grant him one. The Court was persuaded by the fact that the City of Chicago personnel rules do not provide for a hearing and the fact that a probationary police officer may be discharged without a hearing. Thus it follows that an unsuccessful applicant for a job would have no right to a hearing either.

POLICE AND FIRE COMMISSIONERS

DiFalco v. Wood Dale
521 N.E.2d 923, 122 Ill. 2d 22, 118 Ill. Dec. 446 (1988)

Probationary firefighter was not entitled to disability pension when he had been discharged prior to his application for disability pension. The Court felt that because of his discharge, he was not a "fireman" within meaning of Pension Code at the time of his applicatio and thus not eligible for disability pension.

REGIONAL PORT DISTRICTS

Mulligan v. Joliet Regional Port District
123 Ill. 2d 303, 527 N.E.2d 1264, 123 Ill. Dec. 489 (1988)

Joliet Regional Port District was allowed to go ahead with its sale contract for the development of an airport facility because the effective date of Public Act 83-1102 which would have required a public referendum first was not effective before the deed was executed. Also, the statute was interpreted to only apply to initial exercises of power to purchase airports.

SOLICITATION, COMMERCIAL

Chicago Tribune Company v. Village of Downers Grove
116 Ill. 2d 549, 515 N.E.2d 103, 113 Ill. Dec. 294 (1987)

Village ordinance regulating door-to-door commercial solicitation for newspaper subscriptions violated the federal and state constitutional guarantees of freedom of speech, press, due process and equal protection of the law as applied to the conduct of the plaintiff.

TAXATION

Chicago Health Clubs, Inc. v. Ronald Picur
124 Ill. 2d 1, 528 N.E.2d 978, 124 Ill. Dec. 87 (Ill.)

Amendment to an ordinance which added health clubs and racquetball clubs to list of "amusements" for purposes of an amusement to ordinance was unconstitutional since the tax was found to be an occupation tax because the clubs themselves are responsible for the paying of the tax regardless if their patrons fail or refuse to remit the tax. In addition, the court found that the tax is not a tax on amusements or place of amusements within the meaning of section 11-42-5 of the Cities and Villages Act.

III.
FEDERAL COURT DECISIONS
U.S. DISTRICT COURT

BONDS

Government Finance Officers Association v. U.S. and James A. Baker
686 F. Supp. 901 (N.D. Ga. 1988)

In an action seeking two provisions of Tax Reform Act of 1986 to be declared unconstitutional and seeking a declaratory judgment that the provisions had no effect, the plaintiffs, the Government Finance Officers Association and National League of Cities, were declared to have standing to sue since they represented the state and local members of their organizations who would be injured by the Arbitrage Act and the Alternative Minimum Tax. The Court dismissed the complaint insofar as it seeks declaratory judgment and challenges the constitutionality of the Arbitrage Act. The Court felt that it had a duty to recognize the powerful government interest in not interfering with the tax system, therefore, the declaratory judgment was denied. The Anti-Injunction Act applied to prevent plaintiffs from seeking an injunction to stop enforcement of the Arbitrage Act because as taxpayers they could seek other avenues than injunction.

HOME RULE

E and E Construction Co. v. State of Illinois
674 F. Supp. 269 (N.D. Ill. 1987)

In a motion to dismiss action concerning the constitutionality of the Illinois Preference Act, an Act designed to limit use of out-of-state workers, the Court granted the state's motion to dismiss as to the state itself as a defendant because of the Eleventh Amendment but allowed the individual plaintiffs to amend their complaint to sue state officials in their personal capacity. The Court rejected the motion to dismiss arguments ruling that: (i) plaintiffs may use the Privileges and Immunity Clause because even though the defendants have attached the plaintiffs with a non-resident label, (ii) whether the state was a market regulator under the Commerce Clause was a factual issue to be resolved later, (iii) due process complaint would not be dismissed since defendants did not receive a hearing, and (iv) equal protection argument would survive since the Act does discriminate against the class of workers. Finally, the complaint will not be dismissed under Qualified Immunity even though the Act has not violated a clearly established right because the previous Preference Act did and there was virtually no difference between the Acts.

ANTITRUST

Campbell v. City of Chicago
823 F.2d 1182 (7th Cir., 1988)

A municipality is immune from antitrust liability in a suit brought

Page 20 / Illinois Municipal Review / December 1988

by plaintiffs for enactment of an ordinance regulating the manner of acquiring and holding taxi cab licenses and their numbers. Court held that the anticompetitive effect of regulation was clearly contemplated by the legislature in enactment of paragraph 11-42-6 of Chapter 24 authorizing regulation of taxi cabs and licensing.

BONDS

Boss v. Bank South
837 F.2d 980 (11th Cir., 1988)

In a 10b-5 fraud-on-the-market case involving issuance of securities traded on undeveloped primary market, plaintiff was entitled to reversal of summary judgment against him in lower court because although plaintiff purchased the bonds without reading the circular, he showed that but for defendant's fraud, security would not have been marketed and he relied upon integrity of the market. The Court felt that fraud which passes unmarketable security off as risky project is actionable to the same extent as fraud which attempts to pass worthless projects off as a safe instrument. In either case defendants have defrauded market. In addition, the Court ruled that evidence was not strong enough to prove that peripheral parties, such as bond issuer defendants, that are not closely involved in planning of bond issue, were actively involved in the fraud since they were merely guilty of negligence in relying on other defendant's information.

EMPLOYEES

Fontano v. City of Chicago
820 F.2d 213 (7th Cir., 1988)

Temporary employee, reclassified as "probationary career" employee did not obtain a property interest in expectation of continued; employment as a result of his promotion to probationary status. City was required only to follow its procedures for dismissal of probationary employees which should not require a pre-termination hearing.

POLICE

Sherrod v. Berry
856 F.2d 802

Trial Court allowed evidence in this case that showed police officer shot and killed an unarmed suspect who he thought was carrying a weapon. Appellate court reversed and remanded for new trial on the grounds that whether the suspect was actually armed at the time he was killed was irrelevant in determining whether the officer had cause to fire his gun.

SEWAGE

Unity Ventures v. County of Lake
841 F.2d 770 (7th Cir., 1988)

Developer's claims that village's and county's failure to authorize sewer connection for his land violated his constitutional rights were not ripe for adjudication due to developer's failure to show any final decision on behalf of any government entity. In addition, the court found there was no monopoly in this case for the State of Illinois authorizes counties and municipalities to contract together and combine resources for the provision of sewage treatment.

USE FEES; DENIAL OF DUE PROCESS

RR Village Association, Inc. v. Denver Sewer Corporation
826 F.2d 1197 (2nd Cir., 1987)

The retroactive setting of a fee schedule by a city council where no opportunity was given to members of the community to be heard violated due process.

U.S. SUPREME COURT

BONDS

State of South Carolina v. James A. Baker, III
_U.S. _, 108 S. Ct. 1355, 99 L.E.2d 592 (1988)

Section 310(b) (1) of the Tax Equity and Fiscal Responsibility Act of 1982 removes Federal income tax exemption for interest earned on publicly offered long term bonds issued by state and local governments unless those bonds are issued in registered form. South Carolina contended that this Section is constitutional. The Supreme Court held: (i) that Section 310(b)(l) does not violate the Tenth Amendment or principles of dual-federalism since the Tenth Amendment's limit on Congress' authority are structurally not substantive and Section 310 regulates state activities, it does not seek to control or regulate how a state deals with private parties; (ii) Section 310(b)(l) does not violate the doctrine of intergovernmental tax immunity by taxing the interest earned on unregistered state bonds since the owners of state bonds have no right not to pay taxes on income they earn from bonds and states have no constitutional right to issue bonds that pay lower interest rates than other issues.

CIVIL RIGHTS

Felder v. Casey
_U.S. _, 108 S. Ct. 326, 98 L.E.2d 354 (1987)

Petitioner sued city over an alleged Section 1983 Civil Rights violation. City moved to dismiss on grounds that petitioner had failed to comply with state notice statute. Court held that although the notice statute was clearly violated, the suit could still be brought because the state statute is pre-empted pursuant to the Supremacy Clause when the Section 1983 action is brought in state court.

ORDINANCES

City of Lakewood v. Plain Deal Publishing Co.
_ U.S. _, 107 S. Ct. 1345, 94 L.E.2d 517 (1987)

Ordinance authorizing Mayor to grant or deny permits to publishers to place their newsracks on public property and if denied, requiring Mayor "to state the reasons for such denial" could be facially challenged and was found unconstitutional. The allowance of facial challenge is justified by the fact that permit must be applied for annually thus allowing licensor to measure content and viewpoint of past speech, ordinance is directed narrowly and specifically at a free expression of speech and creates a licensing agent who may want to use censorship. The ordinance was unconstitutional due to provisions giving the Mayor discretion to deny a permit application and authority to condition a permit on any terms he deems "necessary and reasonable."

Frisby v. Schultz
_U.S. _ 108 S. Ct. 692, 98 L.E.2d 644 (1988)

Ordinance making it unlawful for any person to picket the residence of any citizen of municipality was held to be constitutional due to the fact that it did not ban all picketing just picketing in front of one house and also it served the significant government interest of protecting residential privacy.

December 1988 / Illinois Municipal Review / Page 21

LAW REVIEW ARTICLES

Comment — Commercial door-to-door solicitation and the proper standard of review for a municipal time, place, and manner restrictions.
55 Fordham Law Review, 1139 (1987)

The first amendment protects non-commercial door-to-door solicitation. However, this protection is not absolute and such expressive activities are always subject to reasonable time, place and manner restrictions. The extent of first amendment protection varies with the character of the property to which speakers seek access. A regulation which limits expressive activity in the public on limited public forums must serve a significant government interest, be narrowly tailored to serve that interest and must leave alternative modes of communication open. The court has also on occasion included a less drastic means test in this analysis. In non-public forums, there is no constitutional right of access. Municipalities may subject non-commercial door-to-door solicitation to reasonable time, place and manner restrictions. Confusion has developed in the courts over time regulations of non-commercial solicitation. To determine the proper regulations, courts should examine the peculiar native of private property in light of the relevant rights and interests implicated by municipal ordinances regulating door-to-door solicitation.

Regulatory Takings; Beyond the Balancing Test
The Urban Lawyer, Spring 1988, Volume 20, #2 pg. 389.

The issue of when governments may restrict private property so as to amount to a "taking" of the property has long been an issue that has not been clearly decided by the court. The 1986 Supreme Court cases have indicated a turn for more predictability in "taking" cases and a search for more categorical modes of analysis. The court has distinctly moved away from the "multi-factor balancing" approach and has instead chosen to be guided by single consideration or rules of decisions. The result is still not a cohesive doctrine but still represents a more substantial body of law than the vague "balancing test."

How State and Local Governments have fared in the United States Supreme Court for the Past Five Terms
The Urban Lawyer, Spring 1988, Volume 20 #2, pg. 341.

Two events have occurred in the early 1980's to enhance the quality of state and local governments' performances before the Supreme Court. First, in 1981, the National Association of Attorney's General (NAAG) set up a committee to study the effectiveness of state representation in the Supreme Court. Second, in 1983, seven associations of state and local governments established the State and Local Legal Center (SLLC). The results have been a steady increase in the percentage of state criminal cases in which other states file amicus briefs supporting state petitioners in the Supreme Court which in turn has led to a corresponding increase in the success rate of states as petitioners in criminal matters where other states file amicus briefs.

Self-Induced Hardship in Zoning Variances: Does a Purchaser Have No One But Himself to Blame?
The Urban Lawyer, Winter 1988, Volume 20 #1.

Variances were originally provided for and granted due to fear that otherwise a taking of the property without due process may occur through the enforcement of zoning laws. Presently, variances are used to prevent inequities that have been created by general zoning ordinances. The major requirement of all variance statutes throughout the country is that the owner must show that some unnecessary hardship has been imposed on his land. One of the basic rules of variances is that this unnecessary hardship not be self created. Thus, zoning boards will not be sympathetic to an owner who has constructed improvements not permitted under zoning laws and then seeks permission for such use. In general, where the owner has brought the hardship on himself relief will be denied.

WANTED Pictures of municipal buildings, architects drawings, preferably in color. No smaller than 10"x l2" or larger than 18"x 24". Must be framed with mat and non-glare gloss. These pictures will be hung in the League offices.

Page 22 / Illinois Municipal Review / December 1988