Illinois Appellate Courts Administrative Review IML LEGAL BULLETIN August 15, 2016 Printable Version of Opinion Summaries -------------------------------------------------------- Lopez v. Board of Fire and Police Commissioners of the Village of Bartonville, 2016 IL App (3d) 150520 (July 19, 2016). The board did not lose jurisdiction over the charges filed against a police officer when the hearing on his termination was scheduled more than 30 days after the charges were filed because the delay in the commencement of the hearing was attributable to the actions of the police officer s counsel, not the board. The village s police chief filed administrative disciplinary charges against the plaintiff on August 18, 2014. On August 28, counsel for the board proposed to plaintiff s counsel that the hearing take place between September 2 and 5. On September 25, after further dialog, plaintiff s counsel suggested the hearing be set for October 3, and the board confirmed the hearing would be set on that date. The plaintiff filed the instant complaint on September 29, 2014, arguing that the board lost jurisdiction over the charges against him because the hearing set by the board was more than 30 days after the charges were filed, in violation of Section 10-2.1-17 of the Board of Fire and Police Commissioners Act (65 ILCS 5/10-2.1-17). The trial court granted the board s motion for summary judgment, finding that the board still had jurisdiction over the charges because the delay in the commencement of the hearing was attributable to the plaintiff, not the board. The appellate court affirmed the trial court s decision because the board does not lose jurisdiction when the commencement of the hearing beyond the statutory 30-day period is attributable to the plaintiff. See, Carrigan v. Board of Fire & Police Commissioners, 121 Ill. App. 3d 303 (2d Dist. 1984).
FOIA Fraternal Order of Police v. City of Chicago, 2016 IL App (1st) 143884 (July 8, 2016). The city and its police department could not be preliminarily enjoined from disclosing the requested disciplinary files because neither Section 8 of the Illinois Personnel Record Review Act (Review Act) nor the pendency of the parties arbitrations under the collective bargaining agreement (CBA) interfered with their obligation to disclose the files under FOIA, where no FOIA exemptions applied. In two previous decisions, this court determined that CR files (registers of citizen complaints against police officers) were not exempt from disclosure under FOIA. See, Watkins v. McCarthy, 2012 IL App (1st) 100632; and Kalven v. City of Chicago, 2014 IL App (1st) 121846. Following those decisions, two newspapers submitted FOIA requests to the city s police department requesting the disclosure of certain information relating to citizen complaints filed against city police officers from 1967 to present. The plaintiffs (the unions representing the officers) filed the underlying complaint. In relevant part, the plaintiffs sought two preliminary injunctions to enjoin the city from releasing certain CR files pursuant to Section 8 of the Review Act and Section 8.4 of the CBA. Under Section 8 of the Review Act, certain disciplinary records more than four years old are required to be destroyed except when the release is ordered pursuant to a legal action or arbitration. Under Section 8.4 of the CBA, except for disciplinary records alleging criminal conduct or excessive force which are to be retained for seven years, records older than five years are to be destroyed. The circuit court granted the preliminary injunctions pursuant to Section 8 of the Review Act, enjoining the city from releasing those records pending resolution of the arbitration proceedings for the release of those records more than five years old challenged under Section 8.4 of the CBA. The appellate court vacated the circuit court s grant of the preliminary injunctions because the plaintiffs failed to show a likelihood of success on the merits of the rights claimed under the Review Act and the CBA. According to the court, the plaintiffs had no right to the destruction of disciplinary records more than five years old pursuant to the CBA because the destruction of those records would violate the requirements of FOIA as well as the public policy underlying the General Assembly s adoption of FOIA. In addition, pursuant to the court s ruling in Watkins, Section 8 of the Review Act does not prohibit disclosure of disciplinary actions if ordered to be disclosed pursuant to a FOIA action because Section 11 of the Review Act specifically provides that the Review Act shall not be construed to diminish a right of access to records already otherwise provided by law. Finally, following its decision in Kalven, CR files are not disciplinary records exempt from disclosure under Section 7(1)(n) of FOIA. Therefore, where no exemption applies, the requested records must be disclosed under FOIA.
Governmental Immunity & Liability Burns v. City of Chicago, 2016 IL App (1st) 151925 (July 19, 2016). The city was not liable for plaintiff s injury when he tripped and fell over defective sensory tiles at a city crosswalk because (1) the condition of the sidewalk was de minimus; (2) the city had no duty to construct or erect improvements to warn the plaintiff of the defect; (3) the city had neither actual nor constructive notice of the defect; and (4) the condition was open and obvious. The plaintiff filed suit against the city after he was injured when he tripped and fell over the sensory tiles, which are required by the Americans with Disabilities Act (ADA), at a crosswalk. The plaintiff claimed that the city was liable for his injuries because (1) the city negligently installed the ADA sensory tiles, which were three-fourths of an inch above the grade of the sidewalk; (2) failed to inspect the area of the sidewalk where he tripped; (3) failed to repair that portion of the sidewalk; and (4) failed to warn him of the dangerous nature of the sensory tiles. The trial court first dismissed the failure-to-warn allegation because Section 3-104 of the Tort Immunity Act precluded liability for the city s failure to provide barricades or warning signs in pedestrian areas. The trial court subsequently granted the city s motion for summary judgment on the other three allegations. The appellate court affirmed the trial court s decision because the city was immune from liability for plaintiff s injury. The appellate court first determined that the complained-about condition was de minimis because the height of the raised tiles was insubstantial and no aggravating factors existed. The appellate court then found that the trial court properly granted the city s motion to dismiss plaintiff s failure-to-warn allegation because the city s duty to maintain its property in a reasonably safe condition does not extend to creating or erecting public improvements. The appellate court then held that the city was not liable because it did not have actual or constructive notice of the sidewalk s condition. Finally, the appellate court determined that the city was not liable for plaintiff s injuries because the condition of the sidewalk was an open and obvious danger.
Governmental Immunity & Liability Lorenc v. Forest Preserve District of Will County, 2016 IL App (3d) 150424 (July 22, 2016). The district was not liable for the death of plaintiff s husband when he was killed during a bicycle riding event conducted by the district because (1) the plaintiff failed to plead sufficient facts to show that the district was guilty of willful and wanton conduct, and (2) the district was absolutely immune from liability under the discretionary provisions of the Tort Immunity Act. The plaintiff filed suit against the forest preserve district after her husband was killed during a bicycle riding event conducted by the district. Her husband s death occurred after a district volunteer, who monitored the trail for the safety of participants, went onto the trail, and waving his arms directing the cyclists to stop. The decedent, who was not wearing a helmet, swerved, fell off his bike, and sustained injuries that resulted in his death. The plaintiff claimed that the district was guilty of willful and wanton conduct and, hence, liable for her husband s death because the volunteer acted with conscious indifference and/or utter disregard for the safety of the ride s participants. The district filed two motions to dismiss, claiming (1) the plaintiff s allegations were insufficient to satisfy the statutory definition of willful and wanton conduct; and (2) it was absolutely immune from liability under the discretionary immunity provisions in the Tort Immunity Act. The circuit court granted the district s motions and the plaintiff appealed. The appellate court affirmed the decision of the circuit court. The court determined that the district was entitled to the granting of its first motion to dismiss because the plaintiff failed to present evidence that the monitor s actions, though incompetent, rose to the level of willful and wanton conduct. The court then held that the district was entitled to its second motion to dismiss because, under the discretionary provisions of the Tort Immunity Act, the monitor was exercising discretion when he went out onto the trail, and the district was exercising discretion when it placed trail monitors at various locations along the path.
Public Employment - Discrimination Murillo v. City of Chicago, 2016 IL App (1st) 143002 (August 2, 2016). The city violated Section 2-103(A) of the Human Rights Act when it refused to provide the plaintiff with a security clearance to continue working as a janitor at a city police station based upon a prior arrest, and who was ultimately terminated as a result, because the city changed the terms of plaintiff s employment based on the fact of an arrest, which did not indicate that she actually engaged in the conduct for which she was arrested. The plaintiff, a janitor at a city police station, brought this action against the city, claiming the city violated Section 2-103(A) of the Human Rights Act (775 UKCS 5/2-103(A)) after the city fired her based on a 1999 arrest for a drug charge, which was dismissed for lack of probable cause. The facts of this case show that the plaintiff worked as a janitor at a city police station through her employer, who was contracted by the city to do janitorial work, for three years without incident. The city later informed plaintiff s employer that it was required to conduct criminal background checks of those working in police stations in order to receive the appropriate security clearance. The background check of the plaintiff revealed a 1999 arrest for a drug charge, wherein narcotics were discovered at plaintiff s place of employment at that time. The arrest report only stated that the plaintiff was arrested because she was tending bar at the tavern where the narcotics were found, and the circuit judge dismissed her arrest for lack of probable cause. Based on the arrest discovered in the background check, the city refused to provide a security clearance to the plaintiff, and told her employer she was no longer allowed to work at the police station as a result. The plaintiff s employer subsequently fired the plaintiff. Relevant here, the plaintiff sued the city, claiming it violated the Act because it changed the terms of her employment based on the 1999 arrest. The trial court agreed, and granted plaintiff s motion for summary judgment on this issue. The appellate court affirmed the trial court s decision regarding the city s violation of the Act. Section 2-103(A) of the Act prohibits employers from [using] the fact of an arrest as a basis to discriminate in employment. Section 2-103(B) of the Act, however, permits employers to [obtain] or [use] other information which indicates that a person actually engaged in the conduct for which he or she was arrested. The appellate court determined, because the city only relied upon the arrest report to deny her the necessary security clearance, there was nothing to indicate that the plaintiff actually engaged in the conduct for which she was arrested. The arrest report only said that she was working where narcotics were found. Because the city refused her security clearance, the city changed the terms of her employment which resulted in her termination. Therefore, the appellate court held that the city violated Section 2-103(A) of the Act because it used the fact of an arrest that did not indicate that she engaged in the conduct for which she was arrested to change the terms of her employment.
Public Employment - Termination McDermott v. City of Chicago Police Board, 2016 IL App (1st) 151979 (July 8, 2016). The police board s termination of a police officer for a single instance of violating department rules was not arbitrary or unreasonable because (1) the hearing officer did not abuse her discretion in denying plaintiff s motion to have the board take administrative notice of files showing different treatment of other officers for similar conduct, as the circumstances were not completely identical; and (2) the evidence of the officer s serious misconduct was sufficient to warrant discharge. The plaintiff was a former police officer who challenged his termination for violating three police department rules. The police superintendent contended that the charges arose from plaintiff s appearance in a photograph depicting the plaintiff and another officer posing on their knees, holding rifles, and while kneeling over an unknown African-American man who was wearing deer antlers on his head, lying on his stomach, and sticking out his tongue. In addition, plaintiff s hand was on the throat of the unknown African-American man. Prior to the hearing, the hearing officer denied plaintiff s motion for the police board to take administrative notice of two complaint register (CR) files, where two other officers were disciplined differently by the superintendent for appearing in inappropriate photographs that went public. The hearing officer reasoned that Illinois case law clearly prohibits administrative notice of incidents where the disciplining bodies are different (i.e., the superintendent meted out the discipline in the CR files presented by the plaintiff, while the board was to mete out the discipline in this case). Following the hearing, the board ultimately concluded that plaintiff should be discharged from his position as a police officer. The board s reasoning for his termination was that he violated the three rules: (1) his conduct brought discredit upon the department, (2) disrespect and maltreatment of another person, and (3) unlawful or unnecessary use or display of a weapon. In addition, considering the seriousness of the misconduct, the mitigating factors presented by the plaintiff were not sufficient to warrant a lesser form of discipline. The circuit court denied plaintiff s motion for administrative review, and the appellate court affirmed the board s decision, finding that it was not arbitrary or unreasonable. First, the plaintiff challenged the hearing officer s denial of his motion to take administrative review of the CR files. The appellate court determined, however, the hearing officer properly denied plaintiff s motion because, although the officers in those files were disciplined for appearing in inappropriate photographs that garnered negative media attention, the facts of those cases were not sufficiently related to warrant taking administrative notice of them in the present matter. The court further determined that the board s decision to discharge plaintiff was not arbitrary, unreasonable, and unrelated to the requirements of service because the evidence of the officer s serious misconduct was sufficient to support the board s decision.
Workers Compensation Allenbaugh v. Illinois Workers Compensation Commission, 2016 IL App (3d) 150284WC (July 12, 2016). A police officer was not entitled to be awarded workers compensation benefits due to injuries he received in a vehicle accident while commuting in his private vehicle to mandatory training outside of his usual duty schedule because his injuries did not arise out of and in the course of his employment. The claimant was a police officer for the City of Peoria who filed a workers compensation claim for injuries he suffered from an automobile accident that occurred as he was traveling to mandatory training. The officer s regular work schedule was second shift. However, the officer was ordered to report for mandatory training at 8 a.m. As he traveled to the training, the roads were covered with ice and snow. A car struck the claimant s vehicle, forced him into a ditch and struck several trees, where he sustained neck and back injuries. The arbitrator found that the claimant sustained an accident arising out of and in the course of his employment. The commission reversed because the claimant was not responding to unlawful conduct or responding to an emergency at the time of the accident. According to the commission, the mere fact that the training claimant was required to attend occurred outside his usual duty hours was not sufficient to avoid the general rule that an employee is not performing any activities of employment when commuting to and from the workplace when driving a personal vehicle. The circuit court confirmed the commission s decision. The appellate court affirmed the decision of the commission, finding the accident that caused his injuries did not arise out of and in the course of his employment. The appellate court first determined that the claimant failed to demonstrate that his employer -- the police department -- maintained sufficient control over him as he commuted to work to show that the accident arose out of and in the course of his employment. In addition, the claimant did not meet the traveling employee exception to the general commuting rule because commuting is not encompassed in that exception.
Workers Compensation Moran v. Illinois Workers Compensation Commission, 2016 IL App (1st) 151366WC (July 29, 2016). The commission s decision that a firefighter/paramedic suffering from PTSD was not entitled to benefits under the Workers Compensation Act because the incident that caused his claimed psychological injury was not an accident that arose out of or in the course of his employment was against the manifest weight of the evidence. Even though the claimant, who was in a position of command at the time, did not sustain a physical injury, the evidence showed that he suffered a sudden, severe emotional shock, and his condition of ill-being was causally related to the accident. The claimant was a lieutenant firefighter/paramedic who filed an application for adjustment of claim pursuant to the Act against his employer, the Village of Homewood, seeking workers compensation benefits for post-traumatic stress disorder (PTSD) allegedly caused by a workrelated incident. The claimant claimed that, even though he delayed treatment, he suffered a sudden, severe emotional shock that occurred during a house fire, when he was in a position of command, which ended with the death of a co-worker. Comparing the claimant with other firefighters rather than with the public in general, the arbitrator determined that he was not entitled to benefits because his claimed injury did not arise out of and in the course of his employment. The arbitrator found that he did not sustain a physical injury, he did not witness the co-worker s death, and he was not involved in any rescue efforts. The commission affirmed and adopted the arbitrator s decision, and the circuit court confirmed the commission s decision. The appellate court reversed the circuit court s confirmation of the commission s decision and remanded the matter back to the commission. According to the appellate court, the commission s decision was against the manifest weight of the evidence. First, no physical injury is required under the Act because an employee who suffers a sudden, severe emotional shock traceable to a definite time, place, and cause which caused his psychological injury or harm has suffered an accident within the meaning of the Act, though no physical trauma or injury was sustained. Second, the fact that he was not present inside the house during the fire did not preclude the event from being traumatic. Third, the evidence indicated that the claimant suffered a sudden, severe emotional shock. Finally, his delay in seeking and acquiring treatment did not preclude his claim. Therefore, the appellate court held that the accident arose out of and in the course of the claimant s employment, and his condition of ill-being was causally related to the accident.
Federal Circuit Courts Fourth Amendment Neita v. City of Chicago, No. 15-1404 (7th Cir. July 19, 2016). The plaintiff sufficiently stated a cause of action of false arrest in violation of the Fourth Amendment to survive a motion to dismiss because he adequately alleged that the officers had no valid reason to arrest him for animal abuse and cruelty. The plaintiff sufficiently stated a cause of action of illegal searches of his person, vehicle, and place of business in violation of the Fourth Amendment because (1) considering he had a plausible false arrest claim, if true, the search incident to arrest would not have been warranted; (2) the illegal search claim, which was added to his amended complaint nine months after the statute of limitations for such claims ran out, was not untimely because the claim related back to the original complaint; and (3) if plaintiff s allegations were true, the officers were not entitled to qualified immunity. The plaintiff, the owner of a dog-grooming business and rescue shelter, filed this action against an animal control employee, the two city police officers who arrested him, and the City of Chicago after he was acquitted on all charges of animal cruelty and neglect. The complaint alleged that the individual defendants were liable under 1983 for false arrest and illegal searches in violation of the Fourth Amendment, and under Illinois law for malicious prosecution and intentional infliction of emotional distress. The facts showed that the plaintiff brought two dogs to the city s department of animal care and control because one of the dogs had become overly aggressive and the other became ill after giving birth to a litter of puppies. The animal control employee called the police, who arrested the plaintiff, then searched his person, vehicle, and business premises without a warrant. The state s attorney charged the plaintiff with two counts of animal cruelty and 13 counts of neglect. The plaintiff was acquitted of all charges. The district court judge granted the defendants motion to dismiss. On the federal claims, the judge found that the plaintiff failed to adequately plead any constitutional violation. In addition, the judge dismissed plaintiff s illegal searches claim as untimely because he filed those claims with his amended complaint nine months after he filed his original complaint and the statute of limitations ran out, and the officers were entitled to qualified immunity. Finally, the judge relinquished supplemental jurisdiction over the remaining state claims. The plaintiff appealed. The Seventh Circuit Court of Appeals reversed the district judge s ruling on the federal claims, finding that the plaintiff s allegations were sufficient to state claims for false arrest and illegal searches in violation of the Fourth Amendment to survive a motion to dismiss. According to the appeals court, the plaintiff adequately pleaded a cause for false arrest because the plaintiff alleged that the defendants arrested him without any evidence that he mistreated either of the dogs that he brought in. The appeals court also found that the plaintiff sufficiently pleaded a cause for illegal search of his person because the search incident to arrest was not warranted
considering he had a plausible false arrest claim. In addition, the plaintiff s claim of the illegal searches of his vehicle and place of business were not untimely because the claim related back to the date of the filing of the original complaint. Finally, taking the plaintiff s allegations as true, the officers were not entitled to qualified immunity. Thus, the appeals court remanded the matter back to the district court. In addition, with the federal claims reinstated, the state law claims were revived. Public Employment - Discrimination Stilwell v. City of Williams, No. 14-15540 (9th Cir. August 5, 2016). The city was not entitled to summary judgment in a city employee s claim that the city fired him in retaliation for planning to testify in a lawsuit against the city under the Age Discrimination in Employment Act (ADEA) because the employee was engaged in speech as a citizen for First Amendment purposes, and Congress did not intend to preclude 1983 First Amendment retaliation suits when it enacted the ADEA. Plaintiff sued his city employer for retaliation under 1983, alleging that he was fired for planning to testify against the city in a lawsuit where another employee was suing the city for age discrimination. Plaintiff asserted that his termination violated both the First Amendment and the retaliation provision of the ADEA. The district court granted the city s motion for summary judgment, finding the retaliation provision of the ADEA precluded a 1983 First Amendment claim. Applying the framework set forth in Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009), the Ninth Circuit Court of Appeals reversed the district court s decision and remanded. The court first rejected the city s argument that the plaintiff s speech fell outside of the First Amendment s protections because his speech -- the imminent testimony -- was outside the scope of his employment. Hence, he was engaged in speech as a citizen for First Amendment purposes. The court then determined that the retaliation provision of the ADEA did not preclude plaintiff s 1983 First Amendment claim because the disparities between the rights and protections of the ADEA s retaliation provision and the First Amendment as enforced through 1983, which make the ADEA s protections narrower than the First Amendment s in some important respects, demonstrate that Congress did not intend to preclude 1983 First Amendment retaliation suits.
Telecommunications State of Tennessee v. FCC, Nos. 15-3291 & 15-3555 (6th Cir. August 10, 2016). Section 706 of the Telecommunications Act of 1996 does not authorize the FCC to preempt state laws limiting their respective municipalities from providing broadband Internet service outside of their territorial limits because the Act fails to provide a clear statement authorizing the FCC to take such action. Municipalities in Tennessee and North Carolina provide broadband Internet service within their territorial boundaries, and they sought to expand their networks beyond their borders to underserved surrounding areas. Each state, however, enacted state laws that prohibited municipalities from providing the service outside of their territorial boundaries. Subsequently, the Federal Communications Commission (FCC) issued an order preempting these statutory provisions, claiming that it had the authority to preempt such state laws pursuant to its statutory mandates under 706 of the Telecommunications Act of 1996 to remove barriers to broadband service and to promote competition. The Sixth Circuit Court of Appeals, however, reversed the FCC s preemption order, finding that 706 of the Act fails to provide a clear statement authorizing such action. According to the Sixth Circuit, any attempt by the federal government to interpose itself into the relationships between the states and their political subdivisions requires a clear directive from Congress permitting it to do so, and 706 lacks such a clear statement. Zoning Zia Shadows, LLC v. City of Las Cruces, No. 15-2009 (10th Cir. July 22, 2016). The grant of summary judgment in favor of the city in plaintiff s due process and equal protection claims for delaying action on its zoning application was appropriate because the plaintiff failed to demonstrate that the city deprived it of a constitutionally protected property interest or that the city treated it differently from similarly situated mobile-home parks. In addition, the plaintiff was not entitled to a new trial because (1) the district court did not err in its jury instruction on plaintiff s First Amendment retaliation claim because the instruction followed the appropriate law; (2) the district court did not err in declining to strike a city employee from the jury on the basis of implied bias because the plaintiff failed to meet its burden of proof; and (3) the jury s verdict against the plaintiff on its First Amendment retaliation claim was supported by substantial evidence. The plaintiff, an owner and operator of a mobile-home park in the city, filed a 1983 claim against the city, alleging violations of its due-process, equal-protection, and First Amendment rights. The plaintiff specifically claimed that the city s delayed action and conditions of approval of its application for a planned unit development (PUD) deprived it of its property interest, the
city treated it differently than other mobile-home parks, and the city s actions were in retaliation for its public criticisms of the city. Even though the city s planning and zoning commission recommended approval of the application, the relevant facts of the case showed that the city delayed any action on the plaintiff s PUD application because the city council was concerned whether (1) the PUD would provide the sufficient public benefit pursuant to its PUD ordinances, and (2) the plaintiff could satisfy its obligations pursuant to the conditions imposed for approval due to the plaintiff s bankruptcy filing. The city ultimately approved the PUD application, subject to certain conditions, but the lender foreclosed on the property and it was later sold. The plaintiff s criticisms of the city are not clear from the court s opinion. The district court granted the city s motion for summary judgment on the plaintiff s due process and equal protection claims, but allowed the First Amendment retaliation claim to move forward. Before trial, the parties first disputed the jury instruction on this claim, but ultimately stipulated on the city s proposed instruction. During voir dire, the district judge denied plaintiff s for-cause challenge of a juror who was a city employee. After the parties cases in chief were presented, the district judge changed the jury instruction to what the plaintiff originally proposed. The jury ultimately returned a verdict in favor of the city. The district court denied plaintiff s motion for a new trial, and the plaintiff appealed. On appeal, the plaintiff claimed the district court erred when it granted the city s motion for summary judgment on the due-process and equal-protection claims, and that it was entitled to a new trial because (1) it was prejudiced by the change to the jury instruction; (2) on the basis of the implied bias of the juror who was a city employee; and (3) the jury s verdict on its First Amendment retaliation claim was against the clear weight of the evidence. The Tenth Circuit Court of Appeals disagreed with the plaintiff s arguments and affirmed the district court s decision. According to the appeals court, the plaintiff s due process claim failed because it failed to demonstrate the city deprived it of such an interest. In addition, the plaintiff s class-of-one equal protection claim failed because the plaintiff failed to (1) demonstrate that other similarly situated mobile-home parks were treated more favorably, and (2) meaningfully address the city s actions or reasons for the city s differential treatment. The appeals court also determined that the plaintiff was not entitled to a new trial. According to the appeals court, the district court did not abuse its discretion when it changed the jury instruction because the district court was not bound to the stipulation of an erroneous jury instruction and the plaintiff failed to demonstrate prejudice stemming from the given instruction. In addition, the district court did not abuse its discretion in refusing to strike the city employee from the jury because the plaintiff failed to meet its burden to show that the juror was so closely connected to the circumstances to question his objectivity. Finally, the jury s verdict on plaintiff s First Amendment retaliation claim was not against the clear weight of the evidence because the plaintiff failed to show that the city s actions were substantially motivated by the plaintiff s criticism of the city.