IML AMICUS CURIAE PROGRAM:
PROVIDING LEGAL SUPPORT
TO ILLINOIS MUNICIPALITIES
By BETH ANNE JANICKI, Chief Legal Counsel, Illinois Municipal League
The Illinois Municipal League, through its legal
department, provides assistance to member municipalities in many ways. One manner of providing this
assistance is through amicus curiae or "friend of the
court" briefs. These briefs support the municipality's
standpoint in a legal action and often assist the court
in recognizing the impact that a decision may have
upon Illinois municipalities.
The procedure for obtaining amicus assistance is
as follows: a written request must be sent to the
League outlining the issues to be raised and their municipal impact. The Illinois Municipal League Board
of Directors will then consider the request and direct
the League as to what action should be taken.
Nineteen ninety-six has been a very active year for the
League's legal department with a total of nine amicus
interventions being authorized by the League's Board
of Directors. The following is an overview of the cases
being monitored by the League wherein the League
has taken or will take some form of action.
Police Pensions
The Illinois Supreme Court handed down a favorable decision for Illinois municipalities on Friday,
October 18, 1996, McNamee, et al. v. The State of Illinois,
No. 79592. The plaintiffs in this matter were all current or retired police officers employed or previously
employed by various municipalities across the State.
They brought an action in the Circuit Court of Cook
County claiming that section 3-127 of the Illinois
Pension Code, as amended by P.A. 87-1265, was unconstitutional.
Public Act 87-1265 had two effects on the police
pension funding statute: 1) it lengthened the time (by
13 1/2 years) within which a pension fund had to become fully funded and; 2) it changed the method of
computing contributions by a significant amount. The
effect of this amendment was to lower the amount of
annual municipal contributions. The plaintiffs argued
that this was unconstitutional because the Illinois
Constitution says that membership in a public pension
fund is an enforceable contractual right and the benefits thereof may not be diminished or impaired.
The Circuit Court found for the plaintiffs and
since the statute was declared unconstitutional, the
case proceeded directly to the Illinois Supreme Court.
At this point, the Illinois Municipal League Board of
Directors directed the League to file a brief amicus curiae. In its brief, the League urged the Illinois
Supreme Court to reverse the lower court specifically
pointing out the devastating financial impact this case
could have on all pension systems (since many other
pension funding mechanisms had been similarly
amended) as well as to the debates of the drafters of
the Illinois Constitution, which clearly indicated that
the Constitution protected benefits only and not how
those benefits were funded.
The Illinois Supreme Court, in an opinion authored by Justice Nickels, agreed with the State of
Illinois and the Illinois Municipal League. The Court
found that the debates of the framers of the 1970
Constitution showed without a doubt that the intent
behind Article XIII, Section 5 was to protect benefits
only and not the method of funding those benefits.
Open and Obvious Danger Doctrine
In Bucheleres v. Chicago Park District, Illinois
Supreme Court Nos. 78760, 78790 (Consolidated), the
Illinois Supreme Court addressed the issue of whether
the Park District had a duty to warn or protect the public from the risks associated with diving from Lake
Michigan's seawalls. The Park District argued, as did
the amici, that it was immune from liability because the
danger associated with diving into the Lake was so
"open and obvious" that it carried its own warning of
potential harm.
The Illinois Supreme Court agreed with the Park
District and reconfirmed the existence of the open and
obvious danger doctrine in Illinois.
Collective Bargaining
The Illinois Supreme Court, in Village of Winfield v.
ISLRB, No. 80322, will address Section 20(b) of the
Illinois Public Labor Relations Act. This Section exempts public employers employing less than 35 employees from collective bargaining. The lower court
found that the Village of Winfield and the Winfield
Public Library in addition to other employees, "jointly
employed" ten library employees and that six summer
public works staffers were employees making Winfield
subject to collective bargaining.
The Illinois Municipal League, along with the City
of Peoria Heights, filed a brief arguing that the Village
and the library were separate units of local government and not "joint employers" of the library employees. The intent of the General Assembly in enacting
Section 20(b) was to exempt small units of government
from collective bargaining and this decision could
draw many more small municipalities into the collective bargaining process.
This case is pending with the Illinois Supreme
Court.
Intended and Permitted Users/Tort Immunity
In Redlin v. Village of Hanover Park, the Illinois
Municipal League filed an amicus statement in support
of the petition for leave to appeal filed by Hanover
Park, which unfortunately was denied by the Illinois
Supreme Court.
November 1996 / Illinois Municipal Review / Page 11
Pursuant to the Tort Immunity Act, a municipality
is only liable to intended and permitted users of public property. The plaintiff in this case was an unlicensed motorist who was under the influence of alcohol at the time of his accident. The lower court found
that despite these facts, the plaintiff was still an "intended and permitted user" of the roadway and the
Village was not entitled to immunity. The words "intended and permitted user" found in Section 3-102(a)
of the Tort Immunity Act, according to the lower
court, refer to the use of the roadway and not to those
using the roadway. Thus, because the road in this case
was intended to be used for vehicular traffic, the
Village was not immune from liability.
Unfortunately, this case will remain on the books
because the Illinois Supreme Court refused to hear it.
Hopefully, this problem will be addressed by the
General Assembly in future sessions.
TIF/Enterprise Zones
The case In Re Application of the McDonough County
Treasurer involves the following facts: the City of
Macomb established an enterprise zone and a TIF
which included some overlapping areas. Owners of
commercial real estate within both areas objected to
TIF taxation of improvements which were also subject
to enterprise zone tax abatement for new construction
or substantial renovation of private property within
the zone. The circuit court sustained objections to the
TIF taxation. The issue on appeal was whether a TIF
district is entitled to tax improvements when those improvements are made to property also located in an enterprise zone and subject to abatement.
In a very cursory, four-page opinion, the Appellate
Court found against the City. The Appellate Court relied on the fact that the enterprise zone tax abatements were enacted and the zone was certified before
the TIF ordinances were passed and because an
amendment to an enterprise zone must be approved
by the Department of Commerce and Community
Affairs (the TIF was not) that the TIF district could not
tax these improvements. Moreover, the Court stated
that even if this were considered an amendment to the
enterprise zone, that business enterprises within the
zone on the date of the amendment retained all previously extended benefits (abatements) for the original
term of the enterprise zone.
The ramifications of this decision are financially
devastating for the City of Macomb ($100,000 plus in
TIF collections for this year and $100,000 plus in refunds for prior years). Several other municipalities are
similarly situated to Macomb and could also withstand
a negative financial impact from this decision. The
City has filed a Petiton for Leave to Appeal before the
Illinois Supreme Court and the Illinois Municipal
League has filed a statement supporting that Petition.
Housing Inspection Ordinances
Black, et al. v. Village of Park Forest involves a Fourth
Amendment challenge to Park Forest's housing ordinance which requires annual inspection of single family rental properties. The plaintiffs are arguing that the
ordinance violates the Fourth Amendment's prohibition against unreasonable search and seizure. The
most important argument being made by the plaintiffs
is that traditional probable cause standards apply for
obtaining an administrative search warant for housing
inspections.
If this court agrees, this would be devastating for
cities because cities would have to rely on tenants to report code violations or wait until criminal violations
have become so severe that they can be seen from the
outside of the property. The League filed a memorandum of law supporting summary judgment for the village. This is pending in the United States District
Court for the Northern District.
Third-Party Liability
McNamee v. Fedesco v. City of Chicago involves a City
of Chicago firefighter who was killed while in training.
He jumped into the "life cube." His relatives then sued
the manufacturer of the cube, who in turn joined the
City as a third-party defendant. The City argued that
the Illinois Supreme Court case, Kotecki v. Cyclops
Welding, which limits the third-party liability of an employer to the amount of its statutory worker's compensation liability, should be extended to Pension Code
benefits under 40 ILCS 5/22-301 et seq.
The Circuit Court of Cook County certified the
question for interlocutory review by the First District
Appellate Court. The application was accepted. If the
First District Appellate Court provides an affirmative
answer to the certified question, municipal third-party
liability will be capped at amount of pension code benefits. The League has filed an amicus brief supporting
the City's position.
Fair Labor Standards Act
Wendell Banks v. City of Springfield, Case No. 96-3016, (United States District Court, Central District).
The City of Springfield is being sued by several sworn
police officers in federal court for allegedly violating
the Fair Labor Standards Act. All of the plaintiffs attended the police academy to receive training while
employed by the City. The police academy consists of
a ten-week training course. Class members reported to
the dormitory on 7:00 p.m. Sunday and resided there
until 4:00 p.m. on Friday, taking classes during the day.
Page 12 / Illinois Municipal Review / November 1996
Plaintiffs allege that they should be paid overtime for
hours in excess of 171 in a 28-day period as required
by the Fair Labor Standards Act, but instead were given compensatory time calculated at the hourly rate.
Plaintiffs are arguing that they are entitled to overtime
compensation merely because they are required to be
at the dormitory and are "subject to discipline" while
they are present at the dormitory. This is contrary to
the intent behind the Fair Labor Standards Act and
could be financially devastating for cities whose police
recruits are required to attend similar training. The
League is supporting the City's motion for summary
judgment at the District Court level.
Immunity for Recreational Property
Sylvester v. Chicago Park District, Illinois Supreme
Court No. 81138. The League will co-sponsor a brief
in this case which is pending before the Illinois
Supreme Court. This case involves a slip and fall in
Burnham Park. The plaintiff tripped on a concrete car
stop and fell on a sidewalk. The trial court found for
the plaintiff, imputing constructive notice to the Park
District under Section 3-102 of the Tort Immunity Act
relying on the post occurrence condition of the property. The Park District had argued on appeal that the
sidewalk was recreational property because it was located in the Park, without any additional proof of past
recreational use. The Appellate Court, nevertheless,
denied Section 3-106 immunity imposing a "past recreational use" test as a condition precedent to 3-106 immunity. This is contrary to the plain meaning of 3-106
and the decisions of other appellate districts as well as
other divisions of the First District.
Resolving this question is important to any public
entity which owns parks or other recreational properties. Section 3-106 immunity could be extended to all
property located within a park without proof of past
recreational use of that property. •
November 1996 / Illinois Municipal Review / Page 13
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