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RECENT LITIGATION
By THOMAS W. KELTY, The following is a synopsis of selected decisions of the Illinois Appellate Courts, the Illinois Supreme Court, Courts of other States and the Federal Courts that have been rendered since the 1988 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 COURT DECISIONS A. APPELLATE COURT DECISIONS ANNEXATION
Swinger v. Municipal Officers Electoral Board of Village of Fairview
Where objections to petition for backdoor referendum on question of annexation of property in the Village not timely filed, electoral board is without jurisdiction to consider objections.
Snuggery Pub, Inc. v. Village of Mt. Prospect
Annexation amendment permitting involuntary annexation of incorporated areas of sixty acres or less bounded by a creek and located in a county with a population of over 400,000 was not "special legislation" in violation of the Illinois Constitution. The population classification was not arbitrary but based on a rational difference of situations or conditions and bore a rational relationship to the purpose of the statute. Use of the word "creek" was not so vague as to render the statute unconstitutional.
People ex rel City of Prospect Heights v. Village of Arlington Heights
Notice that a municipality is considering annexation must be given prior to adoption of an annexation ordinance. A party which gained priority by having first published the required notice could not be ousted unless it abandoned or rejected its annexation ordinance.
Indian Valley Golf Club, Inc. v. Village of Long Grove
Annexation by a municipality proper only when subject matter property is contiguous to the municipality.
People ex rel Village of Buffalo Grove v. Village of Long Grove
Newspaper notice does not constitute initiation of annexation proceedings so as to grant priority jurisdiction to a municipality publishing notice.
Petition of Kildeer
Post-judgment relief under Section 2-1401 of the Code of Civil Procedure is the appropriate method to challenge a final order approving an annexation ordinance. BONDS
Bates v. Board of Education
When School District issued bonds pursuant to Section 17-2.11(a) of the School Code, the Court found that the Legislature intended that those bonds be subject to the specific interest rate ceiling set forth in that provision (7%), not the general interest rate ceiling provided in Section II of the Public Corporation Interest Act (Ill.Rev.Stat., Ch. 17, Par. 6601). BUILDING PERMITS Lake Forest Chateau, Inc. v. City of Lake Forest
City was not entitled to enact ordinance creating new and increasing existing fees for building permits after appellate court mandate directed city to allow use of property for townhouse development, but before circuit court had entered judgment under appellate mandate. Developer would not be required to pay those additional fees that would not have been assessed against it under previous fee schedule, if developer had been permitted to apply for building permits on date appellate mandate had been issued to circuit court. COLLECTIONS
People ex rel Daley v. Datacom Systems Corp.
City's contract for the collection agency under which the collection agency was to collect delinquent parking ticket fines amounted to a sale of debt collection services governed by the Collection Agency Act. COLLECTIVE BARGAINING
City of DeKalb v. International Association of Firefighters
City's submission of public policy issue to arbitrator did not waive the city's right to challenge collective bargaining provision in court on ground that provision violated public policy of state. CONDEMNATION
Town of Libertyville v. YPMA
A township did not have the authority under the Township Open Space Act to condemn a 19-acre tract which was not part of a contiguous area of 50 or more acres of open space either owned by or under a condemnation by the township. The property sought to be October 1989 / Illinois Municipal Review / Page 17 condemned could not be considered contiguous to other parcels of township-owned open land, where the township land was separated from the parcel to be condemned by a cemetery owned by a religious organization. CONTRIBUTION Martin v. Lion Uniform Co.
Third party action under Chapter 70, Section 301, 305, against City and City's fire department barred by common law and Tort Immunity Act rule of non-liability which prevents the City from being "liable in tort" for purposes of a contribution action. DISCONNECTION OF TERRITORY Indian Valley Golf Club, Inc. v. Village of Long Grove
Under Paragraph 7-3-6 of the Municipal Code, where a subject property meets the requirements for disconnection from a municipality, court must grant the petition for disconnection. The issue of whether disconnection of property from a municipality would unreasonably disrupt the municipality's planning and zoning is to be determined by the state of events existing at the time of the hearing, not by speculation as to future development of parcel to be disconnected.
Harris Trust and Sav. Rank v. Village of Barrington Hills
With regard to statute permitting disconnection of property from a municipality if the "growth prospects" of the municipality "will not be unreasonably disrupted," legislature did not intend that courts should look to development that would occur in the remaining part of the municipality but for the disconnection. DRAINAGE
In Re: Onarga, Douglass and Danforth Drainage District
Drainage district may not unilaterally and without consent or authorization, increase the burden of an easement on a servient tenement by replacing a ten inch drainage tile with a 24 inch drainage tile. EMINENT DOMAIN
Town of Libertyville v. First National Rank of Lake Forest
Section authorizing City to acquire open land by eminent domain specifically defined "open land" to constitute any parcel of 50 acres or more. Strict statutory construction prohibits City from invoking act to acquire property measuring less than 3 acres. FREEDOM OF INFORMATION ACT Staske v. City of Champaign
The Court in a Freedom of Information Act action reversed judgment enjoining the City from refusing to disclose witness information in statements contained in a traffic accident report. The Court based its decision on the language of Section 7(b)(v) of the Freedom of Information Act, believing that the Legislature had intended that such information was to be included in the Section 7(b) (v)exemption. Additionally, the Court found that Section 11-416 of the Code is permissive in nature and contains no provision requiring complete disclosure.
AFSCME v. County of Cook Act Permitted County to furnish requested material on computer printout rather than on computer tape as requested by plaintiff.
Rowie v. Evanston Community Consolidated School District
Provision of Act preventing disclosure of information which would result in clearly unwarranted invasion of personal privacy did not prohibit disclosure of school student records which had been "masked and scrambled" to disguise identifying information.
Kenyon v. Garrels
Freedom of Information Act does not require township officials to answer plaintiffs general questions regarding rates paid to township attorney. HOME RULE In Re: Application of Kane County Collector
City's failure to comply with mandatory publication and time lapse provisions of its own tax levy ordinances rendered them invalid. Such notice requirements apply to home rule and non home rule units alike. HUMAN RIGHTS COMMISSION City of Springfield v. Carter
Order of Illinois Human Rights Commission, requiring city to establish a promotional policy for filling vacancies in position of police sergeant which was nondiscriminatory, and to agree with complainants on interim method of choosing sergeants, was not void as improper delegation of legislative authority to complainants. LAROR RELATIONS City of Burbank v. ISLRR
City violated Public Labor Relation Act by discharging pro-union foreman two days prior to certification pursuant to a departmental "reorganization".
City of Chicago v. Illinois Local Labor Relations Board
Under the Illinois Public Relations Act, adverse financial consequences or adverse job action from the employer's discrimination is not a requirement for a finding that an unfair labor practice occurred. City's action of suspending and harrassing an employee for dissemination of confidential material to an independent board investigator, when that confidential material was crucial to the employee's unfair labor practice claim against the City, was a pretext for discrimination against the employee as a result of the City's anti-union animus. Page 18 / Illinois Municipal Review / October 1989
Illinois State Labor Relations Board v. Village of Wheeling
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.
County of Menard v. ISLBB
In a discriminatory discharge case brought under IPELRA Section 10(a)(2), complaining party must show that employee's protected conduct was a substantial or motivating factor in discharge. Once a prima facie case is established, the burden shifts to the employer to prove by preponderance of the evidence that the employee would have been discharged absent the protected activity. The charging party retains the burden of proving by a preponderance of evidence that the employer committed unfair labor practices.
Wapella Education Ass'n v. IELRB Unfair labor practice charges were not timely filed under IPELRA Section 15 where a teacher placed on a salary schedule did not file charges for more than six months after the date of hiring. ORDINANCES Village of Mettawa v. Carruthers
Record of passage of ordinance by five affirmative votes, former Village Clerk's affidavit that role call vote was undeviating practice and evidence that five trustees present at meeting voted in favor of ordinance failed to establish the taking of a roll call vote and the vote of each individual trustee, and, thus, the ordinance was void.
City of Urbana v. Fuerst
Fines imposed for each day of a building code violation was void where no personal service of notice was given as required by ordinance. POLICE
Glenville v. Police Board of City of Chicago
Where a police officer was discharged for misconduct, the Board was not required to consider his alcoholism as a mitigating factor. There was no evidence that alcoholism led to acts of misconduct and no testimony that persons suffering alcoholic blackouts are not conscious of their actions.
Arnold v. Village of Chicago Ridge
The breach of a special duty need not be shown in order to recover against a municipality for injuries arising out of the reckless operation of a police vehicle in pursuit of suspected law violators without due regard to the safety of all persons. PREVAILING WAGE ACT
Gray v. Illinois Department of Labor
The Prevailing Wage Act was found not to violate the Equal Protection Clause of the Constitution by covering employees of contractors on Public Works Projects or those engaged in transporting equipment and material to job sites but not covering the employees of sellers, suppliers, manufacturers or processors of material or equipment. The section of the Prevailing Wage Act which authorizes the Department of Labor to impose a two-year debarrment for violations of the Act does not constitute an unconstitutional delegation of legislative power or a violation of due process. PUBLIC UTILITIES
Kirwin v. People Gas, Light & Coke Company
Enactment of 1913 Utilities Act preempted whatever powers municipalities previously had to regulate public utilities and power was not revested in municipalities by grant of home rule powers contained in the Illinois Constitution upon its adoption in 1970. TAXATION
Katz v. City of Chicago
Application of Chicago Municipal Code Section 200.1 et seq. to the time lease of coin-operated washers and dryers at laundromats was a valid tax on the rental of personal property and not an unconstitutional service or occupation tax.
Lietsch v. Alien
City immune under Tort Immunity Act from claim brought under Contribution Among Joint Tort-Feasers Act due to the absence of an allegation that city employees were guilty of wilful and wanton misconduct with respect to their duties.
Long v. Friesland
Highway Commissioner not entitled to public official immunity where his negligent failure to properly maintain road was a ministerial act and his negligence along with third party driver's negligent driving outside of her lane of traffic were concurrent approximate causes of plaintiff's injuries.
Woodfield Lanes v. Village of Schaumburg
Village liable on contract implied in law for unjust enrichment received when water and sewer mains were installed by a private party. Village had no immunity under common law principles from liability on quasi-contract or under the Tort Immunity Act.
Bowers v. DuPage County Regional Board of School Trustees District Number 4 Immunity may be asserted under the Tort Immunity Act for matters relating to determination of policy and exercise of discretion October 1989 / Illinois Municipal Review / Page 19 for which there is no liability even though no specific employee is named as causing the allegedly wrongful act. ZONING Village of Oak Brook v. County of DuPage
Chapter 121, Paragraph 5-408, does not require a county to obtain a variance from a municipality prior to improving a county highway within the municipal limits.
County of Lake v. Zenko Zoning ordinance defining "junkyard" as any land or structure used for salvaging operation, including collecting, dismantling, storage and salvaging of unlicensed, inoperative vehicles not arbitrary and unreasonable.
Village of Carpentersville v. Pollution Control Board Zoning ordinances were not preempted by the conditions in a construction permit issued by the EPA. The granting of the permit does not relieve the applicant from meeting local zoning requirements.
Suhadolnik v. City of Springfield
Upon invalidating zoning ordinance as applied to subject property, trial court did not have authority to reclassify zoning of the property but could merely allow plaintiff's proposed use of the property as a day-care center.
American Nat. Bank and Trust Co. of Chicago v. Village of Skokie
Special uses are entitled to presumption of validity, rebuttable only by clear and convincing evidence that grant of special use will result in real or substantial harm to public health, safety and welfare. B. SUPREME COURT DECISIONS COLLECTIVE BARGAINING City of Decatur v. AFSCME, Local 268
City required to collectively bargain with a public employee union over the union's proposal that all disciplinary matters be subject to arbitration, notwithstanding the fact that the City had adopted a Civil Service System. EMPLOYEES Dineen v. City of Chicago
Statute prohibiting certain public bodies from restricting the political activities of their employees does not preempt the Chicago Police Department's rule that officers take unpaid leave of absence upon becoming candidates for public office.
Dubin v. Personnel Board of City of Chicago
Petition to stay discharge order did not give Circuit Court jurisdiction to review sufficiency of findings in support of discharge of career service employee. NEGLIGENCE
Mitsuuchi v. City of Chicago
Police officer barred from bringing common law negligence action against fellow officer for personal injuries sustained in the line of duty. SOLICITATION
Chicago Tribune Co. v. Village of Downers Grove
Village Ordinance regulating door-to-door solicitation which imposed more stringent regulations for commercial solicitation than for charitable, religious or political solicitation violates equal protection and is unconstitutional. TAXATION
Chicago Health Clubs, Inc. v. Picur
Chicago Amusement Tax imposed upon a racquetball and health club is unconstitutional. The tax fell impermissibly upon occupations and was not authorized by statute permitting amusement taxes.
Harrison-Raleigh Airport Authority v. Department of Revenue
Hangers leased to private individuals by Airport Authority were exempt from taxation because they were considered to be used for "airport authority purpose." Parcel leased by Airport Authority to a private individual as a residence, and a parcel leased by Authority as a farm, were not exempt from taxation as property belonging to an Airport Authority and used for "airport authority purposes", even though parcels were being held for future expansion of the Airport.
Geary v. Dominick's Finer Foods, Inc.
Tampons and sanitary napkins are exempt from Chicago sales tax as "medical appliances." State sales tax language, which was worded in substantially the same way, had been construed to exclude tampons and sanitary napkins since 1985, but the City of Chicago's Department of Revenue had refused to follow that interpretation. In its ordinance the City Council expressed an intent to administer and enforce its Sales Tax Ordinance consistent with the State's administration and enforcement of its Sales Tax Statutes. ZONING
Cook County v. Renaissance Arcade
Ordinance permitting adult uses in industrial zones, which composed 5.7% of the total land areas of unincorporated Cook County, gave adult book store operators reasonable opportunities to open and operate adult businesses. The absence of a Grandfather Clause did not render the Ordinance unconstitutional. Six month amortization period contained in the County's Adult Use Zoning Ordinance, established to allow the operators to relocate their businesses was reasonable. Page 20 / Illinois Municipal Review / October 1989 II. COURT DECISIONS FROM OTHER STATES AFFIRMATIVE ACTION American Subcontractors Association, Georgia Chapter, Inc. v. City of Atlanta
The Georgia Supreme Court ruled that Atlanta's affirmative action plan did not pass the "strict scrutiny" test laid out in Richmond v. J.A. Croson. The Court's decision was based on the fact that Atlanta could not document a pattern of past discrimination against minority contractors to show convincing evidence of prior discrimination and that the affirmative action program was not "narrowly tailored" to address the effects of past discrimination. ORDINANCES — SOLICITORS
Brown v. City of Newark
Ordinance regulating street peddlers is constitutional except for a "continuous motion" requirement. The motion requirement held not rationally related to legislative purpose advanced in support of ordinance. PIT BULL REGULATION
Hearn v. City of Overland Park, Kansas
Ordinance regulating the ownership of pit bull dogs, which defined a "pit-bull dog" as any and all of the following: Staffordshire Bull Terrier; American Staffodshire Terrier; American Pit Bull Terrier; and dogs which have the appearance and characteristics of being predominantly of the breed aforementioned; was not unconstitutionally vague or overbroad; did not violate due process; and did not violate the Equal Protection Clause. III. FEDERAL COURT DECISIONS A. DISTRICT COURT DECISIONS AFFIRMATIVE ACTION Evans v. City of Evanston
City's firefighter physical agility test results illustrated that the discrepancy in the passing rates for the men and women were statistically significant. Therefore, Court held that although the City established that it had met the minimum standards for performing a firefighters job analysis and that its test had content validity, plaintiff women proved that the cut-off score was unjustified due to its lack of correlation with the ability to efficiently perform as a firefighter. CIVIL RIGHTS
Bible Truth Crusade v. City of Bloomington
Where parallel and identical litigation was pending in State Court, the Court refused to "remove" the case from the State Court to Federal Court and stayed the cause until such time as the State litigation was concluded. The Court based its decision on the fact that: (1) the two actions were exactly the same; (2) plaintiffs filed the State Court action two and one half years prior to filing a Federal complaint; (3) plaintiff filed both actions and chose the state court first; (4) the source of governing law was predominantly that of the State; (5) the Federal Civil Rights claim should wait for resolution of an underlying contractural dispute; (6) the State Court action is adequate to protect the plaintiff's Federal rights. Primarily, the desirability of avoiding piecemeal litigation and the order in which the concurrent forums obtained jurisdiction were found to squarely favor the imposing of the stay. ORDINANCES — ADULT ENTERTAINMENT
Doe v. City of Minneapolis
City Ordinance which required that doors be removed from booths in which adult entertainment was viewed constituted appropriate time, place and manner restrictions and thus did not impermissibly infringe upon First Amendment rights.
Glen Theatre, Inc. v. Civil City of South Bend
Under Indiana law, striptease dancing which ended in complete nudity, was not expressive activity protected by the First Amendment because it was not part of a dramatic performance and the dancers were only claiming economic injury. TORT IMMUNITY Richardson v. Bonds
Summary judgment for arresting officer in Section 1983 action properly granted based on qualified immunity where the plaintiff (armed and ununiformed policeman in bar) broke departmental regulations by refusal to show I.D. to arresting officer checking drug tip. B. APPELLATE COURT DECISIONS ANTITRUST LIABILITY Fuchs v. Rural Electric Convenience Co-op, Inc.
Rural Electric Co-op may be immune from antitrust liability as a state act or even without "active scrutiny of market conditions" which would be necessary if it were a private actor. BUILDING PERMITS Bateson v. Geisse
City council members held individually liable for wrongfully withholding the building permit from a property owner who had complied with the City's building code. October 1989 / Illinois Municipal Review / Page 21 PARKING VIOLATIONS — NOTICE Horn v. City of Chicago Motor vehicle owners who paid delinquent parking tickets pursuant to demand notices processed by Datacom for the City of Chicago claimed that the demand notices failed to give sufficient notice that a hearing was available to contest their liability for the amount demanded. The Court held that the demand notices provided constitutionally sufficient notice of an opportunity for a hearing because the demand notices were reasonably certain to inform those affected. WRONGFUL DISCHARGE Pieczynski v. Duffy
Discharge of a public employee because of his political beliefs violates First Amendment unless the employee occupies a policy making position. Discharge is not because of political beliefs if the employee would have been discharged in any event even if the reason for the discharge is disreputable (not respectable in character, action or appearance). TORT JUDGMENTS
Evans v. City of Chicago
City's delay in paying tort judgments is a deprivation of property without due process within the meaning of the Fourteenth Amendment to the United Stated Constitution. C. SUPREME COURT DECISIONS AFFIRMATIVE ACTION Martin v. Wilks
White firefighters were not precluded from challenging the employment decisions of the City and County Personnel Board taken pursuant to and in reliance on certain consent decrees entered in 1974 setting forth an extensive remedial scheme, including long term and interim annual goals for the hiring and promotion of black firefighters. CIVIL RIGHTS Jett v. Dallas Independent School District
A municipality may not be held liable for its employees violations of Section 1981 under a respondent superior theory. For the employee to prevail against the school district, he must show that the violation of his Section 1981 "right to make contracts" was caused by a custom or policy.
Will v. Michigan Dept. of State Police
Neither states nor state officials acting in their official capacities are "persons" within the meaning of Section 1983, which provides that any person who deprives an individual of his or her Constitutional rights under color of State law should be liable to that individual. ORDINANCES—JUVENILES City of Dallas v. Stanglin
City Ordinance restricting admission to certain dance halls to persons between the ages of 14 and 18 did not infringe on First Amendment rights of association; dance hall patrons were not engaged in any form of intimate or expressive association, and there was no generalized right of "social association" that included dance encounters in dance halls. In addition, the Ordinance did not violate the Equal Protection Clause because it was rationally related to the City's legitimate effort to protect teenagers within that age group from what could be corrupting influences of older teenagers and young adults. ORDINANCES — NOISE CONTROL Ward v. Rock Against Racism
City's sound-amplification use guideline, which requires bandshell performers to use sound-amplification equipment and a sound technician provided by the city is valid under the First Amendment as a reasonable regulation of the place and manner of protected speech. MONELL LIABILITY City of Canton v. Harris
Inadequacy of police training may serve as a basis for Section 1983 municipal liability only where the failure to train amounts to a "deliberate indifference" to the rights of persons with whom the police come into contact; only where the municipality's failure to train its employees in relevant respect evidences a "deliberate indifference" to the rights of its inhabitants can such short-comings be properly thought of as city "policy or custom" that is actionable under Section 1983. SEARCH & SEIZURE Brower v. County of Inyo
A Section 1983 complaint which alleged that police officers, acting under color of State law, violated the rights of the decedent Page 22 / Illinois Municipal Review / October 1989 who was killed when a stolen car he had been driving at high speeds to allude pursuing police crashed into a police roadblock, stated a cause of action under the Fourth Amendment on the basis that the seizure was unreasonable due to excessive force; and the complaint alleged that the roadblock was placed in such a manner as to likely kill the decedent. The Court remanded the case to the Court of Appeals to determine whether the District Court erred in concluding that the roadblock was not "unreasonable." October 1989 / Illinois Municipal Review / Page 23 |
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