Significant Cases In Municipal Law Illinois Municipal League

Significant Cases In Municipal Law. Illinois Municipal League Annual Conference Attorneys Session September 24, 2009 Michael F. Zimmermann Raysa & Zimmermann, LLC. 22 South Washington Ave. Park Ridge, IL 60068 847 -268 -8600 mfzimm@rzllc. com 1

Old FOIA – New Case Gekas v. Williamson, 2009 WL 2185509 (Ill. App. 4 th Dist. 7/20/2009): n n Followed Stern v. Wheaton. Warrenville School Dist. The court ordered the disclosure of police a officer’s internal affairs records. Continued the rejection of the personnel file “bucket” exemption. Just because it’s in a personnel file doesn’t mean its exempt. 2 ©Copyright, Michael F. Zimmermann, 2009

Gekas Continued o “The legislature exempted ‘personnel files and personal information, ’ as if it considered personnel files to be a repository of personal information. 5 ILCS 140/7(1)(b)(ii)” 3 ©Copyright, Michael F. Zimmermann, 2009

Forceful language of Gekas § “Unlike a performance evaluation, the [internal affairs] Division's records are not generated for Gillette's personal use, and they do not concern his personal affairs. ” § “What he does in his capacity as a deputy sheriff is not his private business. ” § “Whether he used excessive force or otherwise committed misconduct during an investigation or arrest is not his private business. ” § “Internal-affairs files that scrutinize what a police officer did by the authority of his or her badge do not have the personal connotations of an employment application, a tax form, or a request for medical leave. ” § “Not every scrap of paper that enters a personnel file necessarily is personal information. ” 4 ©Copyright, Michael F. Zimmermann, 2009

N. R. A. v. City of Chicago, (Con Law all over again) § When District of Columbia v. Heller, --- U. S. ----, 128 S. Ct. 2783, 171 L. Ed. 2 d 637 (2008) came down, Chicago took position that the case didn’t apply to Cities. • Chicago and Oak Park’s legal departments were awake during Con. Law. § Remember the Slaughter-House Cases? § Thorough discussion of “selective incorporation” approach to the second amendment. § Thorough explanation as to why US lower courts cannot reject old precedent or embrace European law. § If appeals courts were allowed to reject older cases simply because the rationale had become obsolete, “They would bind only judges too dim-witted to come up with a novel argument. 5 ©Copyright, Michael F. Zimmermann, 2009

A case to watch: Beary Landscaping v. Shannon, p. 18 o Plaintiffs alleged that the Department of Labor accepted, without any investigation, the prevailing wage rates submitted by the trade unions it traditionally recognized as performing a majority of the work in each classification. o Money Plaintiffs have already earned on existing contracts constitutes a valid property interest. —makes it a Fed Constitutional issue o Improper delegation of legislative function to private party is due process violation 6 ©Copyright, Michael F. Zimmermann, 2009

Beary Landscaping continued Olech Equal Protection claim sufficiently alleged n o If the IDOL is drawing lines between market actors with literally no coherent reason for the disparate treatment, that can implicate the Equal Protection clause. ” Compare to Illinois Landscape Contractors v. Department of Labor, 372 Ill. App. 3 d 912 (2 Dist 2007) 7 ©Copyright, Michael F. Zimmermann, 2009

Idris v. City of Chicago, o Camera Case--City ordinance provides for a fine against the owner of the vehicle, regardless of who was driving. o There are exceptions for owners of leased vehicles, person who have sold the vehicle, and persons who have had their vehicles or plates stolen. 8 ©Copyright, Michael F. Zimmermann, 2009

Idris –Continued o Plaintiffs’ argument that the “vicarious liability” element of the ordinance violates the due process clause failed o No fundamental liberty interest in play— payment of a $90 fine did not suffice. o No fundamental right at issue—no one has right to violate traffic laws and avoid camera in a public place. o Not discriminatory to make an exception where the car has been leased to another, etc. 9 ©Copyright, Michael F. Zimmermann, 2009

Steinbach v Forest Park— email trouble p. 20 o Plaintiff, the Commissioner of Forest Park and an unsuccessful candidate for Mayor, filed a complaint against the Village, its Mayor and one of its employees. o IT guy configured her village email to be forwarded to her personal email account. . . and to the Mayor’s email account (oops) o Alleged that Defendants improperly read and forwarded emails from her professional email account to the Mayor’s email account without authorization. 10 ©Copyright, Michael F. Zimmermann, 2009

Steinbach—continued o What about elected officials private email accounts? o “Plaintiff maintains that email communications from her constituents are private, and her assertion is not unreasonable. See Denver Pub. Co. v. Board of County Com'rs, 121 P. 3 d 190, 198 (Colo. 2005) (discussing the Colorado Open Records Act, which excludes “confidential communications” from constituents to elected officials from the definition of “public records” that are subject to disclosure). “ 11 ©Copyright, Michael F. Zimmermann, 2009

Steinbach o “Plaintiff claimed that she has an expectation of privacy in her Forest Park email, and Defendant cites no authority to the contrary. ” o No mention in the case of an email usage policy. o In statement of facts, the court itself refers to “private emails” from constituents. 12 ©Copyright, Michael F. Zimmermann, 2009

Steinbach o Court recognized tort of “intrusion upon seclusion. ” o Elements: (1) that the defendant committed an unauthorized prying into the plaintiff’s seclusion; (2) the intrusion would be highly offensive to the reasonable person; (3) the matter intruded upon was private; and (4) the intrusion caused the plaintiff to suffer. 13 ©Copyright, Michael F. Zimmermann, 2009