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Government Lawyers Newsletter
The newsletter of the ISBA’s Standing Committee on Government Lawyers

August 2002, vol. 4, no. 1

Case law update

Administrative law

Rodriguez v. Du Page County Sheriff's Comm'n., 328 Ill. App. 3d 899 (2d District, April 12, 2002). The provisions of section 3-111(a)(7) of the Administrative Review Law (735 ILCS 5/3-111(a)(7) (West 2000)) do not allow plaintiff to invoke the jurisdiction of the circuit court to seek an untimely review of the Commission's decision and remand the cause for the taking of "newly discovered evidence." Furthermore, a proceeding to collaterally attack the Commission's final administrative decision after the period for review has expired is not available to plaintiff under the facts and circumstances presented.

Appellate procedure

Allstate Insurance Co. v. Anderson, 329 Ill. App. 3d 93 (1st District, March 29, 2002). The court lacks jurisdiction to consider defendant's appeal filed more than 30 days after the trial court entered judgment on the arbitration award despite subsequent inadvertent dismissal for want of prosecution and allowance of motion to reinstate. The dismissal for want of prosecution had no effect, because a final judgment had already been entered and there were no pending matters. Plaintiff's motion to vacate the extraneous order of dismissal for want of prosecution did not constitute active participation in proceedings inconsistent with the merits prior to judgment. Therefore, the motion to reinstate did not serve to revest trial court with jurisdiction.

Clark v. TAP Pharmaceutical Products, Inc., No. 5-02-0101 (5th District, June 4, 2002). Petition for leave to appeal sent by private courier, Federal Express, to appellate court is deemed to be filed on date it is actually received by the court. Supreme Court Rules 11(b)(3), 12(b)(3) and 373, providing for constructive receipt by court on date of post mark, apply only to documents deposited with United States Postal Service. Thus, a constructive filing under the mailbox rule cannot be achieved by the use of a private courier. Further, any misinformation provided by a ministerial member of the clerk's office staff does not excuse late filing. Consequently, defendant's petition for leave to appeal is untimely and must be dismissed.

Civil procedure

People ex rel. Birkett v. City of Chicago, 329 Ill. App. 3d 477 (2d District, April 19, 2002). Because the Aeronautics Act (620 ILCS 5/1 et seq. (West 1998)) is not preempted by federal law and because there is a genuine issue of material fact as to whether the city of Chicago is required to obtain, in compliance with the provisions of section 47 of the Aeronautics Act (620 ILCS 5/47 (West 1998)), a certificate from the Illinois Department of Transportation before commencing the "World Gateway Project" for expansion of O'Hare International Airport, the trial court erred when it granted summary judgment to the city. Whether the city violated the Aeronautics Act, considering latent ambiguity in statutory language of "any alteration," is question of fact to be determined after hearing. However, court did not abuse its discretion by denying intervention by Henry Hyde and James "Pate" Philip, a member of Congress and a member of the Illinois General Assembly, as the legislators are not "State, county and municipal officer[s] charged with the enforcement of State and municipal laws to enforce and assist in the enforcement of all laws of this State pertaining to aeronautics". Moreover, the legislators make no claim of having a special interest apart from those of the other plaintiffs.

Civil rights

Redwood v. Lierman, No. 4-01-0612 (4th District, June 7, 2002). Trial court erred when it dismissed counts of plaintiffs' complaint alleging violation of Fourth and Fourteenth Amendments to the U.S. Constitution and of section 1983 of the Civil Rights Act (42 U.S.C. §1983), where sheriff's deputy, at the request of village officials, entered onto plaintiffs' private property to search and seize plaintiffs' van, without plaintiffs' consent, without a warrant and without giving plaintiffs notice and an opportunity for hearing. Seizure of personal property on private residential property absent reasonable notice to interested parties and an opportunity for hearing violates due process. Although plaintiffs have alleged that the village's "official policy" violated their Fourth Amendment civil rights, they failed to make any such allegation against the sheriff. Therefore, the trail court was correct to dismiss the "official capacity" action against the deputy sheriff. The trial court erred, however, in holding that the village had legislative immunity. Attorneys have legislative immunity for their work in drafting ordinances; the individual government officials have qualified immunity for their violation of the Fourteenth Amendment, but not for their Fourth Amendment rights violations.

Criminal law

Conflict of interest

People v. Miller, No. 91241 (May 23, 2002). Defendant was not deprived of his privilege against self-incrimination contained in article I, section 10 of the Illinois Constitution of 1970, by prosecutor calling him as adverse witness at probation revocation hearing, because defendant did not face a realistic threat that his answers at the probation revocation hearing would incriminate him in any further proceedings. However, prosecutor, who had appeared as the court-appointed attorney who represented defendant as defense counsel in the same case, suffered from a per se conflict of interest when she appeared at defendant's motion to reconsider the sentence following the probation revocation hearing. Therefore, the case must be remanded for the court to re-hear the motion to reconsider the sentence.

People v. Morales, 329 Ill. App. 3d 97 (1st District, March 28, 2002). The Sixth Amendment right to effective assistance of counsel entitles criminal defendants to the undivided loyalty of counsel, free from conflicting interests. Defense counsel in a capital murder case, who contemporaneously represents defendant and a potential state witness, has a per se conflict of interest, even though the witness does not testify against defendant at trial. Here, defendant's waiver was not knowing and intelligent. Therefore, the case must be remanded for a new trial.

Due process

People v. Lindsey, No. 89138 (June 20, 2002). Defendant's appearances in trial court via closed circuit television at the time of arraignment and jury waiver did not render those proceedings unconstitutional. To show a constitutional violation of the right to be present, there must be evidence that defendant's due process rights were violated by his absence from the courtroom, i.e., that defendant's physical absence from the proceedings caused the proceedings to be unfair or that his physical absence from the proceedings resulted in the denial of an underlying constitutional right. There has been no such showing in this case. Moreover, defendant's appearance by closed circuit television at his arraignment and jury waiver satisfied the statutory requirement that he "be called into open court" for arraignment and waive his right to trial by jury "in open court." (725 ILCS 5/103-6, 106D-1(a), and 113-1 (West 1998)). Further, although circuit court failed to adopt required rules for use of closed circuit television for court appearances, defendant was not deprived of a substantial right. Therefore, defendant's convictions and sentences are affirmed.

People v. Williams, No. 1-01-1010 (1st District, June 10, 2002). Trial court deprived the defendant of his constitutional rights to due process and confrontation of witnesses when it learned that defendant suffered from a hearing impairment requiring two hearing aids, but made no inquiry about the extent of the impairment and made no effort to ensure that defendant heard the testimony against him. Conviction reversed; case remanded for a new trial.

DUI

People v. O'Neil, 329 Ill. App. 3d 213 (2d District, May 3, 2002). The trial court erred when it denied defendant's petition to rescind the statutory summary suspension of his driving privileges. The petition to rescind was not filed more than 90 days from the time defendant received his first written notice that he had a right to file a petition to rescind as required by section 2-118.1(a) of the Illinois Vehicle Code (625 ILCS 5/2-118.1(a) (West 2000)). The 90-day period for filing a petition to rescind summary suspension of driving privileges does not begin to run until the defendant is notified of his right to a hearing to rescind the suspension.

People v. Thoman, No. 5-01-0127 (5th District, May 24, 2002). As used in the Illinois Vehicle Code, the term "blood" refers to "whole blood." Defendant's conviction of driving with a blood alcohol level in excess of .08 in violation of section 11-501(a)(1) of the Illinois Vehicle Code (625 ILCS 5/11-501(a)(1) (West 2000)) based on the results of "blood serum" analysis, rather than on an analysis of defendant's "whole blood," without any expert evidence explaining how blood serum concentrations could be converted to whole blood concentrations or without a request to take judicial notice of regulations regarding conversion, must be reversed for failure to prove an essential element of the charge of driving with an alcohol concentration of 0.08 or more.

Juvenile

In re Ben S., No. 3-00-0708 (3rd District, June 14, 2002). Contrary to the Illinois Appellate Court's holding in In re Nicholas K., 326 Ill. App. 3d 497 (2d District, December 21, 2001), minor defendant, convicted as a juvenile of three acts of aggravated criminal sexual assault, must register as a "sex offender" pursuant to the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 1998)).

Election law

Nolan v. Cook County Officers Electoral Board, 329 Ill. App. 3d 52 (1st District, March 29, 2002). The Cook County Officers Electoral Board and the circuit court erroneously concluded that the circulator's affidavit on plaintiff's nominating petitions for the office of Illinois senator were flawed as a matter of law. By including the phrase "qualified voters" in her circulator's affidavit, "qualified primary voters" in the prefatory language of her signature sheets, and by containing the limiting reference to the "18th senatorial district," the candidate substantially complied with the certification requirement of amended section 8-8 of the Election Code (10 ILCS 5/8-8 (West 2000)).

In re Objection of Russo, No. 2-02-0239 (2d District, June 12, 2002). After the local electoral board sustained one of proponent's objections to respondent's petition for the placement of a referendum on the ballot seeking to change the manner of electing the village trustees, proponent could not challenge that order by means of a counterclaim for mandamus. Although section 10-10.1 of the Election Code (10 ILCS 5/10-10.1 (West 2000)) only identifies objectors and candidates as persons who may seek judicial review under the section's provisions, petitioners also may file judicial proceedings pursuant to that section. Therefore, respondent's counterclaim for mandamus was properly dismissed.

Eminent domain

Southwestern Illinois Development Authority v. National City Environmental, L.L.C., 199 Ill 2d 225 (April 4, 2002). On rehearing, the Supreme Court found that the Southwestern Illinois Development Authority (SWIDA) exceeded its constitutional authority by taking defendant's land by eminent domain. SWIDA's action in taking defendant's property and transferring it to Gateway International Motorsports Corporation for Gateway's development of a private parking facility for its racetrack did not satisfy the "public use" requirement of the fifth amendment to the U.S. Constitution made applicable to the states through the fourteenth amendment.

Municipal law

Trust No. 1105 v. People ex rel. Little, 328 Ill. App. 3d 1033 (4th District, April 10, 2002). The trial court's grant of summary judgment to home rule municipality with regards to plaintiffs' objection to home rule municipality's property tax levy was proper. Because the Illinois Constitution of 1970 extends sovereign powers to home rule units, a home rule municipality's tax levy is not subject to judicial review for abuse of discretion under Central Illinois Public Service Co. v. Miller, 42 Ill. 2d 542 (1969).

Thompson v. Village of Newark, 329 Ill. App. 3d 536 (2d District, May 3, 2002). Section 11-12-5 of the Illinois Municipal Code (65 ILCS 5/11-12-5 (West 2000)) grants non-home-rule municipalities the authority to implement a comprehensive plan for the municipality's future development, including establishing reasonable requirements for the location of "school grounds." Section 11-12-5 of the Code, however, does not provide statutory authorization for non-home-rule municipalities to impose developmental impact fees for school construction on individuals seeking building permits based upon a formula specifically and uniquely designed to provide funding for new school buildings necessitated by population growth attributable to development. Therefore, the judgment of the circuit court is reversed.

City of Burbank v. Czaja, No. 1-01-3110 (1st District, May 8, 2002). Prior to the enactment of the Carrier and Racing Pigeon Act of 1984 (510 ILCS 45/1 et seq. (West 1994)), as an exercise of its home rule powers, the City of Burbank possessed the authority to enact an ordinance prohibiting the keeping of pigeons. Sections 7 and 8 of the Carrier and Racing Pigeon Act, however, preempted a home rule municipality's authority to prohibit the raising and keeping of carrier pigeons. When the preemption was later lifted by the General Assembly's amendment of the Act, eligible municipalities, such as Burbank, were permitted to prohibit or regulate the keeping of pigeons. Burbank's ordinance was merely dormant during the period after the enactment of the Act and before the General Assembly lifted the Act's restriction prohibiting regulation in Cook County. Therefore, trial court erred when it granted defendant's motion to dismiss plaintiff city's enforcement action.

Krohe v. City of Bloomington, No. 4-01-0229 (4th District, May 13, 2002). Section 10 of the Public Safety Employees Benefits Act (820 ILCS 320/10 (West 2000)), requires a municipality to pay the entire health insurance premiums for a full-time firefighter and his family, when the firefighter sustains a "catastrophic injury" in the line of duty. The phrase "catastrophic injury" refers to an injury that is sufficiently severe to force the firefighter to accept a "line-of-duty" pension.

Hanna v. City of Chicago, No. 1-00-2181 (1st District, May 14, 2002). In challenging the constitutionality of a municipal zoning ordinance creating a special district, the Lincoln Central Special District, plaintiff was required to plead and prove that the zoning ordinance fails to bear a substantial relationship to community health and welfare based upon six enumerated factors. The creation of the special district does not constitute "spot zoning." In addition, plaintiff sufficiently alleged imminent threat to property value by enactment of ordinance to qualify for injunctive relief. However, plaintiff cannot challenge ordinance based upon failure of a home rule municipality to follow its self-imposed requirements. Cause remanded.

School law

Shively v. Belleville Township High School District No. 201, No. 5-00-0177 (5th District, May 10, 2002). A contract between a construction manager and a school board, under the terms of which the construction manager is to deal with the construction schedule, cost-estimating and "constructability" with regards to the renovation of one school facility and the construction of another school facility is not the type of contract subject to the competitive bidding requirements of section 10-20.21 of School Code (105 ILCS 5/10-20.21 (West 1998))), but rather comes within the professional-services exception contained in section 10-20.21(i) of the School Code (105 ILCS 5/10-20.21(i) (West 1998)).

In re Governing Board of the Special Education District, No. 1-01-3767 (1st District, June 19, 2002). The Illinois Educational Labor Relations Board was not clearly erroneous in finding the mileage, release time and stipends received by teachers serving on Local Professional Development Committees constitute a mandatory subject of bargaining. Thus, the special education district committed an unfair labor practice under subsections 14(a)(1) and 14(a)(5) of the Illinois Educational Labor Relations Act (115 ILCS 5/1 et seq. (West 2000)) by refusing to bargain.

Special districts

Housing Authority v. Chapman, No. 3-00-0619 (3d District, May 17, 2002). Trial court erred when it found that housing authority tenant did not breach lease. Under federal law (42 U.S.C.A. §1437d(1)(6)), local public housing authorities are given the discretion to terminate the lease of a tenant when a member of the household or a guest causes a violation of the lease by engaging in drug-related criminal activity, regardless of whether the tenant knew, or should have known, of the drug-related activity.

State matters

Flynn v. Ryan, No. 90263 (May 23, 2002). The trial court erred by declaring Public Act 90-737 unconstitutional because plaintiffs lacked standing to urge any of the constitutional claims they raise. Plaintiffs complaint for declaratory and injunctive relief fails to allege that they are charged with any violation of the act or that they are contemplating violating the act. Therefore, plaintiffs have not sustained, nor are they in jeopardy of sustaining, a direct injury as a result of the enforcement of the statute. Thus, plaintiffs lack standing to challenge the constitutionality of the Gift Ban Act (5 ILCS 425/1 et seq. (West 2000)).

Tort Immunity

Rexroad v. City of Springfield, No. 4-01-0674 (4th District, June 17, 2002). School district and city were entitled to summary judgment dismissing plaintiffs' personal injury complaint alleging negligent maintenance of school parking lot adjacent to the football practice field, when plaintiff tripped, fell and was injured in excavation on lot. Recreational use provision of section 3-106 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-106 (West 1994)) insulates defendants from ordinary negligence claims.

Townships

Harris v. Eckersall, No. 1-01-2450 (1st District, June 7, 2002). Trial court properly granted defendants' motion to dismiss. Plaintiff did not state a cause of action against the township assessor or the township for termination of her employment as an assistant to the township assessor. Continued payment by the township of plaintiff's salary while assessor's office was vacant did not transform her into an employee of the township. Rather, plaintiff remained an at-will employee of the assessor.

Champaign Township v. County of Champaign, No. 4-01-0911 (4th District, June 17, 2002). Because section 15-20 of the Township Code (60 ILCS 1/15-20 (West 1998)) provides that a city, which is coterminous with a township and loses a referendum to disconnect annexed property from an adjoining township, remains coterminous with its original township, the city, by subsequently annexing property in the adjoining township, changes the boundaries of both the annexing and adjoining townships. Therefore, the trial court was correct when it granted summary judgment against the plaintiff, the adjoining township.

Unauthorized practice of law

Richard F. Mallen & Associates, Ltd. v. Myinjuryclaim.com Corp., No. 1-00-2912 (1st District, April 18, 2002). Trial court erred when it dismissed count of law firm's complaint against unlicensed corporation offering to evaluate personal injury claims of individuals injured in automobile accidents for a fee over the Internet. Because the practice of law by an entity not licensed constitutes infringement upon the rights of those who are properly licensed, attorneys and law firms have standing to bring a cause of action for the unauthorized practice of law

Zoning

Oak Grove Jubilee Center, Inc. v. City of Genoa, No. 2-01-0938 (2d District, June 6, 2002). Trial court erred by sua sponte dismissing plaintiff's complaint on grounds not raised by the parties in their pleadings; plaintiff was given neither notice nor an opportunity to be heard on the issues upon which the trial court based its dismissal. Since the decision to grant or deny special use permits in Illinois is a legislative act, plaintiff's petition for a special use permit need not establish that it has the capacity to sue, that its minister has authority to act on its behalf or that its minister is authorized to practice law. Complaint challenging ordinance requiring special use permit before the "use of a building" as church is not moot by virtue of termination of plaintiff's leasehold interest. Plaintiff can challenge special use requirement without possessory property interest.


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