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Government Lawyers NewsletterThe newsletter of the ISBA’s Standing Committee on Government Lawyers

June 2004, vol. 5, no. 5

Case law update

Administrative law

Clark v. White, 343 Ill. App. 3d 689 (4th District, September 25, 2003). Hearing officer's decision to deny applicant a restricted driving permit is against the manifest weight of the evidence because applicant proved by clear and convincing evidence both that lack of driving privileges caused him an undue hardship, requiring that either he miss work or that his wife turn down overtime pay in order to transport him to work, and that he had resolved his alcohol problem. Lack of sufficient detail regarding previous arrests on a form is insufficient basis to deny request, particularly since applicant admitted that he was Level III high-risk dependent alcoholic.

Schulz v. Forest Preserve District, 344 Ill. App. 3d 658 (1st District, November 19, 2003). The Illinois Industrial Commission properly held that it lacked jurisdiction to consider an appeal from the decision of an arbitrator filed within 30 days of original decision when corrected decision (correcting clerical error with regards to claimant's name) was filed after notice of review had been filed and no petition for review of corrected decision was filed within 30 days thereof. Section 19(f) of the Workers' Compensation Act (820 ILCS 305/19(f) (West 2000)) requires strict compliance.

Gunther v. Civil Service Comm'n, 344 Ill. App. 3d 912 (1st District, December 9, 2003). Trial court properly dismissed plaintiff's complaint for administrative review of decision of Civil Service Commission upholding termination of his employment with the Illinois Department of Transportation (IDOT) because plaintiff failed to timely request summons be served on IDOT, as required by Administrative Review Law (735 ILCS 5/3-103, 3-105 (West 2002)). Further, service on the Attorney General, the attorney for IDOT, does not suffice.

Radaszewski v. Garner, 346 Ill. App. 3d 696 (2nd District, December 10, 2003). Trial court erred when it dismissed plaintiff's complaint seeking to enjoin enforcement of certain regulations of the Illinois Department of Public Aid (IDPA) that reduced the level of benefits for nursing care, to which plaintiff's son was entitled prior to turning 21 based on "unwritten policy" of IDPA, which IDPA adopted as formal regulation while plaintiff's complaint in Federal court was pending. (89 Ill. Adm. Code §140.435(b) (2000)). Because IDPA used proposed amendment to regulations to induce dismissal of plaintiff's challenge to defendant's denial of benefits to plaintiff's son, there is sufficient evidence in the record to show bias in the rulemaking process to withstand a motion to dismiss under section 2-615 of the Civil Practice Law (735 ILCS 5/2-615 (West 2002)).

Emerald Casino, Inc. v. Illinois Gaming Board, 346 Ill. App. 3d 18 (1st District, December 30, 2003). Complaint for mandamus and declaratory judgment by owner of riverboat casino seeking to compel the Illinois Gaming Board to move its gambling license to the Village of Rosemont is not subject to ripeness or exhaustion of administrative remedy defense because it is not a review of administrative decision, but is a review of statutory interpretation. Further, when the General Assembly passed section 11.2 of the Riverboat Gambling Act (230 ILCS 10/11.2 (West 2002)) providing that "the Board shall grant the application and approval upon receipt by the licensee of approval from the new municipality or county, as the case may be, in which the licensee wishes to relocate pursuant to section 7(j)," it intended for the term "shall" to be mandatory, not directory. Therefore, trial court erred when it granted summary judgment in favor of the Gaming Board instead of the casino and the village.

Highsmith v. Department of Public Aid, 345 Ill. App. 3d 774 (2nd District, January 21, 2004). Trial court correctly concluded that administrative decision by the Illinois Department of Public Aid (IDPA), denying plaintiff's claim of ownership in joint tenancy investment account held with his adult son, and that, therefore, all funds in account were subject to lien for child support owed by plaintiff's son, was clearly erroneous. Plaintiff met his burden of proving that funds belonged to him through documentary evidence, consisting of his tax returns and those of his son, coupled with his testimony regarding the source and purpose of the funds. Furthermore, IDPA rule requiring that proof of ownership be established though documentary evidence alone violates plaintiff's right to due process.

Constitutional law

People ex rel. Madigan v. Snyder, 208 Ill. 2d 457 (January 23, 2004). Governor has constitutional authority (Ill. Const. 1970, art. 5, §12) to commute death penalty sentences of inmates who failed to sign or otherwise authorize commutation petitions, as well as those inmates who had been found guilty but were not under sentence at the time of commutation. In addition, the Governor has the authority to order that the range of sentence for certain inmates be limited to natural life or a term of years by exercising power to issue partial pardon.

Counties

DMS Pharmaceutical Group v. County of Cook, 345 Ill. App. 3d 430 (1st District, December 29, 2003). Trial court properly dismissed complaint for declaratory judgment by unsuccessful supplier of pharmaceuticals, challenging contract by county with competitor to supply all pharmaceuticals to county-owned facilities for three years. Home rule county could create exception to competitive bidding process. In doing so, it would be acting legislatively rather than administratively. Further, county did not impermissibly delegate authority to comptroller by authorizing periodic payment for product supplied pursuant to the contract. The authorization of the comptroller to pay invoices upon receipt of a contract that the county has approved and for which a budget appropriation has been made is not a transfer of power from one branch of government to another. In addition, trial court did not abuse its discretion when it ruled that equity favored refusal to enjoin county's alleged violation of its own mandatory ordinance for paying for invoices over $10,000 because the requested relief would impose great hardship on the county and little benefit on the plaintiff.

Criminal law

Criminal appeals

People v. Flowers, 208 Ill. 2d 291 (January 26, 2004). Appellate court lacked jurisdiction to consider the merits of defendant's appeal from sentence imposed by trial court in excess of that contemplated by plea agreement because defendant failed to file the proper postjudgment motion required by Supreme Court Rule 604(d). Further, the appellate court lacked the authority to vacate the withholding order which the appellate court found to be void.

Criminal general

People v. Carter, 208 Ill. 2d 309 (November 20, 2003). Appellate court erred when it held that trial court had a duty to issue, sua sponte, involuntary manslaughter instruction in defendant's murder trial, particularly when evidence supported either mental state and defendant objected to issuance of instruction at trial.

In re Nicholas K., 345 Ill. App. 3d 333 (2nd District, November 14, 2003). In light of Supreme Court decision in In re J.W., 204 Ill. 2d 50 (2003), previous opinion of appellate court is vacated and trial court's order that juvenile delinquent must register as a sex offender pursuant to the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2000)) is affirmed.

In re Detention of Bolton, 343 Ill. App. 3d 1223 (4th District, November 13, 2003). Jury verdict finding defendant subject to commitment under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 through 99 (West 2000)) must be vacated. The trial court erred when it allowed the State to introduce findings of psychologists based on actuarial tests that had not been properly validated by means of a Frye hearing (see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)).

People v. Williams, 344 Ill. App. 3d 334 (3rd District, November 14, 2003). Defendant failed to establish jury intimidation when juror, who had received phone call from the county jail was excused, and she testified at hearing that she did not discuss phone call with other jurors, but stated that other jurors reported feeling uncomfortable when they were required to leave courthouse by walking through spectators who lined up and were staring at them. Further, defendant has not been denied real justice or prejudiced by trial court's failure to provide admonition required pursuant to Supreme Court Rule 605(a). Defendant did not attempt to challenge his sentence on appeal.

In re Detention of Erbe, 344 Ill. App. 3d 350 (4th District, November 13, 2003). Trial court properly admitted results of actuarial based evaluation techniques in commitment trial pursuant to Sexually Violent Persons Commitment Act (725 ILCS 207/1 through 99 (West 2000)) without Frye hearing (see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)), the actuarial risk-assessment instruments used in this case do not purport to involve a scientific principle, method, or test to which Frye applies. Moreover, even assuming that the actuarial instruments were subject to Frye, the use of actuarial risk-assessment instruments is generally accepted by professionals who assess sex offenders for risk of reoffending. Further, defendant was not denied effective assistance of counsel by attorney moving to continue and failing to appear at probable cause hearing. In addition, evidence was sufficient for jury to find defendant qualified for commitment as a sexually violent person; trial court did not abuse its discretion when it ordered defendant committed to secure facility.

People v. Ramirez, 344 Ill. App. 3d 296 (2nd District, December 1, 2003). Trial court erred when it conducted unlawful possession of cocaine with intent to deliver trial in abstentia of defendant who had not been served with notice of trial date by certified mail as required by section 115-4.1(a) of Code of Criminal Procedure of 1963 (725 ILCS 5/115-4.1(a) (West 1992)). Although defendant was represented by counsel, defect in notice was not harmless error.

People v. Jones, 344 Ill. App. 3d 684 (2nd District, December 5, 2003). Because the language of section 11-501.2(c)(2) of the Illinois Vehicle Code (625 ILCS 5/11-501.2(c)(2) (West 2002)) explicitly authorizes nonconsensual administration of chemical tests in driving-under-the-influence cases where the suspected impaired driver causes death or bodily injury to another, it implicitly forbids involuntary collection when no such injury occurs. Therefore, trial court properly excluded the results of blood and urine tests conducted on samples involuntarily drawn from defendant while he was treated in the emergency room.

People v. Price, 345 Ill. App. 3d 129 (2nd District, December 18, 2003). Trial court erred when it denied defendant's motion for forensic testing, pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2000)), of swabs from victims' anus admitted in defendant's trial for aggravated sexual assault of fellow inmates based on limitations violation. Limitations period for post-trial motions does not apply to section 116-3 motions. Further, despite pervasive eyewitness testimony, DNA testing of swabs could materially advance defendant's claim of innocence. On remand, court must ascertain whether testing requested by defendant was generally available at time of trial.

Criminal counsel

People v. Broughton, 344 Ill. App. 3d 232 (1st District, October 31, 2003). Trial court did not err when it dismissed defendant's post-conviction petition after appointing counsel and allowing amendment thereto but without evidentiary hearing. Affidavits of accomplice in murder trial that defendant did not kick or punch victim in course of robbing victim's trailer, and of other witnesses, were not sufficient to conclude a substantial likelihood of a different outcome at trial had their testimony been available. Further, no ineffective assistance of post-conviction counsel was established.

People v. Rish, 344 Ill. App. 3d 1105 (3rd District, November 10, 2003). Trial court erred when it dismissed post-conviction petition of murder defendant without an evidentiary hearing. Petition and affidavits sufficiently allege violation of defendant's due process rights under Illinois Constitution (Ill. Const. 1970, art. I, §§2, 10), which entitles those subject to custodial interrogation the right to conflict-free counsel, when attorney representing defendant allowed her to make series of inconsistent statements during two days of interrogation without informing her that he was close personal friend of victim and attorney for police officer involved in the investigation.

People v. Eghan, 344 Ill. App. 3d 301 (2nd District, November 13, 2003). Cumulative effect of State's comments in closing argument about evidence that court had previously ruled inadmissible and the introduction of testimony that defendant refused to take drug test to ascertain whether drugs were in his system and that defendant had previous encounters with police was to deprive defendant of a fair trial for possession of cocaine. Justice and fundamental fairness require defendant's conviction and sentence be reversed, even though counsel failed to object to much of testimony.

People v. Davis, 344 Ill. App. 3d 400 (4th District, November 13, 2003). Defendant may not challenge alleged improper condition of probation for the first time on appeal from probation violation finding, because those conditions are voidable, not void ab initio. Further, trial court did not abuse its discretion when it allowed introduction of one of two prior convictions, at request of prosecutor, for impeachment. In addition, prosecutor could properly comment on failure of defendant's sister to testify in response to defense argument that cocaine could belong to other persons occupying defendant's dwelling.

People v. Probst, 344 Ill. App. 3d 378 (4th District, November 21, 2003). Defense counsel, who had previously represented State's confidential informant in a criminal matter, was not operating under per se conflict of interest, and record does not demonstrate any actual conflict of interest. Further, there was insufficient evidence to compel trial court to tender mistake of fact instruction to jury. In addition, defense counsel's failure to object to admission of lab report and accompanying affidavit did not constitute ineffective assistance of counsel.

People v. Taylor, 344 Ill. App. 3d 929 (1st District, December 3, 2003). Although presumption of intent contained in section 16A-4 of the Criminal Code of 1961 (retail theft statute) (720 ILCS 5/16A-4 (West 2000)) is unconstitutional, it can be severed from the rest of the statute. There is no evidence that trial court relied on presumption in record. Further, claim of ineffective assistance of trial counsel for conceding that defendant stole something fails because defendant failed to demonstrate how concession prejudiced defendant in light of overwhelming evidence of defendant's guilt and rigorous defense provided by trial counsel throughout trial.

People v. Parker, 344 Ill. App. 3d 728 (3rd District, December 5, 2003). Defendant was not deprived of right to counsel when he made inculpatory statements in response to police officer reading him his arrest warrant, as officer perceived was required under Iowa law. Police officer did not reasonably expect that his conduct was likely to elicit a response from defendant, and defendant knowingly and intelligently waived right to counsel. In addition, record is insufficient to resolve claim of ineffective assistance of counsel, making it more appropriate for court to address it through post-conviction petition. Finally, the trial court failed to properly admonish defendant of his need to file a motion for reconsideration if he wished to challenge his sentence. Because of the inadequate Supreme Court Rule 605(a)(3) admonition, case must be remanded to trial court.

People v. Moore, 345 Ill. App. 3d 1043 (4th District, December 18, 2003). Defendant was not denied due process or equal protection when State's Attorney communicated policy of refusing to plea bargain with defendant because defendant demanded to know the identify of the State's confidential informant. There is no constitutional right to plea bargain, and it was not misconduct for State's Attorney to make plea negotiations contingent on defendant waiving right to know identity of confidential informant.

People v. Mena, 345 Ill. App. 3d 418 (1st District, December 22, 2003). Trial court did not abuse its discretion when it refused second degree murder jury instruction in trial for murder of driver of vehicle which rammed defendant's vehicle because, although there was evidence of provocation, the defendant's conduct of smashing unconscious victim's head with a jack hammer was disproportionate to provocation. Further, improper closing arguments of prosecutor did not constitute plain error and could have been remedied by prompt objection. However, imposition of extended term sentence for exceptionally brutal conduct by defendant without commensurate jury finding is not harmless error and the sentence must be vacated.

People v. Jennings, 345 Ill. App. 3d 265 (4th District, December 31, 2003). Trial court erred when it summarily dismissed defendant's post-conviction petition challenging 60-year sentence for open plea of murder because appointed counsel failed to file proper Supreme Court Rule 651(c) certificate, failed to properly examine trial court record, failed to amend petition to properly state claim of ineffective assistance, and failed to make proper record of disparate sentence that trial counsel could have raised in timely filed motion challenging sentence.

People v. Rials, 345 Ill. App. 3d 636 (1st District, December 31, 2003). Defendant in post-conviction petition was not deprived of effective assistance of counsel for failure to raise issue in amended petition. Counsel is required to provide a reasonable level of assistance at post-conviction hearing. Appointed counsel is not required to comb the record for issues not raised in the defendant's pro se post-conviction petition. Counsel provided reasonable assistance to defendant by effectively investigating and presenting issues brought to her attention by defendant.

People v. Bartimo, 345 Ill. App. 3d 1100 (4th District, January 15, 2004). Evidence was sufficient to convict defendant of unlawful use of weapon (UUW) and unlawful possession of cannabis based on testimony of police officer. Although defendant had valid temporary sticker, police officer observed an expired registration on defendant's vehicle. Police officer had probable cause to stop vehicle to further investigate. Upon observing rifle in defendant's trunk and unzipped soft sided gun case on back floor of vehicle, officer could properly order defendant to exit vehicle and conduct search of defendant and his vehicle. Further, officer's testimony that weapon could be reached by driver was sufficient to find weapon placed at bottom of laundry basket was accessible to driver and support conviction for UUW. In addition, defense counsel was not ineffective for failure to point out that temporary sticker was valid for 120 days. Claims of ineffective assistance of counsel are evaluated under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), which requires a showing that counsel's performance was deficient and resulted in prejudice. Additional objection by counsel would not have changed result of trial or motion to suppress.

People v. Brooks, 345 Ill. App. 3d 945 (1st District, January 16, 2004). Prosecutors misstatement of law, that the "presumption, that the cloak of innocence is gone," was not part of pervasive pattern of misconduct during trial, was harmless error and was waived by defense counsel's failure to object. Further, failure to procure alibi witness by invoking Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act (725 ILCS 235/6 (West 2000)) after extensive search revealed that he was convicted felon incarcerated in California, did not constitute ineffective assistance of counsel because outcome of trial would not likely have changed. Defendant suffered no prejudice. There was no showing that defense counsel was less than diligent or that court would have likely continued trial.

People v. Hart, 345 Ill. App. 3d 822 (4th District, January 21, 2004). Prosecutor's violation of Supreme Court Rule 402(f) by eliciting testimony that defendant solicited plea negotiation and by arguing that defendant's guilt can be inferred from his request for plea negotiation in exchange for full disclosure, constituted plain error in defendant's trial for armed robbery and aggravated fleeing or attempting to elude a police officer.

People v. Rucker, No. 1-01-3617 (1st District, February 2, 2004). Defendant's pro se motion to reduce sentence at time that he was represented by counsel did not deprive appellate court of jurisdiction even though it contained a claim of ineffective assistance of counsel because ineffective assistance claim is nothing more than bald assertion without any specifics for court to investigate. Further, defense counsel's failure to file motion to suppress contraband evidence, seized in warrantless search of defendant incident to arrest was legitimate trial strategy decision because motion would not have likely succeeded, the police having witnessed several purchase transactions prior to defendant's arrest. Further, defendant's sentence as Class X offender after being convicted of possession with intent to deliver pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (730 ILCS 5/5-5-3(c)(8) (West 2002)) does not violate Apprendi.

People v. Bloomingburg, 346 Ill. App. 3d 308 (1st District, February 3, 2004). In defendant's trial for murder, with overwhelming evidence of defendant's guilt, it was not ineffective assistance of counsel for defense attorney to concede that defendant's conduct caused death of victim while arguing unavailable theory of self-defense. Further, the firearm enhancement provision of section 5-8-1(a)(1)(d) of the Unified Code of Corrections (730 ILCS 5/5-8-1(a)(1)(d) (West 2000)) does not violate proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11) or constitute impermissible double enhancement.

People v. Lamon, No. 3-02-0754 (3rd District, February 13, 2004). Evidence was sufficient to support conviction of defendant for aggravated criminal sexual assault of victim who recanted her statement in the form of a notarized letter but testified consistent with her original statement. Inconsistencies between victim's earlier statements and direct testimony do not establish prosecutorial misconduct for presenting known perjured testimony. Further, although trial court erred when it failed to admonish jury about avoiding media accounts and failed to make proper investigation into impact of newspaper article read by several jurors, its error was harmless.

Double jeopardy

People v. Blue, 207 Ill. 2d 542 (November 20, 2003). Principles of collateral estoppel and double jeopardy do not preclude the State from seeking the death penalty for first degree murder upon remand after reversal for prosecutorial misconduct.

People v. Sienkiewicz, 208 Ill. 2d 1 (December 4, 2003). Defendant, having pled guilty of reckless driving, could not subsequently be charged with reckless homicide for operating his motor vehicle at excessive rate of speed and leaving roadway resulting in death of passenger without unconstitutionally subjecting him to double jeopardy. Both charges are based on the same physical act and reckless driving is a lesser-included offense of the reckless homicide charge.

Sentencing

People v. Sanchez Jr., 344 Ill. App. 3d 74 (1st District, November 4, 2003). Defendant's mandatory sentence of life imprisonment after having been previously convicted of criminal sexual assault pursuant to section 12-14(d)(2) of the Criminal Code of 1961 (720 ILCS 5/12-14(a)(2) (West 2000)) violates neither proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11) nor his right to a jury trial guaranteed by article I, section 13 of the Illinois Constitution. Further, finding of previous conviction for criminal sexual assault need not be made by jury but could be made by judge.

People v. Elizalde, 344 Ill. App. 3d 678 (2nd District, December 3, 2003). Because defendant has not yet completed his period of mandatory supervised release, his appeal from sentence upon revocation of probation for conviction of third DUI is not moot. Further, since judgment incorrectly refers to conviction of third DUI as Class 2, rather than Class 3 felony, it must be remanded for resentencing. However, imposition of $100 assessment, pursuant to section 5-1101(d) of the Counties Code (55 ILCS 5/5-1101(d) (West 2002)), is not subject to $5 per day credit for time served, it being a "fee" and not a fine.

People v. Sawczenko-Dub, 345 Ill. App. 3d 522 (1st District, December 16, 2003). Defendant's 45-year sentence for murder of her husband plus the mandatory 25-year enhancement for having personally discharged a firearm during the course of the offense violates neither the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11) or the double jeopardy or double enhancement prohibitions of the constitution either on its face or as applied to this defendant.

Election law

Du Page County Election Comm'n v. State Board of Elections,345 Ill. App. 3d 200 (2nd District, December 11, 2003). The State Board of Elections has discretion to issue amended certification pursuant to section 7-14 of the Election Code (10 ILCS 5/7-14 (West 2002)), to correct certification issued "in error" after candidate served request to withdraw from primary election for Governor, even though request was made after primary deadline for certification had passed. Local election authorities are required to exhaust all reasonable efforts to comply with amended certification.

Cardona v. Board of Election Commissioners, 346 Ill. App. 3d 342 (1st District, February 26, 2004). Decision by Board of Election Commissioners of the City of Chicago to overrule objection to nominating papers of candidate for state representative, asserting that they were defective because receipt from Secretary of State filed by candidate failed to identify office which he was seeking, was not clearly erroneous. Nothing in the Election Code requires the receipt filed with the nominating petitions identify the office the candidate is seeking.

Labor law

Metzger v. DaRosa, 209 Ill. 2d 30 (February 20, 2004). Section 19c.1 of the Personnel Code (20 ILCS 415/19c.1 (West 2002)), which prohibits retaliation against an employee who reports wrongdoing by other State employees, does not create an implied private right of action for damages against the State for its violation.

City of Calumet City v. Illinois Fraternal Order of Police Labor Council, 344 Ill. App. 3d 1000 (1st District, November 26, 2003). Home rule municipality failed to demonstrate that arbitral award in favor of union on three economic collective bargaining issues: (1) lifting residency requirement; (2) providing the officers with the option of grievance arbitration for discipline in excess of five days; and (3) granting authority to wear official uniforms while engaged in secondary employment, was arbitrary or beyond authority of arbitration panel.

County of Vermilion v. Illinois Labor Relations Board, 345 Ill. App. 3d 1126 (4th District, December 5, 2003). Illinois Labor Relations Board (ILRB), State Panel's determination that full-time corrections sergeants represent an appropriate unit for collective bargaining because they do not qualify as "supervisors" within meaning of section 3(r) of the Illinois Public Labor Relations Act (5 ILCS 315/3(r) (West 2000)), was properly based on its conclusion that sergeants do not spend the preponderance of their time in supervisory functions.

Mental health law

In re Marriage of Peters-Farrell, 345 Ill. App. 3d 603 (1st District, December 31, 2003). Because pharmacies qualify as an "agency," as that term is used in the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq. (West 2000)), prescription records of a pharmacy for mental health treatment are protected and are not subject to subpoena absent specific order of court following criteria set forth in the Act.

Municipal law

Village of Lake Villa v. Stokovich, No. 95118 (February 20, 2004). Appellate court erred when it held that section 11-31-1 of the Illinois Municipal Code (65 ILCS 5/11-31-1(a) (West 1996)) violates due process. Because the statute requires that a city give a property owner 15 days notice of need to put building in safe condition before it files complaint for demolition and because it is reasonably related to legitimate state interest of protecting public health and safety, it does not violate due process. Further, because use of state power in this case is for the purpose of preventing public nuisance, it is not an impermissible "taking." However, although trial court's holding that building was unsafe was supported by the evidence, its determination of value was not. Therefore, case must be remanded for trial court to reconsider demolition order.

Village of Algonquin v. Tiedel, 345 Ill. App. 3d 229 (2nd District, December 31, 2003). Trial court properly found defendants guilty of violating ordinance by failing to obtain permit to hook up their homes to municipal water system after water main was extended to within 300 feet of their homes. Mandatory connection to a municipal water supply is a valid exercise of police power and is consistent with authority granted by the Illinois Municipal Code.

People v. Lee, 345 Ill App. 3d 782 (3rd District, January 16, 2004). Municipal ordinance prohibiting loitering for drug-related activity is unconstitutionally vague by containing insufficient guidelines for average person to understand what conduct is being prohibited and being so broad that it could potentially punish innocent conduct. Therefore, the trial court erred when it denied motion to suppress evidence seized from defendant's person after search incident to arrest revealed container with illegal drugs in defendant's pants leg.

Unterschuetz v. City of Chicago, 346 Ill. App. 3d 65 (1st District, January 22, 2004). Because there is a presumption that city ordinances are statements of policy and not contractual provisions and because plaintiff's complaint fails to allege the existence of a promise by the city and an acceptance by plaintiff, trial court properly dismissed plaintiff's breach of contract complaint, seeking attorney fees and compensation for diminution of pension fund, for period of time he was successfully appealing his discharge.

City of Chicago v. Latronica Asphalt & Grading, Inc., 346 Ill. App. 3d 264 (1st District, February 17, 2004). City, which sued for cleanup cost of a lot on which defendant allegedly illegally dumped construction debris, is not subject to five-year limitations period of section 13-205 of the Code of Civil Procedure (735 ILCS 5/13-205 (West 2000)) because it is asserting a public right and is therefore immune from limitations defense.

Open Meetings Act

University Professionals v. Stukel, 344 Ill. App. 3d 856 (1st District, December 8, 2003). The Council of Presidents, an organization consisting of the presidents or chancellors of the various State universities in Illinois and which gives advise to and makes recommendations to the Illinois Board of Higher Education, is not a "public body," as that term is defined in the Open Meetings Act. Therefore, the Council is not required to comply with the provisions of the Act.

Gerwin v. Livingston County Board, 345 Ill. App. 3d 352 (4th District, December 31, 2003). Complaint challenging vote taken by county board to expand landfill because board allegedly violated section 2.01 of the Open Meetings Act (5 ILCS 120/2.01 (West 2002)) by holding a meeting to consider expansion of landfill at an "inconvenient" place, the county board room, when board knew that meeting would draw large crowds and there were alternate venues available, presents question of fact which should not have been disposed of through motion to dismiss. Therefore, trial court erred when it granted sections 2-615 and 2-619 motions to dismiss.

Taxation

Quad Cities Open, Inc. v. City of Silvis, 208 Ill 2d 498 (January 23, 2004). Non-home-rule municipality may not tax gross receipts from admission tickets for a charitable golf tournament designed to make a profit with revenues to be distributed to charities in the Quad Cities area. Fact that charitable event is designed to make money does not necessarily mean that it is event engaged in "for gain" within meaning of section 11-54-1 of the Illinois Municipal Code (65 ILCS 5/11-54-1 (West 2002)).

Cook County Board of Review v. Property Tax Appeal Board, 345 Ill. App. 3d 539 (1st District, December 16, 2003). The Property Tax Appeal Board (PTAB) lacks the authority, under either the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2000)) or PTAB's own rules, to review issues and to grant relief beyond that raised by taxpayer before county board of review. Thus, PTAB erred when it changed level of assessment for retail property from 38 percent mandated by county assessment ordinance to 25 percent.

Cook Communications Ministries v. Department of Revenue, 345 Ill. App. 3d 753 (2nd District, January 8, 2004). Trial court erred when it reversed decision of the Illinois Department of Revenue denying taxpayer religious exemption for property owned by it to produce greeting cards and religious materials in 1999, because decision of Department is not against manifest weight of the evidence. Building during part of year was used to run for-profit greeting card company and, therefore, was not "used exclusively for religious purpose" within section 15-40 of the Property Tax Code (35 ILCS 200/15-40 (West 1998)).

Eden Retirement Center, Inc. v. Department of Revenue, 346 Ill. App. 3d 252 (5th District, January 21, 2004). The Illinois Department of Revenue erred as a matter of law when it denied a charitable-use exemption to parcel of property containing senior citizen independent living units owned by corporation qualified as a not-for-profit corporation by the Internal Revenue Code and containing provision in by-laws authorizing waiver in full or part of rent based on resources of resident and resources of corporation. As held by trial court, section 15-65 of the Property Tax Code (35 ILCS 200/15-65 (West 2000)) does not require additional proof of actual and exclusive charitable use of property in order to qualify for exemption.

Lake Point Tower Garage Ass'n v. Property Tax Appeal Board, 346 Ill. App. 3d 389 (1st District, February 11, 2004). The Property Tax Appeal Board (PTAB) correctly concluded that the subject level of a parking garage that was owned by a condominium association, but was operated as a commercial garage by a contracted management company, was not entitled to a special $1 assessment for common areas of condominium used for recreational purposes under either section 10-35(a) of the Illinois Property Tax Code (35 ILCS 200/10-35(a) (West 1996)) or section 10(a) of the Condominium Property Act (765 ILCS 605/10(a) (West 1996)).

Tort immunity and liability

Ozik v. Gramins, 345 Ill. App. 3d 502 (1st District, October 27, 2003). Evidence that police officers stopped severely intoxicated 19-year-old driver and issued traffic citations to him, but allowed him to continue driving vehicle, was sufficient for jury to award damages for wrongful death of passenger of intoxicated driver's car, subsequently killed in motor vehicle accident, based on officers' willful and wanton negligence. Further, there is no immunity under sections 4-102 and 4-107 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West 1994)). In addition, defendants waived issue of contribution from driver by failing to tender jury instruction on that issue at trial.

Hill v. Galesburg Community Unit School District 205, 346 Ill. App. 3d 515 (3rd District, February 19, 2004). Although counts of complaint alleging ordinary negligence for violation of the Eye Protection in School Act (105 ILCS 115/1 (West 2002)) are subject to 2-619 dismissal based on sections 2-201 and 3-108 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-201, 3-108 (West 2002)), the counts alleging willful and wanton negligence are not. The plaintiff sufficiently alleges acts from which reckless disregard for safety of plaintiff can be inferred.

Zoning

Inland Land Appreciation Fund, L.P. v. County of Kane, 344 Ill. App. 3d 720 (2nd District, December 5, 2003). County ordinance authorizing county to contract with outside consultant for review of plats and contract with subdivision applicant to reimburse county for consultant's expenses in order to expedite review of subdivision plat is authorized by sections 5-1005(3) and 5-1018 of the Counties Code (55 ILCS 5/5-1005(3), 5-1018, (West 2000)). Therefore, trial court properly denied plaintiff's complaint for declaration that assessment of consultant's fee is ultra vires.

Shipp v. County of Kankakee, 345 Ill. App. 3d 250 (3rd District, December 16, 2003). Trial court erred when it ordered county to issue special use permit for manufactured home park based on application that was incomplete under ordinance because it did not contain specific dimensions of any buildings or structures, the location of sewer lines or water supply lines, or a description of the internal lighting and electrical systems. County is entitled to specify requirements for application for special use permit. Further, ruling that village had improperly denied sewage services when no application had been made and that county was required to issue variance are premature.


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